Criminal Justice Reform in Russia, Ukraine and the Former Republics of the Soviet Union: Trial by Jury and Mixed Courts

“A comprehensive and masterful book about the role of laypersons in the criminal justice systems of twelve countries that emerged from the former Soviet Union as independent states in 1991: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.”
-Prof. Neil Vidmar, Duke University School of Law

“. . . a major breakthrough on the historic, social-political place of lay adjudication and lay participation of both the Soviet Union and post-Soviet states. . .”
-Prof. Hiroshi Fukurai, University of California, Santa Cruz

From the Foreword: “. . . an invaluable source for reformers in the former Soviet republics, as well as for scholars in the West who are involved in criminal procedure reform. . .”
­-Prof. Stephen C. Thaman, Saint Louis University

PART ONE:
THEORETICAL FRAMEWORK FOR THE STUDY OF LAY ADJUDICATION IN POST-SOVIET STATES

CHAPTER 1: METHODOLOGICAL APPROACH
1.1. INTRODUCTION 15
1.2. PREVIOUS COMPARATIVE RESEARCH ON LAY ADJUDICATION SYSTEMS 15
1.3. METHODS OF RESEARCH 20
1.4. CONCLUSION 38

CHAPTER 2: MODELS OF LAY ADJUDICATION
2.1. INTRODUCTION 39
2.2. TYPOLOGIES OF LAY ADJUDICATION SYSTEMS 40
2.3. THE JURY MODEL 47
2.3.1. Differences between Common Law and Civil Law Juries 54
2.4. THE COLLABORATIVE OR MIXED COURT MODEL 57
2.5. THE JUSTICE OF THE PEACE OR LAY MAGISTRATE MODEL 69
2.6. CONCLUSION 72

CHAPTER 3: THE HISTORY OF LAY ADJUDICATION IN POST-SOVIET STATES
3.1. INTRODUCTION 75
3.2. LAY ADJUDICATION IN CRIMINAL JUSTICE SYSTEMS OF THE POST-
SOVIET STATES BEFORE THE 1860S 78
3.3. JUDICIAL REFORMS OF THE 1860S 88
3.4. ROLE OF LAY ADJUDICATION IN VIEWS OF RUSSIAN POLITICAL PARTIES IN THE BEGINNING OF THE 20TH CENTURY 107
3.5. LAY ADJUDICATION REFORMS OF THE PROVISIONAL GOVERNMENT IN 1917 AND NATIONAL GOVERNMENTS BETWEEN 1917 AND EARLY 1920S. 111
3.6. THE SOVIET MODEL OF LAY ADJUDICATION 118
3.7. CONCLUSION 130

CHAPTER 4:
DEFECTS OF THE CRIMINAL JUSTICE SYSTEMS IN THE POST-SOVIET STATES AND THE POTENTIAL ROLE OF LAY ADJUDICATION IN RE-SHAPING CRIMINAL JUSTICE SYSTEMS
4.1. INTRODUCTION 133
4.2. COMMON DEFECTS OF CRIMINAL JUSTICE SYSTEMS IN THE POST-SOVIET STATES 134
4.3. POTENTIAL ROLE OF LAY ADJUDICATION IN RE-SHAPING THE CRIMINAL JUSTICE SYSTEMS OF THE POST-SOVIET COUNTRIES 160
4.4. CONCLUSION 186

CHAPTER 5:
CONDITIONS FOR EFFECTIVE LAY ADJUDICATION REFORMS IN POST-SOVIET STATES
5.1. INTRODUCTION 189
5.2. HOMOGENEITY OF SOCIETY 190
5.3. INTRINSIC QUALITIES OF SOCIETY 204
5.4. AGREEMENT OF LAY ADJUDICATORS WITH BASIC LAWS 207
5.5. SUPPORT BY SOCIETY 212
5.6. ABILITY TO AFFORD THE COSTS OF LAY ADJUDICATION 217
5.7. SUPPORT BY THE LEGAL COMMUNITY 222
5.8. WILL OF GOVERNMENT 242
A. Armenia 244
B. Azerbaijan 245
C. Belarus 246
D. Georgia 247
E. Kazakhstan 248
F. Kyrgyzstan 249
G. Russia 251
H. Ukraine 253
5.9. ROLE OF INTERNATIONAL ORGANISATIONS 256
5.10. CONCLUSION 260

