. One of the key reforms is, in our opinion, the development of jury trial – an instrument that symbolizes the participation of citizens in justice and makes trials more open and fair. However, since the introduction of jury trial in the country, many questions remain: how effective is the mixed model of this type of proceedings, are citizens ready to take responsibility for the verdict, and to what extent does it increase trust in justice?
We had a unique opportunity to speak with Igor Vranchev, a well-known Kazakhstani lawyer who represented the interests of the injured party in the high-profile case against former Minister of National Economy Kuandyk Bishimbayev. His experience working with juries and his involvement in complex cases gives him a unique perspective on the advantages and disadvantages of this system. In the course of the conversation we will discuss the peculiarities of judicial practice, what challenges lawyers face and how this institution should change to increase trust in society.
– Igor, what issues, in your opinion, are the most relevant today with regard to jury trial in Kazakhstan?
– First of all, I would like to draw attention to compliance with the requirements of the existing norms of the current legislation and the suppression of violations by judges. And in this context, my attention is drawn to two topical issues – the procedure for deliberation and voting in the deliberation room and the stage of revision of not entered into legal force verdicts in cases considered with the participation of jurors.
– What do you consider to be the problems with the conduct of the meeting in the deliberation room?
– By virtue of the requirements of our criminal procedural law, the decision on the issues raised is made in the deliberation room by the judge and the jury panel. Voting is conducted secretly and in writing. In this case, the role of the judge is to direct the jury deliberation, to raise the issues to be discussed and to vote and count the votes. The judge’s vote is also taken into account in reaching a guilty or acquittal verdict.
My attention is drawn to cases when the judge either exerts blatant pressure on the jury’s decision during the voting process or passes a verdict contrary to the way the jury voted. Such facts have been repeatedly covered in the media, and they not only cause indignation of the jurors themselves, but, in fact, form the public’s distrust of the court and the state power and in general.
Recently, for example, a criminal case tried by a Specialized Interdistrict Criminal Court in one of the regions with the participation of a jury has received publicity. The case was heard for the third time, following the reversal of two acquittals, also rendered by the court with the participation of jurors, against three defendants. As a result, seven jurors sent a collective appeal to the President, the Presidential Administration, the Prosecutor General, the Commissioner for Human Rights, the Supreme Court, as well as the Senate and Majilis, in which they pointed out that in the deliberation room the judge presiding over the case told all jurors that they should indicate “yes, guilty” answers on the ballots. The jurors noted that the judge pressured them and the other jurors because, in the deliberation room, most of the jurors had indicated during deliberations that the defendants’ guilt was not proven. Moreover, these seven jurors pointed out that the majority of all jurors voted in favor of innocence and were shocked to hear that the judge had pronounced a guilty verdict. The appeal board of the regional court, despite all these violations, which were voiced by the lawyers of the convicted, left the verdict unchanged, and it came into force.
– What measures should be taken to eradicate such practices? After all, this is not an isolated case, we have witnessed such precedents before.
– The unanimous opinion of the lawyers’ community, according to my observations, is that the jury should deliberate and vote independently without the participation of the judge, but this issue is related to the change of the jury trial model in Kazakhstan from mixed to classical within the framework of the criminal procedural legislation. This is an ideal option.
A compromise, I would even call it a transitional option, is to make point changes to the Code of Criminal Procedure. First, it is necessary to provide for open voting of jurors in the deliberation room and without the participation of the judge. And secondly, the proclamation of the jury’s verdict should be conducted with an indication of the number of votes on the decision taken before the court is removed to the deliberation room for the verdict.
– You mentioned the second problematic issue related to the review of jury verdicts that have not entered into force.
– Yes, this issue has long been of concern to the legal community. My colleagues, lawyers in cases in which the jury found the defendants not guilty and acquittals were handed down, also address me on this issue. In many such cases, acquittals are overturned by the higher instance on formal grounds.
For example, a regional court ruling from last year overturned the acquittal verdict of the Specialized Interdistrict Court for Criminal Cases rendered with the participation of a jury against the defendant. As grounds for reversal, the appellate court pointed out that one of the jurors had withheld information that in 2022 she had been held administratively liable for the presence at night of minors outside the home unaccompanied by legal representatives, in 2009 her husband had been convicted and sentenced to two years’ imprisonment, and her father had been convicted twice in 1977 and 1984. This information was obtained by the prosecutor from the special information base of the SIOPSO and submitted to the court of appeal. At the same time, as it follows from the circumstances of the case, during jury selection the issue of administrative liability was not inquired from the jurors. As to the criminal liability of the father and the spouse of the juror, their convictions had been expunged by that time, and they were considered not to have been convicted.
In the same case, the reason for the annulment was that the alternate juror, as it follows from the ruling of the appellate instance, concealed from the court that her spouse was also sentenced to one and a half years’ imprisonment in 1995. At the same time, neither the prosecutor, when filing the appeal motion, nor the appeal panel took into account that the alternate juror not only does not take part in the voting, but also cannot be present in the deliberation room by virtue of the law.
And there are more than enough such cases, when certain circumstances, including past convictions of relatives or spouses, even former ones, are grounds for revision of acquittals.
A reasonable question arises: why the prosecutor involved in the case during the jury selection process does not clarify all these circumstances, given that prosecutors have no problems accessing the SIOPSO database. And what would the prosecutor’s office have done if a conviction had been obtained, would it have filed a motion to appeal on these grounds?
– What solution do you propose to this issue?
– Clarification of formal grounds such as the presence of expunged convictions of relatives and spouses, including former ones, or criminal or administrative liability of a candidate is possible and should be at the stage of jury selection. And prosecutors, unlike lawyers, have such opportunities. If the prosecutor had found this out at the stage of preliminary hearing, it would not have been necessary to waste time and taxpayers’ money on months-long reconsideration of cases.
But the conceptual solution to this problem must go deeper. It is obvious that it is necessary to reduce the list of grounds for the annulment of acquittals within the framework of the Code of Criminal Procedure. It is necessary to introduce a norm that the verdict of the court with jury participation can be canceled only if the appealing party has proved to the court of second instance not only the fact of violation of the rules of criminal proceedings, but also that this violation caused the imposition of the appealed verdict. This material has been funded by UK International Development from the UK government; however, the views expressed do not necessarily reflect the UK government’s official policies. The material has been prepared within the framework of the project “Strengthening Jury Trials by Capacity Building for Judges, Prosecutors, and Lawyers in Kazakhstan” implemented by PF “Legal Policy Research Centre” (LPRC). This project was funded with UK International Development from the UK government.
