Pretrial Jury Hearing. Features of judicial proceedings with the participation of jurors. Features of the judicial investigation and the arguments of the parties in court with the participation of a jury

In accordance with Art. 217 of the Criminal Procedure Code of the Russian Federation, as already noted, when familiarizing himself with the materials of the criminal case, the accused has the right to petition for the consideration of the case by a court with the participation of a jury - in the cases provided for in paragraph 1 of part 3 of Art. 31 of the Criminal Procedure Code of the Russian Federation. If such a request was made by the accused at this stage of the process, then in order to resolve the issue of the possibility of considering a criminal case by a jury in mandatory a preliminary hearing is held (clause 5 of part 2 of article 229, article 325 of the Criminal Procedure Code of the Russian Federation).

Increased requirements are imposed on this stage of the criminal process, since it is here that a number of legal issues, which are not subject to jury research, which will be discussed below.

The preliminary hearing is held by the judge alone in a closed court session with the participation of the parties. In this case, the notification of the summons of the parties in judicial sitting must be sent at least 3 days before the date of the preliminary hearing.

At the request of the accused, a preliminary hearing may be held in his absence. Failure of other timely notified participants in the criminal proceedings to appear does not preclude the conduct of the preliminary hearing.

During the preliminary hearing, additional evidence may be requested at the request of the defense. The petition of the defense party to demand additional evidence or items is subject to satisfaction if the given evidence and items are relevant to the criminal case.

At the request of the parties, any persons who know anything about the circumstances of the proceedings may be questioned as witnesses investigative actions or seizure and attachment to the criminal case of documents, with the exception of persons with witness immunity.

As mentioned earlier, at the preliminary hearing stage, issues are resolved that cannot be clarified in the presence of a jury. Such questions include, for example, the question of the exclusion of evidence.

The parties have the right to file a motion to exclude any evidence from the list of evidence presented in court proceedings. If a petition is filed, a copy of it is transferred to the other party on the day the petition is submitted to the court.

A motion to exclude evidence must contain indications of:

1) evidence, the exclusion of which is requested by the party;
2) the grounds for excluding evidence provided for by this Code and the circumstances justifying the petition.

The judge has the right to interrogate a witness and attach the document specified in the petition to the criminal case. If one of the parties objects to the exclusion of evidence, the judge has the right to read out the protocols of investigative actions and other documents available in the criminal case and (or) submitted by the parties.

When considering a motion to exclude evidence submitted by the defense on the grounds that the evidence was obtained in violation of the requirements of this Code, the burden of refuting the arguments presented by the defense lies with the prosecutor. In other cases, the burden of proof lies with the applicant.

If the court made a decision to exclude evidence, then this evidence loses its legal force and cannot be used as the basis for a judgment or other court decision, as well as investigated and used in the course of judicial trial.

If a criminal case is being considered by a court with the participation of a jury, then the parties or other participants in the court session shall not have the right to inform the jury of the existence of evidence excluded by a court decision.

Based on the results of the preliminary hearing, the judge makes one of the following decisions:

1) on the direction of the criminal case according to the jurisdiction in the case, foreseen in part the fifth of this article;
2) on the return of the criminal case to the prosecutor;
3) on the suspension of criminal proceedings;
4) on the termination of the criminal case;
5) on the appointment of a court session.

If the judge grants the motion to exclude evidence and at the same time appoints a court session, then the decision shall indicate which evidence is excluded and which materials of the criminal case, justifying the exclusion of this evidence, cannot be examined and announced in the court session and used in the process of proving.

If during the preliminary hearing the prosecutor changes the charge, the judge also reflects this in the ruling and, in the cases provided for by this Code, directs the criminal case according to the jurisdiction.

In the decision on the appointment of a criminal case to a hearing by a court with the participation of a jury, the number of candidates for jurors who must be summoned to the court session and who must be at least twenty should be determined, and it should also be indicated whether the court session will be open, closed or partially closed. In the latter case, the court must determine in which part the court session will be closed.

The decision of the judge to consider a criminal case with the participation of a jury is final. The subsequent refusal of the defendant to consider the criminal case by a court with the participation of a jury is not accepted. Copies of the decree are handed over to the parties at their request.

In accordance with Art. 217 of the Criminal Procedure Code of the Russian Federation, when familiarizing with the materials of the criminal case, the accused has the right to petition for the consideration of the case by a court with the participation of a jury in the cases provided for in paragraph 1 of part 3 of Art. 31 of the Criminal Procedure Code of the Russian Federation. If such a petition was made by the accused at this stage of the process, then in order to decide on the possibility of considering a criminal case by a court with the participation of a jury, a preliminary hearing is mandatory (clause 5, part 2 of article 229, article 325 of the Code of Criminal Procedure of the Russian Federation). The accused can also file a motion for a trial by a jury after the case has been sent to the court, but before the appointment of a court session (clause 1 of part 5 of article 231 of the Code of Criminal Procedure of the Russian Federation). The judge cannot decide the issue of scheduling a court session earlier than before the expiration of three days from the date of receipt by the accused of a copy of the indictment, since, according to Part 3 of Art. 229 of the Code of Criminal Procedure of the Russian Federation, during this period the accused has the right to petition for a preliminary hearing. In this case, the accused has the right to file a motion for his case to be examined by a jury directly at the preliminary hearing and in cases where the preliminary hearing is held at the request of this accused, albeit on other grounds, for example, to resolve the issue of exclusion inadmissible evidence, or at the request of other participants in the process, as well as at the initiative of the judge.

Increased requirements are imposed on this stage of the criminal process, since it is here that a number of legal issues are resolved that are not subject to research with the participation of jurors. In particular, the judge must find out from the accused whether he confirms (declares) the petition for the consideration of the case by a court with the participation of a jury, explain that he cannot refuse from this form of legal proceedings in the future. The issue of excluding from the proceedings of the case evidence obtained in violation of the law, about which the jurors should not be aware, should be resolved, since this may have an impact on them when passing a verdict.

The preliminary hearing is held by the judge alone in a closed court session with the participation of the parties, to whom a notice of summons must be sent at least 3 days before the day of its holding. At the request of the accused, a preliminary hearing can be held in his absence, and the absence of other participants, such as the victim, does not prevent the holding of such a hearing.

At the appointed time, the presiding judge opens the court session and announces which criminal case is subject to trial, then the appearance in court is checked, the identity of the defendant is established, it is ascertained whether and when exactly a copy of the indictment has been handed over to him, after which the composition of the court is announced, who is the prosecutor. the defender, the victim, the secretary keeping the minutes, the declared challenges are allowed, the rights are explained.

After that, the defendant is asked whether he confirms (declares) the petition for the consideration of the case by a court with the participation of a jury. If the defendant has not filed a request for this, then the criminal case is considered by another composition of the court in the manner prescribed by Art. 30 of the Criminal Procedure Code of the Russian Federation. When several defendants are involved in the case, the presiding judge must ask each of them about the desire or unwillingness to consider the case by such a composition of the court. A criminal case is considered by a jury in respect of all defendants, if at least one of them makes a motion about it. Then the judge examines the statements of the parties and resolves their requests to summon new witnesses, experts and specialists, to request material evidence, documents, to exclude evidence obtained from violation of the Criminal Procedure Code RF, and others.

Based on the results of the preliminary hearing, the judge issues a decision in accordance with Ch. 34 of the Criminal Procedure Code of the Russian Federation. In the decision on the appointment of a criminal case to a hearing by a court with the participation of a jury, the number of candidates for jurors who are to be summoned to the court session must be determined, which must be at least 20, which is due to the requirements for the formation of a jury.

The specific number of jurors is determined by the judge depending on the degree of awareness of the population about the circumstances of the case, especially the geography of the region, its transport communications, employment and other circumstances. In this case, it must be taken into account that one and the same person cannot participate in court hearings as a juror more than once during the year. Also, the decision indicates the form of the court session (closed, open, partially closed), what inadmissible evidence is excluded, cannot be examined in the court session, a measure of restraint, etc.

If during the preliminary hearing the prosecutor changes the charge, the judge also reflects this in the ruling and, in the cases provided for by the Code of Criminal Procedure of the Russian Federation, does not appoint a trial by a court with the participation of a jury, but directs the criminal case according to the jurisdiction. At the request of a party or on his own initiative, the judge may return the criminal case to the prosecutor in order to remove obstacles to its consideration by the court with the participation of a jury, to oblige the prosecutor to ensure the elimination of the violations committed within 5 days. In cases established by law, the judge shall issue a resolution to suspend or terminate criminal proceedings. The decision of the judge is handed over to the parties at their request, is final, however, it can be appealed and canceled by a higher court in case of violations of the norms of the Code of Criminal Procedure of the Russian Federation.

After the appointment of the court session, by order of the presiding judge, the secretary of the court session or the assistant judge selects candidates for jurors from the general and reserve lists in the court by random sampling for participation in the consideration of the criminal case, draws up a preliminary list of candidates for jurors, who are not later than 7 days before the start of the trial, notices are delivered indicating the date and time of arrival at the court. At the same time, all legal circumstances that prevent a person from participating in a criminal case as a juror must be checked. In particular, according to Part 2 of Art. 3 of the Federal Law of August 20, 2004 No. 113> FZ (as amended on March 31, 2005) "On jurors of federal courts general jurisdiction v Russian Federation»These lists should not include persons under 25 years of age, with an unexpunged or unexpired conviction, recognized by the court incapacitated or limited by the court in legal capacity, registered in a narcological or neuropsychiatric dispensary in connection with treatment for alcoholism, drug addiction, substance abuse, chronic and lingering mental disorders. Any> any restrictions on the inclusion of citizens in the lists of jurors, depending on social origin, race and nationality, property status, membership of public associations and movements, gender and religion are not allowed.

The jury trial in Russia was first introduced during judicial reform 1864 It existed until 1917 (53 years), although it was legally canceled only in October 1922. The incentive for its introduction was the crisis in the justice system. Acting as a powerful demoralizing factor, it hindered the socio-economic development of society.

Supporters of the jury trial argued that its introduction would necessarily lead to an improvement in the quality of the investigation, ensure the independence of judges, adversarial proceedings and, as a result, would contribute to the strengthening of the judiciary by overcoming public distrust in acts of justice. Their opponents, in turn, cited arguments that raised doubts about the ability of representatives of the people who had recently emerged from serfdom to freely participate in criminal proceedings. The former promoted jury trials as a progressive instrument for administering justice, capable, among other things, of significantly raising the level of legal awareness in Russian society. The latter defended the idea of the impossibility of the expected changes on the territory of Russia. Supporters of the jury considered it "the court of public conscience", "the court of common sense", "the court of the truth of life." Opponents, arguing against them, argued that it was a "street court", "a crowd court", "a court without a rudder and without sails", "a toy in the hands of the prosecution and especially the defense."

According to the statistics of that time, for the period from 1864 to 1917. courts with the participation of jurors considered about 3 \ 4 of all criminal cases. The composition of such a court was represented by 3 professional judges and 12 jurors. The responsibility of the latter was to decide on the guilt or innocence of the defendant. If found guilty of a crime, the jurors were required to give their opinion as to whether he deserved leniency in determining the penalty. On the basis of the jury's verdict, the professional judges passed the verdict.

The jury at that time had jurisdiction over cases in which, in addition to imprisonment, hard labor, exile and other equally severe punishments, the deprivation or restriction of the rights of the state was envisaged. In those years, the jury often showed leniency towards persons who committed crimes in the service, against the order of management or petty theft. In such cases, they acquitted about half of the defendants. In the practice of pre-revolutionary justice, many acquittals were passed against women. It is appropriate to cite here not only a textbook example of the justification of the terrorist Vera Zasulich, who shot at the St. Petersburg mayor F. Trepov, but also the criminal cases of Olga Palem, Praskovya Kachka and others, who killed their lovers for the suffering they inflicted, but were later acquitted by the jury. At the same time, the jury, as a rule, treated those accused of religious crimes, murder, robbery and large-scale embezzlement much more severely than professional judges.

The results of the jury trial in the pre-Soviet period were important for further development the judicial system. In fact, this court was able to act not only as a popularizer legal knowledge v Russian Empire, but also contributed to the emergence of a favorable psychological climate in the administration of justice. Moreover, jury verdicts have on a number of occasions spurred government revisions of outdated or overly harsh laws.

The first step towards the revival of the jury in modern Russia was the adoption in 1989 of the "Fundamentals of Legislation USSR and the Union republics on the judiciary ”. This normative act established that the question of the guilt of the defendant in cases of crimes, for the commission of which the death penalty or imprisonment for more than 10 years could be imposed, can be considered by a jury. Soon thereafter, a provision appeared in the Constitution of the RSFSR that the consideration of criminal cases in the courts of first instance could be carried out with the participation of a jury.

Shortly before the collapse of the Soviet Union, the Supreme Soviet of the RSFSR approved the Concept of Judicial Reform. Among the merits of a jury trial, it included “... the introduction of everyday common sense and people's sense of justice into the atmosphere of state justice; stimulating the adversarial process; the ability to test the correctness of laws in relation to a specific case. " V this document the jury was seen as a means of resolving "... non-standard situations where, due to the severity of the possible consequences, it is more dangerous to sin against justice than against the dictates of an abstract legal norm." The classic model of the jury, envisaged in the Concept, was soon implemented in the RF Law “On Amendments and Additions to the Law of the RSFSR“ On Judicial System in the RSFSR ”, the Criminal Procedure Code of the RSFSR, the Criminal Code of the RSFSR and the RSFSR Code of Administrative Offenses.” exactly named in it legislative acts the composition of the court with the participation of the jury was established by law.

In 1993, a special decree of the Supreme Soviet of the RSFSR established the procedure for introducing this form of administration of justice. It proposed to organize this in stages, and only after solving a number of organizational and material and technical issues, as well as as judges, prosecutors, investigators, lawyers are ready to work in the new conditions.

Thus, it took about 2 years for jury trials to start working in 9 Russian regions. Altai, Stavropol and Krasnodar regions, as well as Ivanovskaya, Moscow, Rostov, Ryazan, Saratov and Ulyanovsk regions were selected as an experiment. However, such a selective approach of the legislator put in an unequal position those accused of committing especially grave crimes. In fact, he distorted the essence of their constitutional right to a jury trial, since some could use it, while others could not.

The first trial in post-Soviet Russia with the participation of a jury took place in December 1993 at the Saratov Regional Court. He was very revealing. The Martynov brothers were accused of robbery, as well as premeditated murder of 3 people, committed with particular cruelty, out of selfish motives. They were threatened with punishment of up to 20 years in prison, the death penalty or life imprisonment. However, during the trial of their criminal case, the jury came to the conclusion that the murder took place during a mutual fight, and the Martynovs defended themselves from victims previously convicted of hooliganism, and the charges of robbery were dropped from them altogether. Thus, the defendants were found guilty by the jury only for murder committed in excess of the limits of necessary defense. Based on their verdict, the judge sentenced one and a half years to one, and a year in prison to the other brother.

At the same time, progressive-minded lawyers began to declare that it was inadmissible to restrict the right to a jury trial and spoke in favor of expanding the competence of such a court. Largely due to their persistence, a law was passed on the widespread introduction of jury trials on January 1, 2003.196 However, for various reasons, this did not happen. Moreover, despite the fact that both the Government of the Russian Federation and the Supreme Court of the Russian Federation have done a lot to solve this problem. In particular, the necessary funds were allocated in a timely manner, appropriate premises were equipped, guidelines, a training film was shot, other work was carried out to provide material and technical support for the activities of such courts. Nevertheless, since January 1, 2003, jury trials have started working only in 70 out of 89 subjects of the Russian Federation. With the onset of July 2003, they appeared in 14 more regions, including Moscow. All over Russia, jury trials started working only from January 1, 2004.

The only exception affected the Chechen Republic, where its introduction was possible only from January 1, 2010.197 All these circumstances automatically extended the moratorium on the death penalty, but most importantly, they could not be regarded as a violation of the requirements of the Constitution of the Russian Federation.

Currently, the jury operates with a professional judge and a panel of 12 jurors. A feature of his work is that the jury, as representatives of Russian society, participate in the trial and solve the tasks assigned to them by law, acting independently of a professional judge. In essence, they are "judges of fact" decisive issues not requiring legal assessment since according to the legislator's intention, their decision should be dealt with by professional judges, i.e. “Judges of law”. The jury, in the absence of a professional judge, must answer three basic questions:

whether the act has been proven;
whether it has been proven that the act was committed by the defendant;

Jurors should strive to reach a unanimous decision when answering the questions posed. Adopting it by a majority of votes, they proceed from the results of the discussion. A professional judge is rigidly bound by the verdict of the jury. Guided by it, he applies the criminal law and determines the measure of punishment. If the verdict is acquitted, then the judge is obliged to release the defendant from custody immediately, i.e. right in the courtroom.

There are some nuances in passing a guilty verdict. For example, guided by evidence that a person is guilty of a crime, a jury may find the defendant deserving of leniency. With this development of events, the judge is obliged to mitigate his punishment.