PART TWO:
PRACTICAL ASPECTS OF LAY ADJUDICATION REFORMS IN POST-SOVIET STATES

CHAPTER 6:
THE SCOPE OF LAY ADJUDICATION
6.1. INTRODUCTION 265
6.2. THE PURPOSE OF LAY ADJUDICATORS IN THE POST-SOVIET COUNTRIES: THE PARTICIPATORY RIGHT OF PEOPLE OR RIGHT OF THE DEFENDANT 266
6.3. PROCEDURE FOR APPLICATION FOR TRIAL WITH THE PARTICIPATION OF LAY ADJUDICATORS 275
6.4. SUBJECT JURISDICTION OF THE COURT WITH PARTICIPATION OF THE LAY ADJUDICATORS 280
6.5. THE TERRITORIAL JURISDICTION OF COURTS WITH THE PARTICIPATION OF LAY ADJUDICATORS 288
6.6. CONCLUSION 291

CHAPTER 7:
SELECTION OF LAY ADJUDICATORS
7.1. INTRODUCTION 293
7.2. ELIGIBILITY FOR LAY ADJUDICATION SERVICE 294
7.3. PRE-TRIAL SELECTION OF CANDIDATES FOR LAY ADJUDICATION SERVICE 310
7.4. SELECTION OF JURORS AND LAY ASSESSORS IN COURT 318
7.5. SELECTION OF RACIALLY, ETHNICALLY AND LINGUISTICALLY MIXED LAY ADJUDICATORS 349
7.6. CONCLUSION 352

CHAPTER 8:
TRIAL PROCEDURE IN COURTS WITH LAY ADJUDICATION
8.1. INTRODUCTION 355
8.2. PRINCIPLES OF ADVERSARY PROCEDURE AND EQUALITY OF ARMS IN TRIALS WITH LAY ADJUDICATION 357
8.3. RIGHTS AND DUTIES OF LAY ADJUDICATORS DURING THE TRIAL 369
8.4. EVIDENTIAL RULES 378
8.5. INSTRUCTIONS TO THE JURY OR LAY ASSESSORS 407
8.6. CONCLUSION 422

CHAPTER 9:
DELIBERATIONS, THE VERDICT AND APPELLATE REVIEW
9.1. INTRODUCTION 425
9.2. DELIBERATIONS OF THE COURT 426
9.3. THE VERDICT 450
9.4. PARTICIPATION OF LAY ADJUDICATORS IN SENTENCING 490
9.5. APPELLATE REVIEW OF CRIMINAL CASES DECIDED WITH PARTICIPATION OF LAY ADJUDICATORS 500
9.6. CONCLUSION 513

CONCLUSION

APPENDIX 1.
DATA RETURN FORM FOR THE PROJECT “LAY ADJUDICATION IN CRIMINAL PROCEDURE OF COUNCIL OF EUROPE MEMBERS” 527
APPENDIX 2.
QUESTIONNAIRE FOR BELARUSSIAN AND UZBEKISTANI ADVOCATES 531
APPENDIX 3.
RESULTS OF THE SURVEY OF BELARUSSIAN AND UZBEKISTANI ADVOCATES 533
APPENDIX 4:
QUESTIONNAIRE FOR RUSSIAN JUDGES 534
APPENDIX 5:
RESULTS OF THE SURVEY OF RUSSIAN JUDGES 539
APPENDIX 6.
QUESTIONNAIRE FOR RUSSIAN ADVOCATES 542
APPENDIX 7:
RESULTS OF THE SURVEY OF RUSSIAN ADVOCATES 548
APPENDIX 8.
QUESTIONNAIRE FOR RUSSIAN PROSECUTORS 552
APPENDIX 9:
RESULTS OF THE SURVEY OF RUSSIAN PROSECUTORS 558
APPENDIX 10:
QUESTIONNAIRE FOR KAZAKHSTANI ADVOCATES 561
APPENDIX 11.
SUMMARY OF JURY TRIAL TRANSCRIPTS REVIEWED IN MOSCOW CITY COURT IN 2004 565

BIBLIOGRAPHY 569
TABLE OF CASES 618
TABLE OF LEGISLATION 624
TABLE OF INTERNATIONAL HUMAN RIGHTS DOCUMENTS 636
INDEX 637