Eight years have passed since the 1993 Russian Constitution reintroduced the jury-trial system, perceived by many as a cornerstone of Russian legal reform. Over these years, the new system has had to overcome-and has yet to overcome-significant obstacles and controversies. This article looks into the current dynamics and trends in the development of this institution, with a focus on various issues and problems faced by the jury-trial system, the factors causing these problems, and possible ways to resolve them.

A brief historical background and the dynamics of the jury-trial initiative

Contrary to the common misperception that the jury-trial system is a Western invention transplanted into postcommunist Russia by pro-Western reformers and their US advisers, this institution has deep roots in Russian history. First established during the 1864 legal reforms, it was a highly developed and respected feature of Russian society.

Ironically, Lenin's Bolshevik comrades demanded jury trials each time they found themselves in jail but hurried to do away with the system, along with other liberal legal institutions, after the 1917 revolution. Under the Soviet system, cases were decided either by professional judges or by a judge and two lay assessors. Lay assessors were supposed to decide not only on the facts but (unlike jurors) also on the legal issues in the case, for which they had no training. All they could do was nod to the judge; the public came to refer to them as "nodders." The judges, in turn, nodded to procurators, largely ignoring the defense. Despite the low quality of police and investigative work (a late-1980s survey showed that 81.8 percent of judges thought it poor or mediocre), the number of acquittals was less than 0.5 percent (Boris Zolotumhin, "Sudebnaya Reforma i Voprosy Borbi s Prestupnostyu," website of the Public Informational Center, at www.ndm.msk.ru/library).

The jury-trial system was reintroduced in the course of the 1992-93 judicial reforms. The purpose was to free the justice system from political control, promote the adversarial process, rid the courts of their strong proprosecution leaning (typical of the Soviet neoinquisitorial system), and bridge the gap between citizens and legal institutions. Brought to life by the 1993 Constitution, the foundations of the jury-trial system were laid out in the Law on Jury Trial System, the Criminal Code, and other laws and regulations.

However, the expense and complexity of the new system forced reformers to seek compromises limiting its jurisdiction to regional and territorial courts and covering only the most severe crimes (such as murder, rape, theft of significant assets, and crimes against state security). Furthermore, it was decided that the system should first be introduced, as a pilot project, in only nine regions: the Saratov, Ryazan, Ivanovo, Ulyanovsk, and Rostov oblasts; the Moscow Region; and Stavropol Krai, Altai Krai, and Krasnodar Krai.

The first jury trial took place in Saratov in December 1993. The Martynov brothers were tried for the first-degree murder of three people and could have faced the death penalty. In the course of the trial, however, it was established that the brothers were guilty only of exceeding the limits of self-defense. The legal community unanimously agreed that if there had been a bench trial, rather than a jury trial, both brothers would have been found guilty of the murder charges. The more adversarial process had changed the standards of proof.

Expectations for the new system's development were great. Says Sergei Vitsin, deputy chair of the Council for the Improvement of the System of Justice: "When we developed the concept of judicial reform in Russia, in which the jury-trial system had an important place, we believed that all the conditions were ripe for this institution to acquire at least the same significance as it had in prerevolutionary Russia" (Sud Prisyazhnykh: Pyat Let Raboty [Materials of the roundtable conference], Publication of the Center for the Support of Criminal Justice Reform, September 17, 1999 [Krasnodar, 1999], p. 54; referred to hereafter as Sud Prisyazhnykh).