A verdict rendered on the basis of a jury verdict within the time period prescribed by law may be appealed before it enters into law. legal force... For example, according to judicial statistics in 2003 (i.e. at the initial stage of the widespread activity of the jury), the Cassation Board The Supreme Court RF decisions were revised on 299 yrs. cases against 551 people. At the same time, in relation to 28 convicts, the convictions were canceled, and in relation to 34 people. - exculpatory. The most common reasons for such decisions were recognized:

violation of the rights of the accused at the final stage preliminary investigation;
incorrect posing by the judge of questions to be decided by the jury;
violation of the order of their meeting and voting.

It can be seen that judicial errors leading to the overturning of sentences were most often committed by professional judges, and not by jurors.

According to the Supreme Court of the Russian Federation, about 20% of the accused annually file applications for the consideration of their cases with the participation of jurors.

Moreover, their number is constantly growing. Nevertheless, even taking into account such dynamics, it can be stated that the introduction of a jury trial in the Russian Federation has not yet had a significant impact on improving the quality of justice. Some jury verdicts cause confusion among lawyers, but at the same time find understanding and support in the public consciousness.

The paradox is that it is easier for a person who has not committed a crime to prove his innocence to a jury than in a regular court. There are many explanations for this. For example, one of the reasons for this state of affairs is rightly considered the fact that among the jurors almost everywhere there is a predominance of persons from among the retirees and the unemployed. This is due, first of all, to the specifics of the jury's activities, which is expressed in the fact that participation in its sessions not only presupposes the distraction of citizens from their usual activities, but also entails tangible financial losses. Experts correctly draw attention to the fact that modern jurors are ordinary people, for the most part not very successful and not particularly socially active. "A big businessman, a prominent scientist or a highly skilled surgeon will hardly be able to find the time and will find the desire to sit in court sessions for months, abandoning his favorite work."

And, nevertheless, the very existence of a jury trial has a positive impact on legal proceedings in general. This can be considered quite natural, since the procedure for considering criminal cases with the participation of a jury is designed to ensure compliance with constitutional law citizens for their participation in the administration of justice. Moreover, in part 2 of article 55 of the Constitution of the Russian Federation, a rule is enshrined in accordance with which laws that abolish or diminish the rights and freedoms of a person and a citizen should not be issued in Russia. Accordingly, the realization of the right of citizens to a jury trial is one of the most important tasks of the state. Because of how the practice of its solution will develop in the future, it will depend on whether the jury can become an effective instrument for the protection of rights and legitimate interests victims of crimes, as well as the rights and legitimate interests of persons subject to criminal prosecution, in order to exclude cases of illegal restriction of their rights and freedoms. For the effective work of the jury in Russia, not only a legal, but also a favorable psychological climate must be created in the administration of justice. At the same time, the constantly emerging economic, organizational and ethical issues in one way or another connected with its functioning should be resolved.

Characteristic features of the procedure for proceedings in a court with the participation of jurors

Section XI of the Criminal Procedure Code of the Russian Federation is devoted to the peculiarities of proceedings in court with the participation of jurors in the current criminal procedural legislation. It begins with Article 324 of the Code of Criminal Procedure of the Russian Federation, according to which proceedings in court with the participation of a jury are conducted in general order taking into account the features provided for by Chapter 42 of the Criminal Procedure Code of the Russian Federation. With regard to a particular stage of proceedings in the court of first instance, they can be grouped as follows:

1 group "Features of preparatory actions for the consideration of a criminal case by a court with the participation of a jury." Among them:

features of the preliminary hearing (Article 325 of the Code of Criminal Procedure of the Russian Federation);
drawing up a preliminary list of jurors (Article 326 of the Code of Criminal Procedure of the Russian Federation);
preparatory part of the court session (Article 327 of the Code of Criminal Procedure of the Russian Federation);
formation of a jury (Article 328 of the Code of Criminal Procedure of the Russian Federation);
replacement of a juror with a spare (Article 329 of the Code of Criminal Procedure of the Russian Federation);
the dissolution of the jury in view of the tendentiousness of its composition (Article 329 of the Code of Criminal Procedure of the Russian Federation);
taking the oath by the jury (Article 332 of the Code of Criminal Procedure of the Russian Federation).

Group 2 "Features of the judicial investigation and debate of the parties in the consideration of a criminal case by a jury." Among them:

features of the judicial investigation in court with the participation of jurors (Article 335 of the Code of Criminal Procedure of the Russian Federation);
debate of the parties (Article 336 of the Code of Criminal Procedure of the Russian Federation);
the formulation and content of issues to be resolved by the jury (Articles 338 and 339 of the Code of Criminal Procedure of the Russian Federation);
parting words of the presiding judge (Article 340 of the Code of Criminal Procedure of the Russian Federation).

Group 3 "Peculiarities of making procedural decisions based on the results of the consideration of a criminal case by a court with the participation of a jury." Among them:

the secrecy of the jury meeting (Article 341 of the Code of Criminal Procedure of the Russian Federation);
the procedure for holding a meeting and voting in a conference room (Article 342 of the Code of Criminal Procedure of the Russian Federation);
delivery of a verdict (Article 343 of the Code of Criminal Procedure of the Russian Federation);
additional clarifications of the presiding judge (part 1 of article 344 of the Criminal Procedure Code of the Russian Federation);
clarification of the questions raised (part 2 of article 344 of the Criminal Procedure Code of the Russian Federation);
resumption of the judicial investigation (part 6 of article 344 of the Code of Criminal Procedure of the Russian Federation);
announcement of the verdict (Article 345 of the Criminal Procedure Code of the Russian Federation);
actions of the presiding judge after the announcement of the verdict (Article 346 of the Code of Criminal Procedure of the Russian Federation);
discussion of the consequences of the verdict (Article 347 of the Code of Criminal Procedure of the Russian Federation);
types of decisions taken by the presiding judge (Article 350 of the Code of Criminal Procedure of the Russian Federation);
sentencing (Article 351 of the Code of Criminal Procedure of the Russian Federation);
termination of the consideration of a criminal case in connection with the established insanity of the defendant (Article 352 of the Code of Criminal Procedure of the Russian Federation);
peculiarities of keeping the minutes of the court session (Article 353 of the Code of Criminal Procedure of the Russian Federation).

From the above list of features, it can be seen that the jury has an original, and rather numerous, composition. It is based on a collegium of non-professional judges, which has a special organization and special competence in matters of interaction between jurors and the presiding judge. It is these and some other essential features that determine the specifics of this form of litigation and have a decisive impact on the nature of the decision-making procedure based on its results.

In order to better understand the objective connection and interdependence of the characteristic features of proceedings in court with the participation of jurors, let us dwell on their sequential consideration. We believe that there are at least seven such features.

According to the current criminal procedure legislation of the Russian Federation, the jury has jurisdiction over criminal cases on crimes provided for by part 3 of article 31 of the Criminal Procedure Code of the Russian Federation. There are about forty of them. These crimes are united not only by the fact that all of them are especially grave (i.e. crimes for the commission of which a punishment is provided for in the form of imprisonment for a term exceeding 10 years or more severe punishment), but also that each of they are subject only to the Supreme Court of the Republic, the regional, regional court, the court of the city of federal significance, the court autonomous region and the court autonomous region, as well as the district (naval) military court. At the same time, starting from 2009, an exception to this rule began to be criminal cases on crimes provided for by the following articles of the Criminal Code of the Russian Federation:

Article 205 (Terrorist act);
Part 2 - 4 Article 206 (Hostage-taking);
Part 1 of Article 208 (Organization of an illegal armed formation or participation in it);
Part 1 of Article 212 ( Mass riots);
Article 275 (High treason);
Article 276 (Espionage);
Article 278 (Forcible seizure of power or forcible retention of power);
Article 279 (Armed mutiny);
Article 281 (Sabotage).

Thus, the first characteristic feature of the procedure for proceedings in a court with the participation of jurors is the special jurisdiction of criminal cases. But only one accusation of committing a crime under Part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation is still not enough for a criminal case to be considered by a jury. This also requires a petition of the defendant to consider the case by the court in just such a composition. This is the second characteristic feature of jury trials. It is it that predetermines the practical possibility of implementing all of its other features, which will be named below. Moreover, if several persons are accused in the case, only those of them who are accused of committing crimes specified in Part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation are entitled to petition for the consideration of the case by a court with the participation of jurors.

This feature has found a normative expression in Articles 333, 335, 339, 341, 343 of the Criminal Procedure Code of the Russian Federation.

The sixth characteristic feature, which largely determines the specifics of the procedure for jury proceedings, is the strict procedure for the formation of the jury.

According to the established tradition, it should consist of persons who are not carriers of legal knowledge in general, but in criminal and criminal procedure law, in particular. The existence of this tradition is due to the fact that during the trial, jurors will be required to know only the factual circumstances of the criminal case, and not the content of certain legal norms. This approach allows to achieve in the jury the optimal combination of “non-professional” and “professional” principles in the administration of justice.

However, this characteristic feature, unlike the previous ones, is not directly enshrined in the norms of the Code of Criminal Procedure of the Russian Federation, being, in essence, a recognized legal custom. Its widespread use is explained by the fact that the formation of a jury from among persons who did not have experience in operational-search, investigative, prosecutorial and judicial activities, as a rule, excludes the manifestation of professional stereotypes in decision-making.

Here it should be clarified that the normative recognition of this essential feature, with some reservations, can be considered the provisions of Article 7 of the Federal Law "On Jurors of Federal Courts of General Jurisdiction in the Russian Federation". It lists the cases in which citizens included in the general or reserve list of candidates for jurors are excluded from these lists by the highest executive body of state power of a constituent entity of the Russian Federation. One of them is the case when a citizen submits a written application about the presence of circumstances that prevent him from performing the duties of a juror, if he is a judge, prosecutor, investigator, interrogator, lawyer, notary or having special title an employee of the internal affairs bodies, bodies for control over the circulation of narcotic drugs and psychotropic substances, service bailiffs, customs authorities, bodies and institutions of the penal system, as well as a person engaged in private detective activities on the basis of a special permit (license) 205.

Experts correctly point out that the professionalism of judges, for example, along with its obvious advantages, has a significant drawback: very often the inner conviction of a professional judge is based not only (and not so much) on the evidence examined in the court session, but also includes “projection ... of representations, dominating in the professional community ”. In other words: “… in the voice of the judge who made the decision, the whole professional community speaks, as it were”. The most striking manifestation of the so-called professional deformation of judges is quite often recognized as an accusatory bias in their activities. While the "lack of professionalism" of the jury allows it to be avoided.

The last, seventh feature, is the issuance of a jury verdict only on the basis of information obtained by them in the course of a criminal trial. In the special literature it is noted that this feature the jury received its final recognition later than others. Even at the beginning of the nineteenth century, in the decision of the English jury (which later received the status judicial precedent) the principle was substantiated according to which the jurors were finally and irrevocably deprived of the right to use their own extrajudicial knowledge about the circumstances of the case in question when passing a verdict. It is this principle to this day that determines the existence of many advantages of the jury trial over other forms of administration of justice (and not only in the Russian Federation), which are characterized by the opposite rule - the obligatory familiarization of the judge with the materials of the criminal case before the start of the trial. This is quite natural, since in accordance with the current legislation, the judge has a duty to resolve a number of issues, even at the stage of preparation of the court session, who, without familiarizing themselves with the materials of the criminal case transferred to him, would not have been able to find their solution.

Proceduralists in their works correctly note a significant flaw in this state of affairs and point out that this familiarization "... sometimes leads to the formation of bias, 'knowledge of guilt', which makes the judge biased and biased in the course of the trial." "Observing procedural rules stipulated by the law, judges are already unnoticed for themselves ... being drawn into the ideological position of the accuser, while falling into a kind of "trap" 209. Thus, in many cases it is not possible to avoid a situation when a professional judge's accusatory attitude is involuntarily formed even before the start of the trial by him of a criminal case. And, on the contrary. Jurors, freed from the need to familiarize themselves with the materials of the criminal case, are reliably protected from the premature influence of conclusions preliminary investigation, which allows them to impartially formulate answers to the questions posed by the presiding judge. In other words, the lack of knowledge of the jurors about the circumstances of the case in question is their significant moral advantage over a professional judge, called upon to ensure the objectivity of their decision.

This characteristic feature is fully inherent in modern Russian model consideration of a criminal case by a jury. So, according to clause 4 of part 2 of article 333 of the Code of Criminal Procedure of the Russian Federation, jurors are not entitled to collect information on a criminal case outside the court session. The conclusion suggests itself: due to the existence of this feature, it was during proceedings in court with the participation of jurors that the legislator managed to create the most favorable environment for observing the most important general condition of the trial, which presupposes spontaneity and orality when examining evidence in a criminal case (Article 240 of the Code of Criminal Procedure of the Russian Federation) ...

Thus, the characteristic features we have identified not only fully echo the procedure for proceedings in court with the participation of jurors, provided for by the current criminal procedural legislation of the Russian Federation, but also predetermine the possibility of their consistent and comprehensive implementation in each case of a criminal case being considered by such a composition of the court. This is especially clearly manifested in the implementation of preparatory actions for the consideration of a criminal case by a jury, during a trial, debates of the parties, as well as when making procedural decisions based on the results of a criminal case by a court with the participation of a jury.

Features of a preliminary hearing in court with the participation of a jury

To decide on the consideration of a criminal case by a court with the participation of a jury, as a rule, a decision is made to schedule a preliminary hearing. The court can conduct it both at the request of a party and on its own initiative, but only by its own decision, adopted on the grounds specified in part 2 of article 229 of the Code of Criminal Procedure of the Russian Federation.

A preliminary hearing before the consideration of a criminal case in a court with the participation of a jury is conducted by a judge alone in a closed court session with the participation of the parties in compliance with the requirements of Chapters 33, 35 and 36 of the Code of Criminal Procedure of the Russian Federation, with the exceptions established by Chapter 34 of the Code of Criminal Procedure of the Russian Federation, and taking into account the requirements of Article 325 of the Code of Criminal Procedure of the Russian Federation. The notice of summoning the parties to the court session must be sent at least 3 days before the day of the preliminary hearing. Taking into account the requirements of part 1 of article 234 and part 2 of article 265 of the Code of Criminal Procedure of the Russian Federation, a preliminary hearing cannot be started earlier than 7 days from the date of delivery of a copy of the indictment to the accused.

A criminal case involving several defendants is considered by a court with the participation of a jury in respect of all defendants, if at least one of them asks for a criminal case to be considered by a court in this composition, in the absence of objections from the other defendants. If one or several defendants refuse to participate in a jury trial, the court shall decide the issue of separating the criminal case against these defendants into a separate proceeding. In this case, the court must establish that the separation of the criminal case into a separate proceeding will not impede the comprehensiveness and objectivity of the resolution of the criminal case, separated into a separate proceeding, and the criminal case considered by the court with the participation of the jury. If it is impossible to separate a criminal case into a separate proceeding, the criminal case as a whole is considered by a court with the participation of a jury.

If the prosecutor changes the charge during the preliminary hearing, as a result of which the jurisdiction is changed, the judge, by his decision, directs the criminal case according to the jurisdiction in accordance with part 5 of article 236 of the Code of Criminal Procedure of the Russian Federation. After such a decision has been made, the judge has no right to make any other decisions on it.

In the absence of grounds for returning the criminal case to the prosecutor, as well as grounds entailing the suspension or termination of proceedings on the case, the judge, following the results of the preliminary hearing, shall issue a resolution on the appointment of the criminal case for a hearing by a court with the participation of a jury. It must necessarily determine the number of candidates for jurors who are to be summoned to the court session and who must be at least 20, and also indicate whether the upcoming court session will be open, closed or partially closed. In the latter case, the court must determine in which part it will be closed.

The decision of the judge to consider a criminal case with the participation of a jury is final. This means that the subsequent refusal of the defendant to consider the criminal case by the jury is not accepted. Copies of the judge's ruling are handed over to the parties at their request.

Thus, the preliminary hearing is a stage of the proceedings in the court of first instance. The result of its holding should be the completion of preparations for the trial with the participation of the jury. It is here that the judge, with the participation of the parties, decides a set of specific issues, without the solution of which the consideration of a criminal case on the merits will be inadmissible.

Jury: formation, dissolution, election of the foreman, taking the oath

The executive and administrative body of the municipality notifies citizens residing in the territory of the corresponding municipality about the compilation of lists of candidates for jurors, as well as notifies citizens included in the lists of candidates for jurors, and within 2 weeks provides them with the opportunity to familiarize themselves with these lists and examines written applications from them to exclude citizens from the lists of jury candidates and to correct inaccurate information about jury candidates in them.

The lists of candidates for jurors in the cities of federal significance Moscow and St. Petersburg are compiled by the supreme executive body state power and (or) the executive body of state power authorized by it, since the laws of these cities, the powers to draw up lists of candidates for jurors may be vested in the executive and administrative bodies of intracity municipalities... The general and reserve lists of candidates for jurors, formed in these cities, changes and additions made to them, are published in the mass media of the corresponding city of federal significance and must contain only the surnames, names and patronymics of candidates for jurors.

The revised lists of candidates for jurors, signed by the heads of municipalities (or by a person authorized by the representative body of local self-government), are submitted to the supreme executive agency state power of the constituent entity of the Russian Federation, where a general list of candidates for jurors of the constituent entity of the Russian Federation is drawn up. This list must be signed by the head of the highest executive body of state power of the constituent entity of the Russian Federation and sealed. At the same time, the supreme executive body of state power of the constituent entity of the Russian Federation draws up a reserve list of candidates for jurors. It includes only citizens permanently residing in locality at the place of permanent location of the corresponding court. This list is also signed by the head of the highest executive body of state power of the constituent entity of the Russian Federation, after which it is sealed.

