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.
