Chapter X: Justice

The judicial system of to-day in Russia dates from what is called the Epoch of the Great Reforms—that is, of the reforms made in 1864 by the Emperor Alexander II. His new judicial system is, next in order to the abolition of serfdom, the most important of those reforms.

Up till 1864 justice in Russia dwelt behind closed doors. It was organized on a class basis. There was a court for the gentry, a court for the townsman and for such peasants as did not belong to landowners. Judicial decisions, civil and criminal, were based solely on documentary evidence prepared by the police. No oral evidence was admitted. The proceedings were held _in camera_. The judges appeared in public only in order to pass sentence or to deliver a judgment. It is needless to say that a system of this kind encouraged venality, partiality, and injustice.

In reforming the old system, the Imperial Government borrowed elements from the judicial systems existing in France and in England, but it by no means confined itself to slavish imitation. The aim of the reformers was to reach the principles and ideas on which our system and the French system are based; and they created a new system founded on ideas which have been endorsed both in theory and in practice by modern civilization. The chief principles at the basis of the reformed judicial system in Russia are—(1) the separation of administrative and judicial powers; (2) the independence of the magistrate and the tribunals; (3) the equality of all subjects in the eye of the law (the abolition in the eye of the law of all class distinctions); (4) the publicity of trials; (5) the adoption of oral procedure; (6) the participation of the people in the system through (_a_) the introduction of trial by jury, (_b_) originally, although this was altered later, the election of judges. As a general principle, it can be laid down that important cases in Russia are tried, as they are tried elsewhere in Europe, by jury, in public and at the assizes; with one notable exception, that of all political offences and all crimes and misdemeanours committed by the Press, which are tried without a jury.

Where the Russian system differs from the English and the French systems is that the judicature is divided into two sections mutually independent, and differing in the extent of their jurisdiction and in the manner in which their judges are appointed.

As in many other countries, there are two branches of tribunals—firstly, what were actually, and what now correspond to, justices of the peace, dealing with petty cases; and, secondly, ordinary tribunals dealing with larger matters. These two branches of justice are quite distinct. They are parallel to each other. They are separate and isolated one from the other, and meet only on the top of the ladder in their common right of appealing to the Senate, which is the highest court of appeal.

Beneath this double system of judicature, local courts exist in every canton: (_Volostnye Sudi_), _tribunaux de bailliage_, which were established when the serfs were liberated, dealing exclusively with the peasants’ affairs, and in which both the judges and judged are peasants.

The Canton Court consists of a tribunal of three judges elected by the peasants. It deals with small cases, and deals with them largely according to established custom and tradition. It stands to reason that peasants will deal with matters which concern their own customs, codes, and idiosyncrasies far better than people of any other class.[18]

The judicial system which comes next above the Canton Courts is dual: Petty and Grave. The Petty cases are entrusted to local justices of the peace, town judges, and _zemskie nachalniki_.

In 1864, when the judicial system was reformed, all such cases were dealt with by justices of the peace, who were elected by the Zemstvo. In 1889, the elective justices of the peace were done away with, and they were replaced by _zemskie nachalniki_, who, as I have already explained in Chapter IV., are a kind of official squire, exercising executive and judicial authority over the villages in their district. They are nominated by the governor of the province and appointed by the Minister of the Interior. Elective justices of the peace have survived only in St. Petersburg, Moscow, Odessa, and Kharkov, and some other towns, where they are elected by the town assemblies for a term of three years on a property qualification.[19]

In all other towns, and everywhere else, where there are justices of the peace, they are now appointed by the Minister of Justice.

This rather complicated system (under which the functions of a judge were committed into the hands of persons (_zemskie nachalniki_) who were in their main attributes representative of the executive) is now to be abolished by a new law recently passed by the Duma, which divests the _zemskie nachalniki_ of their judicial functions, and replaces the elective justices of the peace all over the country. This new law comes into force in regard to ten provinces on January 1, 1914, and will be extended over the remaining part of the country in the course of the next year. The jurisdiction of the new justices of the peace has been increased by the new law. In civil matters they are now competent to try cases involving fines amounting to 1,000 roubles, and criminal offences carrying a sentence of simple imprisonment without any curtailment of civil rights. The appeal from the justices of the peace is made to the general meeting of the justices of the district; and from the decision of this meeting (_siezd_) an appeal is allowed, on points of law only, to the Senate. The Senate, as is shown below, may either dismiss the appeal or order a new trial. There is, however, no appeal to the Senate at all where the sentence carries with it a fine of less than 100 roubles. The limit is now 30 roubles.