The general and reserve lists of candidates for jurors are published in the mass media of the respective municipality. Moreover, they must contain only the surnames, names and patronymics of candidates for jurors. From this moment, each of them has the right to apply to the supreme executive body of state power of the constituent entity of the Russian Federation with written statements about the unjustified inclusion in the lists of candidates for jurors, about their exclusion from the indicated lists or correction of inaccurate information about candidates for jurors contained in these lists.

The highest executive body of state power of a constituent entity of the Russian Federation within 5 days is obliged to consider the received written applications and make decisions that can be appealed in court in the manner prescribed by the civil procedural legislation of the Russian Federation. Changes and additions, as a result, made in the general and reserve lists of candidates for jurors, are published in the mass media of the corresponding municipality.

The executive and administrative body of the municipality and the highest executive body of state power of the constituent entity of the Russian Federation are obliged to annually (and at the request of the chairman of the court in a shorter time frame) check and, if necessary, amend and supplement the lists of candidates for jurors, excluding from them citizens who have lost the right to be jurors , and including those who were additionally selected. Financial security transferred to the executive and administrative bodies of municipalities state powers on the compilation of lists of candidates for jurors is carried out from the federal budget in the manner and amount determined by the Government of the Russian Federation.

Citizens included in the general or reserve list of candidates for jurors are excluded from these lists by the highest executive body of state power of a constituent entity of the Russian Federation in the following cases:

in case of revealing the circumstances that prevent obtaining the status of a juror;
if a citizen submits a written application about the existence of circumstances that prevent him from performing the duties of a juror.

The exclusion of a citizen included in the general or reserve list of candidates for jury in the last of the named cases is possible only when he is:

a person who does not speak the language in which the proceedings are conducted;
a person who is unable to perform the duties of a juror for health reasons, confirmed by medical documents;
a person who has reached the age of 65;
person replacing public office or elective positions in local government;
military personnel; a citizen dismissed from military service under a contract from the federal security service, federal bodies state protection or organs foreign intelligence, - within 5 years from the date of dismissal;
judge, prosecutor, investigator, interrogator, lawyer, notary, official service of bailiffs or a private detective - during the period of implementation professional activity and within 5 years from the date of its termination;
having a special rank as an employee of the internal affairs bodies, bodies for control over the circulation of narcotic drugs and psychotropic substances, customs bodies, bodies and institutions of the penal system;
a citizen dismissed from service in the named bodies and institutions - within 5 years from the date of dismissal;
a clergyman.

Upon completion of work on clarifying the content of the general and reserve lists of candidates for jury, they are sent to the court. This must take place no later than one month before the expiration of the term of office of the candidates for jurors on the previously submitted lists. At the same time, changes made to the general and reserve lists of candidates for jurors are sent to the appropriate court within a week.

If the general and reserve lists of candidates for jurors are identified in the general and reserve lists of candidates for jurors who are subject to exclusion from them, as well as if it is necessary to supplement these lists, the chairman of the court submits to the supreme executive body of state power of the constituent entity of the Russian Federation an idea of the need to amend and supplement these lists.

One and the same person can participate in court sessions as a juror no more than 1 time within 10 working days in calendar year or all the time until the end of the consideration of the case. In other words, one and the same person cannot participate in court hearings as a juror more than once during the year. Juror candidates who have been summoned to court, but have not been selected for the jury and who have not been released from the duties of candidates for jurors, may be recruited to serve as jurors in another court session.

The juror shall retain the guarantees and compensations provided for during the performance of his duties in administering justice at his main place of work. labor legislation... His dismissal or his transfer to another job at the initiative of the employer is not allowed during this period. Moreover, the time the juror fulfills his duties to administer justice is taken into account when calculating all types of seniority.

For the time the juror fulfills the duties of administering justice, the relevant court pays him at the expense of federal budget compensation remuneration in the amount of 1/2 part official salary judges of this court in proportion to the number of days of participation of the juror in the administration of justice. Moreover, the amount of such compensatory remuneration, in any case, must be at least the average earnings of a juror at the place of his main work for the same period. In addition, the court reimburses him for travel expenses, as well as transportation costs for travel to the location of the court and back in the manner and amount established by law for the judges of this court.

A special order of the Government of the Russian Federation approved the method of distributing money for the salaries of jurors and other needs from the state treasury, and without any restrictions. This means that the state should allocate money based on the total jurors and the days they actually worked a year. Thus, during the whole trial jurors receive a salary from Judicial Department at the Supreme Court of the Russian Federation. Its amount should be equivalent to the average salary that they are paid at the place of their main job.

During the period of his administration of justice, a juror shall be subject to guarantees of the independence and immunity of judges, and persons who prevent him from fulfilling his duties in the administration of justice shall be held liable in accordance with the legislation of the Russian Federation.

Let us turn to the consideration of the most essential details of the procedure for forming a jury when considering a criminal case by a court of first instance.

In accordance with the normative prescriptions of Article 326 of the Criminal Procedure Code of the Russian Federation, after the appointment of a court session, by order of the presiding judge, the secretary of the court session or an assistant judge selects candidates for jurors from the general and reserve lists in the court by random sampling. Next, they check for the presence of the provided federal law circumstances that prevent the participation of a person as a juror in the consideration of a criminal case. If a discrepancy is established between the data on the identity of a jury candidate specified in the list drawn up by the supreme executive body of state power of the constituent entity of the Russian Federation with the passport data of the candidate for jury, he / she cannot take part in the procedure for forming the jury.

Juror candidates to participate in the consideration of criminal cases by the Supreme Court of the Russian Federation are selected by random sampling by the apparatus of the Supreme Court of the Russian Federation from the general and reserve lists of candidates for jurors drawn up for courts in the constituent entities of the Russian Federation.

Upon completion of the selection of candidates for jurors to participate in the consideration of a criminal case, a preliminary list is drawn up, indicating their surnames, names, patronymics and home addresses. Moreover, these data should be indicated in the order in which the random sampling took place.

At the same time, this list should not include persons who, due to the circumstances established by federal law, cannot participate in the consideration of a criminal case as a jury. The preliminary list is signed by the secretary of the court session or the assistant judge who drew it up. Simultaneously with the lists, a card is produced containing personal information(surname, name, patronymic, year of birth, passport data, TIN data, insurance pension certificate, etc.) 221.

Juror candidates included in the preliminary list, no later than 7 days before the start of the trial, are given notices indicating the date and time of arrival at the court (usually one hour before the start of the trial) 222. This deadline is established by the legislator in order to ensure the timely appearance of candidates for jury, application in necessary cases measures of accountability to persons who hinder the performance of jury candidates of their duties, and the solution of other issues directly related to the organization of the trial.

The preparatory part of the trial in court with the participation of a jury is carried out in two stages. At the first of them, the judge presiding over the court session performs the procedural actions provided for by Article 327 of the Code of Criminal Procedure of the Russian Federation. There are no jury candidates. And at the second stage of the preparatory part, their presence is already mandatory. Because it is here that the most difficult task connected with the formation of the jury must be solved. Its solution has a number of specific features that predetermine special character accompanying procedural procedures.

For example, the formation of a jury should be carried out only in a closed court session. Moreover, if the materials of the criminal case contain information constituting a state or other secret protected by federal law, then the jury must necessarily select a non-disclosure subscription. A juror who refuses to give such a signature shall be assigned by the presiding judge and replaced by a reserve juror. All this is preceded by a large and painstaking work of the judge and the secretary of the court session.

At the very beginning of the preparatory part of the trial, after the announcement of the information about the appearance of the parties and other participants in the criminal proceedings, the secretary of the court session or the assistant judge reports on the appearance of the candidates for the jury. His information predetermines further procedural actions. For example, if it turns out that fewer than 20 candidates have appeared in court, then the presiding judge gives an order to summon them additionally. In this case, the court session may be postponed. If at least 20 candidates appeared in court, then the preparatory part continues.

Lists of candidates for jurors who have appeared at the hearing, without indicating their home address, shall be handed over to the parties. These lists should contain only the necessary, but sufficient information about the candidate, allowing the formation of the jury (including age, education, social status, etc.) 223.

After the delivery of the lists has taken place, in addition to the rights provided for by the relevant articles from the first part of the Criminal Procedure Code of the Russian Federation, the presiding judge must explain to the parties the following:

the right to declare a reasoned challenge to a candidate for jury on the grounds provided for the challenge of a judge (Articles 61 - 64 of the Code of Criminal Procedure of the Russian Federation);
the right of the defendant or his defense attorney, the public prosecutor to an unmotivated challenge of the juror, which can be declared by each of the participants twice (parts 14 - 16 of article 328 of the Code of Criminal Procedure of the Russian Federation);
other rights provided for in Chapter 42 of the Code of Criminal Procedure of the Russian Federation, in particular, the right to the opportunity to ask each of the remaining candidates for jury questions that, in their opinion, are related to clarifying the circumstances that prevent a person from participating as a juror in the consideration of this criminal case ( Part 8 of Article 328 of the Code of Criminal Procedure of the Russian Federation);
the right to make statements about the dissolution of the jury in view of the tendentiousness of its composition (Article 330 of the Code of Criminal Procedure of the Russian Federation);
the right to comment on the content and wording of questions, to make proposals on the formulation of questions to be resolved by the jury (Article 338 of the Code of Criminal Procedure of the Russian Federation);
the right to raise objections in connection with the content of the parting words of the presiding judge based on his violation of the principle of objectivity and impartiality (part 6 of article 340 of the Criminal Procedure Code of the Russian Federation);
the right to speak in debates at the end of the judicial investigation and when discussing the consequences of the verdict (Article 347 of the Code of Criminal Procedure of the Russian Federation), etc.

After clarifying the rights to the parties, the candidates for the jury are invited to the courtroom. The presiding officer delivers a short introduction to them. In it, he is obliged to introduce himself and introduce the parties, inform which criminal case is subject to consideration and what is the expected duration of the trial, as well as explain the tasks facing the jury and the conditions for their participation in the consideration of this criminal case, provided for by the Code of Criminal Procedure of the Russian Federation. The presiding judge explains to the candidates for jury their duty to truthfully answer questions asked to them, as well as to provide the necessary information about themselves and about their relations with other participants in criminal proceedings. After that, he interrogates the candidates for the jury about the existence of circumstances that prevent them from participating in the consideration of the criminal case.

In accordance with part 3 of article 328 of the Criminal Procedure Code of the Russian Federation, an explanation to the presiding jury candidates of their duty to truthfully answer questions asked to them and provide other information about themselves and about relations with other participants in criminal proceedings, as well as their questioning about the presence of circumstances that prevent participation as a jury in a criminal case, is a prerequisite for the formation of a jury and legal composition court. At the same time, when interviewing candidates for a jury, the presiding judge must take measures to ensure that the questions asked by the parties are understood unambiguously, are specific, related to circumstances that, in the opinion of the interviewer, may impede the participation of candidates for jury in the consideration of this criminal case.

Each of the candidates for jurors who have appeared at the court session has the right to indicate the reasons that prevent him from performing the duties of a juror, as well as to recuse himself. At the motions of the candidates for the jury about the impossibility of participating in the trial, the opinion of the parties is heard, after which the judge makes his decision.

So, from the performance of the duties of a jury, upon their oral or written statement, they can be exempted:

persons over 60 years of age;
women with a child under the age of 3;
persons who, due to their religious convictions, consider it impossible for themselves to participate in the administration of justice;
persons whose distraction from the performance of official duties may cause significant harm to public or state interests;
other persons who have valid reasons for not participating in the court session.

The concealment by candidates for jurors, who were subsequently included in the jury, of information that could have influenced the decision on the case and deprived the parties of the right to a reasoned or unmotivated challenge, is the basis for canceling the sentence.

Juror candidates whose applications for exemption from participation in a criminal case have been satisfied are excluded from the preliminary list and removed from the courtroom.

After satisfying the self-recusations of the candidates for the jury, the presiding judge invites the parties to exercise their right to a motivated recusation. The presiding judge provides the parties with the opportunity to ask each of the remaining candidates for jury questions, which, in their opinion, are related to the clarification of the circumstances that prevent a person from participating as a juror in the consideration of this criminal case. The first to conduct a survey of candidates for jurors is the defense side. If a party is represented by several participants, then the order of their participation in the survey conducted by the party is established by agreement between them.

After the completion of the survey, each candidate is discussed in the sequence determined by their list. The presiding judge asks the parties whether they have objections in connection with the circumstances that prevent the person from participating as a juror in the consideration of a criminal case.

The parties shall forward to the presiding officer motivated written requests for recusals without announcing them. These motions are resolved by the judge without being removed to the deliberation room. Similarly, the issue of disqualification from further participation in the consideration of the case is resolved, both at the initiative of the judge and at the request of the parties of the sworn juror in case of violation of the requirements of Part 2 of Article 333 of the Code of Criminal Procedure of the Russian Federation.

Rejected candidates for jury will be removed from the provisional list. In accordance with Part 2 of Article 64 of the Criminal Procedure Code of the Russian Federation, recusal of a candidate for jury on the grounds provided for in Article 61 of the Code of Criminal Procedure of the Russian Federation shall be announced by the parties before the end of the formation of the jury. If the grounds provided for in this article become known to the parties after the completion of the formation of the jury (including after the adoption of the oath by the jury), then the parties have the right to challenge, but only before the jurors are removed to the deliberation room for a verdict. Such challenges are permitted by the judge in the deliberation room (part 2 of article 256 of the Code of Criminal Procedure of the Russian Federation) 226.

The presiding judge brings his decision on the motivated challenge to the attention of the parties. He can also bring his decision to the attention of the candidates for the jury.

If, as a result of the satisfaction of the declared self-rejections and motivated rejections, there are less than 18 candidates for jurors, then the presiding judge shall give an order on their additional summons. If the number of remaining candidates for jury is 18 or more, then the presiding judge invites the parties to declare unmotivated challenges.

Unmotivated recusations of jurors are announced by the defendant or his defense counsel, as well as by the public prosecutor, by deleting them from the received preliminary list of the names of the candidates for jury to be challenged. These lists are forwarded to the presiding judge without announcing the names of the jurors to be challenged. Together with motivated petitions for the disqualification of the jury, they are attached to the materials of the criminal case.

The public prosecutor is the first to declare an unmotivated challenge.

He coordinates his position on recusals with other participants in the criminal proceedings on the part of the prosecution. If several defendants are involved in a criminal case, then an unmotivated recusation is made by their mutual consent, and in case of failure to reach an agreement, by dividing the number of jurors to be recalled equally between them, if possible. If such a division is not possible, then the defendants exercise their right to an unmotivated challenge by majority vote or by lot. If the number of unchallenged jurors permits, the presiding judge may grant the parties the right to an equal number of additional unmotivated challenges.

After resolving all questions about self-recusations and recusations of candidates for jurors, the secretary of the court session or assistant judge, at the direction of the presiding judge, draws up a list of the remaining candidates for jurors. It should be drawn up in the order in which the candidates were included in the original list. If the number of non-withdrawn candidates for jurors exceeds 14, then 14 first candidates on the list are included in the minutes of the court session at the direction of the presiding judge. Taking into account the nature and complexity of the criminal case, by decision of the presiding judge, a larger number of reserve jurors may be elected, who are also included in the minutes of the court session.

After drawing up the list, the presiding judge announces the selection results, giving the surnames, names and patronymics of the jurors entered in the minutes of the court session. At the same time, the first 12 form the jury in the criminal case, and the last 2 participate in the consideration of the criminal case as reserve jurors.

When announcing the results of the selection, the presiding judge should not indicate the reasons for excluding certain candidates for jurors from the list, and thanks the rest of the candidates for jurors. If there are less than 14 remaining candidates for jury, then the required number of persons is summoned to the court additionally according to the reserve list.

With regard to the newly summoned candidates for jury, the issues of their exemption from participation in the consideration of the criminal case and recusal are resolved in the manner established by Article 328 of the Code of Criminal Procedure of the Russian Federation.

Upon completion of the formation of the jury, the presiding judge invites the 12 jurors to take the place assigned to them on a special bench. As a general rule, it should be separated from others present in the courtroom and located opposite the dock. The reserve jurors shall occupy the places specially reserved for them by the presiding judge on this bench.

If during the trial, but before the jurors are removed to the deliberation room for a verdict, it turns out that one of the jurors cannot continue to participate in the trial or is removed by the judge from participating in the trial, he is replaced by a reserve juror in the sequence indicated on the list when forming a jury in a criminal case. Further replacement of jurors is carried out in the same way.

A replaced juror may not subsequently be re-included in the jury for the consideration of this criminal case. Violation of the procedure established by law for replacing a juror with a substitute shall result in the cancellation of the verdict, as decided by the unlawful composition of the court. If the foreman of the jury retires in the course of the trial, then the presiding judge, in accordance with Part 2 of Article 329 of the Code of Criminal Procedure of the Russian Federation, must first complete the panel of up to 12 jurors in the manner prescribed by Part 1 of Article 329 of the Code of Criminal Procedure of the Russian Federation. Then the jurors, who are part of the collegium, elect the foreman in the deliberation room in accordance with Part 1 of Article 331 of the Code of Criminal Procedure of the Russian Federation.

