The problems of satisfying the petition on the bias of the jury

Gaivoronskaia Lina Veniaminovna ORCID: 0000-0003-0272-9834 PhD in Law Associate Professor; Department of Criminal Procedure Law; O.E. Kutafin Moscow State Law University (MGUA) 79a Komsomolskaya str., Podolsk, Moscow region, 142100, Russia LVGaivoronskaya@yandex.ru

There is a "mysterious" article 330 in the Criminal Procedure Code of the Russian Federation, which provides for the possibility of dissolving the jury due to the bias of its composition. Part One states that before the jurors are sworn in, the parties have the opportunity to file a motion for the dissolution of the panel of jurors due to their inability to reach an objective verdict in connection with the specifics of the criminal case under consideration and the panel formed in this case. Upon recognizing such a statement as justified, according to Part 3, the presiding judge dismisses the panel of jurors and resumes preparations for the consideration of a criminal case by a court with the participation of jurors in accordance with Article 324 of the Code of Criminal Procedure of the Russian Federation.

The Code of Criminal Procedure of the Russian Federation does not contain any other explanations of the criteria in question in order for the petition to be granted. What are the features of the criminal case under consideration? For what reasons does a panel formed with the participation of the parties suddenly become unable to reach an objective verdict?

The Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 23 dated 11/22/2005 "On the application by Courts of the Norms of the Criminal Procedure Code of the Russian Federation Governing judicial proceedings involving jurors", in paragraph 16, commented as follows on the understanding of the tendentiousness of the composition of jurors: "the tendentiousness of the composition of the jury should be understood as cases when, in compliance with the provisions of the law on Nevertheless, there are grounds to believe that a panel formed in a specific criminal case, due to the specifics of this case, is not able to comprehensively and objectively assess the circumstances of the criminal case under consideration and reach a fair verdict (for example, due to the uniformity of the composition of the jury in terms of age, professional, social and other factors)"[Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/22/2005 No. 23 "On the application by Courts of the Norms of the Criminal Procedure Code of the Russian Federation governing judicial proceedings involving jurors"// SPS ConsultantPlus https://www.consultant.ru/document/cons_doc_LAW_5670 ].

Does this mean that a panel of jurors, consisting mainly or in the majority of doctors, women, and pensioners, can always be recognized as biased? The issue hangs in the plane of judicial practice.

In addition, such a motion may be filed only by the parties, and the court may not, at its discretion, dismiss the panel of jurors on this basis. And the stated motion on the bias of the formed panel of jurors must be motivated, since the decision to dissolve it is made by the presiding judge only if such a motion is justified.

Upon a detailed study of the legal regulation of this issue, it becomes clear that for most law enforcement officials, the question remains unclear both about the very understanding of the bias of the jury, and on what grounds such a petition can be filed and how to motivate it. All this led only to diverse discussions in theory and scattered judicial practice (This issue was studied by S.A. Nasonov, T.Y. Markova, T.Y. Maksimova, K.I. Kanbekov, D.E. Chudaeva, Y.V. Rudneva, Ya.A. Pishchulina, F.N. Bagautdinov, V.Y. Stelmakh, N.P. Vedishchev, and Reshetova N.Y. and others).

Let's turn initially to the etymology of the question. The explanatory dictionary of S.I. Ozhegov defines the word "tendentious" as "biased, biased"^[1]. Thus, the bias of the jury should be interpreted as a bias of their opinion, adherence to one way of thinking, which may interfere with the objective consideration of the case and the fair verdict in the case.

