a name='top'> Oregon State Bar Bulletin — FEBRUARY/MARCH 2003
|Realizing the Rule of Law|
By Paul J. De Muniz.
The defendants, Pavlov and Yegorov, rose respectfully from their chairs as the jurors re-entered the courtroom and took their seats in the jury box. Oregon Court of Appeals Judge David Brewer, sitting as a trial judge, asked the presiding juror if the jury had reached a verdict. The presiding juror rose, answered 'Da, Da,' and handed the verdict form to the bailiff who then handed the form to Judge Brewer. Judge Brewer studied the verdict form for a moment and then read, 'We the jury in the above entitled case find the defendant, A.S. Pavlov, not guilty.' The courtroom audience broke into applause. Judge Brewer let the applause die out and then read, 'We the jury in the above entitled case find the defendant, A.B. Yegorov, not guilty.' The second verdict was also greeted with enthusiastic applause from the courtroom audience. Judge Brewer then thanked the jurors for their public service, and told the defendants they were free to go.
So ended the first jury trial held in the Russian Far East on the island of Sakhalin.1 Although it was only a mock trial, the murder trial of A.S. Pavlov and A.B. Yegorov signaled the beginning of Sakhalin’s implementation of jury trials as part of Russia’s continuing commitment to transform itself into a democratic, rule-of-law society, in which legal disputes are resolved under an adversarial system of justice.
The transformation of Russia’s judicial system is rooted in the constitution adopted by the Russian Federation in 1993. Article I of the 1993 Constitution provides that: 'Russia shall be a democratic federal rule-of-law state with the republican form of government.' Although the constitution does not explicitly define a rule-of-law state, other articles of the constitution appear to indicate that the Russian 'rule-of-law' state envisioned in the constitution is one in which governmental action is not arbitrary, but based on constitutional principles and legal rules. Moreover, those principles and rules are enacted by people who are declared to have certain inalienable rights and freedoms, and who are the sole source of power in the state.2
Although a number of constitutional articles provide for elements of a new justice system in Russia, there are three that primarily create the foundation for an adversarial system of justice. First, Article 120 expressly confirms the independent status of the judiciary by stating that 'judges shall be independent and shall obey only the Constitution of the Russian Federation and federal law.' Second, the change to an adversarial system is mandated by Article 123(3), which states that 'judicial proceedings shall be conducted based on adversarial principles and equality of parties.' Third, the reintroduction of the jury trial system is found in Article 47(2) of the 1993 Russian Constitution, which provides: 'Anyone charged with a crime has the right to have his or her case reviewed by a court of law with the participation of jurors in cases stipulated by federal law.'3
Although the 1993 constitution provided for the use of juries in serious criminal cases, implementation of the jury trial system throughout the Russian Federation was neither immediate nor automatic. Because of the expense and complexity involved in changing to such a system, juries were first reintroduced in just nine regions.4 Although the first jury trial occurred in the Saratov region in December 1993, the development of the jury trial system did not proceed smoothly and has remained confined to the original nine pilot regions.
When Vladimir Putin became president of the Russian Federation in 2000, however, he made judicial reform one of his government’s top priorities. The Putin administration promoted judicial reform based on the belief that a cornerstone of Russia’s economic recovery and eventual success in world markets will be a judicial system that potential investors view as trustworthy and reliable.5 In particular, the government under Putin promoted reforms intended to ensure judicial independence and accountability, as well as the complete implementation of jury trials throughout all the regions of the Russian Federation.6 With the approval of a new Code of Criminal Procedure in December 2001, jury trials are scheduled to begin throughout Russia in January 2003.7
The mock murder trial of Pavlov and Yegorov was conducted as part of a five-day conference, held late September and early October 2002, in the city of Yuzhno-Sakhalinsk, on the island of Sakhalin. The conference was intended to inaugurate the formation of the Sakhalin/Oregon Rule of Law Partnership sponsored by the United States Agency for International Development (USAID).8 Numerous rule of law partnerships intended to support Russian judicial reforms have existed between east coast states and western regions of Russia since the early ‘90s. However, partnerships between states in the Pacific Northwest and the Russian Far East are in their infancy.9
The use of juries in the Sakhalin region entails substantial changes in court procedure, as well as in prosecution and defense practices. It was in recognition of the many changes necessary to fully implement jury trials in Sakhalin that the Sakhalin/Oregon Rule of Law Partnership chose to focus its first conference on key concepts in the adversarial system: judicial independence and ethics; the role of prosecutors and defense attorneys in an adversarial system; the development of the legal profession (bar association); the adjudication of commercial disputes and the anatomy of a jury trial. Based on these subject areas and availability, a delegation comprised of Supreme Court Justice W. Michael Gillette, Court of Appeals Judge David Brewer, Washington County District Attorney Robert Hermann, former Marion County legal counsel Robert Cannon and the author of this article participated in the partnership’s initial conference.10
In preparation for the conference, each member of the Oregon delegation prepared written presentations on the subject areas. Those presentations were translated into Russian and provided in booklet form to the 120 Russian judges and prosecutors that participated in the five day conference. Two highly skilled interpreters from Moscow provided simultaneous translation of the oral presentations made during the conference.11
The Oregon delegation also was privileged to hear presentations from Russian judges and scholars. Those presentations focused on topics such as the 'Adversarial System as a Constitutional Principle of Adjudication, the 'Correlation of the Public and the Private in Modern Criminal Procedure Law,' the 'Role of the Prosecutor in the Russian Federation,' the 'New Law on Advokatura,' and 'Adjudication in Commercial Disputes, Role of Arbitrazh Assessors.' Two of the Russian presentations have been put in written form and translated into English.
