Jury tri­als, trans­parency cru­cial for build­ing trust in courts

Kyiv Post Legal Quarterly - - Contents - By Olena Gordiienko gordiienko@kyivpost.com

When asked whether public par­tic­i­pa­tion, such as hav­ing jury tri­als, is fun­da­men­tal to public trust in the ju­di­cial sys­tem, David Vaughn, head of the U.s.-funded Fair Jus­tice Pro­ject, replied with one word: “ex­actly.”

Yet ju­ries are hardly used in crim­i­nal tri­als to weigh the facts and is­sue ver­dicts. Public trust in the ju­di­ciary, in turn, is low. In De­cem­ber, a joint sur­vey by the Demo­cratic Ini­tia­tives Foun­da­tion and Razumkov Cen­ter found that only 9.4 per­cent of 2,008 re­spon­dents gen­er­ally trust Ukrainian judges.

The na­tion now has the chance to change public at­ti­tudes thanks to a fair trial law that came into force on March 28. The mea­sure opened court­rooms to the public. Tak­ing pic­tures or mak­ing video and au­dio record­ings is al­lowed.

One lawyer, Stanislav Ba­tryn, head of the Lions Lit­i­gate law firm, has since April started film­ing and up­load­ing nu­mer­ous tri­als on Youtube and a web­site that is part of his Open Court civic ini­tia­tive.

He said pub­lic­ity is the great­est tool to fight cor­rup­tion in courts.

“A small cam­era lets the judge know that they are watched by mil­lions of peo­ple,” he said. “You won’t be­lieve how this per­son is chang­ing right in front of your eyes, how they start to think whether to take the un­law­ful de­ci­sion or act ac­cord­ing to the law.”

In the early 1990s, record­ings of court pro­ceed­ings were not al­lowed. Later, au­dio record­ings be­came pos­si­ble. Still, judges would act rudely and with dis­re­spect to­wards those in the court­room. They would in­tim­i­date de­fen­dants or wit­nesses, and dis­re­gard ev­i­dence. They could make a wit­ness stop talk­ing by sight or move­ment that an au­dio recorder wouldn’t catch, Ba­tryn said.

He said his tac­tics are more ef­fi­cient than lodg­ing of­fi­cial com­plaints.

“We have never had such an in­stru­ment of civil in­flu­ence as we have now,” Ba­tryn said. “If the judge is mis­be­hav­ing, we want the en­tire coun­try to see such ‘he­roes’ and then put that to the pres­i­den­tial level.”

Old habits still per­sist. On June 9, Kyiv Des­nyan­sky Dis­trict Court Judge Iryna Dikhtiar for­bade a Kyiv Post pho­tog­ra­pher to take pic­tures at a crim­i­nal hear­ing of Amer­i­can citizen Robert T. Fletcher.

Jury tri­als

Jury tri­als were in­tro­duced in Ukraine in 2012 but have been rarely used. Only 16 cases had ju­ries in the first half

of 2014 out of 459,700, Kateryna Gu­palo of Arzinger law firm said.

In Ukraine, they are only used in crim­i­nal pro­ce­dures that may carry a life im­pris­on­ment sen­tence and only if the ac­cused re­quests a jury. More­over, three jury mem­bers reach a ver­dict to­gether with two judges, not in­de­pen­dently, Mykhail Kun­denko of Syutkin and Part­ners said.

More­over, the public still isn’t fa­mil­iar with jury pro­ce­dures and lacks a fun­da­men­tal un­der­stand­ing of its role in en­sur­ing a fair ju­di­cial process.

Coun­tries with es­tab­lished rule of law use ju­ries to take the de­ci­sion of guilt or in­no­cence out of the hands of le­gal pro­fes­sion­als and put it in the hands of the peers of the ac­cused. The belief is that citizen ju­ries help en­sure that the in­no­cent don’t get con­victed but the guilty do.

Ba­tryn said that jury tri­als work well in coun­tries where ju­di­cial in­sti­tu­tions are strong, trans­par­ent and trusted. But in Ukraine, Ba­tryn said, jury tri­als may sim­ply open up more av­enues for “in­tim­i­da­tion and bribes.”

A case in point is the trial of two for­mer Berkut riot po­lice of­fi­cers who are ac­cused of killing 39 ac­tivists dur­ing the Euro­maidan Revo­lu­tion. The jury se­lec­tion process has been post­poned twice be­cause the Kyiv City Coun­cil didn’t pro­vide a jury list. Two jury mem­bers that were cho­sen both had worked for the po­lice, mak­ing their im­par­tial­ity doubt­ful.

Le­gal om­buds­man

Lawyer Bate C. Toms, chair­man of the Bri­tish Ukrainian Cham­ber of Com­merce, sug­gests an ad­di­tional mea­sure.

Since peo­ple have no ef­fec­tive re­dress of the un­just court de­ci­sions hav­ing a le­gal om­buds­man funded by the in­ter­na­tional com­mu­nity would “very quickly change the le­gal sys­tem in Ukraine and dra­mat­i­cally re­duce cor­rup­tion,” he said.

Hav­ing the abil­ity to com­plain to an om­buds­man cho­sen by busi­ness as­so­ci­a­tions, and have them pub­lish le­gal opin­ions, might be enough to make judges re­vise some un­wise de­ci­sions. Par­lia­ment, ac­cord­ing to Toms, could also act on the om­buds­man’s opin­ion to ini­ti­ate im­peach­ment pro­ceed­ings of judges. “Af­ter one or two im­peach­ments, the sys­tem in Ukraine will be changed for­ever. This is the magic bullet that can dra­mat­i­cally rec­tify Ukraine’s le­gal sys­tem,” Toms said.

Mak­ing court a public ser­vice “One of the key func­tions of the ju­di­ciary is to en­sure it prop­erly en­gages the com­mu­ni­ties that it serves,” Vaughn said. Thus, they should make courts open public ser­vice in­sti­tu­tions.

The first ever jury trial in in­de­pen­dent Ukraine took place in Lviv on June 30, 2013. Morocco citizen Shakib Ot­man was ac­cused of beat­ing a prom­i­nent Lviv doc­tor to death and was ac­quit­ted by the jury. (UNIAN)

Jury tri­als ex­ist in the­ory but not prac­tice in Ukraine. Pro­ce­dures are vague and many peo­ple are not in­ter­ested in get­ting cho­sen, so jurors -- on the rare oc­ca­sion of a jury trial -- are of­ten drawn from re­tirees or public ser­vants.

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