Janus turns out to be one-faced: the judgment of the Russian Constitutional Court on the permissibility of examination of jurors in the light of foreign law

According to Article 56 of the Russian Code of Criminal Procedure, “a judge and a juror may not be examined as a witness about the circumstances of a criminal case which they have become aware of while participating in it”. The Russian Supreme Court has interpreted this rule as imposing a categorical prohibition to examine a juror even though the defense submits and tries to prove that jurors were not impartial due to the extraneous influence and unlawful threats that they confronted in a jury room. As a result, this approach, instead of ensuring the confidentiality of jury deliberations, has been rather used to preclude the discovery of procedural irregularities in reaching a verdict. In its judgment of 7 July 2020, the Russian Constitutional Court has softened this unreasonable restriction by ruling that jurors’ witness immunity is not absolute and appellate courts must use their testimony to establish facts relating to alleged attempts to place unlawful pressure on a jury by undermining the secrecy of jury deliberations. Based on a case file, including the petition that the author of this article drafted and filed to the Russian Constitutional Court, the article reconstructs the arguments invoked by the parties in the course of constitutional proceedings and assesses the approach taken by the Russian Constitutional Court to decide the case. In particular, the court has allowed examining jurors, but only with their consent. Having studied the experience of the countries where a jury system has been present for a long time, namely the United States, Australia, New Zealand, Sri Lanka, and Myanmar, the author argues that a post-trial examination of jurors is a recognized way to ensure the right of a defendant to an impartial jury. Among other things, the foreign jurisdictions obligate a juror to inform a judge about attempts to unlawfully influence a jury, empowers a judge to determine if there are sufficient grounds for summoning jurors as witnesses, and sets standards of examination. However, none of these legal orders requires that a juror give consent for examination. Therefore, the article concludes that the integrity of jurors in Russia should be protected not by enabling them to testify before an appellate court at their discretion but by strengthening their legal immunity, which in turn will strike an optimal balance between competing constitutional values.

About the author: Aldar Chirninov – Candidate of Sciences (Ph.D.) in Law, Researcher, Institute of Philosophy and Law, Ural Branch of the Russian Academy of Sciences; Senior Lecturer at Ural State Law University, Ekaterinburg, Russia.

Citation: Chirninov A. (2021) Yanus okazalsya odnolikim: argumentatsionnyy analiz Postanovleniya Konstitu­tsionnogo Suda Rossii ot 7 iyulya 2020 goda № 33-P v svete regulirovaniya doprosa prisyazhnykh za rubezhom [Janus turns out to be one-faced: the judgment of the Russian Constitutional Court on the permissibility of examination of jurors in the light of foreign law]. Sravnitel'noe konstitutsionnoe obozrenie, vol.30, no.2, pp.131–148. (In Russian).

References

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McCarthy T.W. (2018) The Racial Bias Exception to the General Rule that Precludes Jurors from Offering Testimony to Impeach Their Own Verdict. American Journal of Trial Advocacy, vol.42, no.1, pp.1–14.

Strelkova Yu. (2020) “Postanovlenie Konstitutsionnogo Suda Rossii printsipial'no menyaet sformulirovannyy sudami zapret na poluchenie svedeniy ot prisyazhnykh v apellyatsii” [“The judgment of the Constitutional Court of Russia fundamentally changes the prohibition formulated by the courts on obtaining information from the jury in the appeal”]. Institut prava i publichnoy politiki, 15 July. Available at: https://academia.ilpp.ru/pravo-na-dopros-prisyazhnh-kommentarii-k-postanovleniyu-konstitutsionnogo-suda-rossii-po-delu-alieva (accessed: 16.03.2021). (In Russian).