Как обеспечить свидетельский иммунитет присяжных заседателей при производстве в суде апелляционной инстанции?

Abstract

Criminal procedural form is understood by scientists as the conditions, sequence of procedural actions and procedural decisions, rules of investigation, procedural activities of the subjects of investigation, rituals of criminal proceedings. It creates a strict and detailed legal regime for criminal proceedings. In this regard, the legal position of the Constitutional Court of the Russian Federation, set out in its judgment of 07 July 2020 No. 33-P, is of interest. The Constitutional Court of the Russian Federation has proposed new constructions (forms) of juror's communication with the court: For the court of appeal it is envisaged to invite a juror to the court session to receive from him/her information on alleged violations of the criminal procedure law during the discussion and pronouncement of the verdict. The Constitutional Court of the Russian Federation emphasised that such an invitation is only possible without giving the summoned person the procedural status of a witness. An analysis of a number of appellate determinations on this group of issues showed the emergence of new forms: 1. Hearing the explanations of the senior jurors. 2. Receiving written explanations from the senior jurors. 3. Conducting the verification by the Court of Appeal by questioning the alternate jurors. 4. Obtaining an opinion on the results of the performance review. 5. Verification of information from the explanations of the jurors received by the lawyer, inviting the jurors and providing them with information. It should be also noted that the configuration envisaged by the said decree "does not fit" into the criminal procedure form in several other aspects. As mentioned above, a juror is not granted the procedural status of a witness. However, the issue of reluctance of a juror to appear in court to give any explanations and the impossibility to bring him/her is still open. The question arises as to how long the juror's status remains after the verdict is announced and when this civic duty should be considered fulfilled. However, based on the understanding of the criminal procedure form as the totality of such inherent elements as its objectives, principles and functions, it may be stated that a jury does not fulfil the function of justice any longer. Consequently, the impossibility to attribute to them the function of witnesses is not that clear-cut. The procedure of obtaining and the final status of information obtained from jurors is also questionable. The court practice referred to such information as explanations, possible explanations and questioning. Thus, Decision No. 33-P has not only failed to resolve the problem of establishing the circumstances related to violation of the criminal procedure law in the court of appeal through jury trial but has also raised questions as to the criminal procedure form of such involvement.