In the hands, then, of the justices of the peace or of the _zemskie nachalniki_, as the case may be, are civil claims not exceeding 500 roubles (£50), and criminal cases where the penalty does not exceed four months’ imprisonment or a fine of 300 roubles (£30). Appeals against the decision of a justice of the peace may be made to a bench of justices presided over by a justice of the peace elected by his colleagues; appeals against the verdicts of town judges and of the _zemskie nachalniki_ are heard by the District Tribunal (_Uiezdny Siezd_), a court—the sessions of the district—of which the marshal of the nobility of the district is the _ex officio_ chairman, and which consists of _zemskie nachalniki_ (with the exception of course of the particular _zemsky nachalnik_ or town judge against whose verdict the appeal is being made), town judges, and the so-called honorary justices of peace.

Appeals against the verdict of the local courts (_Volostnye Sudi_) are also heard by this district tribunal.

An appeal against the verdict of the District Tribunal (_Uiezdny Siezd_) is allowed on points of law only, and goes before a special Board called the _Gubernskoye Prisustvie_, consisting of the governor of the province, as chairman, members of the Divisional Court, and some higher civil servants of the province.

Parallel with this branch of justice, which deals with petty cases, we have quite separate from it another branch which deals with more serious cases, and which consists of two tribunals: the Divisional Court (Court of Assizes), and the High Court.

The Divisional Court deals with all civil cases (with the exception of petty cases), and roughly speaking, with all criminal cases, with the exception of those which concern the prosecution of officials for misdemeanours committed in the performance of their official duties, and also the great majority of political offences, which are dealt with by the High Court. The criminal cases which come before the Divisional Court can be judged by the bench only, or by the bench and a jury; but if the offence is such that the punishment may limit the civil rights of the accused, or deprive him of them altogether, the case must be tried before a jury. Generally speaking, all criminal cases of any importance are tried before a jury.

The Divisional Court goes on circuit from place to place; its jurisdiction usually extends over five or six districts, and sometimes over a whole government.

The Russian judicial system is the same as the French system as regards the nature and composition of its tribunals, its tribunals of first instance, its facilities for appeal, its court of high appeal (_Cassation_), its instruments of justice, and its method of procedure. The justice of the peace and the _zemsky nachalnik_ (who at present fulfils the duties of a justice of the peace), and the town judge (_Gorodskoi Sudya_),[20] are the only judges who sit alone. In all other tribunals there is more than one judge. Every civil or criminal case in Russia must be heard by three magistrates, one of whom is the president.

A judge is irremovable unless he should commit a criminal offence. He can be transferred, but he cannot be removed. Attached to every Divisional Court and every High Court there is a magistrate appointed by the Government called the procurator (who is not irremovable, and holds office at the pleasure of the Minister of Justice), who corresponds to the French _procureur_; he is the advocate-general and public prosecutor. His business is to prosecute crime. But before the case reaches the procurator, it undergoes a preliminary investigation at the hands of an examining magistrate (_Sudebny Slyedovatel_) who corresponds to the French _Juge d’instruction_. He begins his investigation at the instance either of the police, or of a private individual, or of a plaintiff. Theoretically, the investigation was supposed to be entirely separate from the prosecution; but, in practice, the examining magistrate has become more or less a tool in the hands of the procurator. The examining magistrate has the right either to refer the result of his investigation to the procurator, or to let the case drop altogether, should in his opinion the grounds for further proceedings be insufficient.

The public prosecutor (_Procurator_), on receiving the _dossier_ of the case from the examining magistrate (_Slyedovatel_), can either ask the court to drop the proceedings in view of the failure of the prosecution to make a case, or else he draws up a bill of indictment (_Obvinitelni Akt_) on which the accused has to take his trial. In the case of more serious offences, the bill of indictment, before it goes before the court, has to be confirmed by the High Court (_Sudebnaya Palata_), which acts as the French _Chambre de Mise en Accusation_. Civil cases do not go before the _procurator_, and are tried, as in France, without a jury.