If the number of retired jurors exceeds the number of substitutes, then the trial held shall be invalidated. In this case, the presiding judge, in accordance with Article 328 of the Code of Criminal Procedure of the Russian Federation, must begin to form a new jury. Within the meaning of the law, jurors who have been released in connection with the dissolution of the college may take part in the new collegium, if they have not retired to the deliberation room for a verdict. The compilation of the list, in which they are included together with the additionally summoned candidates for the jury, is carried out in the manner prescribed by Article 326 of the Code of Criminal Procedure of the Russian Federation. If in the process of considering a case before the announcement of a verdict by the jury, the presiding judge leaves for some reason, then, taking into account Article 328 of the Code of Criminal Procedure of the Russian Federation, according to which the presiding judge is responsible for the formation of the jury, the trial is declared invalid.

The presiding judge who has accepted the case for proceeding shall proceed to the formation of a new jury in the manner prescribed by Article 328 of the Code of Criminal Procedure of the Russian Federation.

If the impossibility of participating in the court session of any of the jurors comes to light during the passing of the verdict, the jurors must go into the courtroom, complete the jury from the number of spare jurors and leave for further discussion of the verdict.

Before the jury is sworn in, the parties have the right to declare that due to the peculiarities of the criminal case under consideration, the formed jury as a whole may be unable to deliver an objective verdict. A petition made by a party about the tendentiousness of the formed jury must be motivated, since the decision to dissolve it is made by the presiding judge only if such petition is justified.

By the tendentiousness of the composition of the jury, it is customary to understand the cases when, while observing the provisions of the law on the procedure for its formation, nevertheless, there is reason to believe that the jury formed on a specific criminal case is not capable of comprehensively and objectively assessing the circumstances of the criminal case in question and delivering a fair verdict. For example, due to the homogeneity of the composition of the jury in terms of age, professional, social and other factors.

After listening to the opinion of the parties, the presiding judge resolves this statement in the deliberation room and issues a resolution that must comply with the requirements of part 4 of article 7 of the Criminal Procedure Code of the Russian Federation. If the application is found to be justified, the presiding judge shall dissolve the jury in view of the tendentiousness of its composition and resume preparations for the consideration of the criminal case by the court with the participation of the jury. V in this case the judge's ruling specifies the date and time of the new court hearing, and refers to the previously issued ruling in the case following the preliminary hearing, which contains all instructions, including the summons of the required number of candidates for jury. Otherwise, it takes action to complete the jury formation process.

Thus, in accordance with Part 1 of Article 330 of the Code of Criminal Procedure of the Russian Federation, the decision to dissolve the jury in view of its tendentiousness can only be taken at the petitions of the parties, declared before the jury was sworn in. In the future, in the court session, the parties have the right, if appropriate circumstances exist, to challenge only a specific juror (or assessors) on the grounds specified in Article 61 of the Code of Criminal Procedure of the Russian Federation, or to petition to replace a specific juror (assessors) with a spare in accordance with Part 4 of Art. .333 Criminal Procedure Code of the Russian Federation.

The jurors who are members of the collegium, in the deliberation room, by open vote elect the foreman by a majority of votes, who announces his election to the presiding officer. Information about the foreman is entered into the minutes of the court session, which indicates the course of the formation of the collegium. The jury does not need to draw up any document on the election of the foreman. In the course of further court proceedings, the foreman is obliged to direct the course of the conference of the jury, on their instructions, address the presiding judge with questions and requests, read out the questions raised by the court, write down the answers to them, summarize the voting results, draw up a verdict and, at the direction of the presiding judge, announce it in the court session.

After the election of the foreman of the jury, the presiding judge addresses the jury with a proposal to take the oath and reads out the following text: “Coming into the performance of the responsible duties of a juror, I solemnly vow to fulfill them honestly and impartially, to take into account all the evidence considered in the court as incriminating the defendant, and those who justify him, resolve a criminal case according to their inner conviction and conscience, without justifying the guilty person and not condemning the innocent, as befits a free citizen and a just person ”(Article 332 of the Code of Criminal Procedure of the Russian Federation). All those present in the courtroom listen to the text of the oath and its adoption while standing.

Having announced the text of the oath, the presiding judge names the names of the jurors sequentially according to the list, each of whom, when the presiding judge addresses him, replies: "I swear." The oath is also taken by the reserve jurors, about which a note is made in the minutes of the court session.

The taking of the oath by the jury means the end of the formation of the jury, but not the end of the preparatory part of the trial.

After taking the oath, the presiding judge is obliged to explain to the jury their rights and obligations under Article 333 of the Code of Criminal Procedure of the Russian Federation.

It determines that jurors (including substitutes) have the right to:

participate in the investigation of all the circumstances of the criminal case, ask questions to the interrogated persons through the presiding judge, participate in the examination of material evidence, documents and other investigative actions;
to ask the presiding judge to clarify the norms of the law relating to the criminal case, the content of the documents read out in the court and other questions and concepts that are unclear to them;
keep your own notes and use them when preparing answers to questions posed to the jury in the deliberation room.

The duties of the jury in this article are set out in the form of prohibitions. They, in particular, are not entitled to:

to leave the courtroom during the hearing of the criminal case;
express their opinion on the criminal case under consideration before discussing issues when passing a verdict;
communicate with persons who are not part of the court about the circumstances of the criminal case under consideration;
collect information on a criminal case outside the court session;
violate the secrecy of the deliberations and voting of the jury on the questions put before them.

The presiding judge warns the jury that in case of violation of any prohibition, the juror may be removed from further participation in the consideration of the criminal case on the initiative of the judge or at the request of the parties. In this case, the suspended juror is replaced by a substitute. For failure to appear in court without a valid reason, a juror may be subject to a monetary penalty in the manner prescribed by Article 118 of the Code of Criminal Procedure of the Russian Federation.

During the trial of a criminal case, jurors resolve only those issues that are provided for in paragraphs 1, 2 and 4 of part 1 of article 299 of the Criminal Procedure Code of the Russian Federation and are formulated in the questionnaire. If the defendant is found guilty, the jury will also indicate whether he deserves leniency. All other issues (for example, on the inadmissibility of evidence) are resolved without the participation of the jury by the presiding judge alone.

After the presiding jury has explained their rights and obligations, the preparatory part of the court session is considered completed.

Features of the judicial investigation and the arguments of the parties in court with the participation of a jury

In addition to the preparatory part, jury trials include:

judicial investigation;
debate of the parties and the last word of the defendant;
posing questions to the jury;
parting words of the presiding officer;
jury deliberation, delivery and announcement of a verdict;
discussion of its consequences; sentencing and proclamation.

It is in this sequence that these interrelated, but separate parts of the trial will be considered by us later.

So, at the end of the preparatory part of the court session, the judicial investigation begins. At its core, it is a consistent and comprehensive study of evidence collected, verified and peer-reviewed by an investigator and prosecutor. It is carried out by the parties under the supervision of a judge and a jury on the basis of publicity, orality and spontaneity.

The obligation to conduct a trial is due to the rule according to which the jury's verdict, as well as the verdict issued on its basis, can only be based on the evidence that was examined in the court session (part 3 of article 240 and paragraph 5 of part 5 of Art. 3 article 340 of the Criminal Procedure Code of the Russian Federation). In a jury trial, this part of the trial has a number of characteristic features due to the specifics procedural activities such a court. They are determined by Article 335 of the Code of Criminal Procedure of the Russian Federation.

The immutable rule of this part of the trial is that in the presence of the jury, only those factual circumstances of the criminal case are subject to investigation, the proof of which is established by the jury in accordance with their powers provided for in Article 334 of the Code of Criminal Procedure of the Russian Federation. Taking into account this rule, as well as the provisions of Article 252 of the Criminal Procedure Code of the Russian Federation, which establishes the limits of the trial, the presiding judge must ensure that the trial is carried out only within the limits of the charge brought against the defendant, promptly respond to violations of order in the court session by the participants in the process, taking, if necessary, the measures of influence provided for Article 252 of the Criminal Procedure Code of the Russian Federation.

Another immutable rule is special order research of data on the personality of the defendant. By the existing order, they are analyzed with the participation of the jury only to the extent that they are necessary to establish certain elements of the corpus delicti of which he is accused. At the same time, with the participation of the jury, the facts of previous convictions, characteristics, certificates of health, marital status and other data that can cause prejudice of the jury against the defendant are never investigated. But that's not all.

In the presence of the jury, the procedural decisions on the initiation of a criminal case and on the prosecution set out in the relevant decisions are not subject to investigation. In addition, in their presence, issues and motions aimed at ensuring compliance are not subject to discussion and resolution. general conditions judicial trial. Among them, such as the forced bringing of victims, witnesses, recusals to the participants in the process, issues related to preventive measures, and other issues of law that are not within the competence of the jury and can cause their prejudice against the defendant and other participants in the process. It is also not allowed to announce the verdict in another case in relation to a previously convicted accomplice (accomplices). The announcement of such a verdict in jurisprudence it is customary to regard it as illegal influence on the jurors, which may affect their answers, to the questions raised and, accordingly, entail the cancellation of the sentence.

This is due to the fact that, according to Article 74 of the RF Code of Criminal Procedure, a previously passed sentence is not evidence in the case under consideration and, in accordance with Article 90 of the RF Code of Criminal Procedure, cannot prejudge the guilt of the defendant.

According to part 6 of article 335 of the Criminal Procedure Code of the Russian Federation, if in the course of a trial the question of the inadmissibility of evidence arises, it is considered in the absence of a jury. Within the meaning of this provision, the parties inform the presiding judge that they have motions of a legal nature, without disclosing their content in the presence of the jury. However, this issue may arise not only at the request of the parties, but also on the judge's own initiative. In either case, after listening to the views of the parties, the judge decides to exclude evidence that he deems inadmissible.

In judicial practice, one of the grounds for overturning a verdict of a court with the participation of a jury is the erroneous exclusion of admissible evidence from the proceedings, since such a violation limits the rights of participants in criminal proceedings guaranteed by law to provide evidence and may affect the content of questions posed to the jury and the answers to them, and further on the decision of a lawful and fair sentence. For this reason, the exclusion of evidence from the proceedings should be made by order of the presiding judge with the obligatory indication of the reasons for the decision. At the same time, in accordance with part 7 of article 235 of the Criminal Procedure Code of the Russian Federation, the court, at the request of the party, has the right to re-consider the issue of recognizing the previously excluded evidence as admissible.

The question of the sanity of the defendant belongs to the competence of the presiding judge and is also resolved by him in accordance with the requirements of Article 352 of the Code of Criminal Procedure of the Russian Federation without the participation of a jury.

Thus, a jury trial begins with the opening statements of the public prosecutor and defense attorney. The State Prosecutor, in his statement, sets out the essence of the accusation and proposes the procedure for examining the evidence presented by him. The defense attorney expresses a position agreed with the defendant on the charge brought and an opinion on the procedure for examining the evidence presented by him.

It can be seen that proceeding from the principles of adversariality and equality of rights of the parties, the procedure for examining the evidence is determined by the parties. The refusal of the parties to examine evidence not recognized by the court as inadmissible should be regarded as a restriction of their rights to present evidence. At the same time, the court is not bound by the opinion of the parties about the limits of the examination of the evidence. In the event that the jurymen during the deliberation have doubts about any factual circumstances of the criminal case that are essential for answering the questions posed and requiring additional research, at the request of the foreman of the jury who returned from the deliberation room to the courtroom, the presiding judge resumes the judicial investigation (parts 5 and 6 of article 344 of the Code of Criminal Procedure of the Russian Federation).

In order to preserve the objectivity and impartiality of the court in the course of the trial, the protocols of investigative actions, expert opinions, protocols of the testimony of victims, witnesses and other documents attached to the case are read out, as a rule, by the party that filed the request for this, or by the court.

When considering a case with the participation of jurors, the parties are not entitled to inform them about the presence of evidence in the case that was excluded earlier by a court decision. The presiding judge, guided by Articles 243 and 258 of the Code of Criminal Procedure of the Russian Federation, is obliged to take the necessary measures to exclude the possibility of acquainting the jury with inadmissible evidence, as well as the possibility of examining issues that are not within their competence.

If the study of inadmissible evidence nevertheless took place, then the discussion of the issue of recognizing them as having no legal force is carried out in the absence of the jury, followed by an explanation of the essence of the decision made. Even when pronouncing the parting word, the judge must draw the attention of the jury to the fact that their conclusions about the guilt of the defendant cannot be based on evidence recognized as inadmissible. He must act in the same way in the case when the jury is informed of information that does not relate to the actual circumstances of the case, for example, information about the conviction of the defendant, the use of illegal methods of investigation, etc.

The jury, through the presiding judge, shall have the right to ask them questions after the interrogation by the parties of the defendant, victim, witnesses, expert. They are set out by the jury in writing and submitted to the presiding officer through the foreman. These questions are finally formulated by the presiding officer and can be dismissed as not related to the charge brought against him.

After the end of the judicial investigation, the court proceeds to hear the arguments of the parties. They are carried out in accordance with Articles 292 and 336 of the Criminal Procedure Code of the Russian Federation, taking into account the peculiarities of the consideration of the case in this form of legal proceedings, the powers of the jury, the content of the questions that are put before them.

Debates of the parties are held only within the limits of issues to be decided by the jury. Enforcement of this procedure is the responsibility of the presiding judge. The parties are not entitled to touch upon the circumstances that are considered after the verdict has been passed without the participation of a jury. If a participant in the debate of the parties mentions such circumstances, the presiding judge stops him and explains to the jury that these circumstances should not be taken into account by them when passing a verdict.

The parties shall not have the right to refer in support of their position to evidence that, in accordance with the established procedure, was recognized as inadmissible or was not examined in the court session. The judge interrupts such speeches and explains to the jury that they should not take these circumstances into account when passing a verdict. The presiding judge must make the same explanation when pronouncing the parting words, setting out the positions of the parties.

After the end of the debate of the parties, all their participants have the right to a reply. The right to the last remark belongs to the defense attorney and the defendant. Further, the defendant is given the last word (Article 293 of the Code of Criminal Procedure of the Russian Federation).

Sometimes, during the trial of a criminal case with the participation of a jury, circumstances may be established that testify to the insanity of the defendant at the time of the commission of the act of which he is accused, or testifying that after the commission of the crime he developed a mental disorder that makes it impossible to appoint or execute punishment. If this fact is confirmed by the results of a forensic psychiatric examination, then the presiding judge shall issue a resolution to terminate the consideration of the criminal case with the participation of the jury and send it for consideration by the court in the manner established by Chapter 51 of the Code of Criminal Procedure of the Russian Federation. This possibility is provided for by Article 352 of the Code of Criminal Procedure of the Russian Federation.

Decisions made in accordance with the requirements of this article are not subject to appeal.

Statement of questions to be resolved by the jury

By current legislation RF, the jury is endowed with exclusive competence to resolve a set of issues aimed at resolving a criminal case on the merits. That is why their setting is one of the most complex and detailed procedures for jury trial. Its complexity is predetermined by the fact that the content of the jury's verdict, which is mandatory when deciding the verdict, largely depends on the correctness of the wording of the questions posed.

The formulation of questions to be resolved by the jury, and their content are regulated by Articles 338 and 339 of the Code of Criminal Procedure of the Russian Federation. When formulating them, the judge must take into account the powers of the jury, provided for in Article 334 of the Code of Criminal Procedure of the Russian Federation.

According to part 3 of article 338 of the Criminal Procedure Code of the Russian Federation, during the discussion and formulation of questions, the jury is removed from the courtroom. Further, taking into account the results of the judicial investigation and the arguments of the parties, the judge formulates in writing the questions to be decided by the jury, reads them out and passes them on to the parties. The parties, in turn, have the right to comment on their content and wording, as well as make proposals for raising new questions. The presiding judge does not have the right to refuse the parties to give them time to familiarize themselves with the questions raised by him, prepare comments and make proposals for raising new questions. This requirement follows from the content of Part 3 of Article 15 of the Criminal Procedure Code of the Russian Federation, which imposes on the court the obligation to create the necessary conditions for the parties to exercise the rights granted to them.

In accordance with Part 2 of Article 338 of the Code of Criminal Procedure of the Russian Federation, the judge does not have the right to refuse the defendant and his defense counsel to raise questions about the existence of factual circumstances in the criminal case that exclude the defendant's responsibility for the deed or entail his responsibility for a less serious crime. Violation of these requirements of the law will result in the cancellation of the conviction. The same violations of the law in the event that the jury delivers an acquittal and, accordingly, the ruling of an acquittal cannot be grounds for its cancellation.

If the parties submit oral comments on the content and wording of questions and proposals to raise new questions, these comments are reflected in the minutes of the court session. If comments and suggestions were submitted by the parties in writing, they are attached to the case file, about which a note is made in the minutes of the court session.

Taking into account the comments and suggestions received from the representatives of the parties, the judge in the deliberation room finally formulates the questions to be resolved by the jury. Each of them must be entered into the questionnaire. Judicial practice a rule has been developed according to which, when formulating the final version of the questionnaire, the presiding officer does not have the right to introduce questions into it that were not the subject of discussion with the participation of the parties.

