Problems of the practice of the dismissal of the jury due to the tendentiousness of the composition: the effect of a legislative error or defects of judicial practice?

Abstract

The article examines problematic issues of theoretical understanding, legislative regulation and application in judicial practice of the criminal procedure the institute of the dismissal of the jury in view of its tendentiousness. The article notes that this institution is not implemented in judicial practice in a positive aspect, since all variations for the manifestation of a possible tendentiousness of the collegium are rejected by appeal and cassation courts. It is concluded that there are two irreparable contradictions in the basis of the procedural consolidation of this institution, which determine the ineffectiveness of its positive application. The first contradiction, considered in the article, arises between the need to motivate the application for the dismissal of the jury in view of its tendentiousness and the amorphousness (uncertainty) of the grounds for such a group challenge. The second contradiction arises between the absence of grounds for peremptory challenge of each of the candidates for jury and the existence of grounds for the dismissal of the jury as a whole. The article concludes that the institution under consideration does not adequately fulfill the function of a legal means ensuring the impartiality and objectivity of the jury, and should be excluded from the legislative model of proceedings in the jury trial of the Russian Federation.