The procedure resembles that of a French court of justice. First of all, the witnesses (in criminal cases) are called, and each witness tells his story consecutively. He is then cross-examined by the procurator, and then by counsel for the prosecution and counsel for the defence. Cross-examination is by no means so formidable as in an English criminal case, because the counsel for the defence can at any moment insert a question amongst the questions put by the counsel for the prosecution. When all the witnesses have been heard, the procurator speaks for the prosecution. He is followed by the counsel for the plaintiff, and then by the counsel for the defence. After this, the procurator replies to the counsel for the defence, and they in their turn can reply on given points. The President of the Court then sums up, and puts to the jury the questions on which they are to give their verdict.

The jury have the right of putting questions to any witness, as well as to the counsel for the prosecution and to the counsel for the defence.

The jury consist of twelve men, “good men and true.” They are chosen from all classes of the population, from the whole of the inhabitants of the district, subject to certain conditions of age, property, domicile, and position. In the first place, there is a property qualification, which varies according to different localities. All those who fulfil the conditions of the law as regards the age and property qualification are entered on a list (_obshchy spisok_) and become liable to serve on a jury. From this larger list, a second narrower list (_ocheredny spisok_) is drawn up of the men who seem the more qualified for the work.

The sifting process, of which this second list is the result, is carried out in every district by a Board including several officials, the marshal of the nobility for its Chairman. The process is repeated every year, and after the sifting about sixty men remain on the second list, out of which the jury are drawn by lot.

But a property qualification is not in all cases indispensable for a juryman. Public servants, unless they are in the army, in the police, or in the magistrature, and with the exception of officials of the first four classes, who are exempted, can be chosen; likewise all local elective officers, especially peasants, such as the judges of the Canton Courts, the _elders_ in the commune and the cantons. The net result is that the jury is mixed and democratic, and as a rule contains a leaven of peasants and minor public servants, and sometimes, indeed, consists almost wholly of men from the lower classes. Here, for instance, is a list of the professions followed by the members of the jury before whom the Beiliss ritual murder case was heard at Kiev. This jury was exceptionally below the average of educational standard.[21]

1. Peasant, agricultural labourer.

2. Peasant, cab-driver.

3. Minor public servant employed in postal service.

4. Minor public servant employed in postal service.

5. Peasant, employed in a wine warehouse.

6. Peasant, agricultural labourer.

7. Townsman, employed at railway station.

8. Peasant, agricultural labourer.

9. Secretary at governor’s office, assistant of the revisor in the
auditor’s office.

10. Peasant, agricultural labourer.

11. Peasant, controller in a town tramway.

12. Burgher, small householder.

The above list, whether it is below average or not—and it was said at the time to be startlingly below the average—shows more or less the nature of a Russian jury in a small town. There is generally a larger dose of a more educated element, but the elements which appear in this list will probably be present in most juries in varying quantities. It should be noted, however, that the composition of the lists from which the jury is drawn is very much in the hands of the local authorities. In a big town a jury exclusively composed of peasants is an exception, and a very rare one.

Hence the peculiar character of the Russian jury, about which much has been written and much is being written.

Its chief characteristic is its leniency, its indulgence, its tendency to acquit. And on this account there existed, and there still exists in some quarters in Russia, a movement against the jury as an institution, which bases its disapproval on the reluctance of the jury to condemn. But it is improbable that such a movement will ever have a practical result. The disadvantages of tampering in any way with trial by jury are too obvious. Many characteristic stories exist in Russian literature, and a still greater number float about in the flotsam and jetsam of current talk, illustrating by striking instances the peculiar psychology of the Russian jury.

It is said that a jury once returned a verdict of “innocent, with extenuating circumstances.” Garin, the author, tells how his house was once set on fire by a peasant, and how without much difficulty he collected overwhelming evidence against a particular peasant for deliberate arson. The peasant was tried before a jury of peasants in the Canton Court. His guilt was clearly proved. Nobody had any doubt but that the verdict would be “guilty.” The peasants on the jury did not deny the prisoner’s guilt, but were of the opinion that six years’ penal servitude—the sentence the prisoner would have received for arson—was disproportionately heavy.

