A foothold for real democracy in Eastern Europe: how instituting jury trials in Ukraine can bring about meaningful governmental and juridical reforms and can help spread these reforms across Eastern Europe.

AuthorSheyn, Elizabeth R.

ABSTRACT

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system.

This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic form of government. Specifically, the introduction of a jury trial framework in Ukraine will aid in the legitimization of the Ukrainian government and court system, harmonizing the presently tumultuous relationship between Ukrainian citizens and their government. Once Ukraine puts jury trials into practice, other former Soviet republics could learn and benefit from Ukraine's example.

TABLE OF CONTENTS I. INTRODUCTION II. JURY SYSTEM MODELS A. English Jury System 1. Historical Development 2. Current Jury System B. American Jury System 1. Historical Development 2. Current Jury System C. European (Continental) Jury Systems 1. Historical Development 2. Current Jury Systems D. Russian Jury System 1. Historical Development 2. Current Jury System III. UKRAINIAN JUDICIAL SYSTEM A. General Overview B. Practical Implications IV. RIGHT TO TRIAL BY JURY IN UKRAINE: NECESSITY AND IMPLEMENTATION A. Necessity of Jury Trials in Ukraine B. Implementation of Jury Trials in Ukraine V. CONCLUSION I. INTRODUCTION

A judicial system in which bribes are welcome, rather than banned or frowned upon, is difficult to imagine, particularly in light of the prohibitions placed on such conduct in the United States. (1) Yet, such a system is currently in place in Ukraine. (2) The lack of a jury system has likely contributed to this corruption. (3) Ukraine has never held a single criminal or civil jury trial (4) despite the fact that the right to a jury trial, at least in criminal cases, is guaranteed by its Constitution. (5) This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trial implementation. Although the use of juries will hot remedy all the problems plaguing Ukraine, it can bring the country closer to achieving a truly democratic (6) form of government. (7) Additionally, other former Soviet republics, especially those that closely resemble Ukraine in terms of their economic, political, and cultural characteristics, could learn and benefit from Ukraine's experience.

The implementation of jury trials in Ukraine is particularly important because the country, "once considered a worldwide symbol of an emerging, free-market democracy that had cast off authoritarianism, is teetering. And its predicament poses a real threat for other European economies and former Soviet republics." (8) Ukraine--widely considered "a linchpin for stability in Europe" (9)--has a population of "46 million people and a highly strategic location .... [A] collapse in Ukraine could wreck what little investor confidence is left in Eastern Europe, whose formerly robust economies are being badly strained." (10) Furthermore, governmental problems in Ukraine could

cause neighboring Russia, which bas close ethnic and linguistic ties to eastern and southern Ukraine, to try to inject itself into the country's affairs. What is more, the Kremlin would be able to hold up Ukraine as an example of what happens when former Soviet republics follow a Western model of free-market democracy. (11) Introducing a jury trial framework in Ukraine--particularly one that is more effective than the system currently being used in Russia (12)--will aid in the legitimization of the Ukrainian government and court system, (13) thereby helping to stabilize the presently tumultuous relationship between Ukrainian citizens and their government. (14)

Part II of this Article introduces the concept of the jury and provides the historical context for--and an overview of--some current jury systems, including the English, American, continental (European), and Russian models. Part III describes the current Ukrainian judicial system in both theoretical and practical terms. Part IV discusses whether Ukraine should enforce the provision of its Constitution that provides for the right to trial by jury, concludes that such enforcement is necessary and beneficial, and proposes a framework for criminal and civil jury trials.