It should be noted that the term itself has taken root well in judicial practice, but not in relation to the jury trial. The court often uses it in its decisions.: "All the statements of the defendant about the judge's recusal have been considered, reasonable procedural decisions have been made on them. Circumstances indicating the bias of the presiding judge have not been established"[Appeal Resolution no. 22-100/2023 22-100/2024 dated February 8, 2024 in case No. 1-278/2023; Appeal Resolution No. 22K-274/2024 dated January 24, 2024 in case No. 3/2-240/2023; Appeal Resolution No. 22K-1928/2023 dated August 17, 2023 in case No. 3/10-30/2023.]; "According to the author of the complaint, by its decision the court creates a negative precedent, due to which a significant part of the convicts lack motivation to law-abiding behavior while serving their sentences and the desire to socialize after release. He believes that the bias shown by the court of first instance indicates the illegality of the decision taken, which was canceled on the grounds specified in Articles 389.15, 389.16, 389.20 of the Code of Criminal Procedure of the Russian Federation."[Appeal Resolution No. 22-4031/2023 of October 24, 2023 in case No. 4/1-99/2023.]; "Thus, all of the above defense arguments combined and interrelated show that the justice of the peace did not analyze the factual basis of the case, did not evaluate the evidence in accordance with the requirements of Articles 87, 88 of the Code of Criminal Procedure. The judge drew conclusions based on speculative conclusions, referring to unreliable and unreliable evidence. Rejecting the defense's arguments about the unreliability of the prosecution's evidence, the court did not refute these arguments through a convincing and proper analysis of the factual circumstances from the point of view of common sense, through a proper assessment of the evidence, thereby showing bias, bias and accusatory bias"[Appeal Decision No. 1A-31/2023 of July 3, 2023 in case No. 1A-31/2023.].

In other words, bias is partiality, bias. It would seem that the meaning of the word is very clear, but when it is implemented in practice, difficulties and discrepancies begin to arise.

Scientific doctrine.

S. A. Pashin points out that the institution of a statement of bias makes it possible to prevent the bias of the jury in certain categories of crimes, since in cases of crimes related to national clashes and sexual crimes, not only one hundred percent participation in the trial of jurors of the same nationality or gender, but even the majority of them, can be dangerous^[2].

N. V. Radutnaya holds the position that bias should be used in cases where "all the jurors are familiar with the defendant or were eyewitnesses of the incident"^[3]. Such cases, as she notes, are isolated and can be justified only in the presence of certain factors: characteristics of the area (small town, village), personality (well-known personality)^[4].

However, there are scientists who consider the institute to be non-working and in need of abolition.

S. I. Dobrovolskaya believes that the institution in question should be abolished, since the jury may develop a hostile attitude towards the defendant, who stated the bias of the formed board, if the defendant's application is not satisfied^[5]. In this case, it is difficult to agree with the position, since the procedure for implementing the statement of bias cannot be placed on the same plane as the very essence and purpose of this institution. It is only necessary to listen to this statement in the absence of the jury or at the chairman's table without disclosing such information to the jurors.

S. V. Marasanova believes that at a time when it is possible to file a motion on the bias of the jury, it is practically impossible to conclude whether or not the jurors are capable of delivering an objective verdict. The author notes that Article 328 of the Criminal Procedure Code of the Russian Federation provides the parties with a wide range of powers to participate in the process of forming the board, and this fact completely eliminates the need to preserve in the Criminal Procedure Code of the Russian Federation such grounds for the dissolution of the jury as the bias of its composition. That is, when selecting jurors, the parties must initially take into account the likelihood of selecting a large number of persons united by some feature that, from the point of view of this party, may affect the final verdict of the entire panel^[6].

However, we cannot share this opinion. Both sides are involved in the formation of the board: the defense and the prosecution. Both sides have the opportunity to ask questions during the selection process, to declare both a motivated challenge and an unmotivated one. And paragraph 16 of Article 328 of the Code of Criminal Procedure of the Russian Federation also provides, if the number of non-dismissed jurors allows, the right to one additional unmotivated challenge. Until the last moment, it is impossible to say for sure with certainty about the final result and whether there are signs of bias in the formed board. The legislator intentionally provides, taking into account the fact that all the provisions of the law were observed during the formation of the board, the opportunity to eliminate even the alleged defect at the stage of the formation of the board.

S. A. Nasonov notes: "Due to bias, in the first half of 2023, the jury panels were dissolved in only two cases. A similar number of cases of application of the provisions of Article 330 of the Criminal Procedure Code of the Russian Federation were observed in 2022 and 2021. This number is so small that it cannot be identified by traditional methods of judicial practice research. The reason for this phenomenon, in my opinion, is that neither in legislation nor in judicial practice are the grounds for the dissolution of the formed jury due to its bias clearly outlined, which does not ensure effective motivation for such a statement by the parties"^[7].