Due to a number of factors, however, as noted below, the introduction of the new system did not go as smoothly as the reformers had hoped. In the fall of 1995, the Duma considered a bill expanding the jury-trial system to another 12 political subdivisions. But the government was against this expansion, citing the lack of money. Thus, although about 20 political subdivisions supported the introduction of the jury-trial system, it has not been expanded beyond the initial nine regions. Moreover, even in these nine regions, the system is struggling to maintain itself, undermined by both financial problems and political opposition from the regional administrators and law enforcement agencies. On December 2, 1998, the governor of the Ryazan Oblast issued a statement addressed to the chairmen of the Russian Supreme Court and the Ryazan Regional Court, arguing that jury trials should be discontinued in the region. He wrote, "Jury trials have not met with expectations, since they produced a large number of acquittals that invoked a strong negative response among the population of the region" ("Finansovaya Petlya Dlya Suda Prisyazhnyh," Rossiiskaya Yustitsiya, no. 5, C [1999], pp. 5-7). A similar position was expressed by the Altai administration. Even some judges and lawyers who are directly involved in jury trials state that the country is not ready for the jury system.

The recent months, however, have brought a new hope for the system. President Vladimir Putin has made judicial reform one of the top priorities of his government, and serious efforts have been made toward the completion and passage into law of the new Criminal Procedure Code that had been pending in the Duma for several years. The new code was finally adopted on November 22, 2001, was approved by the Federation Council on December 5, and will come into force on July 1, 2002 (with the exception of some provisions that require more time to implement.) The code provides for countrywide jury trials for a number of the most serious crimes (Rossiiskaya Gazeta, Criminal Procedure Code of the Russian Federation, sect. 2, art. 31, "Jurisdiction of Criminal Cases," December 22, 2001). The jury-trial system is planned to be expanded throughout Russia after January 1, 2003.

However, even a major legislative victory, such as the passage of the new Criminal Procedure Code, does not by itself automatically resolve all the problems that have crippled the development of the jury-trial system for so many years. The law provides an opportunity for the system to succeed; realizing this opportunity may require significant regulatory, policy, and political efforts.

Issues and problems-the factors causing them and proposed solutions

The most important problems facing the jury-trial system are budgetary constraints; legal procedures that are not designed to promote the financial efficiency of the system; technical and administrative problems; political controversies over the high acquittal rates in jury trials; and, finally, the legacy of the Soviet mentality in Russian legal institutions.

Financial issues

On the surface, the greatest obstacle to the development of the jury-trial system is the lack of money in the country's meager budget. Some experts suggest that, at least partially, the financial problem can be attributed to the unfocused and inconsistent allocation of funds available for judicial reform. As Marina Nemytina, a legal scholar and director of Project for the Support of Legal Reform in Saratov, pointed out to us, Russia is now introducing the institution of justices of the peace and is contemplating an introduction of administrative courts. "I suspect," she says, "that this will require significantly greater financial investment than the countrywide expansion of the jury system. The key problem with Russian legal reform, as I see it, is that before completing the implementation of one institution or type of justice, we launch the next one. As a result, the justice system becomes unbalanced."

Even apart from this issue, however, the jury-trial system is expensive. In 1997, the Judicial Department made a rough calculation of the budgetary needs to support the implementation of the jury-trial system throughout Russia. According to their estimate, the technical support, construction, and renovation of courtrooms would require as much as $1,496,124,000 (quoted in dollars, based on the 1997 average exchange rate of $1 = 5 rubles). (This information comes from the letter of Judicial Department Director General V. Chernyavsky to the Duma Committee for Legislation and Judicial Reform, document no. 167, of April 22, 1998.) In addition, there will be an annual expenditure involving jury fees. The daily fee of a juror in Russia is equal to one half of the average daily pay of a trial judge.

A part of the amount needed for the countrywide implementation of the system represents nonrecurrent costs for onetime adjustments and is unrelated to the proportion of cases tried by jury. It includes furnishing courtrooms for jury trials, designing computer databases, and training judges, lawyers, and support personnel. The second, and larger part, of this sum consists of expenses that grow proportionally to the ratio of cases tried by jury: jurors' fees, the costs of hiring additional judges and support personnel to handle the added workload, and the costs of constructing additional court facilities. While the nonrecurrent costs are a constant figure that cannot be modified, the costs dependent on the ratio of cases tried by jury (as opposed to those tried under the old system) can be substantially influenced by modification of laws and policies.

