VZCZCXRO8973
RR RUEHDBU RUEHLN RUEHVK RUEHYG
DE RUEHTA #0223/01 0260130
ZNR UUUUU ZZH
R 260130Z JAN 07
FM AMEMBASSY ASTANA
TO RUEHC/SECSTATE WASHDC 8279
INFO RUCNCIS/CIS COLLECTIVE 0009
RUEHVEN/USMISSION USOSCE 1675
RUEHAST/USOFFICE ALMATY

UNCLAS SECTION 01 OF 03 ASTANA 000223 
 
SIPDIS 
 
DEPARTMENT FOR SCA/CEN (M. O'MARA, T. PERRY), DRL/PHD (C. 
KUCHTA-HELBLING) 
 
SENSITIVE 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KZ
SUBJECT: JURY TRIAL SYSTEM DEBUTS IN KAZAKHSTAN 
 
 
ASTANA 00000223  001.2 OF 003 
 
 
¶1. (SBU) Summary: As of January 1, criminal defendants in Kazakhstan 
charged with aggravated murder have the right to request a jury 
trial.  Under the system developed by Kazakhstani authorities, two 
judges, including the judge presiding at trial, participate on the 
jury along with nine lay jurors.  The long awaited implementation of 
jury trials represents an important step toward promoting judicial 
transparency in Kazakhstan.  However, the untested system faces 
several challenges, including lack of training for judges, lack of 
public awareness, and the potential for judges to dominate and 
control the deliberations. End summary. 
 
--------------------------------- 
WHO HAS A RIGHT TO TRIAL BY JURY? 
--------------------------------- 
 
¶2. (U) As of January 1, criminal defendants charged with aggravated 
murder have the right to request a trial by jury.  The jury trial 
right applies only to those defendants charged under Article 291.2 
of the Criminal Code, which defines aggravated murder and carries a 
possible death penalty.  (Note: Kazakhstan imposed a moratorium on 
the death penalty in 2003.  Defendants sentenced to death are in 
effect sentenced to life in prison, though they could be executed if 
the moratorium is lifted.  End note.)  Aggravated murder includes 
especially brutal murders, multiple murders, murders of persons 
carrying out official duties, murders connected with a sexual crime, 
hostage murders, etc. 
 
¶3.  (U) In order to obtain a trial by jury, the defendant in such a 
case must file a request when the termination of the preliminary 
investigation has been announced and all case files have been 
submitted for inspection.  The motion for a jury trial will be 
considered during a closed, preliminary hearing, and the procurator, 
defendant, and defense counsel are required to be present.  The law 
appears to create a presumption that the request for a jury trial 
will be granted if the defendant affirms the request during the 
hearing.  The defendant may also choose not to request a jury trial. 
 However, once the defendant's decision is affirmed by the judge 
during the preliminary hearing, the decision is final. 
 
---------------------------- 
HOW ARE THE JURORS SELECTED? 
---------------------------- 
 
¶4. (U) Juries will consist of nine lay jurors plus the two judges 
(presiding and second) hearing the case.  There will also be two 
reserve jurors who will be dismissed at the close of proceedings if 
not needed.  The court will create the preliminary pool of jury 
candidates for each case by randomly selecting persons from jury 
lists composed within each oblast (region) by oblast officials.  The 
secretary of the court notifies the candidate of their selection at 
 
SIPDIS 
least seven days prior to the trial.  A person may serve on a jury 
only once per year. 
 
¶5. (U) The preliminary pool of jury candidates will then undergo a 
screening process somewhat similar to the voir dire process used in 
United States.  First, the judge will address all of the candidates 
and introduce them to the court, the parties, and the case, and 
outline the tasks of the jury.  Candidates who are suspected or 
charged with a crime, unable to understand the language of the court 
in the absence of simultaneous translation, or who are otherwise 
physically unable to fully participate in the proceedings will be 
dismissed from service automatically.  In addition, candidates may 
request relief from jury service if they have a "reasonable excuse," 
including that they are over 65 years old, have religious beliefs 
that prohibit them from participating in the administration of 
justice, are women with children under three years of age, or are 
professionals whose diversion will damage state or public interests. 
 
 
¶6. (U) Next, the judge will question the remaining candidates about 
their knowledge of the case and their ability to serve as impartial 
jurors.  The presiding judge asks the questions, but the procurator, 
victim, defendant, and defense counsel may submit written questions 
to the judge.  The law requires the judge to dismiss biased 
candidates or candidates who have outside knowledge of the facts of 
the case.  The parties may challenge for cause any juror candidate 
who is a victim, civil plaintiff or defendant, or potential witness 
in the case; any candidate serving as an expert, interpreter, or in 
another role in connection with the case; any candidate related to 
the parties, victim, lawyers, or investigator; or any candidate with 
a personal, direct or indirect interest in the case. 
 
¶7. (U) If over 16 candidates remain at the conclusion of this stage, 
the judge will reduce the pool to 16 by randomly removing juror 
candidates through a blind draw.  The procurator may then eliminate 
two candidates without cause, and the defendant three.  Finally, the 
 
ASTANA 00000223  002.2 OF 003 
 
 
judge calls the remaining 11 candidates to the jury box in random 
order.  The last two jurors called constitute the reserve jurors. 
The judge administers an oath to the jurors and explains their 
rights and duties. 
 