Let's turn to practice.

In 2016, the Supreme Court of the Russian Federation recognized as fair the refusal to dissolve the panel of jurors on the grounds of its bias.

Upon completion of the formation of the jury panel, lawyer Gursky stated that the composition of the jury panel was biased, referring to the fact that of the twelve members of the jury panel, eleven were female, while the defendants were male.

The court reasonably refused to satisfy the defense's request for the dissolution of the jury panel in connection with these circumstances. The legality and validity of the court's decision is beyond doubt. The predominance of female over male members of the jury, in the absence of reliable data on their interest in the outcome of the case, is not in itself sufficient grounds for concluding that its composition is biased.

It follows from the list of the formed panel of jurors that it is not homogeneous either in terms of age, professional, or other factors that would allow it to be considered unable to comprehensively and objectively assess the circumstances of the case and reach a fair verdict.

When making this decision, the court reasonably took into account, among other things, that the circumstances of the criminal case under consideration are not related to crimes against the sexual integrity and sexual freedom of women, crimes related to family relations, as well as crimes arising from the relationship between a woman and a man.

For the stated reasons, the Judicial Board recognizes as untenable the references cited for the first time in appeals to the fact that the predominance of women in the jury could have prevented the investigation of the case when there were persons of non-Slavic nationality in the dock, but the injured Slav [Appellate ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 24.11.2016 N 65-APU16-2SP https://legalacts.ru/sud/apelliatsionnoe-opredelenie-verkhovnogo-suda-rf-ot-24112016-n-65-apu16-2sp/].

In contrast to the example considered, in 2011 the Smolensk Regional Court granted the State prosecutor's statement on the bias of the jury panel due to its homogeneity. The court motivated its decision not only by the fact that the panel consisted mainly of women, but also of women who allegedly "expressed sympathy for the defendant," as well as not all of the candidates "sincerely answered the question of whether they were aware of the circumstances of the case from other sources, including the media.""[The castration ruling of the Supreme Court of the Russian Federation dated 26.09.2011 in respect of E.A. Kachanosvsky (mayor of Smolensk). Case No. 36-O11-12SP.]. In this case, I dare not judge by what methods it was established. It is important that, in addition to gender, other facts have been established that make it difficult to reach an objective verdict on the case.

Thus, the Supreme Court of the Russian Federation recognized as lawful the refusal to dissolve the panel of jurors on the sole grounds that a number of candidates had information from the media about certain circumstances of the case, since the jurors indicated that this circumstance would not affect their objectivity in the case, and the defense agreed with their participation in the case as jurors[Appellate ruling of the Supreme Court of the Russian Federation concerning A.N. Shkedov dated October 31, 2017 N 72-APU17-25sp https://tkrfkod.ru/pract/apelliatsionnoe-opredelenie-verkhovnogo-suda-rf-ot-31102017-n-72-apu17-25sp/].

At the same time, it is worth quoting the point of view of E. M. Sedykh, who considers such an election untenable and adds an additional assessment criterion: "For example, in the case of the so-called "Zirinov gang", which committed dozens of serious and especially serious crimes not only in Rostov-on-Don and the Rostov region, but also throughout Russia. It is impossible to imagine that a jury panel can be dissolved just because each of the members of the jury panel knows about the accused in advance. Indeed, this is very likely to happen, since the jury is formed from citizens who permanently reside in the territory of a particular subject of the Russian Federation. What if we're talking about a world-famous defendant? In this situation, in our opinion, there is no need to talk about any bias on the part of the jury just based on the fact that the jury knew about the existence of a specific accused person, because the formation of a new jury will also not correct this situation. In this case, in our opinion, it is not the fact that the jury knew about the case or about the accused that matters, but their lack of prejudice or an already formed opinion about his guilt or innocence at the time of the formation of the panel"^[8].

