In the other great section of the judicial organisation—the Regular Tribunals—there are likewise Ordinary Courts and Courts of Appeal, called respectively "Tribunaux d'Arrondissement" (Okruzhniye Sudy) and "Palais de Justice" (Sudebniya Palaty). Each Ordinary Court has jurisdiction over several Districts (uyezdy), and the jurisdiction of each Court of Appeals comprehends several Provinces. All civil cases are subject to appeal, however small the sum at stake may be, but criminal cases are decided FINALLY by the lower court with the aid of a jury. Thus in criminal affairs the "Palais de Justice" is not at all a court of appeal, but as no regular criminal prosecution can be raised without its formal consent, it controls in some measure the action of the lower courts.
As the general reader cannot be supposed to take an interest in the details of civil procedure, I shall merely say on this subject that in both sections of the Regular Tribunals the cases are always tried by at least three judges, the sittings are public, and oral debates by officially recognised advocates form an important part of the proceedings. I venture, however, to speak a little more at length regarding the change which has been made in the criminal procedure—a subject that is less technical and more interesting for the uninitiated.
Down to the time of the recent judicial reforms the procedure in criminal cases was secret and inquisitorial. The accused had little opportunity of defending himself, but, on the other hand, the State took endless formal precautions against condemning the innocent. The practical consequence of this system was that an innocent man might remain for years in prison until the authorities convinced themselves of his innocence, whilst a clever criminal might indefinitely postpone his condemnation.
In studying the history of criminal procedure in foreign countries, those who were entrusted with the task of preparing projects of reform found that nearly every country of Europe had experienced the evils from which Russia was suffering, and that one country after another had come to the conviction that the most efficient means of removing these evils was to replace the inquisitorial by litigious procedure, to give a fair field and no favour to the prosecutor and the accused, and allow them to fight out their battle with whatever legal weapons they might think fit. Further, it was discovered that, according to the most competent foreign authorities, it was well in this modern form of judicial combat to leave the decision to a jury of respectable citizens. The steps which Russia had to take were thus clearly marked out by the experience of other nations, and it was decided that they should be taken at once. The organs for the prosecution of supposed criminals were carefully separated from the judges on the one hand, and from the police on the other; oral discussions between the Public Prosecutor and the prisoner's counsel, together with oral examination and cross-questioning of witnesses, were introduced into the procedure; and the jury was made an essential factor in criminal trials.
When a case, whether civil or criminal, has been decided in the Regular Tribunals, there is no possibility of appeal in the strict sense of the term, but an application may be made for a revision of the case on the ground of technical informality. To use the French terms, there cannot be appel, but there may be cassation. If there has been any omission or transgression of essential legal formalities, or if the Court has overstepped the bounds of its legal authority, the injured party may make an application to have the case revised and tried again.* This is not, according to French juridical conceptions, an appeal. The Court of Revision** (Cour de Cassation) does not enter into the material facts of the case, but merely decides the question as to whether the essential formalities have been duly observed, and as to whether the law has been properly interpreted and applied; and if it be found on examination that there is some ground for invalidating the decision, it does not decide the case. According to the new Russian system, the sole Court of Revision is the Senate.
* This is the procedure referred to by Karl Karl'itch, vide
supra, p 37.
** I am quite aware that the term "Court of Revision" is
equivocal, but I have no better term to propose, and I hope
the above explanations will prevent confusion.
The Senate thus forms the regulator of the whole judicial system, but its action is merely regulative. It takes cognisance only of what is presented to it, and supplies to the machine no motive power. If any of the lower courts should work slowly or cease to work altogether, the Senate might remain ignorant of the fact, and certainly could take no official notice of it. It was considered necessary, therefore, to supplement the spontaneous vitality of the lower courts, and for this purpose was created a special centralised judicial administration, at the head of which was placed the Minister of Justice. The Minister is "Procureur-General," and has subordinates in all the courts. The primary function of this administration is to preserve the force of the law, to detect and repair all infractions of judicial order, to defend the interests of the State and of those persons who are officially recognised as incapable of taking charge of their own affairs, and to act in criminal matters as Public Prosecutor.
Viewed as a whole, and from a little distance, this grand judicial edifice seems perfectly symmetrical, but a closer and more minute inspection brings to light unmistakable indications of a change of plan during the process of construction. Though the work lasted only about half-a-dozen years, the style of the upper differs from the style of the lower parts, precisely as in those Gothic cathedrals which grew up slowly during the course of centuries. And there is nothing here that need surprise us, for a considerable change took place in the opinions of the official world during that short period. The reform was conceived at a time of uncritical enthusiasm for advanced liberal ideas, of boundless faith in the dictates of science, of unquestioning reliance on public spirit, public control, and public honesty—a time in which it was believed that the public would spontaneously do everything necessary for the common weal, if it were only freed from the administrative swaddling-clothes in which it had been hitherto bound. Still smarting from the severe regime of Nicholas, men thought more about protecting the rights of the individual than about preserving public order, and under the influence of the socialistic ideas in vogue malefactors were regarded as the unfortunate, involuntary victims of social inequality and injustice.
Towards the end of the period in question all this had begun to change. Many were beginning to perceive that liberty might easily turn to license, that the spontaneous public energy was largely expended in empty words, and that a certain amount of hierarchical discipline was necessary in order to keep the public administration in motion. It was found, therefore, in 1864, that it was impossible to carry out to their ultimate consequences the general principles laid down and published in 1862. Even in those parts of the legislation which were actually put in force, it was found necessary to make modifications in an indirect, covert way. Of these, one may be cited by way of illustration. In 1860 criminal inquiries were taken out of the hands of the police and transferred to Juges d'instruction (Sudebniye Sledovateli), who were almost entirely independent of the Public Prosecutor, and could not be removed unless condemned for some legal transgression by a Regular Tribunal. This reform created at first much rejoicing and great expectations, because it raised a barrier against the tyranny of the police and against the arbitrary power of the higher officials. But very soon the defects of the system became apparent. Many Juges d'instruction, feeling themselves independent, and knowing that they would not be prosecuted except for some flagrantly illegal act, gave way to indolence, and spent their time in inactivity.* In such cases it was always difficult, and sometimes impossible, to procure a condemnation—for indolence must assume gigantic proportions in order to become a crime—and the minister had to adopt the practice of appointing, without Imperial confirmation, temporary Juges d'instruction whom he could remove at pleasure.