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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Serving the law

The past and the future of judicial reform
27 February, 2007 - 00:00

Another innovation was that defendants could have access to qualified legal assistance in the person of barristers (defense attorneys). The latter could be represented by lawyers aged 25 and over, who were Russian subjects, had no criminal record, and were not gainfully employed at a state or elected office. Unlike other officials, this category of lawyers managed to unite as a professional group and achieve the greatest autonomy in its activities. The theory of formal proof was discarded, as was inquisitorial procedure in favor of accusatorial.

The court system, introduced on Nov. 20, 1864, was patterned on European judicial practice. Courts were divided into two categories: with elected and appointed judges. The lowest courts were to be chaired by justices of the peace and honorary judges elected for a three-year term by the population during zemstvo and municipal government elections. A justice of the peace exercised jurisdiction over a district that comprised several precincts in an uezd (county) or a city and dealt with criminal and civil offenses carrying a fine of 300 to 500 rubles. Precinct and honorary justices of the peace were supposed to convene sessions known as congresses of justices of the peace to hear appeals against rulings handed down by justices of the peace.

The next link was the district court consisting of a government-appointed chairman, his deputy, and other judges, which administered justice in several uezds of a gubernia (region). The judicial chamber was the third and final institution in the local court chain. This was an appellate body for the district court as well as a trial court in such important cases as violation of publication rules or crimes committed by civil servants in the line of duty.

The Kharkiv Judicial Chamber was the first one established in a Ukrainian gubernia (November 1867) on the basis of the 1864 judicial statutes. It embraced Kharkiv, Kursk, Orel, and Voronezh gubernias and was headed by Baron Nikolai Tornau (1812-1882), a typical bureaucrat of that era. He was a Lutheran of Baltic German lineage, who owned neither land nor serfs. After graduating from the Tsarskoe Selo Lyceum, Tornau gained civil-service experience in central Russian legal institutions, was then assigned to the governor-general of Livonia, Estland, and Courland, and later made a name for himself by codifying Islamic laws. The government used this and other appointments to polish the technique of building an imperial elite that would be capable of countering the old practice, where courts were chaired by local nobles bound by ethnic and corporate ties.

Soon after, on June 30, 1868, the Odesa Judicial Chamber was established, covering Kherson, Katerynoslav, Tauris, and Podillia gubernias, and Bessarabia. Obviously, the administrative-territorial and judicial-territorial delineation was not the same, which also guaranteed independence of the judicial branch from the executive authorities.

The judicial reform in the Ukrainian Right-Bank gubernias, like in all the western regions, essentially differed from what was going on in the east. In the former, courts headed by justices of the peace were established separately from regular ones. This idea was proposed by I. V. Kapnist from the 2nd department of the Ministry of Justice, the son of the writer Vasyl V. Kapnist, who had studied the experience of justices of the peace and police judges in Germany, France, Belgium, England, and the US.

In Right-Bank Ukraine, justice of the peace courts were introduced in 1872 and judicial chambers, at the second stage of the reform, which coincided with the judicial counter-reform. This intermediate stage saw the establishment of joint criminal and civil judicial chambers. For example, the Kyiv Joint Criminal and Civil Justice Chamber functioned in 1871-80 and dealt with unresolved cases of the abolished uezd courts and chambers as well as with involuntary cases of bankruptcy.

The Kyiv Judicial Chamber, based on the 1864 judicial statutes and exercising jurisdiction over Kyiv, Volyn, Chernihiv, and Mohilau gubernias, was established later, on June 29, 1880, and was headed by Active State Counselor I. I. Mechnikov, former chairman of the Penza District Court and prosecutor of the Kharkiv Judicial Chamber.

Although the judicial reform was undoubtedly of great importance, it should not be idealized, as it had several flaws. First of all, the reform was not carried out throughout the empire but only in those gubernias where local government bodies — zemstvos and city assemblies — were established because it was the latter that elected justices of the peace and barristers. In gubernias that still had vestiges of their former parent states or their own national ones, the judicial reform was introduced gradually and thus considerably lagged behind the center. Among these were the gubernias of Right- Bank Ukraine, where the reform got off to a slow start. Moreover, the elective principle was rejected in favor of government appointments to those positions that in other gubernias were elected by the populace.

The jurisdiction and feasibility of trial courts as the first instance were curtailed several times. In 1866 judicial chambers took over criminal cases and cases involving the violation of publishing rules from district courts. In 1872 political crime cases were withdrawn from the jurisdiction of chambers and handed over to the newly-established Senate Special Directorate, which was also to hear cases of unlawful organizations. In 1878 this category of cases was again returned to judicial chambers. Cases also began to be heard, which had previously been the preserve of district courts, such as obstruction of government instructions and overt disobedience, disrespect and contempt of government bodies and officials in the line of duty. In 1878 and 1879 these cases were temporarily referred to courts martial.

In 1875 the state crudely interfered in the organization of advocacy and refused to set up this institution in areas other than St. Petersburg, Moscow, and Kharkiv, which already had bar councils. Instead, the government established the institution of private counsels, who did not have to meet any educational requirements. This led to the formation of a widespread legal underground.

Another shortcoming of the judicial branch was that it failed to draft a judicial procedure for prosecuting officials who infringed the rights of private individuals. These cases remained the preserve of the Senate and perpetuated the old pattern in which every bureaucrat served the monarch, not the populace. The root cause of this flaw was that the empire patterned its administrative justice on the continental system of tribunals, where the administration itself performs judicial functions, rather than on the Anglo-Saxon system under which administration was subject to independent court action.

Repeated attempts to bring public administration in line with legal norms encountered resistance from Alexander III and Nicholas II. As a result, the judicial branch failed to achieve full independence from the executive power until the last years of the Russian Empire: the two branches were in a state of permanent conflict.

By Valentyna SHANDRA, Ph.D. (History)