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Justice in the U.S.167 and Armed Forces Acts and other statutes in the UK168. Secondly, it also
indicates that defendants in military courts should be entitled to the same rights which are
enjoyed by civilians. At the same time, it could be argued that the Russian Constitution does
not guarantee either military or civilian defendants the right to a jury trial except in cases
which are punishable by the death penalty169.
The question arises, however, whether the Parliament or the Constitutional Court can deprive
a group of military defendants of their right to trial by jury even in cases which are punishable
by death penalty or otherwise eligible for jury trial in other civilian and military courts. In its
recent decision (postanovlenie) No. 3-P of 6 April 2006170 the Constitutional Court decided
that the North Caucasus District Military Court (Severo-Kavkazskii okruzhnoi voennyi sud)
should not grant applications of military defendants for a trial by jury if the crimes with which
defendants are charged were allegedly committed in Chechnya where trial by jury has not
been introduced yet171.
The Constitutional Court provided several grounds for its decision. Firstly, according to the
Constitutional Court, district military courts should summon jurors from permanent residents
of that subject of the Russian Federation (province, region, national republic, autonomous
district) where the crime was committed. If the court summoned jurors not from the subject of
the Federation where the crime was committed it would violate the constitutional right of
people living in the province where the crime was committed to participate in the
administration of justice. Secondly, given the fact that trial by jury in Chechnya has not been
established yet, granting this right to military defendants would put civilian defendants in an
unequal position with military defendants.
It can be argued, however, that the rationale provided by the Constitutional Court for this
decision is not persuasive for the following reasons. The first argument of the Constitutional
Court that the jury must be summoned from the province where the crime was committed
cannot be justified for military courts simply because the crime may take place not on the
territory of any subject of the Russian Federation, for instance, on a naval ship in international
waters or in the territory of the Russian military base abroad. As to the constitutional right of
169 It should be noted that although the Russian Federation imposed moratorium on the death penalty after it
joined the Council of Europe and signed Protocol 6 to the European Convention on Human Rights in 1997 the
Protocol has not been ratified since then. Moreover the Russian Federation has not even signed Protocol 13 to
the European Convention, concerning the abolition of the death penalty in all circumstances. The death penalty
provisions were not excluded from the Criminal Code, which stipulates this punishment for five serious offences
including aggravated murder, encroachment on the life of a statesman or a public figure, encroachment on the
life of a person administering justice or engaged in a preliminary investigation, encroachment on the life of an
officer of a law-enforcement agency, and genocide. Ugolovnyi Kodeks Rossiiskoi Federatsii, 13 June 1996,
# 63-FZ (with amendments as of 21 July 2005).
170 In re the Constitutionality of a number of provisions of the Federal Constitutional Law “On military courts”,
federal laws “On jurors of federal courts of general jurisdiction in the Russian Federation”, “On the introduction
of Code of Criminal Procedure” and Code of Criminal Procedure, in Connection with Petitions from the
President of Chechen Republic, North Caucasus District Military Court and Complaint of Citizen K.G.
Tuburova. Rossiiskaia Gazeta, 12 April 2006, # 4041, http://www.rg.ru/2006/04/12/a105376.html.
171 Chechnya is the only subject of the Russian Federation where trial by jury has not been introduced yet. The
federal Government and Parliament postponed its introduction twice in 2002 and in December 2006. According
to the Law of 27 December 2006 provisions of Code of Criminal Procedure concerning trial by jury should be
implemented in Chechnya not before January 1, 2010.
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