In the United States, only 5 percent of criminal cases are tried by jury; the remaining 95 percent are efficiently disposed of through the plea-bargaining system. Under current Russian law, there is no plea-bargaining process or equivalent. Thus, a defendant has no incentive to choose a traditional bench trial, where a chance of acquittal would be less than 0.5 percent. Indeed, the statistics show a steady growth in the ratio of eligible cases that go to jury trials. In the nine jury-trial regions, the ratio of cases tried by jury was 30.9 percent in 1995, 37.3 percent in 1996, 43.2 percent in 1997, and this number keeps increasing. Even for a prosperous country such as the United States, trying half of all cases by jury would be a great burden. The Russian legal community came to realize the need for a procedure that would reduce the number of jury trials.

Controversies over the plea-bargaining system and proposed solutions

From the beginning of the Russian legal reforms, experts such as Judge Alexander Shturnev, a member of the Presidium of the Council of Judges, actively promoted the plea-bargaining procedure as a way to increase the efficiency of the court system. Such proposals were met with objections from both conservative and liberal positions. The criticism from the liberal position was most clearly articulated by Valery Savitsky, one of the founding fathers of Russian legal reform. Savitsky despised the fact that the procedure was based on self-incrimination by an accused person. He considered it unacceptable for a country such as Russia, where memories of gulags are still alive and coerced self-incrimination is common.

On the other side, more-conservative members of the legal community have interpreted plea bargaining as a way of making deals with criminals and thus as damaging to public morale. In their view, plea bargaining violates the victims' rights, as a victim has no role in a plea agreement. This concern originates from the Soviet legal tradition in which a victim is a separate party to a trial with the right to ask questions of witnesses and to make statements (which victims occasionally use to slip in inadmissible evidence).

The necessity of finding a procedure to reduce the number of jury trials, on the one hand, and the controversy over plea bargaining, on the other, presented a difficult dilemma. The debate on the subject resulted in a compromise reflected in the prior version of the new Criminal Procedure Code, which passed the second reading in the State Duma this June. (The draft code was last published in the Yuridichesky Vestnik newspaper in 1994, long before the latest provisions were proposed. Since then, the draft has been only circulated for internal use.) The draft code provided for a "reduced procedure for the examination of evidence in court," with the trial conducted by a professional judge and limited only to the examination of evidence agreed upon by the prosecution and defense. (This procedure is already used in proceedings for justices of peace, in accordance with the Law on Amendments to Criminal Procedure Code and Civil Procedure Code in Connection with the Introduction of the Institution of Justices of Peace, adopted in the summer of 2000.) The procedure applied only to crimes carrying up to five years of imprisonment. This procedure presented a limited version of plea bargaining, although it is not directly contingent on a defendant's guilty plea.

The "reduced procedure" received the strong support of judges and lawyers. In many cases, it would save the courts the wasted time and money of dealing with dozens of witnesses, whose failure to appear in court is a common problem. However, defendants are given no direct incentive to give up their right to a jury trial and accept the "reduced procedure." By waiving the guilty-plea requirement, the procedure lost its driving force: the guarantee of reduced sentences. With the growing realization that the "reduced procedure" has limited efficiency, more and more experts have expressed their willingness to accept plea bargaining in its full scope. Following the recommendations of the legal community, the Duma Legislative Committee included in the Criminal Procedure Code a chapter on plea bargaining. However, its applies only to criminal offenses carrying up to five years of imprisonment, and therefore will not be offered as an alternative to a jury trial. Also, the issue of coerced self-incrimination continues to be a concern. The drafters initially imposed a requirement on judges to ensure that the guilty plea was not coerced. This requirement upset the procuracy, which saw it as prejudicial toward law enforcement officers. The drafters made a political concession and took the requirement out.