As previously noted, a mock trial formed the centerpiece of the conference. Two Russian lawyers with significant jury trial experience in the Ivanovo region traveled to Sakhalin to participate in the mock trial.12 The Oregon delegation was privileged to meet and work with Olga Mikhaleva, an experienced prosecutor and Vladimir V. Derbushev, an experienced defense lawyer and member of the Ivanovo Colleguim of Advocates. With their invaluable assistance, the trial procedures (a combination of Oregon and Russian procedural rules) were established and a Russian murder trial, filmed by Russian television, began in Sakhalin.
Judge Brewer, acting as the presiding judge, was joined on the bench by assistant judges Bob Cannon and Justice Gillette. Robert Hermann consulted with the prosecution team, and the author consulted with the defense team.
The jurors were selected from the conference participants, and were realistically and carefully questioned about their qualifications to serve on Sakhalin’s first jury. After a number of peremptory challenges by each side, 12 jurors were eventually seated. The witnesses had carefully rehearsed their roles and were subject to intense questioning. Scientific evidence was introduced, and both defendants testified after being carefully instructed in open court about their constitutional right not to do so.13 The closing arguments on each side were well thought out and passionate. In the end, the jury strictly applied its burden of proof instructions and found each defendant not guilty.
For the Oregon delegation, traveling to Sakhalin to help nurture Russia’s commitment to the rule of law was a significant professional and personal experience.
The Sakhalin conference, however, was only the beginning stage of establishing an enduring partnership between the two legal communities. Following the conference, eight judges from Sakhalin traveled to the United States as part of the Library of Congress Open World Program. The Sakhalin delegation was led by Victor Vereshchak, Chief Judge of Sakhalin Oblast Arbitrazh Court and chair of the Sakhalin steering committee of the Sakhalin/Oregon Rule of Law Partnership. Also in the delegation were three other Arbitrazh Court judges, Irina Karpenyuk, Marina Shestakova and Olga Boyarskaya. The remainder of the delegation included two Oblast (regional) Court judges, Mikhail Isayev and Inessa Usoltseva, and two general jurisdiction court judges, Natalya Akulenko, Chief Judge of the Yuzko-Sakhalinsk City Court, and Sergey Provorov, Chief Judge of the Dolinsk City Court.
Before arriving in Oregon, the Sakhalin judges attended a two-day orientation in Washington, D.C.14 The orientation, which this author participated in, included an overview of the American criminal and civil justice system, as well as tours of the United States Supreme Court and the national monuments.
During their week-long stay in Oregon, the Sakhalin judges were exposed to many aspects of the state and federal justice system in Oregon. Their extensive schedule included: visiting the Washington County District Attorney’s Office and Washington County correctional facilities; visiting the Oregon Capitol and a briefing on the legislative process from House Speaker Pro Tem Lane Shetterly; meeting with Attorney General Hardy Myers; observing an Oregon Supreme Court argument; touring the U.S. District Court and a presentation from U.S. District Judge Anna Brown; meeting U.S. Attorney Michael Mossman and his staff; touring and eating lunch at the Lane County Relief Nursery; observing Circuit Court Judge Kip Leonard presiding over juvenile 'Rap Court;' touring the Lane County Courthouse which included a presentation by Circuit Court Judge Lyle Velure and U.S. District Court Judge Ann Aiken on settlement in civil cases; and meeting with Metropolitan Public Defender Jim Hennings and staff.
The Sakhalin judges also spent an interesting afternoon at the law offices of Lane Powell. Lane Powell partner Lee Nusich organized the event that included presentations by Lane Powell lawyers on the adversarial and jury system, civil litigation in American courts and bankruptcy law in America.15 U.S. Bankruptcy Court Judge Trish Brown also graciously participated in the bankruptcy presentation. The bankruptcy presentation was of special interest to Chief Judge Vereshchak and his three arbitrazh court colleagues who handle bankruptcy cases in Sakhalin.
In addition, the Sakhalin judges visited Willamette College of Law and University of Oregon School of Law. At Willamette, the Sakhalin delegation presented a program on victims’ rights in Russia to 70 law faculty, students, lawyers and judges from Salem. The reception following the presentation provided all those who attended the opportunity to converse and compare the Russian and American legal systems with the Sakhalin judges.
The University of Oregon Law School also held a reception for the Sakhalin judges. Many Russian-speaking undergraduate faculty members and students attended the reception, and lively discussions between the judges, faculty and students were heard throughout the reception.