“Two years in prison,” they reasoned—wrote the foreman, narrating the case to Garin—“would be enough to instil wisdom in him; but to send him to penal servitude is too much. In what are his wife and children guilty? What will they do without a bread-winner?... Their final argument was that it was a fine day, and the sun was shining spring-like; how could they ruin a man on such a fine day? They were sorry for the gentleman, but still more sorry for the orphans and the wife. Nobody was ever ruined on account of a fire. It was God’s will, and must be accepted as such.”

“It was only afterwards,” says Garin, the sufferer in the incident, and the teller of the story, “that it became clear to me that what from our point of view may seem the greatest injustice is from the point of view of the people the expression of the highest justice in the world.” Immediately after the incident, Garin was obliged to leave the village where it occurred. He revisited the place two years later. “I was at once met,” he writes, “by a deputation of peasants, whose spokesman made me a kind of speech in which he said that the peasants were very glad to see me; and that they were very glad for my sake that the prisoner had been acquitted; that the Lord had not allowed me to be burdened with a sin, in interfering with what was not my business but God’s—the hounding of criminals. ‘The Lord saved thee from sin,’ they said to me; ‘all the good which thou didst us has remained to thee, and has not been in vain. The Lord punished them.’” And finally he tells how the peasants narrated the bad end the criminals had come to, taking it as a matter of course that such things belonged to the sphere of Providence, and not to that of man.

The story is characteristic. I could quote many others of the same kind—stories in some cases which are startling in their unexpectedness, and in the difference of the point of view from that prevailing in other classes and in other countries. But strange as this point of view may seem, it will generally be found that there is in it a basis of common sense and an element of sound fairness. The Russian peasant juryman is indifferent to legal subtleties, and often quite unaffected by forensic evidence, which he looks on as a thing made to order, bought and sold. He will judge by his conscience, and according to his own code of morals, which, if indulgent, is none the less definite.

A friend of mine was once serving on a jury in St. Petersburg. The prisoner was found guilty of an odious crime, but the jury agreed to a verdict of “guilty, with extenuating circumstances.” My friend asked one man, who was a peasant, how there could be extenuating circumstances in such a case, to which he answered, “I am not quite sure he did it.” If the principle be a just one, that it is better that a guilty man should go free than that an innocent man should be condemned, then the chief accusation made against the characteristics of the Russian jury breaks down. A Russian jury will be almost certain to give the prisoner the benefit of the doubt. When the ritual murder case began at Kiev, it was pointed out with dismay in several quarters that it was absurd to try such a case before an uneducated jury—that a jury of that kind could not possibly appreciate complicated questions of medical _expertise_, and all the arcana of folklore and talmudic tradition and interpretations of Hebrew texts, which played a large part in the trial. But when the trial was over, those who interviewed the jurymen said that the jury had paid no attention to all that; the visit to the site where the body was found was the first thing which affected their opinion; the eloquence of the able lawyers engaged on both sides did not influence them, as they said lawyers were “hired”; but the conduct of one of the jury, who spent a large part of his time in prayer, impressed them; and finally they gave a verdict of “not guilty,” which was the result of the workings of their conscience.

This is all the more remarkable in that they very probably took the existence of ritual murders as a matter of course; but however this may have been, they realized that they had to find Beiliss guilty or not guilty, and they found him not guilty. A jury chosen from the most cultivated classes of Russia could not have shown more sense, and—as this case had raised political questions and racial passions just as the Dreyfus case did—had such a jury been infected by partisanship or political or religious fanaticism, it is quite possible that things might not have gone so well for the accused. For whereas the jury thus constituted might have been liberal, it might just as well have been reactionary and anti-Semite. Of course the Russian jury has its drawbacks—it may, if consisting of the lower classes, very likely look upon certain forms of fraud as rather a good joke; it may be over-indulgent to certain crimes; but if the principle I mentioned just now is sound, that it is better for the guilty to escape than that the innocent should suffer, then these drawbacks are amply compensated for.

There is another point to remember: by heightening the educational average of a Russian jury, you would probably increase rather than diminish its leniency; because this leniency is due to a great extent to the inborn indulgence, tolerance, and humaneness of the Russian people.