Other proposed measures to reduce expenses and judicial workload

There have been other proposed measures to keep the number of jury trials down. Supreme Court justices Vladimir Demidov and Stanislav Razumov proposed reducing the purview of jury trials to crimes entailing the death penalty or life imprisonment. On the positive side, such a measure would provide drastic financial relief. On the negative side, the scope of the Russian legal system's democratization, under this reduced procedure, would be seriously limited. It would be an extreme solution imposed by financial constraints.

Yet another proposal was extended by Judge Elena Snegiryova, one of the pioneers of the jury-trial initiative in Russia. In her opinion, access to a jury trial should be limited to defendants who plead not guilty. (Currently, in Russia, even those defendants who plead guilty have the option of trial by jury, since the jury has the discretion to grant leniency or "special" leniency, which obligates the judge to mitigate a sentence; see the transcript of the Duma Legislative Committee Conference on the draft Criminal Procedure Code, Istra, September 6-7, 2000, p. 59.) Again, such a limitation would significantly reduce both expense and judicial workload but would increase the danger of coerced guilty pleas. The new Criminal Procedure Code retains the right to a jury-trial for those who plead not guilty.

Controversy over the high acquittal rates

While budgetary constraints are most frequently cited as the main obstacle for the jury-trial system, such an explanation leaves out important arguments involving core legal and social values. The average acquittal rate of about 20 percent, produced by the jury-trial system, as compared to approximately 0.5 percent produced by traditional trials, has come as quite a shock.

Acquittals provoked an outcry from proprosecution judges, from procurators reprimanded by their supervisors for losing cases, and from investigators whose mistakes proved so costly. The press has been flooded with publications scaring the public with images of serial murderers and rapists being released by jurors back onto the streets.

As noted by Ludmila Karnozova, the leading researcher of the Institute of State and Law of the Russian Academy of Sciences, such publications reflected not so much public opinion as the views of those editing them. "I am convinced," she wrote, "that the obstacles for the normal functioning of the jury-trial system, which introduced acquittals into our legal practice for the first time in decades, are based on the rejection by our legal community of the mere thought that an acquittal is a legitimate outcome of court proceedings. On the surface, the obstacles are mostly technical, but there is an underlying reason that makes them look like complex problems" (Sud Prisyazhnykh, p. 2).

The high acquittal rates were mostly due to investigators' and procurators' inability to meet the quality standards imposed on them by the jury system. The legal provision that requires mandatory exclusion of inadmissible evidence in any trial is, in reality, practiced only in jury trials. In traditional trials, judges routinely overlook "minor" procedural violations and such supposedly insignificant formalities as missing signatures and dates. In jury trials, inadmissible evidence is mercilessly excluded, ruining a prosecution's case.

Furthermore, the traditional Soviet judicial system formerly overrelied on self-incriminating statements, many of which were coerced. In a jury trial, defendants can waive their self-incriminations. Even though direct mentioning of police coercion by a defendant or his attorney in front of jurors is prohibited (it is considered inadmissible and serves as grounds for reversal by the Supreme Court), jurors put greater weight on corroborating evidence and give acquittals if it is insufficient. (Under Russian law, acquittals can be appealed to the Cassation Chamber of the Supreme Court on the grounds of procedural violations during the trial. A significant percentage of acquittals are reversed. For example, in 1998 the Supreme Court reversed 36.9 percent of acquittals produced by jury trials.) If we also add procuratorial unpreparedness to the adversarial process and the lack of training in public speaking, the number of acquittals grows even greater.

