The Jury’s Out on Juries in Russia
Juries were established in Russian in 1866, contributing to the democratisation of the judicial branch of government. But the autocracy retained control over the legislative and executive branches. Could these two different approaches co-exist? The issue which brought the matter to a head was terrorism. The first attempt to murder Tsar Alexander II was made ten days after the first jury sat. The campaign intensified after that. The purpose of law is to enable dispute resolution without violence. Could juries help to save Russia from bloodshed?
I ended the last article with the most famous terrorist trial in Russian history, in March 1878, of an idealistic young woman called Vera Zasulich. It raised issues fundamental to the whole question of juries in a society as polarised as Russia was, so it is worth considering in more detail. These issues have echoes today, and not just in Russia: think of the Diplock courts in Northern Ireland, where juries were dispensed with for terrorist cases, and Guantanamo Bay.
Briefly, Zasulich had shot and wounded the Governor of St Petersburg, Feodor Trepov, as an act of pubic retribution after he had ordered the brutal flogging of a young student, called Arkhip Bogoliubov, who had been sentenced to fifteen years’ hard labour for participating as an “outside agitator” in the first major workers’ demonstration in Russia, in 1876.
Bogoliubov had tried to speak to the Governor when he was visiting the jail where he was confined. It seems that Bogoliubov failed to tip his cap in the prescribed manner so Trepov slapped him, and his cap fell of. To be bare-headed in the presence of the Governor was an insult. Trepov decided to make an example of Bogoliubov, and ordered that he be given twenty-five lashes.
Afterwards, the blood-stained birch rods were mounted on the prison walls as a deterrent to the other inmates. Though Bogoliubov did not lose consciousness during the beating, he was so badly injured, both physically and psychologically, that he went insane and died a few years later in a remote provincial jail.
Six months later, Zasulich shot Trepov. She did not try to avoid arrest, even though she expected to be hung for her crime. Her act was a demonstration.
The judge at Zasulich’s trial was a dedicated, idealistic young lawyer called Anatoli Koni who had, at the time of the flogging, been working in the Ministry of Justice. He pointed out to the Minister, a Baltic German called Count von Pahlen (whose house I visited in Estonia recently—see the photograph on page 25 of PASSPORT November 2010), that the flogging was illegal in the circumstances, as was Bogoliubov’s original conviction. Von Pahlen, who had approved the flogging, decided Koni should be demoted, and sent him to the “backwater” of the St Petersburg Circuit Court.
Von Pahlen, who spoke Russian with a heavy German accent, was an intelligent, dedicated, scrupulously honest public servant who had done most of the hard work on Alexander II’s reforms that had brought juries to Russia twelve years previously. He believed in public opinion as a factor in law and also in the importance of judicial independence. He wanted a court system which would help make autocracy publicly acceptable.
But the shooting of senior public officials could not be tolerated, in any system. Von Pahlen wanted Zasulich condemned in the eyes of the public as well as officialdom, and the whole idea of juries was that they would do that. Strictly speaking, Zasulich should have been tried in secret as a political prisoner before a committee of the Russian Imperial Senate. But von Pahlen intervened to send her for trial by a jury.
That meant she came up before Anatoli Koni. Von Pahlen summoned the newly demoted judge to his office and told him that his duty as a public servant in this unique case was to ensure conviction. Koni replied by quoting Montesquieu: “The function of a court is not to render service but to pass judgement.” Then the Tsar summoned Koni to the Winter Palace and suggested he “do the right thing”.
Koni was a new type of person in Russia: an educated, middle-class public servant who believed that law and proper procedure should take precedence over everything, including the autocracy. The son of a theatre critic, Koni had initially studied engineering. But, inspired by Alexander’s law reforms, he had switched to law. He wrote his dissertation on the right of self-defence, including that of people against the unlawful exercise of state power. He wrote: “The authorities should not doubt the right of defence against unlawful acts… They cannot demand respect for law when they themselves do not respect it.” This, of course, was the essential issue in Zasulich’s trial. In later life, Koni became one of Russia’s most distinguished jurists. He died in 1927, still trying to bring respect for law to Russia, even under Soviet conditions.
The trial was so dramatic that Dostoyevsky, who sat in the public gallery throughout, recycled much of it in The Brothers Karamzov. “All Petersburg” was said to have been there, including several government Ministers.
Koni was too good a judge to want Zasulich acquitted. He knew she had committed a deliberate act of violence, which could have had fatal consequences. He disapproved of what he called “the vigilante mentality”. His only aim was to help establish the rule of law by ensuring a fair trial. He assumed the jury would find her guilty. He planned to give her a light sentence which would serve as a warning to both sides.
The “not guilty” verdict which the jury delivered after a mere ten minutes’ deliberation was a national sensation. Even the Foreign Minister, Prince Gorshakov, was seen applauding in the public gallery. Zasulich was the heroine of the hour.
Her argument can be summarised in two of the sentences she uttered from the witness box: “It is terrible to raise one’s had against one’s fellow man… But I couldn’t find any other means to direct attention to that terrible event.”
This went beyond Koni: civil disobedience is one thing; criminal acts quite another. Zasulich posed a direct challenge to the autocracy’s method of ruling by fear and violence.
Immediately after she left the court, the St Petersburg police, acting under orders from von Pahlen, and with the approval of the Tsar, tried to re-arrest Zasulich. With the help of supporters, she slipped away and went into hiding. She declared publicly she was prepared to accept any punishment a court might impose, but not an extra-legal executive diktat.