Experts correctly point out that the adversarial nature of the process would be more consistent with such an order in which the initiative in raising questions would belong not to the judge, but to the parties. In this case, the questions must first be proposed by the prosecution, then objections and proposals by the defense must follow. Only after that, the judge must finally formulate the questionnaire.

Nevertheless, while the initiative in raising questions belongs to the presiding judge. The parties only have the right to take part in this. Jurors, on the other hand, have no such right. In the special literature, it was proposed to consolidate the right to participate in the posing of questions for the jury. So, for example, M.V. Nemytina believes that “... the posing of questions actually comes down to predicting the jury's opinion about the factual circumstances revealed in the case. If there are three opinions - the parties and the judge, then we can assume that there is a fourth opinion - the opinion of the jury. The questions may not correspond to the jury's view of the nature of the defendant's conduct. Meanwhile, the jury, having received a questionnaire that does not correspond to the jury's ideas about the case, will still have to answer the questions. "

This point of view seems to us to be very controversial. We believe that the very idea of raising questions by the jury, which is called “for themselves,” is irrational by definition. Undoubtedly, this should be done only by those participants in the criminal process who, not knowing in advance the final answers to these questions, will be aware that they will have to answer not themselves, but completely different people. This approach will stimulate their responsibility for the outcome of the criminal case. As for the issue of participation of jurors in this act, exercising their right to receive clarifications from the presiding judge on the ambiguities that have arisen in connection with the questions raised, they, on their own initiative, may well point out their shortcomings.

The very process of asking questions ends with the compilation of a questionnaire, which, in essence, is written request the presiding judge to the jury with questions requiring an answer about the event of the crime, the involvement of the defendant in its commission and about his guilt. After being signed by the judge, the questionnaire is read out in the presence of the jury and handed over to the foreman. Before being removed to the deliberation room, the jury has the right to receive clarifications from the presiding judge on the ambiguities that have arisen in connection with the questions raised, without touching upon the essence of possible answers to these questions.

Questions to be decided by the jury are put in formulations they understand, and separately in relation to each defendant. According to Part 5 and 6 of Article 339 of the Criminal Procedure Code of the Russian Federation, the wording of the questions should not allow, in any answer to them, the conviction of the defendant in an act for which the state prosecutor did not charge him or does not support the charge at the time the questions were raised.

Cannot be raised separately or as part of other issues requiring the jury legal qualifications the status of the defendant (about his conviction), as well as other issues that require a proper legal assessment when the jury delivers its verdict. Based on this, it is unacceptable to raise questions to be decided by a jury using such legal terms, for example, as murder, murder with extreme cruelty, murder for hooligan or selfish motives, murder in a state of sudden strong emotional excitement, murder when the limits of necessary defense are exceeded, rape, robbery, etc.

Taking into account that, in accordance with clause 5, part 3 of article 340 of the Criminal Procedure Code of the Russian Federation, the conclusions of the jury cannot be based on assumptions, they should not be asked questions about the probability of proof and the guilt of the defendant in the commission of the act.

At the same time, for each of the acts the defendant is accused of committing, as a rule, the presiding judge poses 3 main questions:

whether it has been proven that the act took place (an affirmative answer to it allows the jury to proceed to the resolution of the following questions, while a negative answer naturally entails leaving them unanswered);
whether it has been proven that this act was committed by the defendant (an affirmative answer to it allows the jury to proceed to the next question, while a negative answer entails leaving it unanswered);
whether the defendant is guilty of committing this act.

The decision of the last of the three named issues is aimed at finding out from the jury the actual assessment of the defendant's act in a broader sense than is provided for in paragraph 4 of part 1 of article 299 of the Criminal Procedure Code of the Russian Federation. An affirmative answer to it allows the jury to move on to resolving the issue of leniency, while a negative answer entails leaving it unanswered. Accordingly, if the answer to this question is negative, an acquittal is issued on the grounds provided for in paragraph 4 of part 2 of article 302 of the Criminal Procedure Code of the Russian Federation.

The legislator allows the possibility of raising one main question about the guilt of the defendant, provided that such a question is a combination of all 3 questions. With an ideal combination of crimes, when one action (inaction) contains signs of crimes provided for by two or more articles of the Criminal Code of the Russian Federation, one question is raised before the jury, since they, in accordance with the powers defined by Article 334 of the Code of Criminal Procedure of the Russian Federation, establish only the factual side of the act, the legal assessment of which is given by the judge in the judgment.

After the main question about the guilt of the defendant, private questions can be raised about such circumstances that affect the degree of guilt or change its nature, entail the release of the defendant from responsibility. In necessary cases, questions are also raised separately about the degree of implementation of the criminal intent, the reasons for which the act was not completed, the degree and nature of the complicity of each of the defendants in the commission of the crime. Questions are permissible to establish the guilt of the defendant in committing less serious crime if this does not worsen the position of the defendant and does not violate his right to defense. If the defendant is accused of committing an unfinished crime (attempt), the presiding judge must, in an intelligible wording, put before the jury the questions provided for by Article 339 of the Criminal Procedure Code of the Russian Federation, incl. on the proof of the reasons due to which the act was not completed. At the same time, this question must contain a description of the actual reason that deprived the defendant of the opportunity to carry out his intentions (the knife blade broke when striking, the victim managed to knock the weapon out of the defendant's hands, the victim was promptly provided with a qualified health care etc.), not just a link to one.

When raising private questions about circumstances that reduce the degree of guilt or entail the release of the defendant from liability, it is unacceptable to ask questions about the guilt of other persons who have not been prosecuted in the questionnaire. When raising private questions that make it possible to establish the guilt of the defendant in the commission of a less serious crime, it is necessary to observe two prerequisites provided for in part 3 of article 339 of the Criminal Procedure Code of the Russian Federation:

if this does not worsen the position of the defendant;
if this does not violate his right to defense.

In addition, the wording of the questions should not allow for any answer to them that the defendant be found guilty of committing an act for which he was not charged or was not supported by the public prosecutor.

According to Part 4 of Article 339 of the Criminal Procedure Code of the Russian Federation, in the event that the defendant is found guilty, the question is raised whether he deserves leniency. If the defendant is accused of committing several crimes that form a real aggregate, the question of leniency should be raised in relation to each act. Ideally, one question of leniency is posed.

In the cases provided for by Article 344 of the Criminal Procedure Code of the Russian Federation, when, during a meeting with the jury, it became necessary to study any circumstances that are essential for answering the questions posed, or to obtain from the presiding judge additional clarifications on the issues raised, as well as in the case of ambiguity or inconsistency in the verdict of the jury, the presiding judge, taking into account the opinions of the participants in the process and in compliance with the requirements of Article 338 of the Code of Criminal Procedure of the Russian Federation, may clarify the questions posed to the jury or supplement the question list with new questions (part .2 Article 345 of the Criminal Procedure Code of the Russian Federation).

When the presiding judge comes to the conclusion that it is necessary to clarify the questions or supplement them, he listens to the opinion of the parties, clarifies or supplements the question sheet, pronounces a short parting word and returns the jury to the deliberation room for a verdict.

If the presiding judge, taking into account the views of the parties, resumes the judicial investigation, he can make clarifications to the questions raised, as well as formulate new ones (part 6 of article 344 of the Code of Criminal Procedure of the Russian Federation), after which the arguments of the parties and remarks on newly investigated circumstances are heard again, as well as the last word of the defendant, a parting word is pronounced and only after that the jurors return to the deliberation room to deliver a verdict. In the event that, at the end of the resumed judicial investigation, the presiding judge comes to the conclusion that it is necessary to formulate new questions and draw up a new question sheet, the previously drawn up question sheet is invalidated and attached to the case.

If, after the resumption of the judicial investigation in accordance with Part 6 of Article 344 of the Code of Criminal Procedure of the Russian Federation, the questions were only clarified, such clarifications are made in the questionnaire drawn up earlier. When, for technical reasons, it is not possible to do this in the question sheet, all clarifications, new questions and other necessary changes are set out on a separate sheet, which is a continuation of the previously drawn up question sheet. When posing in the questionnaire questions about the factual circumstances that make it possible to exclude the responsibility of the defendant for the deed or entailing his responsibility for a less serious crime, the presiding judge, along with the content of the criminal law providing for responsibility for the commission of an act in which the defendant is accused, must inform the jury of the content and this law.

Before the jury is removed to the deliberation room for a verdict, the presiding judge addresses the jury with a parting word. Experts correctly point out that the purpose of the parting words is to help the jury reach a verdict that is in accordance with the law, as well as with the factual circumstances that were established in the course of the trial and which the jury should recognize as proven or unproven, guided by their inner convictions.

Undoubtedly, the parting speech of a judge - a professional who manages the course of the trial and makes the final decision in a criminal case - has a significant impact on the formation of such a conviction. That is why the content of the parting word must comply with the requirements of Article 340 of the Code of Criminal Procedure of the Russian Federation. One of them, for example, is the rule that the presiding judge, when pronouncing the parting word, is prohibited from expressing his opinion in any form on the questions put before the jury.

In his parting words, the presiding officer:

gives the content of the accusation;
communicates the content of the criminal law providing for liability for the commission of the act of which the defendant is accused;
recalls the evidence examined in court, both incriminating the defendant and acquitting him, without expressing his attitude to this evidence and without drawing conclusions from it, explains the rules for evaluating evidence and other principles of justice;
sets out the positions of the public prosecutor and defense;
explains to the jury:
- basic rules for evaluating evidence in their totality;
- the essence of the principle of the presumption of innocence;
- provision on the interpretation of unresolved doubts in favor of the defendant;
- the provision that their verdict can be based only on the evidence that was directly examined in the court session, no evidence for them has a predetermined force, their conclusions cannot be based on assumptions, as well as on evidence recognized by the court as inadmissible;
draws the attention of the jury to the fact that the defendant's refusal to testify or his silence in court have no legal value and cannot be interpreted as evidence of the defendant's guilt;
explains the procedure for a jury meeting, preparing answers to questions posed, voting on answers and passing a verdict.

The presiding judge, setting out the positions of the parties, does not have the right to give them his assessment. At the same time, he must explain to the jury that the arguments of the representatives of the parties heard by them are nothing more than their point of view. Like any other opinion, they are not evidence in a criminal case.

Such arguments can be taken into account by them only if they are confirmed by the evidence examined in the court session.

Explaining to the jury the rules for assessing evidence, the presiding judge must explain in terms that they can understand what are to be assessed: first, each evidence from the standpoint of its relevance, admissibility and reliability; then the totality of evidence, from the standpoint of their sufficiency to resolve the criminal case. In his parting words, he must explain to them that the law provided for some immutable rules that create favorable conditions for obtaining an objective result. These rules are addressed, including to the jury, raised to the rank of the principle of criminal proceedings and are as follows:

no evidence has a predetermined validity;
each of them should be assessed according to its own inner conviction, based on the totality of the evidence available in the criminal case;
evaluating evidence, they must be guided by law and conscience.

Explaining the procedure for deliberating the jury, preparing answers to questions posed, voting on answers and passing a verdict, the presiding judge should draw the attention of the jury to the fact that no one is allowed to be present in the deliberation room, except for the jurors themselves; that their non-procedural contacts with the participants in the process and outsiders are not allowed; that they can interrupt the meeting for rest only with the onset of night time (and with the permission of the presiding officer - at the end of working hours); that they cannot divulge the judgments made during the meeting. Further, the presiding judge must explain to the jury the role of the foreman when discussing the questionnaire and when they vote in the deliberation room. He must call on them to make a unanimous decision within 3 hours, and if during this time they do not come to a unanimous decision, then they must start voting. Having said this, the presiding judge must explain the voting procedure, the procedure for affixing answers to questions, drawing up a questionnaire and possible cases of their return to the courtroom.

The presiding judge ends his parting word by reminding the jury of the content of the oath they have given and draws their attention to the fact that, if a guilty verdict is passed, they can recognize the defendant as deserving of leniency and explain to them the consequences of such a confession (i.e., the procedure for imposing punishment in this case).

The jurors, having heard the parting words of the presiding judge and familiarized themselves with the questions put before them, have the right to receive additional explanations from him.

Considering that, according to part 6 of Article 340 of the Criminal Procedure Code of the Russian Federation, the parties have the right to raise objections in the court session in connection with the content of the parting word of the presiding judge on grounds of his violation of the principle of objectivity and impartiality, the content of the parting word must be detailed in the minutes of the court session. Under the violation of the principle of objectivity and impartiality by the presiding judge when pronouncing a parting word, one should understand, in particular, a reminder to jurors of only incriminating or only exculpating evidence examined in court, their assessment, expression in any form of his opinion on questions put before the jury assessors, etc. 243 If the parting word was set out in writing, then it was in full must be attached to the case. In this case, a record is made in the minutes of the court session about the utterance of the parting word by the presiding judge and about the addition of the parting word in writing to the case.

The objections of the parties shall be declared in the presence of the jury. In their presence, the presiding judge shall state his decision on the stated objections. If there are no objections of the parties, a note is made about this in the minutes of the court session.

After the parting words of the presiding judge, the jurors retire to the deliberation room to deliver a verdict.

Jury verdict: judgment, announcement, discussion of consequences

Verdict (English Verdict) - a decision on the guilt or innocence of the defendant, rendered by the jury (clause 5 of article 5 of the Criminal Procedure Code of the Russian Federation). To pass it, the full jury must retire to the deliberation room.

In accordance with parts 2 and 4 of article 341 of the Criminal Procedure Code of the Russian Federation, work on it can only take place under conditions that ensure the observance of the secrecy of the jury meeting. The fulfillment of this requirement is achieved by the immutable observance of the following 2 rules:

the presence in the deliberation room of other persons, with the exception of the jury, is not allowed;
jurors may not divulge judgments made during the deliberation.

The jury's notes during the trial can be used in the deliberation room to prepare answers to questions posed to the jury.

Thus, the decision on the questions raised is made in the deliberation room only by the full jury. This means that keeping the confidentiality of the meeting is a procedural duty of each of them. Arguments in favor of this or that answer, the line of conduct of the jury in the deliberation room, as well as the results of their voting should not be in the public domain. In judicial practice, the presence of other persons in the deliberation room (including reserve jurors) is the basis for canceling the verdict passed by the court with the participation of the jury.

the jury meeting is led by the foreman, who raises questions for discussion in the sequence established by the questionnaire, votes on the answers to them and counts the votes;
voting is open;
none of the jurors may abstain from voting;
the jury votes on the list, and the foreman votes last;
with the onset of night time (i.e. from 10 pm to 6 am local time), and with the permission of the presiding officer also at the end of working hours, the jury has the right to interrupt the meeting for rest.

According to Part 1 of Article 343 of the Code of Criminal Procedure of the Russian Federation, jurors, when discussing the issues put before them, should strive to make unanimous decisions. However, they can start making a decision by voting only after 3 hours after leaving the meeting room.

The decision to issue a guilty verdict is made in accordance with Articles 302, 307 and 308 of the Code of Criminal Procedure of the Russian Federation. A verdict of conviction may be passed with the imposition of a punishment, without the imposition of a punishment, as well as with the imposition of punishment and release from it.

The decision to dissolve the jury and send the criminal case for new consideration by a different composition of the court is made in the case provided for in Part 5 of Article 348 of the Code of Criminal Procedure of the Russian Federation, i.e. if the presiding judge admits that a guilty verdict was passed against an innocent person and there are sufficient grounds for ruling an acquittal due to the fact that the event of the crime has not been established or the participation of the defendant in the commission of the crime has not been proven. The decision on the dissolution of the jury and the referral of the criminal case for new consideration by a different composition of the court from the stage of the preliminary hearing shall not be subject to appeal.

The basis for each of these decisions is the jury's verdict. It is obligatory for the presiding judge, as well as an indication in it that the defendant, found guilty, deserves leniency. A positive solution to this issue entails certain legal implications directly related to the imposition of punishment on the defendant. To ensure the legality and fairness of his decision, the presiding judge is obliged to qualify the defendant's deeds in accordance with the guilty verdict, as well as the circumstances established by the court that are not subject to establishment by the jury and require a proper legal assessment.

If the defendant is recognized as deserving of leniency, then the presiding judge shall impose a punishment on him using the provisions of Articles 64 and Part 1 of Article 65 of the Criminal Code of the Russian Federation, which regulate the appointment of a softer punishment than is provided for this crime and the imposition of punishment upon a jury verdict of leniency (respectively ). In this case, the term or amount of punishment for the person found guilty may not exceed 2/3 of the maximum term or amount of the most severe type of punishment. The death penalty and life imprisonment do not apply. If the jury did not find the defendant deserving of leniency, then the presiding judge, taking into account the circumstances mitigating and aggravating the punishment, and the personality of the guilty person, has the right to impose a punishment on the defendant not only within the limits established by the relevant article of the Special Part of the Criminal Code of the Russian Federation, but also with the application of the provisions of Article 64 Of the Criminal Code of the Russian Federation.

It can be seen that by their answer to the question of leniency, the jurors influence the fate of the defendant, who has been found guilty by them.