  1. JURY SYSTEM MODELS

    The jury likely originated in Athens during the fifth century B.C., where the jury courts, known as dikasteries, used hundreds of jurors, known as dikasts, to decide cases. (15) The Romans formalized the dikasteries: their courts had smaller juries and often featured "rhetorically sweeping arguments by professional advocates, including Cicero. This system may have been transported to the rest of Europe by the Roman conquerors, but it faded between A.D. 300 and 500, apparently because it was too democratic for the [tastes] of the increasingly despotic emperors." (16)

    Scholars disagree about how the jury system of Ancient Greece and the Roman Empire found its way to England and continental Europe. (17) The most common opinion is that "trial by jury was introduced into England by William the Conqueror, who added it to the three basic trial methods already practiced in England and on the Continent since Charlemagne: trial by compurgation, trial by battle, and trial by ordeal." (18)

    Several types of juries are in existence today. The English and American systems (and arguably the Russian system) are primary examples of "pure" jury systems that allow "jurors to deliberate and issue verdicts apart from professional judges." (19) Many of the continental systems exemplify '"mixed' juries that require jurors and judges to deliberate and issue verdicts or sentences together," (20) but some European juries are of the pure variety. (21) A very small number of countries do not use the jury at all. (22)

    This Article provides an overview of a number of jury models, including those of England, the United States, continental Europe, and Russia, discussing both the historical development and the current state of each model. The proposed Ukrainian jury borrows certain aspects of these models.

    1. English Jury System

      1. Historical Development

        The role of the jury in England was primarily administrative (23) until the time of Henry II, who was crowned in 1154. (24) "By a series of statutory enactments, known as assizes, Henry transformed the jury into a genuine instrument of justice" (25) while banning trial by compurgation for most felonies and requiring most felony prosecutions to proceed by ordeal. (26) Some scholars suggest that Henry II initially utilized the jury trial to resolve the complaints of tenants "who claimed to have been 'disseised, that is dispossessed, of [their] free tenement unjustly and without judgment.'" (27) By using this remedy, known as the assize of novel disseisin, claimants could "submit their case to a jury of at least arguably knowledgeable local citizens rather than engage in trial by combat." (28)

        Even after the assize of Clarendon, "which is generally recognized as the first significant historical marker in the development of the English jury system, juries were almost never used in criminal cases, and when they were, they were available to the defendant only for a price." (29) As part of the Fourth Lateran Council in 1215, however, "Pope Innocent III forbade the clergy from performing religious ceremonies in association with ordeals, and the English crown rapidly recognized that decree." (30) Trial by jury was left as "the only practical alternative for deciding serious criminal eases." (31)

        Early on, the English jury "was an inquisitorial device, whereby citizens from the neighborhood where the dispute arose were summoned to tell the court what happened. If the summoned jurors did not know what had happened they were required to make inquiries and then swear in court as to the facts." (32) Over several centuries, the English jury--both civil and criminal (33)--evolved and gained many characteristics that the American jury has recently possessed or currently possesses. (34) For example, "by the late thirteenth century, twelve had come to be the recognized number for juries," (35) and "[i]n 1367, during the rule of Edward III (1327-1377), the requirement of a unanimous verdict of twelve was firmly established." (36) Around this time, juries also began deliberating in secret. (37) In addition, beginning in the early fifteenth century, jurors were limited to considering evidence presented in open court. (38) As a result, they were "forbidden to base their decisions on personal knowledge." (39) Although these features of the jury initially prompted the exercise of more stringent control over this institution by the English courts, (40) several decisions handed down in the late 1600s (41) "had the effect of catapulting the jury to popularity 'as a bulwark of liberty, and as a means of preventing oppression by the Crown.'" (42)

        Scholars argue, however, that "some of the most fundamental attributes of modern Anglo-American criminal procedure," (43) such as the relationship between the judge and the jury, arose in eighteenth-century England. (44) During this time, the English jury, which was composed of twelve individuals residing in the same venue in which the offense in question occurred, (45) grew into its role of "public moral arbiter." (46) Although the judge announced the sentence, the role of the jury in English criminal trials was significant because the jury was charged with determining the defendant's level of moral culpability, sanctioning the offender, restoring the victim to his or her original state, and repairing the community by publicly denouncing...

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