The result of the trial was a general disillusionment with the court process. To the “left”, the government’s refusal to abide by the verdict showed the hypocrisy behind the new system of courts and juries. This was a fair charge as von Pahlen’s subequent actions showed. He asked Koni why he had permitted a “demonstration” in his court. Koni replied, “By law, a judge is not required to justify his actions to the Minister of Justice.” Enraged, von Pahlen tried to have him sacked from the Bench completely, but the Tsar balked at that. Von Pahlen then took the extraordinary step of submitting a bill to the State Council which aimed to disbar from legal practice all lawyers who defended clients subsequently found guilty.
To the “right”, the verdict reinforced the prejudice that you cannot trust juries to dispense justice. Even Koni had an oblique sympathy for this view. He later wrote, “Sincerity is not truth. Sentences handed down by Russian juries are always honourable for their sincerity, but do not always live up to absolute truth.”
Many thought the verdict legitimised political terrorism. Nobody thought it helped the cause of the rule of law. Tolstoy’s response was the most ominous of all. “The Zasulich affair,” he wrote, “is like a harbinger of revolution.”
In 1890, in the year when The Sleeping Beauty was premiered at the Mariinky Theatre, The Picture of Dorian Grey published in London and Yorkshire beat Gloucestershire in the first-ever County Cricket Championship, Anton Chekhov visited Sakhalin Island to see the penal colonies there. This is his description of the way in which the Russian Empire maintained its authority on an almost daily basis:
“[The prisoner’s] hair is matted to his forehead, his neck swollen. After the first five or ten strokes his body, covered with scars from previous beatings, turns blue and purple, and his skin bursts at every stroke. Through shrieks and cries there can be heard the words, ‘Your worship! Your worship! Mercy, your worship!’
“And later, after twenty or thirty strokes, he complains like a drunken man or like someone in delirium: ‘Poor me, poor me, you are murdering me… Why are you punishing me?’
“Then follows a peculiar stretching of the neck, the noise of vomiting. A whole eternity seems to have passed since the beginning of the punishment. The warden cries, ‘Forty-two! Forty-three!’ It is a long way to ninety.”
Many of the convicts in places like Sakhalin were there not because they had been found guilty in any court, much less by a jury. In fact, once juries began to find their feet and discover that they really could, as in the Zasulich case, influence the way in which justice was administered, the state acted to prevent this happening. The chosen method was an executive order for exile, signed by the Minister of the Interior and approved by the Tsar. This is how Vera Zasulich would have been dealt with, had she not escaped. Soon the system was extended to preventative exile. A person did not have to do anything at all, simply be deemed “untrustworthy”.
George Frost Kennan, in his ground-breaking book, Siberia and the Exile System, published in 1891, summarised the state’s logic: “We do not exile a man and put him under police surveillance as a punishment for holding certain opinions, but only as a means of preventing him from giving such opinions outward expression in criminal acts.”
This extra-legal approach by the state was mirrored in the tradition of samosud or self-judging by the peasants. Because serfs had traditionally not trusted the authority of the landowner, they had evolved a method of controlling crime independently of the public judicial apparatus. This continued long after emancipation and the introduction of peasant courts. A modern academic, Cathy Frierson, has given some examples:
“On 23 April 1873, the peasant Kuzma Rudchenko was found near the village of Brusovka. His head was completely crushed, his hands had been chopped off, and the plank that had been used to beat him had been thrust through his anus, piercing the full length of his body and extruding from his gaping mouth... Other forms of punishment included hammering nails into the thief’s head or wooden pins under the finger and toenails, hanging or mutilation, even beating the victim until he was barely conscious and then throwing him under the hooves of a frightened, charging horse. In 1881, in the village of Iazvinkie, in the Kiev province, the peasants carved a special toothed stake so that it resembled a series of arrowheads on one shaft. They then shoved it up the rectum of a suspected thief, with the arrows positioned so that he could not remove it.”
Notice the adjective “suspected”: just as the state exiled people who might commit subversive acts, so peasant communities brutally assaulted people who might have committed criminal ones. Was there no hope for justice in Russia?
Actually, there was hope, and not just because there were many who thought like Koni. By the early twentieth century, Russia’s industrial revolution was beginning to transfer power to to a new class in the biggest cities. Many of the most successful entrepreneurs were Old Believers who realised that justice was a necessary part of a functioning industrial society. Pavel Tretyakov, who founded the eponymous art gallery, was an example; as was the textile millionaire and financier, Pavel Riabushinsky, whose beautiful Art Moderne house is now the Gorky Museum on Ulitsa Spiridonovka; and the railway king, Savva Mamontov, who built Abramtsevo. They had two antagonists: the Court, which wanted to bypass the justice system and rule through executive diktat; and the millions of mostly uneducated people who were pouring into city slums to work in their factories, and who were open to radicalisation by angry men who wanted revolution and the abolition of “bourgeois” justice.
In the middle of this maelstrom, with powerful, often plutocratic, backers and an increasing sense of mission, stood the lawyers. To an extent, they mirrored the rising gentry of late Tudor and Stuart England, many of whom had themselves been lawyers, and most of whom has believed in juries precisely because they acted as bulwarks against the abuses of the state. It was they who gave the English-speaking world the practical reality of the system of independent justice that was envisaged (though not described, much less realised) in Magna Carta, but which was nearly destroyed by the “Tsarism” of late medieval England.
In this time of comparable turmoil, Russia had many people like them who took a constructive view of law. Anatoli Koni was only the best known. Even Zasulich in exile became a public opponent of terrorism. In the brief period before 1917, Russia produced some of her most distinguished jurists, many achieving international renown. Theirs is a story too little known in Russia today.
Next month, I will describe the heroic but ultimately tragic struggle of Russia’s pre-1917 jurists for the rule of law, and the important role that juries played.