--------------------------------------------- - 
WHAT IS THE ROLE OF THE JURY DURING THE TRIAL? 
--------------------------------------------- - 
 
¶8. (U) During the evidentiary stage of the trial, the jury listens 
to the parties examine witnesses.  Once the parties have concluded 
their examination of a particular witness, the jurors, via the 
presiding judge, may ask questions of the witness, the defendant, 
and/or the victim.  The jurors may also review the physical evidence 
and documents submitted in the case.  Following the evidentiary 
stage of the trial, the jury listens to the arguments of the 
parties.  If parties refer to excluded or previously unexamined 
evidence, the judge will interrupt the party and instruct the jury 
not to consider that evidence. 
 
¶9. (U) Following the arguments and rebuttal, the judge will explain 
the allegations and the appropriate law, summarize the evidence and 
positions of the parties, explain that a defendant's failure to 
testify shall not be considered a sign of guilt, and explain the 
method of deliberation and voting.  The parties may object to the 
judge's instructions, and such objections may be grounds for an 
appeal. 
 
-------------------------------------- 
HOW DOES THE JURY DETERMINE A VERDICT? 
-------------------------------------- 
 
¶10. (U) After the presiding judge instructs the jury, the jury 
withdraws from the courtroom and the two judges formulate specific 
questions to the jury concerning the criminal charges.  The parties 
have the right to offer input to the formulation of the questions, 
but the presiding judge completes the final formulation of the 
questions in the secrecy of the deliberation room.  Each criminal 
count will have the following three questions: 1) is it proven that 
the act took place; 2) is it proven that the act was committed by 
defendant; and 3) is defendant guilty of a crime. These questions 
may be followed by additional questions that may diminish or 
aggravate guilt, or call for the discharge of the defendant. 
 
¶11. (U) The judges and jury then meet in the deliberation room, and 
the presiding judge chairs the meeting and serves as the foreperson 
of the jury.  The deliberations are secret.  The jurors may request 
explanations from the presiding judge on unclear issues, and such 
requests are not shared with the parties.  After deliberating, the 
judges and jurors vote on the questions by secret paper ballot; the 
votes of the judges and jurors have equal weight.  The presiding 
judge must count the votes in the presence of the jurors. 
 
¶12. (U) The defendant is found guilty of a particular charge if 
there are a majority of affirmative votes for each of the first 
three questions.  The defendant is found not guilty if there are a 
majority of negative votes (six or more) for any one of these three 
questions.  If the defendant is found guilty, the jury also decides 
the sentence by open vote.  Eight votes are required to impose a 
sentence of greater than 15 years, and a unanimous vote is required 
for the death penalty. 
 
--------------------------------------------- ---- 
WHAT ARE THE POTENTIAL PROBLEMS WITH THIS SYSTEM? 
--------------------------------------------- ---- 
 
¶13. (SBU) Although no jury trials have been conducted to date, there 
are a number of potential problems with this new system.  Because 
the judges participate in the deliberations and vote along with the 
jurors, they are likely to dominate the deliberations.  In addition, 
judges have received very little training concerning the new system, 
and there is virtually no awareness among the general public (the 
potential jury pool) of their rights and responsibilities as jurors. 
 
 
¶14. (SBU) The American Bar Association/Central European and Eurasian 
Law Initiative (ABA/CEELI), in the interest of promoting effective 
implementation of the new law, conducted three mock jury trials in 
October of 2006. After analyzing the mock trials, ABA/CEELI issued 
several recommendations to improve the system.  The recommendations 
centered on clarifying a number of procedural issues, as well as 
enhancing the impartiality of the jurors.  Among other things, 
ABA/CEELI recommended that jurors be allowed to remain in the 
courtroom for all portions of the arguments by the parties, so their 
knowledge of the case is equal to that of the judge, and that any 
explanations of unclear issues given by the judge to the jurors be 
 
ASTANA 00000223  003.2 OF 003 
 
 
shared in advance with the procurator and defense counsel to prevent 
unfair prejudice to their cases.  To date, Kazakhstan has not 
revised its jury trial legislation to address these concerns. 
 
¶15. (SBU) USAID, at the request of the Supreme Court of Kazakhstan, 
has been working closely with the judiciary to prepare it for the 
implementation of jury trials.  USAID has several concerns about the 
judiciary's lack of preparation, but is optimistic that the system 
will eventually improve through experience and the development of 
new procedures. (Details to be reported septel.) 
 
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COMMENT 
------- 
 
¶16. (SBU) Comment:  The initiation of jury trials in Kazakhstan is a 
welcome step toward transforming a frequently corrupt and easily 
influenced judicial system.  However, the system is untested, and 
this fledgling effort toward greater independence and integrity 
could easily be overcome by lack of training and a structure that 
allows the judges to play a significant role in decision-making. 
Post and its partners at USAID will continue to monitor 
implementation of the jury trial system and to advocate for 
additional practices and procedures to ensure the integrity of the 
system.  End comment. 
 
MILAS