At the same time, the guilty verdict of the jury does not prevent the presiding judge from acquitting if he admits that the defendant's act does not contain signs of a crime. In this case, the jury correctly establishes the existence of certain facts in the criminal case, but at the same time they make an erroneous conclusion about the guilt of the defendant. The reason for this, as a rule, is their ignorance of the provisions of the criminal and criminal procedure legislation of the Russian Federation, which, as you know, they are not required to know. In this case, their guilty verdict is canceled by the presiding judge solely due to the absence of signs of a crime, but the jury itself is not disbanded, since the questions of fact were correctly resolved by her. If the presiding judge admits that a guilty verdict was passed against an innocent person and there are sufficient grounds for ruling an acquittal due to the fact that the event of the crime has not been established or the participation of the defendant in the commission of the crime has not been proven, then he shall issue a resolution to dissolve the jury and direct the criminal case for a new consideration by a different composition of the court from the preliminary hearing stage.

Thus, in case of disagreement with the guilty verdict of the jury, the presiding judge, on his own initiative, has the right to decide on the dissolution of the jury, but only in the cases specified in part 5 of article 348 of the Code of Criminal Procedure of the Russian Federation, i.e. then, when the jury, as a result of an incorrect assessment of the evidence examined, clearly incorrectly answered the first two main questions (about the event of the crime and about its commission by the defendants).

According to Article 351 of the Code of Criminal Procedure of the Russian Federation, when deciding a verdict in a court with the participation of a jury, the presiding judge is guided by the rules provided for in Chapter 39 of the Code of Criminal Procedure of the Russian Federation, but taking into account the exceptions provided for in paragraphs 1 to 4 of this article.

The first exemption boils down to the fact that the names of the jurors are not indicated in the introductory part of the judgment.

Under the second exemption, the descriptive motivational part of the acquittal sets out the nature of the charge against which the acquittal was issued and refers to the jury verdict as the basis for acquittal. In addition, both in the descriptive-motivational and in the operative part of the acquittal, in addition to the reference to the jury's verdict, it is required to specify the grounds for acquittal in accordance with the answers of the jurors to the 3 main questions posed to them. So, with a negative answer to the first question about the proof of the act, the defendant must be acquitted for failure to establish the event of the crime (clause 1 of part 2 of article 302 of the Criminal Procedure Code of the Russian Federation). With a positive answer to the first question and a negative answer to the second question about the proof of involvement in the commission of the crime, the defendant is acquitted for non-involvement in the commission of the crime (Clause 2, Part 2, Article 302 of the Criminal Procedure Code of the Russian Federation). If the answer to the first two questions is positive and the third question is negative, the defendant must be acquitted for lack of corpus delicti (clause 3, part 2, article 302 of the Criminal Procedure Code of the Russian Federation). In an acquittal, a decision is also made on the declared civil action, procedural costs, the fate of material evidence.

In accordance with the third exception, the descriptive and motivating part of the conviction must contain a description of the criminal act of which the jury found the defendant guilty, the motivation for the qualification of his actions on the basis of the jury's verdict, as well as decisions on other issues (civil lawsuit, the fate of material evidence, etc.).

And, finally, the fourth exemption boils down to the fact that the operative part of the verdict must contain clarifications on the procedure for appealing it.

The most difficult issue to be decided by the presiding judge when passing a conviction is rightly considered the appointment of a sentence. The difficulty is that here he needs to be guided not only by the general principles of sentencing, but also to comply with the special provisions provided for in Article 65 of the Criminal Code of the Russian Federation.

In accordance with the prescriptions of this norm of the law, to the person who committed a crime for whom the possibility of imposing a punishment in the form of death penalty or life imprisonment, but on the basis of the jury's verdict deserving leniency, these types of punishments do not apply. In such cases, the presiding officer, taking into account the nature committed crime, the identity of the culprit and other circumstances of the case, imposes a sentence of imprisonment for a specified period (Article 56 of the Criminal Code of the Russian Federation) within the limits of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation, including more than 2 \ 3 maximum term or the amount of the most severe type of punishment provided for the crime committed.

In case of a jury verdict of leniency towards a person who has committed a crime for which alternative types of punishment are provided, only the most severe type of punishment cannot exceed more than 2/3 of its maximum term or size, and less severe types of punishment may be imposed within the sanction of the corresponding article of the Special parts of the Criminal Code of the Russian Federation. In other words, according to part 1 of article 65 and article 62 of the Criminal Code of the Russian Federation, which determines the procedure for imposing a sentence when the defendant is recognized as deserving of leniency and in the presence of mitigating circumstances, provided for in clauses "and" and "to" part 1 of Article 61 of the Criminal Code of the Russian Federation, the term and amount of punishment is calculated from the term and amount of the most severe type of punishment, sanctioned the corresponding article of the Special Part of the Criminal Code of the Russian Federation. This procedure for imposing punishment is applied regardless of whether there are circumstances in the case that aggravate the punishment.

Thus, the trial of a criminal case in a jury trial ends with the sentencing by the presiding judge and his proclamation as legal act, which legitimized the consequences of the jury's verdict. It is in the verdict that a legal assessment is made of the circumstances recognized as proven in the verdict. In this way, a professional judge solves the problem of applying specific norms of the criminal law to the actual circumstances, the presence of which was established by the jury in their verdict. The judge is obliged to qualify the deed in the verdict in strict accordance with the verdict, as well as those established circumstances that, according to the law, cannot be established by the jury and require an accurate legal assessment.

In each case of consideration of criminal cases by a court with the participation of a jury, a protocol shall be kept. As with all things, it can be handwritten, typed, or made using a computer. To ensure the completeness of the protocol during its maintenance, stenography, as well as technical means, can be used. The absence of the minutes of the court session, as a rule, is the basis for canceling or changing the court decision (clause 11, part 2, article 381 of the Criminal Procedure Code of the Russian Federation).

Since the protocol is the only written source of information about the course of the court session, the law requires that it must contain the following information:

place and date of the meeting, time of its beginning and end;
what kind of criminal case is being considered;
name, composition of the court, information about the secretary, translator, prosecutor, defense lawyer, defendant, victim and other persons summoned to court;
information about the identity of the defendant;
the actions of the court in the order in which they took place during the court session;
statements, objections, petitions of persons participating in the criminal case;
rulings or rulings made by the court without being removed to the deliberation room;
rulings or rulings made by the court with removal to the deliberation room;
information on explaining to participants in criminal proceedings their rights, duties and responsibilities;
detailed content of the testimony;
questions asked by the interrogated and their answers;
the results of examinations and other actions for the examination of evidence carried out in the court session;
circumstances that participants in criminal proceedings are asked to record in the protocol;
the main content of the parties' speeches in the court hearings and the last word of the defendant;
information on the announcement of the verdict, on the clarification of the procedure for familiarization with the minutes of the court session and for making comments on it;
information on explaining to the acquitted and convicted the procedure and the term for appealing the sentence, as well as on clarifying the right to petition, on participation in the consideration of the criminal case by the court of the cassation instance.

The protocol also indicates the measures of influence taken against the person who violated the order in the court session. If during the trial, photographing, audio and (or) video recording, filming of interrogations were carried out, then a note is made about this in the minutes of the court session. In this case, photographing materials, audio and (or) video recordings, filming shall be attached to the materials of the criminal case.

It can be seen that the protocol of the court session should record the entire course of the trial so that it is possible to verify the correctness of its conduct. With regard to the consideration of criminal cases by the jury, the law, in particular, requires that it must indicate the composition of the candidates for jury summoned to the court session and the entire course of the formation of the jury. The parting word of the presiding judge is either recorded in detail in the minutes of the court session, or its text is attached to the materials of the criminal case with a mandatory indication of this in the minutes.

The protocol itself must be made within 3 days from the date of the end of the court session. If necessary, it can be produced in parts, which, like the protocol as a whole, are signed by the presiding officer and the secretary. At the request of the parties, they may be given the opportunity to familiarize themselves with the parts of the protocol as they are made.

A petition for familiarization with the minutes of the court session is submitted by the parties in writing within 3 days from the date of the end of the court session. Within the same period from the date of receipt of the petition, the presiding judge is obliged to provide the parties with the opportunity to familiarize themselves with the protocol and, depending on its volume, set a period of time for this, the duration of which must be at least 5 days from the moment the acquaintance begins.

A copy of the minutes is made at the written request of the participant in the trial and at his expense. Within 3 days from the date of familiarization with the protocol of the court session, the parties can submit comments on it. In accordance with Article 260 of the Code of Criminal Procedure of the Russian Federation, comments on the protocol are considered by the presiding judge immediately. Based on the results of their consideration, he issues a resolution to satisfy the comments or to dismiss them. If the comments are partially satisfied, then the resolution should indicate which of them are satisfied and which are rejected.

The remarks on the protocol and the decision of the presiding judge shall be attached to the protocol of the court session.

During the entire period of consideration of a criminal case, employees of the court apparatus keep a record of the time (number of working days) of attendance in court for each juror. At the end of the trial, the judge issues a resolution on the settlement and payment of monetary remuneration to the jurors, which, together with cards containing personal information (last name, first name, patronymic, year of birth, passport data, etc.) for each juror is transferred to the finance department for execution.

After the end of the trial, the citizen is issued a certificate on the performance of the duties of a juror in court for presentation at the place of demand.

Concluding the analysis of the types of decisions taken in a court with the participation of jurors, let us pay attention to the fact that a considerable number of judgments rendered on the basis of jury verdicts are subsequently overturned. This is especially true for acquittals, which were based on acquittals of the jury. As a rule, the cancellation of sentences occurs due to the discovery by a higher court significant disadvantages in the content, design or verdict procedure. Much less often, the reason for this is the violation of the requirements of the law for the composition of the jury who passed the verdict.

According to Article 389.25 of the Code of Criminal Procedure of the Russian Federation, an acquittal, rendered on the basis of an acquittal of a jury, can be canceled on the proposal of the prosecutor or a complaint of the victim or his legal representative and (or) representative, and only in the presence of such significant violations of the criminal procedure law, which restricted the right of the prosecutor, the victim or his legal representative and (or) representative to present evidence, or influenced the content of the questions put to the jury or the content of the answers given by the jury. A not guilty verdict, rendered on the basis of a jury verdict, shall also be canceled if, in the event of an unclear and contradictory verdict, the presiding judge did not indicate this to the jury and did not invite them to return to the deliberation room to clarify the question sheet.

In the event that the verdict passed by a court with the participation of a jury is overturned and the case is sent for a new trial, its subsequent consideration is carried out in this form of proceedings, regardless of the position of the defendant. If a conviction by a jury against more than one person is overturned by a higher by the court with the direction of the case for a new trial only in relation to one or several persons accused of committing crimes not specified in part 3 of article 31 of the Code of Criminal Procedure of the Russian Federation, and, therefore, not entitled to a trial with the participation of a jury, the case in in relation to such an accused (such accused) must be accepted for proceedings and considered by the court specified in Part 3 of Article 31 of the Criminal Procedure Code of the Russian Federation, either by a judge of a federal court or by a panel of 3 judges of a federal court (if there is a request from a person accused of committing grave or especially grave crime). The case against such a person (such persons) cannot be sent to lower court, since the jurisdiction was determined earlier on the basis of Part 1 of Article 33 of the Code of Criminal Procedure of the Russian Federation.

If the verdict is canceled with the referral of the case to a new one judicial review from the stage of preliminary hearing, at this stage all the issues provided for by Article 325 of the Code of Criminal Procedure of the Russian Federation, including the form of legal proceedings, are resolved. When the verdict is canceled and the case is sent for a new trial from the stage of the court's actions after the verdict of the jury has been issued, the presiding judge who previously participated in the consideration of this case does not have the right to participate in the consideration of the case in accordance with Article 63 of the Code of Criminal Procedure. When the case is re-examined after the verdict is canceled from the stage of the court's actions after the jury has passed the verdict, the judicial investigation and all criminal procedural issues are resolved in accordance with Articles 347 - 353 of the Code of Criminal Procedure of the Russian Federation.

Let's pay attention to one more very important circumstance. As a general rule, sentences passed by a court with the participation of a jury are not subject to judicial review. appellate instance in connection with the discrepancy between the conclusions of the court, set out in the verdict, the factual circumstances of the case. In these cases, the evidence relating to the actual circumstances of the charge brought against the person is not verified by the court of appeal.

This is the current procedure for criminal proceedings before a jury trial.

According to clause 5 of part 2 of Art. 229 of the Code of Criminal Procedure of the Russian Federation, a preliminary hearing is mandatory in order to resolve the issue of a criminal case being considered by a court with the participation of a jury.

In accordance with Part 1 of Art. 325 of the Code of Criminal Procedure of the Russian Federation, a preliminary hearing in court with the participation of a jury is carried out in the manner prescribed by Ch. 34 of the Code of Criminal Procedure of the Russian Federation, taking into account the following provisions.

1. A criminal case, in which several defendants are involved, should be considered by a court with the participation of a jury in respect of all defendants, if at least one of them, before the appointment of a court session, has filed a petition for the consideration of a criminal case by this composition of the court (paragraph 1 of part 5 of Art. . 231, part 2, article 325 of the Criminal Procedure Code of the Russian Federation). However, it should be borne in mind that in cases where other accused, when familiarizing themselves with the materials of the criminal case, objected to its consideration by a court with the participation of a jury, the investigator was obliged to consider the issue of separating the criminal case against these accused into separate proceedings. And only if this is impossible, the criminal case as a whole is considered by a court with the participation of a jury (paragraph 1 of part 5 of article 217 of the Code of Criminal Procedure of the Russian Federation).

2. If the defendant has not filed a petition for the consideration of his criminal case by a court with the participation of a jury, then this criminal case is considered by a different composition of the court in the manner prescribed by Part 2 of Art. 30 of the Criminal Procedure Code of the Russian Federation.

3. In the decision on the appointment of a criminal case to a hearing by a court with the participation of a jury, the number of candidates for jurors to be summoned to the court session must be determined, of which there must be at least 20, and it is also indicated whether the court session will be open, closed or partially closed. ; in the latter case, the court must determine in which part the hearing will be closed (part 4 of article 325 of the Code of Criminal Procedure of the Russian Federation).

4. The decision of the judge on the consideration of a criminal case with the participation of a jury is final; the subsequent refusal of the defendant to consider the criminal case in this composition is not accepted (part 5 of article 325 of the Code of Criminal Procedure of the Russian Federation).

5. Copies of the decision made by the judge based on the results of the preliminary hearing are handed over to the parties at their request (part 6 of article 325 of the Code of Criminal Procedure of the Russian Federation).

Procedure for drawing up a preliminary list of jurors.

After the appointment of a court session, by order of the presiding judge, the secretary of the court session or assistant judge selects candidates for jurors from the general and reserve annual lists in the court by random sampling (part 1 of article 326 of the Code of Criminal Procedure of the Russian Federation). These lists are compiled and sent to the court by the administration of the corresponding constituent entity of the Russian Federation.

The procedure for compiling and sending lists is established in Art. 5-8 of the Federal Law of August 20, 2004 No. 113-FZ "On jurors of federal courts of general jurisdiction in the Russian Federation" 1. Random sampling can be done using a computer or in another way, for example, by selecting from a list every fifth, every eighth, etc.

The clerk of the court session or assistant judge checks whether there are circumstances that prevent a person from participating as a juror in a criminal case, taking into account the requirements of the law for candidates for jury. According to Art. 3 of the aforementioned Federal Law, jurors may be citizens included in the lists of candidates for jurors and summoned, in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation, to participate in the consideration of a criminal case by the court.

The following persons may not act as jurors: 1) those who have not reached the age of 25 by the time of drawing up the lists of candidates for jury; 2) having an outstanding or unexpunged conviction; 3) recognized by the court as legally incompetent or limited by the court in capacity; 4) registered in a narcological or neuropsychiatric dispensary in connection with treatment for alcoholism, drug addiction, substance abuse, chronic and protracted mental disorders. Persons as jurors are also not allowed:

1) suspects or accused of committing crimes;

2) who do not know the language in which the proceedings are conducted; 3) who have physical or mental disabilities that prevent full participation in the consideration of the criminal case by the court.

In addition, in accordance with paragraph 2 of Art. 7 of the said Federal Law, a citizen may submit a written application for his exclusion from the list of candidates for jury, if he is: 1) a person who does not speak the language in which the proceedings are conducted; 2) by a person who is incapable of performing the duties of a juror for health reasons, confirmed by medical documents; 3) a person who has reached the age of 65; 4) a person holding public office or elective office in government local government; 5) military personnel; 6) a judge, a prosecutor, an investigator, an interrogator, a lawyer, a notary or an employee of the internal affairs bodies, bodies for the control of the circulation of narcotic drugs and psychotropic substances, the bailiff service, customs authorities, bodies and institutions of the penal system, as well as a person engaged in private detective activity on the basis of a special permit (license); 7) a clergyman.

If the court reveals that in the received general and reserve lists of candidates for jurors there are persons who cannot serve as jurors for any of the above reasons, the chairman of the court shall submit to the supreme executive body of state power of the constituent entity of the Russian Federation a submission on the need to amend and supplement these lists.

It should also be borne in mind that one and the same person cannot participate in court hearings as a juror more than once during the year (part 3 of article 326 of the Code of Criminal Procedure of the Russian Federation).

