It is pretty generally recognized in Europe that altogether our penal institutions are very far from being what they ought, and no better indeed than so many contradictions in action of the modern theory of the treatment of criminals. The principle of the lex talionis – of the right of the community to avenge itself on the criminal – is no longer admissible. We have come to an understanding that society at large is responsible for the vices that grow in it, as well as it has its share in the glory of its heroes; and we generally admit, at least in theory, that when we deprive a criminal of his liberty, it is to purify and improve him. But we know how hideously at variance with the ideal the reality is. The murderer is simply handed over to the hangman; and the man who is shut up in a prison is so far from being bettered by the change, that he comes out more resolutely the foe of society than he was when he went in. Subjection, on disgraceful terms, to humiliating work gives him an antipathy to all kinds of labour. After suffering every sort of humiliation at the instance of those whose lives are lived in immunity from the peculiar conditions which bring man to crime – or to such sorts of it as are punishable by the operations of the law – he learns to hate the section of society to which his humiliation belongs, and proves his hatred by new offences against it.
If the penal institutions of Western Europe have failed thus completely to realize the ambitious aim on which they justify their existence what shall we say of the penal institutions of Russia? The incredible duration of preliminary detention; the disgusting circumstances of prison life; the congregation of hundreds of prisoners into small and dirty chambers; the flagrant immorality of a corps of jailers who are practically omnipotent, whose whole function is to terrorize and oppress, and who rob their charges of the few coppers doled out to them by the State; the want of labour and the total absence of all that contributes to the moral welfare of man; the cynical contempt for human dignity, and the physical degradation of prisoners – these are the elements of prison life in Russia. Not that the principles of Russian penal institutions are worse than those applied to the same institutions in Western Europe. I am rather inclined to hold the contrary. Surely, it is less degrading for the convict to be employed in useful work in Siberia, than to spend his life in picking oakum, or in climbing the steps of a wheel; and – to compare two evils – it is more humane to employ the assassin as a labourer in a gold-mine and, after a few years, make a free settler of him, than quietly to turn him over to a hangman. In Russia, however, principles are always ruined in application. And if we consider the Russian prisons and penal settlements, not as they ought to be according to the law, but as they are in reality, we can do no less than recognize, with all efficient Russian explorers of our prisons, that they are an outrage on humanity.
One of the best results of the Liberal movement of 1859 – 1862 was the judicial reform. The old law-courts, in which the procedure was in writing, and which were real sinks of corruption and bribery, were done away with. Trial by jury, which was an institution of old Russia, but had disappeared under the Tsars of Moscow, was reintroduced. Peasant-courts, to judge small offences and disputes in villages according to the unwritten customary law, had already been established by the Emancipation Act of 1861. The new law of Judicial Procedure, promulgated in 1864 introduced the institution of justices of peace, elected in Russia, but nominated by Government in the Lithuanian provinces and in Poland. They had to dispose of smaller criminal offences, and of all civil disputes about matters not exceeding 30£ in value. Appeal against their decisions could be made to the District Gathering of Justices of the Peace, and eventually to the Senate.
All cases implying a privation of civil rights were placed under the jurisdiction of Courts of Justice, sitting with open doors, and supported by a jury. Their decisions could be carried to Courts of Appeal, and cases decided by verdicts of jurors could be brought before Courts of Cassation. The preliminary investigation, however, still remained private, that is (in conformity with the French system, as opposed to the English), no counsel was admitted to the prisoner during the preliminary examination; but provisions were made to guarantee the independence of the examining magistrates. Such were, in a few words, the leading features of the new organization of justice under the law of 1864. As to its general spirit it is only fair to say that – apart from the preliminary inquiry – it was conceived in accordance with the most Liberal ideas now current in the judicial world of Europe.
Two years after the promulgation of this law, the most shameful feature of the old Russian penal code – punishment by the knut and branding-iron – was abolished. It was high time. Public opinion was revolted by the use of these relics of a barbarous past, and it was so powerful at that time that governors of provinces refused to confirm sentences that enjoined the use of the knut; while others – as I have known in Siberia – would intimate to the executioner that unless he merely cracked the terrible instrument of torture in the air, barely touching his victim (an art well known and very profitable to executioners), "his own skin should be torn to pieces." Corporal punishment was thus abolished, but not completely. It remained in the villages (the peasant-courts being still empowered to administer flogging), in the army, and in the convict-prisons. Only women could no longer be submitted to flogging as long as not deprived of their civil rights.
But, like all other reforms of that period, the benefits of these two great changes were to a great extent paralyzed by subsequent modifications, or by leaving them uncomplete. The old penal code, containing a scale of punishments in flagrant disagreement with the state of prisons, was still maintained. Twenty years have elapsed since a thorough revision of the code was promised; committee has succeeded committee; last year again the newspapers reported that the revision of the code had been terminated, that the sentences would be shortened, and that the barbarous provisions introduced in 1845 would be abolished. But the code remains still what it was when it issued from the hands of Nicholas I's committees; and we may still read in the revised edition of 1857, that convicts can be punished by five to six thousand strokes of the whip, and by being riveted to a wheel-barrow for terms varying from one to three years.