Juries drawn exclusively from the _intelligentsia_ are said to be still more indulgent than peasant juries. Opinions differ on this point. A Russian friend of mine tells me he believes the peasant jury the more tolerant, in spite of what he has heard, and in spite of his own experience to the contrary; but it is probably a question of the nature of the crime—the _intelligentsia_ being more severe for certain crimes which the peasants would condone as quite natural (say, certain forms of forgery and violence), and the peasants, on the other hand, dealing severely with a crime towards which the _intelligentsia_ would be more leniently disposed. But the main point is that a Russian jury, whatever its composition, is fundamentally indulgent. It is far more indulgent than a jury chosen from any other European country. I remember being in St. Petersburg just after the Crippen case, and hearing it discussed among educated people in reactionary circles. These people could not understand how it was possible to hang a man on such slender evidence. Even if the evidence had been abundant, the punishment seemed to them too severe, but on slender evidence the sentence seemed to them monstrous.

This leads us to the question of the punishments which the Russian law can inflict.

The death penalty exists only for attempts on the life of the Emperor or members of the imperial family, forcible attempts to dethrone the Emperor, and certain cases of high treason.

The death penalty was abolished by the Empress Elisabeth in 1753. It is true that when this was done it was rather the name than anything else which was abolished, since as long as flogging continued with the _knut_[22], a leather whip which was as deadly as the cat-of-nine-tails, a sentence of over thirty blows (thirty-five blows was the maximum allowed during the last years of flogging) was enough to prove fatal.

Flogging with the _knut_ was abolished by the Emperor Nicholas I. during the first year of his reign (1825). During the reign of Alexander II., from 1855 to 1876, only one man was executed on the scaffold—Karakosov, who made an attempt on the Emperor’s life. From 1866 to 1903 only 114 men suffered the penalty of death throughout the Russian empire. These statistics were read out and discussed in the Council of Empire in July 1906 by M. Tagantsev, a celebrated Russian legist, who pointed out that, in contradistinction to this leniency, during 1906, from January to June, 108 people had been condemned to death under martial law, and ninety had been executed, not counting those who had been killed without trial.

When the Duma was dissolved in July 1906, and P. A. Stolypin took the reins of government in his hands, martial law continued; drum-head courts-martial were held all over the country, and the number of people executed during 1907 and 1908 was very great.

But it must be remembered that during this period the country was in a state of anarchy. Acts of terrorism were being committed almost daily by the social-revolutionary party, and acts of hooliganism and robbery under arms by the criminal classes, who imitated and adopted the methods of the revolutionaries. A vicious circle of lawless crime and indiscriminate retaliation seemed to have closed round Russian life, so that during all this period the executions were to the crimes in a proportion of about one to three. It should also be remembered that during certain phases of this epoch many parts of the country were virtually in a state of civil war.

In any case, whether Stolypin’s policy was defensible or not—and theoretically it was indefensible—he was successful with the help of the reaction that came about in public opinion in putting an end to the anarchy, and after a time things began to quiet down; drum-head courtmartial ceased, martial law gave way to “states of reinforced protection,” and the country gradually gained its normal state, and capital punishment has once more become rarer, although it cannot yet be said to be non-existent, since, in virtue of states of reinforced protection (_Ysilenaya Okhrana_), and by military courts, during 1912, 335 people were condemned to death, and 124 were executed.

In 1913, 148 were sentenced and 33 were executed (the large number of persons reprieved being due during this year to an amnesty given on the occasion of the tercentenary of the imperial family). The majority of crimes for which sentences of death were passed are evasion from prisons, riots in prison, or attacks on prison authorities.

The criminal penalties meted out by Russian law are:—

(_a_) Penal servitude for life, or for terms ranging from four years
to twenty years.

(_b_) Imprisonment from four to six years with consequent loss of
civil rights.

(_c_) Deportation to remote parts of the empire for settlement.

Formerly all convicts were deported, but now some of them serve their terms in prisons in the local Russian provinces.

Besides these criminal penalties, there exist also what are called corrective penalties, which include various degrees of punishment, ranging from reprimands, fines, and imprisonment from three days to three months, at the bottom of the scale, to sentences of one to four years with loss of civil privileges at the top of the scale. Among these corrective penalties is what is called fortress imprisonment for one year four months to four years with loss of rights, and imprisonments for four weeks to one year four months without loss of rights. This punishment is usually applied to delinquencies of a political or of a literary character.