Upon completion of the selection of candidates for jurors to participate in the consideration of the criminal case, a preliminary list is drawn up indicating their surnames, names, patronymics and home addresses, which is signed by the secretary of the court session or the assistant judge who compiled this list (part 4 of article 326 of the Code of Criminal Procedure of the Russian Federation) ...

The names of the candidates for the jury are entered in the list in the order in which the random sample took place (part 5 of article 326 of the Code of Criminal Procedure of the Russian Federation).

The candidates included in the preliminary list for jurors no later than seven days before the start of the trial are given notices indicating the date and time of arrival at the court (part 6 of article 326 of the Code of Criminal Procedure of the Russian Federation). It is also advisable to clarify the procedure and terms for a citizen to fulfill the duties of a juror, the procedure for material support for jurors, guarantees of the independence and immunity of the juror (Articles 10-12 of the Federal Law "On Jurors of Federal Courts of General Jurisdiction in the Russian Federation") and inform about responsibility for evasion of a person from performing the duties of a juror without good reason.

The structure and procedure for a court hearing with the participation of a jury.

According to Ch. 42 of the Code of Criminal Procedure of the Russian Federation, the structure of a court session with the participation of a jury includes the following elements: 1) the preparatory part of the court session (Art. 327); 2) the formation of a jury (Art. 328-334); 3) judicial investigation (Article 335); 4) the arguments of the parties and the last word of the defendant (Articles 336, 337); 5) raising questions to be decided by the jury (Articles 338, 339); 6) parting words of the presiding officer (Article 340); 7) meeting, voting, passing and declaring a verdict (Art. 341-345); 8) trial after the announcement of the verdict, discussion of the consequences of the verdict (Articles 346, 347); 9) making a decision by the presiding judge (Art. 348-352).

The procedure for conducting the preparatory part of the court session.

According to Part 1 of Art. 327 of the Code of Criminal Procedure of the Russian Federation, preparatory actions in court with the participation of a jury are carried out in accordance with the general procedure established by Ch. 36 of the Code of Criminal Procedure of the Russian Federation, taking into account the following requirements of this article:

1) after a report on the attendance of the parties and other participants in the criminal proceedings, the court clerk or assistant judge reports on the attendance of candidates for jury (part 2);

2) if less than 20 candidates for jurors appear at the court session, then the presiding judge gives an order on additional summons of candidates for jurors to the court (part 3);

3) lists of candidates for jurors who appeared at the court session, without indicating their home address, are handed over to the parties (part 4). This is done to ensure the safety of jurors and to protect them from outside influences;

4) explaining the rights to the parties, the presiding judge, in addition to the rights provided for by the relevant articles of the first part of the Criminal Procedure Code of the Russian Federation (general provisions of Chapter 6-8 of the Code of Criminal Procedure of the Russian Federation), must explain to them: the right to declare a reasoned challenge to the juror; the right of the defendant or his defense attorney, the public prosecutor to an unmotivated challenge of the juror, which may be declared by each of the participants twice; other rights provided for by Ch. 42 of the Code of Criminal Procedure of the Russian Federation, as well as the legal consequences of non-use of such rights (part 5). By "other rights" we mean, in particular:

The right of the parties to ask candidates for jury questions aimed at clarifying the circumstances that may hinder the participation of this person as a juror and serve as the basis for his challenge (part 8 of article 328 of the Criminal Procedure Code of the Russian Federation);

The right to petition for the removal of evidence from the criminal case, the inadmissibility of which was found out in the course of the trial (part 5 of article 335 of the Code of Criminal Procedure of the Russian Federation);

The right to speak in the debate of the parties and with a remark at the end of the judicial investigation (Articles 336 and 337 of the Code of Criminal Procedure of the Russian Federation) and when discussing the consequences of the jury's verdict (parts 3 and 4 of Art. 347 of the Code of Criminal Procedure of the Russian Federation);

The right of the parties to express their comments on the content and wording of the questions proposed by the judge to be resolved by the jury, and to make proposals on the formulation of new questions (part 2 of article 338 of the Criminal Procedure Code of the Russian Federation);

The right of the parties to raise objections in connection with the content of the parting words of the presiding judge on the grounds of his violation of the requirements of objectivity and impartiality (part 6 of article 340 of the Criminal Procedure Code of the Russian Federation).

Procedural order jury formation includes the system provided for by Art. 328-334 of the Code of Criminal Procedure of the Russian Federation of procedural actions aimed at solving the following tasks: 1) substantiated resolution of the issue of releasing a particular candidate from the duties of a juror; 2) the formation of the optimal qualitative and quantitative composition of the jury, its optimal structure as a small social group, designed to collectively solve these issues; 3) tightening and adjusting the moral and legal consciousness of jurors to a level that ensures their conscious, objective, responsible attitude to the performance of their duties, their ability to correctly and fairly solve complex and responsible questions about the factual side of the criminal case and the guilt of a person.

It is at the solution of these interrelated tasks that the following procedural actions are directed.

1. After the presiding judge in the preparatory part of the court session has fulfilled the requirements of Art. 327 of the Code of Criminal Procedure of the Russian Federation, who have appeared as candidates for jurors are invited to the courtroom (part 1 of article 328 of the Code of Criminal Procedure of the Russian Federation). The presiding judge shall deliver a short introduction to the candidates for the jury, in which he: introduces himself to them; represents the parties; informs which criminal case is subject to consideration; informs about the expected length of the trial; explains the tasks facing the jury, and the conditions for their participation in the consideration of this criminal case, provided for by the Code of Criminal Procedure of the Russian Federation (part 2 of article 328). For this purpose, the presiding judge explains to the jury:

Provided by part 1 of Art. 334 of the Code of Criminal Procedure of the Russian Federation the powers of the jury: in the course of the trial of a criminal case, the jury resolve only those issues that are provided for in paragraphs 1, 2 and 4 of Part 1 of Art. 299 of the Criminal Procedure Code of the Russian Federation and formulated in the questionnaire; if the defendant is found guilty, the jury also indicates in accordance with Art. 339 of the Code of Criminal Procedure of the Russian Federation, whether the defendant deserves leniency;

The procedure for remuneration of their labor, guarantees of their independence and safety, the purpose and procedure for the forthcoming selection, the requirements imposed by the law on candidates for jury, what circumstances under the law may prevent them from participating in a criminal case and give them the right to ask for release from jury duties assessor;

Their duty is to truthfully answer questions asked to them, as well as to provide the necessary information about themselves and about relations with other participants in criminal proceedings.

After that, the presiding judge interrogates the candidates for the jury about the existence of circumstances that prevent them from participating as jurors in the consideration of the criminal case (part 3 of article 328 of the Criminal Procedure Code of the Russian Federation).

2. Each of the candidates for jury has the right to indicate the reasons that prevent him from fulfilling his duties as a juror, as well as to recuse himself (part 4 of article 328 of the Code of Criminal Procedure of the Russian Federation). At the petitions of candidates for jury that it is impossible to participate in the trial, the opinion of the parties is heard, after which the judge makes a decision (part 5 of article 328 of the Code of Criminal Procedure of the Russian Federation). Juror candidates whose applications for exemption from participation in a criminal case have been satisfied are excluded from the preliminary list and removed from the courtroom (part 6 of article 328 of the Criminal Procedure Code of the Russian Federation).

3. After satisfying the self-recusations of the candidates for the jury, the presiding judge invites the parties to exercise their right to a motivated recusation (part 7 of article 328 of the Criminal Procedure Code of the Russian Federation). The grounds for satisfying a motivated challenge in relation to a certain candidate are provided for in Part 2 of Art. 3 of the Federal Law "On Jurors of Courts of General Jurisdiction in the Russian Federation" circumstances that prevent a person from participating as a juror. The presiding judge provides the parties with the opportunity to ask each of the remaining candidates for jury questions, which, in their opinion, are related to the clarification of the circumstances that prevent a person from participating as a juror in the consideration of this criminal case. The first to conduct a survey of candidates for jurors is the defense side. If the party is represented by several participants, then the sequence of their participation in the survey conducted by the party is established by agreement between them (part 8 of article 328 of the Criminal Procedure Code of the Russian Federation).

Each question should have a single unambiguous answer - yes or no. It is impossible to pose cumbersome, confusing questions that allow for two-fold answers to them. Questions should not create a jury bias towards the defendant, and should not prematurely disclose the circumstances of the case. In questions, the position of a public prosecutor or defense attorney should not be shown. The opinion referred to in the question should not be attributed to a specific, especially authoritative, person. Questions should be posed in such a way that it is easy for a jury candidate to give an honest answer, so that these questions do not hurt his pride and do not make him look ridiculous. There is no need to pose meaningless, that is, useless for the purposes of the trial, questions. If the question may be perceived by the jury as meaningless, it is necessary to explain why it is being asked.

Since the questions asked to jurors may be about their personal lives, such questions are asked in writing through the presiding officer, who decides whether a question should be asked. If it is necessary to find out from a certain person any circumstances that should not be discussed publicly, this candidate is invited to the judge's table, where representatives of the prosecution, defense and the secretary of the court session also come. In their presence, the candidate for jury answers the questions put to him.

4. After the questioning of candidates for jury is completed, each candidate is discussed in the sequence determined by the list of candidates. The presiding judge asks the parties whether they have recusals due to circumstances that prevent a person from participating as a juror in a criminal case (part 9 of article 328 of the Criminal Procedure Code of the Russian Federation). The parties shall forward to the presiding officer motivated written requests for recusals without announcing them. These motions are resolved by the judge without being removed to the deliberation room. Rejected jury candidates are excluded from the preliminary list (part 10 of article 328 of the Code of Criminal Procedure of the Russian Federation). The presiding judge brings his decision on the motivated challenge to the attention of the parties. He can also bring his decision to the attention of the candidates for the jury (part 11 of article 328 of the Code of Criminal Procedure of the Russian Federation). The number of motivated challenges is not limited by the criminal procedure law.

5. If, as a result of the satisfaction of the declared self-rejections and motivated rejections, there are less than 18 candidates for jurors, then the presiding judge in accordance with Part 12 of Art. 328 of the Code of Criminal Procedure of the Russian Federation takes the measures provided for in Part 3 of Art. 327 of the Code: orders additional summons to the court of candidates for jurors. After that, the preliminary list of candidates for jury is replenished in accordance with Art. 326 of the Criminal Procedure Code of the Russian Federation. If the number of remaining candidates for jury is 18 or more, then the presiding judge invites the parties to declare unmotivated challenges (part 12 of article 328 of the Criminal Procedure Code of the Russian Federation). Unmotivated recusations may be announced by the defendant or his defense counsel, as well as by the public prosecutor by deleting from the received preliminary list the names of the challenged jury candidates, after which these lists are transferred to the presiding judge without announcing the names of the challenged jurors. These lists, as well as motivated petitions for the removal of the jury, are attached to the materials of the criminal case. Each of the named participants has the right to declare unmotivated recusations twice, and if the number of non-recalled candidates allows, the presiding officer can grant the parties the right to an equal number of additional unmotivated recusals (clause 2, part 5 of article 327, part 13 and 16 of article 328 of the Code of Criminal Procedure of the Russian Federation ). An unmotivated recusal is the first to declare the public prosecutor, who coordinates his position on recusals with other participants in the criminal proceedings on the part of the prosecution. If several defendants are involved in a criminal case, then an unmotivated recusation is made by their mutual consent, and in case of failure to reach an agreement, by dividing the number of jurors to be recalled equally between them, if possible. If such a division is impossible, then the defendants exercise their right to an unmotivated challenge by a majority vote or by lot (part 15 of article 328 of the Code of Criminal Procedure of the Russian Federation).

6. After completing the selection procedure for jurors, resolving all questions about self-recusations and recusals of candidates for jurors, the court clerk or assistant judge, at the direction of the presiding judge, draws up a list of the remaining candidates for jurors in the sequence in which they were included in the initial list ( part 17 of article 328 of the Criminal Procedure Code of the Russian Federation). If the number of non-withdrawn candidates exceeds 14, then the first 14 candidates on the list are included in the minutes of the court session at the direction of the presiding judge (part 18 of article 328 of the Code of Criminal Procedure of the Russian Federation). After that, the presiding judge announces the results of the selection, without indicating the reasons for excluding certain candidates for jury from the list, thanks the rest of the candidates for jury (part 19, article 328 of the Criminal Procedure Code of the Russian Federation). If there are less than 14 remaining candidates for jury, then the required number of persons is summoned to the court additionally according to the reserve list. With regard to the newly summoned candidates for jury, the issues of their release from participation in the consideration of the criminal case and recusal are resolved in the general procedure established by Part 20 of Art. 328 of the Criminal Procedure Code of the Russian Federation. The presiding judge announces the surnames, names and patronymics of the jurors, entered in the minutes of the court session. At the same time, the first 12 form a jury in a criminal case, and the last two participate in the consideration of a criminal case as reserve jurors (part 21 of article 328 of the Criminal Procedure Code of the Russian Federation). Taking into account the nature and complexity of the criminal case, by decision of the presiding judge, a larger number of reserve jurors may be elected, who are also included in the minutes of the court session (part 18 of article 328 of the Criminal Procedure Code of the Russian Federation).

It has been experimentally established that in complex cases, a jury, consisting of 12 jurors, is best suited for making a high-quality decision on the factual side of the case and the guilt of the defendant. With such a quantitative composition, jurors not only complement each other in terms of the stock of knowledge about the surrounding reality, but are also less susceptible to the influence of conformism, that is, the tendency, without sufficient independent comprehension, passively, uncritically, to join the opinion of the majority or authorities, formal or informal. leader.

7. Upon completion of the formation of the jury, the presiding judge invites 12 jurors to take their assigned place on the jury bench, which should be separated from those present in the courtroom and located, as a rule, opposite the dock. The reserve jurors occupy the seats specially designated for them by the presiding judge on the jury bench (part 22 of article 328 of the Criminal Procedure Code of the Russian Federation). Implementation of this element procedural form provides not only the optimal structural organization of the jury as a small social group, designed to solve complex and important questions about the actual side of the criminal case and the guilt of the defendant, but also the protection of the jury from the undue influence of interested persons and the public present in the courtroom, promotes an increase in the number of jurors a sense of responsibility and civic courage.

8. The formation of the jury is carried out in a closed court session. If the materials of the criminal case contain information constituting a state secret or another secret protected by federal law, then a non-disclosure agreement is taken from the jury. A juror who refused to give such a subscription is assigned by the presiding judge and replaced by a reserve juror (parts 23 and 24 of article 328 of the Criminal Procedure Code of the Russian Federation).

The replacement of a juror is also carried out in other cases provided for by law (Article 329 of the Code of Criminal Procedure of the Russian Federation). So, if during the trial, but before the jury is removed to the deliberation room for a verdict, it turns out that one of the jurors cannot continue to participate in the trial or is removed by the judge from participating in the trial, then he is replaced by a spare juror in sequence specified in the list when forming the jury in a criminal case. If in the course of the trial the foreman of the jury retires, then his replacement is made by repeated elections in the manner prescribed by Art. 331 of the Criminal Procedure Code of the Russian Federation. If the number of retired jurors exceeds the number of substitutes, then the trial held shall be invalidated. In this case, in accordance with Art. 328 of the Code of Criminal Procedure of the Russian Federation, the presiding judge proceeds to the selection of jurors, in which jurors who have been released due to the dissolution of the collegium can also take part. If the impossibility of participating in the court session of any of the jurors comes to light during the passing of the verdict, the jurors must go into the courtroom, complete the jury from the number of spare jurors and leave for further discussion of the verdict.

9. One of the important procedural means of forming the qualitative composition of the jury is provided for in Art. 330 of the Code of Criminal Procedure of the Russian Federation, the procedure for dissolving the jury in view of the tendentiousness of its composition. Before the jury is sworn in, the parties have the right to declare that due to the peculiarities of the criminal case under consideration, the formed jury as a whole may be unable to deliver an objective verdict. Having heard the opinion of the parties, the presiding judge resolves this statement in the deliberation room and makes a decision. If the application is found to be justified, the presiding judge shall dissolve the jury and resume preparations for the consideration of the criminal case by the court with the participation of the jury in accordance with Art. 324 of the Criminal Procedure Code of the Russian Federation.

10. Structural organization the jury ends with the procedure for electing the foreman of the jury: after the formation of the collegium of jurors, but before they are sworn in, the jury members in the deliberation room openly vote by a majority of votes the foreman, who informs the presiding judge of his election (part 1 of article 331 of the CCP RF). The law does not provide for the right of a juror to abstain from voting. The foreman of the jury directs the course of the meeting of the jurors, on their behalf, addresses the presiding judge with questions and requests, reads out the questions raised by the court, writes down the answers to them, sums up the voting results, draws up a verdict and, at the direction of the presiding judge, proclaims it in the court session (Part 2 of Art. . 331 of the Criminal Procedure Code of the Russian Federation).

11. For the formation of the jury, the stipulated by Art. 332 and 333 of the Code of Criminal Procedure of the Russian Federation, the procedure for taking the oath by jurors and explaining to them their rights and obligations. After the election of the foreman of the jury, the presiding judge shall address the jury with a proposal to take the oath and read out its text. After that, the presiding judge names consecutively the names of the jurors according to the list, each of whom responds to the appeal of the presiding judge: “I swear” (part 2 of article 332 of the Criminal Procedure Code of the Russian Federation). The oath is also taken by reserve jurors (part 3 of article 332 of the Code of Criminal Procedure of the Russian Federation). A note is made about the taking of the oath in the minutes of the court session (part 4 of article 332 of the Code of Criminal Procedure of the Russian Federation). A juror who refuses to take the oath must be withdrawn and replaced by a substitute. All those present in the courtroom listen to the text of the oath and its adoption while standing (part 5 of article 332 of the Code of Criminal Procedure of the Russian Federation).