Thus, in cases involving the "relationship of the sexes", the Supreme Court of the Russian Federation agrees with the need to dissolve the board, which consists of more than half of persons of the same sex. However, in other categories of cases unrelated to the relationship between the sexes, the Supreme Court of the Russian Federation considers the dissolution to be groundless, referring to Article 19 of the Constitution of the Russian Federation, which regulates equality of all before the law and the court, as well as equality of rights and freedoms of men and women, and equal opportunities for their realization[To the cassation ruling of the Supreme Court of the Russian Federation dated 26.09.2011 No. 36-011-12SP. Consultant Plus legal reference system.].

In addition, in our opinion, a person's gender does not imply that this person has any "mandatory set" of beliefs, life values, or assessments that may prevent a jury consisting of more than half or even entirely of the same biological sex from reaching a fair verdict. Women, like men, can occupy completely different positions in society, represent different professions, classes, be different in age and other social characteristics. However, gender is a biological trait, not a social one.

In practice, it can be established that the Supreme Court of the Russian Federation does not recognize the indication of gender only as satisfactory for the dissolution of the board due to its bias, it is also necessary to establish specific factors and a causal relationship with them: "As correctly stated in the ruling, the formed composition of the board, contrary to the statements of the defender, is not homogeneous in terms of gender, age, professional and social factors. The group included both working and non-working people, pensioners, housewives, people with higher, secondary technical and secondary education, aged from 37 to 65 years. The predominance of women in the composition does not indicate that it is impossible for them to accept an objective verdict. At the same time, the lawyer's statement did not indicate by virtue of which specific features of the case they were unable to make an objective decision[Ruling of the Court of Cassation of the Supreme Court of the Russian Federation dated February 2, 2023 N 19-UD22-35sp-A3; Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation convicted A.A. Mazko, A.P. Mazko, lawyer M.M. Gulogo. //https://ukrfkod.ru/pract/opredelenie-sudebnoi-kollegii-po-ugolovnym-delam-verkhovnogo-suda-rossiiskoi-federatsii-ot-02022023-n-19-ud22-35sp-a3/].

Just pointing out your age is also not a valid reason. On July 13, 2023, the Judicial Board of the Supreme Court of the Russian Federation issued a Ruling in case No. 1-UD23-7SP-A2, based on the results of consideration of the Cassation appeal of convict B. and lawyer Mikheev M.B. against the verdict of the Arkhangelsk Regional Court of November 15, 2021 and the appellate ruling of the Judicial Board for Criminal Cases of the Second Court of General Appeal of 04 August 2022. The Supreme Court of the Russian Federation considers that the jury was formed in compliance with the requirements of Articles 326-329 of the Criminal Procedure Code of the Russian Federation and included only those assessors who had the right to administer justice. The statement of the lawyer in his cassation appeal about the bias of the jury in view of their age, close to the age of the victims, is far-fetched and cannot be taken into account"^[9].

Nationality: The Supreme Court of the Russian Federation also does not consider a composition formed by one nationality to be biased, unless the case concerns crimes based on national hostility. One cannot agree with the public prosecutor's argument that the jury was biased in its composition, since 11 of the 12 candidates of the same nationality as the defendants were included in the main body.

The court reasonably refused to satisfy the state prosecutor's request to dissolve the jury panel in connection with these circumstances, issuing a separate reasoned ruling, indicating that the predominance of persons of one nationality over representatives of other nationalities in the jury panel in the absence of reliable data on their interest in the outcome of the case is not in itself sufficient to conclude about the tendency of its composition.

In addition, it is clear from the minutes of the court session that during the formation of the jury panel, no questions were asked about the nationality of the candidates for the jury, and the crime of which the defendants were accused was not of a national nature.

The arguments of the public prosecutor that in the decision to dismiss his petition, the court assessed only the part concerning the nationality of the candidates, ignoring the arguments about the violation of the principle of objectivity in the formation of the jury, were considered by the court and refuted in the decision following the consideration of comments on the minutes of the court session[Cassation ruling of the IC on criminal cases of the Supreme Court of the Russian Federation dated November 15, 2007 N 22-O07-17sp// https://www.garant.ru/products/ipo/prime/doc/1685010 /].