To continue the momentum established by the Sakhalin conference and the Sakhalin delegation’s visit to Oregon, the Sakhalin/Oregon Rule of Law Partnership applied for and was awarded a grant from the Foundation for Russian-American Economic Cooperation to establish a Jury Trial Center in Sakhalin. The Jury Trial Center, through the joint efforts of Oregon and Russian experts, will provide training for judges, prosecutors and defense attorneys in all aspects of jury trial procedure and advocacy. The center will also conduct research necessary to educate the public, community leaders and journalists about the purpose and operation of jury trials and to encourage Russian citizens to respond to a summons for jury duty.16 In May, Willamette College of Law will be the site of an intensive Russian trial advocacy program attended by judges, prosecutors, defense lawyers and academics from Sakhalin. Organizations such as the Oregon Trial Lawyers Association, the Oregon District Attorneys Association and the Oregon Criminal Defense Lawyers Association have already expressed a strong interest in participating in the trial advocacy program and the work in Sakhalin.
Those of us who had the opportunity to participate in the Sakhalin conference and to host our new friends from Sakhalin, hope that these initial exchanges mark the beginning of a close collaborative relationship between the legal communities of Sakhalin and Oregon and that the relationship will expand to include other elements of our respective communities.
ABOUT THE AUTHOR
Oregon Supreme Court Justice Paul J. De Muniz is chair of the Sakhalin/Oregon Rule of Law Partnership.
1. Sakhalin is directly north of Hakkaido, Japan. Large oil and gas reserves have been discovered off the island’s northern shelf giving rise to a number of billion dollar multinational oil and gas ventures.
2. Gennady M. Danilenko & William Burnham, Law And Legal System of the Russian Federation 129 (2d ed. 2000).
3. The use of juries to resolve legal disputes is not new to Russia. Juries were introduced into the legal system in 1864 and were used until the 1917 revolution when they were done away with. Irina Dline & Olga Schwartz, 'The Jury is Still Out on the Future of Jury Trials in Russia,' 11 East European Constitutional Review 104, 104 (2002).
4. The nine regions selected for the jury trial pilot project were Saratov, Ryazan, Ivanovo, Ulyanovsk, Rostov, Mowcow, Stavropol Krai, Altai Krai, and Krasnodar Krai. Id. at 104.
5. The post-Soviet judicial system actually contains three distinct court systems: the Constitutional Court, vested with the power of judicial review, the Supreme Court of the Russian Federation, which heads the courts of general jurisdictions, and the Supreme Arbitrazh Court of the Russian Federation, which heads the system of Arbitrazh or commercial courts. The Arbitrazh courts specialize in resolving commercial disputes and appear to already have achieved international respect as an independent and reliable judicial body. Stephen Holmes, 'Reforming Russia’s Court’s: Introduction,' 11 East European Constitutional Review 90, 90 (2002) (noting professionalism of lawyering and adjudication in arbitrazh courts).
6. See Alexei Trochev, 'Implementing Russian Constitutional Court Decisions,' 11 East European Constitutional Review 95, 95 (2002) and Mikhail Drasnov, 'Is the ‘Concept of Judicial Reform’ Timely?,' 11 East European Constitutional Review 92, 94 (2002).
7. Article 30(2) of the new Code of Criminal Procedure provides that pursuant to a defendant’s motion 'a panel of twelve jurors shall try (serious) criminal cases.'
8. The steering committee on the Oregon side of the partnership includes: Justice Paul J. De Muniz, chair; Justice W. Michael Gillette, vice chair; and Court of Appeals Judge David V. Brewer, Washington County District Attorney Robert Hermann, Robert C. Cannon, Marla Rae, Edwin Harnden, Symeon Symeonides, Attorney General Hardy Myers, John L. Hemann, J. Michael Alexander, James D. Hennings, Judge Kip W. Leonard, Mary Chaffin, Larisa Rasskazova, Wesley W. Kirtley, Lane P. Shetterley and Judge Anna J. Brown.
9. The Sakhalin/Oregon Rule of Law Partnership was preceded in the northwest by the Khaborovsk/Alaska Rule of Law Partnership, which was formed in early 2002.
10. Former OSB President Edwin Harnden was also scheduled to attend the Sakhalin conference. However, an unexpected development in a major case prevented his participation.
11. The conference materials prepared by the Oregon delegation are now being republished by Sakhalin University.
12. The Ivanovo region is located about 250 miles directly east of Moscow and was one of nine pilot regions selected in 1993 to implement jury trials.
13. Article 51 of the Russian constitution states that 'no one shall be obligated to give evidence against himself or herself, (or) his or her spouse and close relatives, the range of which shall be established by the federal law.' Article 267 and Article 47(3) of the new Code of Criminal Procedure combine to require the trial court to advise the defendant during trial that he or she has the right 'to refuse to give testimony.'
14. The Sakhalin judges were part of a larger group of 50 judges from various regions in Russia. After the orientation, the Russian judges were dispersed to various states throughout the United States.
15. In addition to the oral presentations, the Sakhalin judges were also given written presentations that had been translated into Russian.
16. In Russia, a citizen has the right to serve on a jury if called, but not the obligation.