12. After taking the oath, the presiding judge explains to the jury their rights and obligations (part 6 of article 332 of the Code of Criminal Procedure of the Russian Federation). Jurors, including substitutes, is entitled to: to participate in the investigation of all the circumstances of the criminal case; to ask questions of the interrogated persons through the presiding judge, to participate in the examination of material evidence, documents and in the production of other investigative actions; to ask the presiding judge to clarify the norms of the law relating to the criminal case, the content of the documents read out in the court and other questions and concepts that are unclear to them; keep your own notes and use them when preparing answers to questions posed to the jury in the deliberation room (part 1 of article 333 of the Criminal Procedure Code of the Russian Federation). Jurors not entitled: leave the courtroom during the hearing of the criminal case; express their opinion on the criminal case under consideration before discussing issues when passing a verdict; communicate with persons who are not part of the court about the circumstances of the criminal case under consideration; collect information on a criminal case outside the court session; violate the secrecy of the meeting and voting of the jury on the questions put before them (part 2 of article 333 of the Code of Criminal Procedure of the Russian Federation). For failure to appear in court without a valid reason, the juror may be subject to a monetary penalty in the manner prescribed by Art. 118 of the Code of Criminal Procedure of the Russian Federation (part 3 of Art. 333 of the Code of Criminal Procedure of the Russian Federation). The presiding judge warns the jury that in case of violation of the requirements provided for in Part 2 of Art. 333 of the Code of Criminal Procedure of the Russian Federation, a juror may be removed from further participation in the consideration of a criminal case at the initiative of the judge or at the request of the parties. In this case, the juror is replaced by a spare (part 4 of article 333 of the Code of Criminal Procedure of the Russian Federation).

Peculiarities of a judicial investigation in a court with the participation of a jury.

Investigation in a jury trial begins with introductory statements by the public prosecutor and defense attorney (part 1 of article 335 of the Code of Criminal Procedure of the Russian Federation).

In the introductory statement, the public prosecutor sets out the essence of the accusation and proposes the procedure for examining the evidence presented by him (part 2 of article 335 of the Criminal Procedure Code of the Russian Federation). In terms of form and content, the prosecutor’s statement is a short and understandable statement of the essence of the charge brought against the jury, but without mentioning the facts of convictions and other data that could cause them to prejudice. In his introductory statement, the public prosecutor also proposes a procedure for examining evidence, that is, an optimal sequence for examining evidence from the prosecution's point of view.

Establishing the optimal procedure for the study of evidence (taking into account the requirements of Art.274 of the Code of Criminal Procedure of the Russian Federation) makes it possible to reasonably organize the trial, to conduct it in the most rational, purposeful manner in order to ensure the study of all the evidence necessary to clarify the issues arising in the criminal case, with the least expenditure of time and effort of the court , parties and citizens summoned to the court session.

After the opening statement of the public prosecutor, the defense attorney expresses his position on the charge brought in agreement with the defendant and an opinion on the procedure for examining the evidence presented by him (part 3 of article 335 of the Criminal Procedure Code of the Russian Federation).

After the interrogation of the defendant, victim, witnesses, expert by the parties, the jurors, through the presiding judge, have the right to ask them questions. Questions are presented by the jury in writing and submitted to the presiding officer through the foreman. These questions are formulated by the presiding judge and can be dismissed as not related to the charges brought against him (part 4 of article 335 of the Criminal Procedure Code of the Russian Federation).

The judge, on his own initiative, as well as at the request of the parties, excludes from the criminal case evidence, the inadmissibility of which was revealed in the course of the trial (part 5 of article 335 of the Code of Criminal Procedure of the Russian Federation). Within the meaning of the law, the exclusion of inadmissible evidence from a criminal proceeding in a court with the participation of a jury may be carried out both in the preparatory part of the court session and throughout the entire judicial investigation.

Presiding judge does not have the right to refuse a party to examine evidence if it is not excluded from the proceedings as inadmissible.

In the process of judicial investigation in a court with the participation of a jury, the parties cannot mention the existence of evidence excluded from the proceedings. If in the course of the trial the question of the inadmissibility of evidence arises, then they are considered in the absence of the jury. Having heard the opinion of the parties, the judge decides to exclude evidence that he deems inadmissible (part 6 of article 335 of the Code of Criminal Procedure of the Russian Federation).

The material evidence attached to the criminal case must be demonstrated in the course of the judicial investigation visually and convincingly, so that their meaning is clear to the jury. Publication of only the protocol of their inspection, as a rule, does not fulfill this task.

According to Part 7 of Art. 335 of the Code of Criminal Procedure of the Russian Federation during the trial in the presence of the jury, only those factual circumstances of the criminal case, the proof of which is established by them in accordance with the powers provided for by Art. 334 of the Criminal Procedure Code of the Russian Federation.

Data on the personality of the defendant is investigated with the participation of the jury only to the extent that they are necessary to establish certain elements of the corpus delicti of which he is accused. Is prohibited investigate the facts of previous convictions, the recognition of the defendant as a chronic alcoholic or drug addict, as well as other data that can cause the jury to prejudice against the defendant (part 8 of article 335 of the Criminal Procedure Code of the Russian Federation). The same prejudice can be caused by other information not directly related to the guilt of the defendant, which negatively characterizes his personality.

In the same time data on the state of health, marital status and other information about the personality of the defendant can be investigated with the participation of the jury in cases where they are necessary for the correct and fair decision of questions about whether the defendant deserves leniency (for example, information about a serious incurable illness of the defendant or that he is dependent on minor children).

In the course of the judicial investigation, it is important to protect jurors from information that goes beyond the limits of proof, as this can have an adverse emotional impact on them, negatively affect their objectivity and impartiality. Therefore, the presiding judge in accordance with Art. 243 of the Code of Criminal Procedure of the Russian Federation has the right to remove such evidence from the proceedings with the obligatory citation of the reasons for the decision in the decision.

With the exception of the features noted above, a judicial investigation in a court with the participation of a jury is conducted in accordance with the general procedure, which is regulated by Ch. 37 of the Criminal Procedure Code of the Russian Federation.

Features of the debate of the parties in court with the participation of a jury.

In accordance with Part 1 of Art. 336 of the Criminal Procedure Code of the Russian Federation, after the end of the judicial investigation, the court with the participation of the jury proceeds to hear the arguments of the parties, which are general rules, established by Art. 292 of the Code of Criminal Procedure of the Russian Federation.

In the debate of the parties, the participants in the trial, taking into account the data obtained during the trial, substantiate their position on the criminal case in accordance with the criminal procedure function they perform.

The debate of the parties consists of speeches by the prosecutor and the defense counsel. The speech of the public prosecutor and defense attorney is the result of all activities in adversarial criminal proceedings. At this stage of the proceedings, they must clearly and clearly state their position on a specific criminal case and thus influence the formation of the internal convictions of the jury on the issues, the resolution of which is within their competence.

The victim and his representative may also participate in the debate of the parties. The civil plaintiff, the civil defendant, their representatives, the defendant have the right to apply for participation in the debate of the parties (part 2 of Art. 292 of the Code of Criminal Procedure of the Russian Federation).

The sequence of speeches by the participants in the debate of the parties (in cases where several defenders or several prosecutors take part in a criminal case) is established by the court. In this case, the first in all cases is the prosecutor, and the last is the defendant and his defense lawyer. The civil defendant and his representative act in the arguments of the parties after the civil plaintiff and his representative (part 3 of article 292 of the Criminal Procedure Code of the Russian Federation).

Participants in the debate of the parties are not entitled to refer to evidence that was not considered in the court session or was declared inadmissible by the court (part 4 of article 292 of the Code of Criminal Procedure of the Russian Federation).

The court does not have the right to limit the duration of the arguments of the parties, however, it can interrupt the speeches if they relate to the above circumstances, and explain to the jury that they should not take these circumstances into account when passing the verdict (part 5 of article 292, part 3 of article 337 of the CCP RF).

In criminal cases before a jury trial, the law divides judicial procedure debate of the parties in two stages: before the verdict by the jury (Article 336 of the Code of Criminal Procedure of the Russian Federation) and after the verdict (part 4 of Article 347 of the Code of Criminal Procedure of the Russian Federation).

At the first stage of the debate of the parties in accordance with Part 2 of Art. 336 of the Code of Criminal Procedure of the Russian Federation are carried out only within the framework of issues subject to resolution by the jury.

The parties are not entitled to touch upon the circumstances that will be discussed after the verdict has been passed without the participation of the jury. If a participant in the debate of the parties mentions such circumstances, the presiding judge stops him and explains to the jury that these circumstances should not be taken into account by them when passing a verdict (part 2 of article 337 of the Criminal Procedure Code of the Russian Federation).

After the end of the debate of the parties, all their participants have the right to a reply. The right of the last remark belongs to the defender and the defendant (part 1 of article 337 of the Criminal Procedure Code of the Russian Federation). The speech of the public prosecutor and defense attorney with a remark is their remarks and objections to the speeches of the procedural opponent and (or) other participants in the debate of the parties. The public prosecutor and defense attorney must necessarily indicate which participant in the debate of the parties they intend to respond to in a remark.

The defendant is given the last word in accordance with the general rules established in Art. 293 of the Criminal Procedure Code of the Russian Federation.

The procedure for posing questions to be decided by the jury and for the presiding officer to deliver his parting words.

The presiding judge formulates the issues to be resolved by the jury in writing after the end of the debate of the parties, taking into account the results of the judicial investigation and the arguments presented by the parties in the debate, that is, when all the evidence has already been examined, the position of the parties has become clear and when it is already possible to put before the jury those questions to which only they have to answer.

The presiding judge shall transfer the text of the questions formulated for the jury to the parties.

For the effective exercise of their powers when raising questions, the public prosecutor and defense attorney must first of all thoroughly understand the formulated in Art. 339 of the Criminal Procedure Code of the Russian Federation general provisions on the type and content of questions that can be posed to the jury, as well as in the requirements for posing any question and its wording in the question sheet.

According to Part 1 of Art. 339 of the Code of Criminal Procedure of the Russian Federation for each of the acts of which the defendant is accused, three main questions are raised that determine the content of the verdict: 1) is it proved that the act took place; 2) whether it has been proven that the act was committed by the defendant; 3) whether the defendant is guilty of committing this act.

Since the conclusions of the court cannot be based on assumptions, the jury cannot be asked questions about the likelihood of the defendant's guilt in the commission of the act. In the questionnaire, it is also unacceptable to ask questions about the guilt of persons other than the defendants.

In accordance with Part 2 of Art. 339 of the Criminal Procedure Code of the Russian Federation in the questionnaire it is possible (if the circumstances of the criminal case allow this) to also raise one main question about the guilt of the defendant, which is a combination of all three main questions specified in Part 1 of Art. 339 of the Criminal Procedure Code of the Russian Federation. However, it should be remembered that in the formulated according to the rules of Part 2 of Art. 339 of the Code of Criminal Procedure of the Russian Federation, the question should reflect all three main issues (and about the proof of the event of the crime, and about the involvement of the defendant in it, and about his guilt).

The main purpose of posing particular questions is to help the jury to fully and correctly answer the main questions about the factual circumstances of the criminal case and the guilt or innocence of the defendant. Raising particular questions to the jury, in addition, helps to decide whether the defendant deserves leniency if he is found guilty (part 4 of article 339 of the Code of Criminal Procedure of the Russian Federation). Particular questions are not always posed, but only in cases where, without asking them, it is impossible to obtain correct and complete answers of the jury on mandatory questions.

At the time of discussion and formulation of questions, the jury is removed from the courtroom (part 3 of article 338 of the Criminal Procedure Code of the Russian Federation). Taking into account the comments and suggestions of the parties, the judge in the deliberation room finally formulates the questions to be resolved by the jury, and enters them into the question sheet, which is signed by him (part 4 of article 338 of the Criminal Procedure Code of the Russian Federation). The questionnaire shall be read out in the presence of the jury and handed over to the foreman of the jury. Before being removed to the deliberation room, the jury has the right to receive clarifications from the presiding judge on the ambiguities that have arisen in connection with the questions raised, without touching upon the essence of possible answers to these questions (part 5 of article 338 of the Criminal Procedure Code of the Russian Federation). They can also ask for clarification on the issues raised after they have gone to the meeting, if the need for this has arisen already during the discussion of the issues. The presiding judge gives the necessary explanations to the jury, he also, after listening to the opinion of the parties, can clarify the questions raised or supplement the question sheet with new questions. If changes are made to the questionnaire, then the presiding officer in a short parting word must explain to the jury the meaning of these changes, and the parting word itself must be reflected in the minutes (part 2-3 of article 344 of the Criminal Procedure Code of the Russian Federation).

Parting words of the presiding officer according to Part 1 of Art. 340 of the Code of Criminal Procedure of the Russian Federation is pronounced before the jury is removed to the deliberation room for a verdict. When pronouncing a parting word, the presiding judge is prohibited from expressing his opinion in any form on the issues put before the jury (part 2 of article 340 of the Code of Criminal Procedure of the Russian Federation). The parties have the right to raise objections in the court session in connection with the content of the parting words of the presiding judge on the grounds of his violation of the principle of objectivity and impartiality (part 6 of article 340 of the Code of Criminal Procedure of the Russian Federation).

General conditions for jury proceedings

The accused, whose case is under the jurisdiction of the city, regional (regional) court, has the right to choose the composition of the court and the corresponding judicial procedure for considering the case. If the accused chooses a jury trial, he must file a corresponding motion upon announcing the end of the preliminary investigation to him and presenting the materials of the criminal case for review. This request is reflected in a separate protocol, which is signed by the investigator and the accused.

The jury is a person chosen at random, specially for this court from the general and reserve annual lists available in the court.

jurors have the right: 1) participate in the investigation of all the circumstances of the criminal case, ask questions to the interrogated persons through the presiding judge; 2) ask the presiding judge to clarify the provisions of the law relating to the corner. business; 3) keep your own notes and use them when preparing answers to questions posed to the jury in the deliberation room.

Jurors are not entitled to: 1) leave the courtroom during the hearing of the criminal case; 2) express your opinion on the considered angle. the case before the discussion of issues in the delivery of the verdict; 3) communicate with persons who are not part of the court about the circumstances of the criminal case under consideration; 4) collect information on yog. the case outside the court session; 5) violate the secrecy of the deliberations and voting of the jury on the questions put before them.

In the course of the trial, such new stages appear how to ask questions for the jury to answer; utterance by the presiding judge of a parting word before the jury is removed to the deliberation room for a verdict; announcement of the verdict by the foreman of the jury.

In cases before the jury, the participation of the prosecutor in the trial is mandatory, who performs the function of supporting the state prosecution.

The participation of a defense attorney is mandatory in the consideration of a case by a jury. It is ensured from the moment at least one of the accused submits a petition for the consideration of a criminal case by a court with the participation of a jury. If the defense attorney was not invited by the accused himself, his legal representative or other persons on his behalf, the investigator, prosecutor or court shall be obliged to ensure the participation of the appointed defense attorney in the case.

During the hearing of the court with the participation of the jury, a protocol is kept according to the general rules. The peculiarities of its conduct are the following circumstances: the minutes must indicate the composition of the candidates for the jury summoned to the court session, and the course of the formation of the jury; The parting word of the presiding judge shall be recorded in the minutes of the court session or its text shall be attached to the materials of the criminal case, which is indicated in the minutes.

The minutes of the trial with the participation of the jury must record the entire course of the trial so that it is possible to verify the correctness of its conduct.

preliminary hearing

The preliminary hearing is a preparatory stage for the jury in the criminal process, where the issues to be clarified on the received angle are resolved. case, as well as issues related to the appointment of a court session and preparation of the case for trial. The judge conducts the preliminary hearing alone in the form of a court session with mandatory participation the prosecutor and defense counsel, with the summons of the defendant, the victim and his representative. The notice of summoning the parties to the court session must be sent at least 3 days before the day of the preliminary hearing. The question of scheduling a preliminary hearing is allowed no later than 14 days from the date the case is filed with the court, if the accused is in custody, and within 30 days in other cases. There are four steps to a preliminary hearing: a) preparatory (opening of the meeting, announcement of the persons participating in it, etc.); b) consideration of petitions of the parties; c) listening to objections; d) decision making.

At the beginning of the preliminary hearing the judge announces which case is subject to consideration, is presented to the persons who have appeared in the session, informs who is the state. the prosecutor, the defense attorney, the secretary, finds out the identity of the defendant, resolves the stated challenges. The second stage of the preliminary hearing is the consideration of the motions of the parties: to exclude evidence, to call a witness to establish an alibi for the defendant, to request additional evidence or items. A feature of the trial is an indication in the ruling on the appointment of a case to a hearing by a court with the participation of a jury of the number of candidates for a jury who are to be summoned to the court session and which must be at least twenty.