Диков Г. Суд присяжных и практика Европейского Суда по правам человека по статье 6 Конвенции (право на справедливое судебное разбирательство)

Аннотация: Jury trial is not a mandatory form of adjudication under the European Сonvention. Many countries do not have juries or their competence is very limited. However, where such courts exist, they should operate in compliance with the requirements of Article 6 of the European Convention on Human Rights. The article examines particular features of the jury trial and how they are reflected in the case-law of the European Court. In particular, the author analyses the notion of “impartiality” and its application to the jurors. If one of the jurors is biased, does it make the whole panel “partial”? What can the presiding judge do where allegations of bias are made other than dissolve the panel? What sort of convictions or beliefs may be regarded as “prejudice”? What external factors may make the jurors biased? The article further touches upon the Court’s case law on “motivated judgments.” Jury in many countries are not required to give motivated answers to the questions put by the presiding judge. A recent case Taxquet v. Belgium (now pending before the Grand Chamber) condemns this practice and establishes that the criminal defendant has the right to know why the jury has declared him guilty. The author examines practical and theoretical problems of application of the “motivated judgement” principle in the context of jury trial. In conclusion, the author outlines certain general approaches of the European Court, namely its tendency to analyse the decision-making process rather than the substance of the decisions taken at the domestic level, and the considerable leeway given to the domestic judge in such matters.

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Abstract: Jury trial is not a mandatory form of adjudication under the European Сonvention. Many countries do not have juries or their competence is very limited. However, where such courts exist, they should operate in compliance with the requirements of Article 6 of the European Convention on Human Rights. The article examines particular features of the jury trial and how they are reflected in the case-law of the European Court. In particular, the author analyses the notion of “impartiality” and its application to the jurors. If one of the jurors is biased, does it make the whole panel “partial”? What can the presiding judge do where allegations of bias are made other than dissolve the panel? What sort of convictions or beliefs may be regarded as “prejudice”? What external factors may make the jurors biased? The article further touches upon the Court’s case law on “motivated judgments.” Jury in many countries are not required to give motivated answers to the questions put by the presiding judge. A recent case Taxquet v. Belgium (now pending before the Grand Chamber) condemns this practice and establishes that the criminal defendant has the right to know why the jury has declared him guilty. The author examines practical and theoretical problems of application of the “motivated judgement” principle in the context of jury trial. In conclusion, the author outlines certain general approaches of the European Court, namely its tendency to analyse the decision-making process rather than the substance of the decisions taken at the domestic level, and the considerable leeway given to the domestic judge in such matters.

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