While grudgingly accepting some share of responsibility for acquittals, many in the legal community put the main blame on jurors. They complain that common people are incapable of understanding complex issues, and that educated prospective jurors routinely evade jury duty, thus leaving the courts with senile retirees and ignorant unemployed drunks who are incompetent and tend to identify with defendants as "their own kind." They claim that the system itself is good, but that the people are not ready for it. Such a position is perhaps questionable, considering that 140 years ago the Russian people successfully performed their jury duty; moreover, not all the judges share this outlook. As one of the pioneers of the jury-trial initiative, Judge Evgeny Druzin of Saratov Regional Court (where the first jury trial in postcommunist Russia took place), commented to us, the experience of the Saratov Regional Court demonstrates that the vast majority of jury verdicts are fair, based on the volume of the evidence presented to the jurors. "It is amazing sometimes," he says, "how wise a decision jurors can make in a very complicated situation." As for the publications denouncing jurors for acquittals of defendants whose guilt was clear, Judge Druzin pointed out that such reports were usually based on one-sided information, ignoring defense evidence.

As for upgrading the quality of police and investigative work, progress is already underway. Many experts admit that the amount of excluded evidence in jury-trial regions diminishes as investigators adjust to the new standards. Nevertheless, law enforcement agencies resist the development of the system.

"Why has the jury-trial system not been expanded?" asks Alexander Shurygin, chairman of the Supreme Court Cassation Chamber; "Well, there are many factors. For instance, some governors oppose it. And their opinion is influenced by the leadership of the law enforcement agencies, departments of interior, and regional procuracies. What is the task here? To improve the professional skills and knowledge of the law enforcement officers; that is all" (Sud Prisyazhnykh, p. 7).

The alienation of the legal authorities from the common people is not only unproductive; it backfires. The distrust of the authorities, police, procuracy, and courts, imprinted in the minds of the Russian people during the last 80 years, manifests itself in the jurors' reflexive, half-conscious confrontation with procurators and in their tendency to assume coercion of the defendants. Some acquittals are indeed examples of jury nullification and have their origins in the old animosity between the people and the authorities.

At a conference in Krasnodar, trial judge Vladimir Lazovsky described such a case. The jury acquitted a defendant who threw a grenade at a police station in front of several witnesses. The case was reversed, but the new jury again acquitted him. "Jurors acquitted him, because we are strangers for them," admitted Judge Lazovsky; "people do not like courts, do not like the police, do not like the procuracy" (Sud Prisyazhnykh, p. 46).

The issue of acquittals has exposed the conflict between the old mentality of the Russian legal authorities and the requirements of the new democratic legal institutions. "I think that until the lawyers learn to perform professionally and adequately in jury trials, the blame will be always on jurors," comments Sergei Pashin, one of the principle authors of the Russian legal reform, "and until we, educated people, perceive ourselves as an integral part of our population, they will consider us strangers and acquit those who throw grenades at us" (Sud Prisyazhnykh, p. 46).

In the recent months, more than ever before, President Putin and his government have made significant progress in overcoming political resistance to judicial reform, including the expansion of the jury-trial system, by the law enforcement agencies and their supporters in the State Duma. The use of the president's political weight and influence to ensure parliamentary support for the new Criminal Procedure Code and the procuracy's compliance was crucial for its passage. Still more political will will be needed to ensure its implementation.

Technical problems

The picture of the difficulties facing the courts employing the jury-trial system would be incomplete without mention of various organizational and technical problems. One of the difficulties is related to forming a jury panel. Electoral lists, from which the names of potential jurors are drawn, are poorly maintained and contain many "dead souls," people who have died or moved away. Also, there are no real enforcement powers to ensure that prospective jurors appear in court. As a result, jury selection becomes difficult, since there are few people to select from. Even more challenging is the task of retaining a jury panel. Due to the lack of enforcement powers, witness no-show is common, so trials with multiple witnesses can drag on for unreasonably long periods of time, and thus jurors lose patience. Such technical problems increase expenditures and judicial workload. By overlooking them, the reformers burdened judges with administrative issues that would normally be outside of their concern.

Finally, the Russian verdict is designed as a very complex questionnaire that goes far beyond a simple choice of "guilty" or "not guilty." Jurors have to answer dozens, occasionally hundreds, of questions, concerning the proof of each episode, a defendant's guilt, recommended leniency, and so on, which are often hard to comprehend. As a result, the verdicts are often confusing and contain internal contradictions, particularly in complex cases with multiple defendants and episodes. Currently, experts are working on proposals to improve and simplify the questionnaire forms, to assist judges and jurors.