Certain crimes are far less severely punished in Russia than they are in England. A murderer, for instance, as a rule will receive a sentence of twelve years’ penal servitude. In some cases, if there are extenuating circumstances, if he acted under provocation, he will probably be acquitted altogether. Again, there are cases of murder which have been punished by not more than two years’ imprisonment.

Had Beiliss been found guilty he would not have been hanged—as was stated in some of the London newspapers—but the maximum sentence he could have received (for murder of a child accompanied by violence) would have been penal servitude for life.

We have seen that there are in Russia two tribunals—the Divisional Court and the High Court, and that the High Court deals chiefly with political offences, or with the delinquencies of officials. Cases heard by the High Court are tried either by the Bench, or by a special tribunal consisting of judges and what are called “class representatives.” These consist of the marshal of the nobility of the government, a mayor from the town, and the elder of the canton (a peasant). Appeals against verdicts of the Divisional Court in cases which were tried without a jury can be made to the High Court, which can modify the sentence, and a final appeal can be made to the Senate. In cases which are tried by a jury no appeal can be made on points of fact; but an appeal can be made on points of law to the Senate, which can either confirm the sentence, or order the case to be retried either before the same tribunal, or before a tribunal exercising a similar jurisdiction. The verdict in cases tried by jury cannot therefore be modified, but it can be cancelled and quashed.

The Senate in these cases corresponds to the French _Cour de Cassation_.

The Russian Bar came into existence as a profession in 1864. Any one of a certain education and standing is admitted to plead in a criminal case in Russia, unless the case be political. As regards civil cases, the privilege is limited to the right of appearing before a petty tribunal three times a year. This is an exception to the rule that in a civil case only sworn advocates or “private attorneys”[23] are entitled to plead. Professional lawyers receive their training at the university, and when, by passing the necessary examination, they are in possession of a certificate or degree, they are obliged to pass through a preliminary stage of five years’ “deviling”; then after a formal examination in legal procedure, they become full-blown “sworn lawyers” (_prisiazhnye povierenye_).

The Russian Bar has more than justified its existence. Since it came into being in 1864 it has produced a number of most remarkable men, remarkable as lawyers as well as orators. Lately, since the creation of the Duma, its influence has made itself felt in politics, since many of the members of the Duma who have played a leading part in politics have been lawyers. The lawyers naturally had the habit of speech, and were often trained orators, so that as soon as an opportunity arose for their peculiar gifts to have free play, they were bound to come to the front on both sides of the House. Among the members of the Duma who have attained to prominence are such men as Plevako, Maklakov, and that of the late M. Muromtsev, the president of the first Duma, who was one of the most celebrated lawyers of the University of Moscow, and one of the brightest ornaments of the Russian Civil Bar.

Generally speaking, of all the reforms carried out by Alexander II., that of the judicial system—leaving out of account the emancipation of the serfs, which was the _sine qua non_ of all reform, and without which all other reforms were useless—was the most greatly acclaimed. In the first place, because the old system of justice had been so bad; and in the second place, because the new system proved to be a real success.

During the period of reaction which set in in the reign of Alexander III., and during the first years of the reign of the present Emperor, under the reactionary administration of Plehve, the Bar still retained its independence; and during this time, it was at the Bar, and at the Bar only, that independence of thought and speech could be said to exist.

It must be said that the revolutionary movement had a bad effect on it: firstly, because many of its Liberal members were suspended; and secondly because the Government, after the revolutionary movement, did everything it could to diminish the moral independence of the judges, and to make them as reactionary as possible, and in some respects this was successful. The result of this policy is being felt now in political or semi-political cases. But this is probably only a transitional and temporary state of reaction, following on the disturbance of the revolutionary movement, and it will remedy itself automatically in the course of time, if the quiet state of things that now exists continues; but if this proves not to be the case, if the sparks of discontent suddenly burst into flame, then circumstances of a different kind will restore to the Bar its ancient independence. Yet as things are now, and taking all drawbacks, all temporary embarrassments and hindrances, and all reactionary influences into account; with every disadvantage under which it may be labouring, the Russian Bar must still be acknowledged an admirable institution of which any country should feel justly proud.