It seems to the author that Russia is a multinational country. It is simply unfounded to file a petition about the bias of the formed board based solely on nationality. In such a situation, it is also necessary to establish additional criteria. For example, the specific nature of the criminal case under consideration is incitement of hatred or enmity, as well as humiliation of the dignity of a person or group of persons on the grounds of gender, race, nationality, language, origin, attitude to religion, membership in any social group (art.282 of the Criminal Code of the Russian Federation). Or it is a long-term national feud, including of a local nature, which no one doubts. For example, the Karabakh ethnopolitical conflict between Armenians and Azerbaijanis, which lasted for more than 30 years, is well known in Russia^[10]. In this case, the local criminal case under consideration in relation to one nationality with a predominantly second-nationality jury may be considered as bias and bias. However, according to the author, the national conflict is not characteristic of the Russian Federation as a stable feature. At the same time, if the situation had been hypothetically considered on another continent, where the case against a "white man" was considered by twelve "African Americans," I think it would have been categorically decided to dissolve such a board.

Based on the analysis of the studied material, the author came to the conclusion that the lack of a clear list of factors influencing the bias of the jury is not accidental. It is simply impossible to prescribe it due not only to the multitude of life situations, but also to the need to individually resolve this issue by assessing the totality of factual circumstances in a particular case. However, this is not a right gap. Such constructions are known to the criminal procedure legislation. No one demands to clearly establish the limits of evidence or the tactics of the investigation, the list of necessary investigative actions in each criminal case. Because in this case it is clear that it is senseless and impossible.

I would like to refer to the wonderful words of Professor Polina Abramovna Lupinskaya, who noted that a law enforcement officer in his work should proceed from the fact that the current law considers it appropriate. Since the law itself contains its expediency, according to P.A. Lupinskaya, its precise and steady application is at the same time its expedient use. It is the application of the letter and spirit of the law, and not the opposition of the letter of the law to its spirit, that ensures strict legality^[11]. In other words, in the paradigm of our view, it is impossible to recognize the institution of bias in the composition of the jury as an unnecessary or non-functioning mechanism. In our opinion, this is an exceptional, extraordinary opportunity to dissolve the panel when external factors intervened in the formation of the jury panel. Such a request is not filed in connection with a violation of the provisions of the law on the formation of the board. Formally, the law was respected. External factors intervened, which affected the quality of the legally formulated composition. Therefore, such an opportunity simply cannot be realized in every case. Otherwise, it would be worth talking about a flawed procedure. There are not many acquittals in percentage terms, but it would be wrong to say that the whole reason lies in the accusatory bias.

Practice shows that approximately twice a year the statement of bias is satisfied, we understand that this is an indispensable, extraordinary and extremely important institution that needs to be able to use. In the right hands, it can play an important and meaningful role in a particular case.

So,

1. The dissolution of the board due to the predominance of persons of one or the other sex is impossible. Because men and women, according to Article 19 of the Constitution of the Russian Federation, are equal in their rights. However, in combination with the circumstances of a particular case, such a request may be granted in cases involving crimes against the sexual integrity and sexual freedom of women, crimes related to family relations, as well as crimes arising from a relationship between a man and a woman. It is worth noting that even in such cases, it is worthwhile to carefully compare all the circumstances of the current situation and establish a causal relationship between all the circumstances. Indeed, in cases of rape, for example, a formed jury may consist of women who have sons rather than daughters, and accordingly will sympathize with the accused rather than the victim. Then the question is directly related to the questions correctly posed to the jury. Unfortunately, the parties sometimes forget about this. You must agree that the hostility of the formed jury to such a profession as a doctor, or a negative attitude towards people who are superior in property status, can only be established by confirming it with the answers of the jury about their own negative experience or the experience of loved ones.

2. Nationality cannot be an objective reason for the dissolution of the panel of jurors. It is necessary to establish additional causally related factors in the case file. These may be crimes motivated by national hostility, which are explicitly named in the Criminal Code of the Russian Federation. Or these are long-term national conflicts, including those of a local nature, which may indicate ethnic hostility between the two nationalities.