The current state of affairs and future expectations

The peculiarity of the current situation, as a whole, lies in the coexistence and mutual influence of two entirely different systems of justice, old and new. The jury-trial system as an element of judicial reform is having a significant influence on the traditional system of justice. As the judges from the nine jury-trial regions observe, the amount of excluded evidence is steadily diminishing as the investigators learn to do their job properly, in accordance with procedures. The culture of the adversarial process is spreading and penetrating into traditional trials. Those judges presiding over trials by jury are applying the same quality standards in traditional trials, while the rest of the judges retain their old mentality and a lax attitude towards procedures.

As noted by Judge Vladimir Lazovsky, "Two types of proceedings, the regular one and the one with jurors, exist in parallel, but at the same time there is a diffusion, as positive practices are spreading from jury trials to regular trials" (Sud Prisyazhnykh, p. 27).

The danger is that the influence goes both ways. As the jury-trial system is still a limited aspect of judicial reform, implanted into a larger traditional system, it experiences pressures from the larger system. These pressures are embodied in the political controversies and problems already described. Even with its passage into law, the new Criminal Procedure Code in its current form does not entirely eliminate this duality of the justice system, as the jurisdiction of the jury-trial system will be limited only to the most serious offenses. The remaining crimes will continue to be tried in the traditional manner. It remains to be seen whether the new institution has enough staying power to reform the whole system from within.

As the legal scholar Marina Nemytina noted, "In the unstable economic, political, and social situation, jury trial became not only a legal but also a political institution. Under normal conditions this should not be the case. Assessing the situation with the jury-trial system, eight years after its introduction, I conclude that the key error was in the inconsistency of the Russian judicial reform and the lack of coordination between its elements. Starting the change, one must thoroughly calculate and substantiate all necessary conditions. Once the change has started, it must be continued, otherwise both the institution and people involved in its implementation risk being rejected by the system."

Currently, the government firmly intends to follow through with the jury-trial initiative. For the first time in the last decade it also seems to have sufficient power to do so. The jury-trial system is planned to be expanded throughout Russia after January 1, 2003. There will still be the challenge of ensuring the funds for both the initial introduction of the system and its continuous maintenance.

Most judges, especially the ones involved in the jury system, look forward to its expansion. Judge Druzin of Saratov Regional Court confirmed that colleagues in his region involved in jury trials, the vast majority of defense attorneys, and the progressive part of the procuracy all support the jury system and believe its expansion will foster the further democratization of society, thereby guaranteeing the constitutional rights of the citizens and fully protecting their rights and interests in the sphere of criminal justice.

Both Judge Druzin and Justice Razumov, along with other the experts we contacted, believe that the problems for the jury-trial system today are solely financial, and the system should and will be expanded. "The position of the procuracy and the heads of administrations in certain regions has been, to some extent, holding up the system's development but cannot determine its future," Judge Druzin said, "since the jury-trial system is guaranteed by the Constitution, and it will be introduced in Russia. This is determined by the position of the Supreme Court and the President of the Russian Federation."

And indeed, the Constitution would be nearly impossible to change. Russia's membership in the Council of Europe is another strong rationale for doing whatever it takes to make the system work. By joining the Council of Europe in 1996, Russia undertook a number of obligations in the areas of state rule and human rights, among them adoption of a code of criminal procedure compatible with European standards and the implementation of these laws across the country's entire territory. Compliance with these commitments is being monitored by the Committee on the Honoring of Obligations and Commitments by Member States of the Council of Europe. The adoption of the new Criminal Procedure Code greatly enhances the prospects of the advancement of Russian judicial reform, which includes the jury-trial system. While its establishment is a difficult task, it would be still harder to turn back.