As to the judicial reform, it had hardly become law when it was ruined by ministerial circulars. First of all, years passed and in thirty-nine provinces out of seventy-two the old courts were maintained and progress in any suit, as well as the final decision, could be obtained only by vzyatki, that is, by bribery. Until 1885, the old system remained in operation over the whole of Siberia. And when the law of 1864 was extended to three Siberian provinces, it was so mutilated as to lose precisely its best features. A jury is still a desideratum beyond the Urals. The Lithuanian provinces, Poland, and the Baltic provinces, as also several provinces in the north and in the south-east (Arkhangelsk included) remain still under the old jurisdiction; while Wilno and Minsk received the new law quite mutilated by the reactionary proclivities of the present rulers.
As to the Russian provinces where the law has been in force since 1864, all that could be devised to attenuate its good effects, short of actual repeal, has been done. The examining magistrates (juges d'instruction) have never enjoyed the independence bestowed on them by the new law; and this was managed by means of a very simple stratagem: no examining magistrates were nominated, and those to whom their work was entrusted were nominated merely ad interim. So the Ministry could displace and discharge them at will. The judges have been made more and more dependent upon the Minister of Justice, whose nominees they are, and who has the right to transfer them from one province to another – from St. Petersburg, for instance, to Siberia. The institution of sworn advocates, uncontrolled by criticism, has degenerated; and the peasant whose case is not likely to become a cause célèbre, has not the benefits of a counsel, and is completely in the hands of a creature like the procureur-impérial in Zola's novel. Freedom of defence was trampled under foot, and the few advocates, like Urusoff, who have indulged in anything approaching to free speech in the trial of political prisoners, have been exiled merely by order of the Third Section.
Independent jurors are, of course, impossible in a country where the peasant-juror knows that he may be beaten by anything in uniform at the very doors of the court. As for the verdicts of the juries, they are not respected at all if they are in contradiction with the opinions of the governor of the province; and the acquitted may be seized as they leave the dock, and imprisoned anew, on a simple order of the Administrative. Such, for instance, was the case of the peasant Borunoff. He came to St. Petersburg on behalf of his fellow-villagers to bring a complaint to the Tsar against the authorities, and he was tried as a "rebel." He was acquitted by the court; but he was re-arrested on the very flight of steps outside, and exiled to the peninsula of Kola. Such, too, was the case of the raskolnik (non-conformist) Tetenoff, and several more. As to Vera Zassoulitch, who also was acquitted by the jury, the Government ordered her re-arrest at the very doors of the court, and re-arrested she would have been if her comrades had not rescued her, leaving one dead in the riot which ensued.
The Third Section, the courtiers, and the governors of provinces look on the new courts as mere nuisances, and act accordingly. A great many cases are disposed of by the Executive à huis clos, away from examining magistrates, judges, and jurors alike. The preliminary inquiry, in all cases in which a "political meaning" is discovered, is simply made by gendarmerie-officers, sometimes in the presence of a procureur who accompanies them in their raids. This procureur – an official in civil dress, attached to the blue uniforms of the gendarmes – is a black sheep to his colleagues; his function is to assist, or appear to assist, at the examination of those arrested by the secret police, and thus give an aspect of lawfulness to its proceedings. Sentence and punishment are often awarded by the Department of States' Police (which is but another name for the Third Section) or the Executive; and a punishment as terrible as exile – may be for life – within the Arctic Circle in Siberia is pronounced on mere reports of the gendarmerie officers. In fact, Administrative Exile is resorted to in all cases when there is not the slightest indication which could lead to condemnation, even by a packed court. "You are exiled to Siberia, because it is impossible to commit you for trial, there being no proofs against you," – such is the cynical form in which the announcement is made to the prisoner. "Be happy that you have escaped so cheap" – they add; and people are sent for five, ten, fifteen years to some small borough of 500 inhabitants within or in the vicinity of the Arctic Circle. In this category are included not only the cases of political offenders who are supposed to belong to some secret society, but also those of religious dissenters; of people who frankly speak out their opinions on Government; writers whose romances are considered "dangerous;" almost all persons accused of "disobedience" and "turbulent character;" workmen who have been most active in strikes; those accused of verbal "offences against the Sacred Person of his Majesty the Emperor," under which head 2500 people were arrested in 1881 in the course of six months; in short, all those cases which might tend – to use the official language – "to the production of excitement in the public mind" were they brought before a court.
As to political trials, only the early revolutionary societies were tried under the law of 1864. Afterwards, when the Government perceived that the judges would not send to hard labour those political offenders who were brought before them, merely because they were suspected of being acquainted with revolutionists, the political cases were tried by packed courts, that is, by judges nominated especially for that purpose. To this rule the case of Vera Zassoulitch was a memorable exception. She was tried by a jury, and acquitted. But, to quote Professor Gradovsky's words in the Golos (supressed since) "It is an open secret in St. Petersburg that the case would never have been brought before a jury but for certain 'quarrels' between the Prefect of the Police on the one side, and the Third Section and the Ministers of Justice and the Interior on the other, – but for certain of those jalousies de métier without which, in our disordered state of existence, it would often be impossible for us so much as to breathe." In plain words, the courtiers quarrelled, some of them considered that it would be advantageous to discredit Trepoff, who was then omnipotent in the counsels of Alexander II, and the Minister of Justice succeeded in obtaining permission from the Emperor that Vera Zassoulitch should be sent before a jury: he surely did not expect that she would be acquitted, but he knew that the trial would render it impossible for Trepoff to remain Prefect of the Police at St. Petersburg.
FIN DE L’EXTRAIT
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Published by Les Editions de Londres
© 2013 — Les Éditions de Londres
ISBN : 978-1-909782-12-9