The current state of the judicial system is the result of a long and purposeful activity of the Soviet government

Some time ago, the Institute of Law Enforcement Problems conducted a sociological study of the judicial community in Russia. It was based on two dozen focused expert interviews with judges and a survey in five regions of five federal districts (759 questionnaires in total).

As a result of the study, we found that among the professional values in the judicial community, legality occupies a central place. She was preferred by 77% of respondents. It is through the prism of legality that the protection of the rights of citizens and such a central category for justice as justice are perceived. Respondents could choose two main values and, despite the fact that 50% also chose the protection of citizens' rights, and 36% - justice, three-quarters also noted the rule of law.

There are explanations for this, and they lie in the historical transformation that occurred after 1917. Then a course was taken to build a special unique model of legal proceedings. When creating it, the established legal terminology was used, which was gradually filled with new content.

The peculiarity of the new model was that it combined the proclamation of the idea of a people's court with the tasks of centralizing public administration. This was expressed, on the one hand, in the declaration of the highest legitimacy of the people's court, the principles of electing judges, the absence of the possibility of appealing the essence of the verdict, and the refusal of the appellate authority. But on the other hand, there was the right of a higher court to go beyond the scope of the complaint and review almost any aspect of the case, the so-called revision procedure. Thus, the struggle between two principles was programmed. The strengthening of state bureaucracy led to increased centralization in the judicial system, and jurisprudence worked for this task.

Combining these two principles was a difficult task. It was possible to put a stranglehold on the courts of first instance by creating the possibility of unlimited discretion of higher courts, bordering on arbitrariness. Here it must be emphasized that the first Soviet procedural codes were most consistent with the classical understanding of legal terms and greatly limited the arbitrariness of higher authorities. In this regard, legal nihilism became widespread. Thus, the Resolution of the Plenum of the Supreme Court of the USSR dated December 1, 1950 No. 17/15/U “On eliminating deficiencies in the work of courts for the consideration of criminal cases in cassation” states that norms limiting the competence of the inspection court to the assessment of formal violations should not be taken into account and actually don't work. It was in this context that the development of the Soviet judicial system took place. In the Soviet legal doctrine, the legal force of decisions made by the court of first instance was nullified. The trial court was reduced to the level of a student in a written examination.

But at the same time, it was necessary to avoid strengthening the courts of second instance (meaning the courts at the level, in current terminology, of the subject of the federation - regional and regional). Restriction of the freedom of action of courts of second instance occurs in the second half of the 20th century. The percentage of cancellations decreases from 30-40% to 10-15% or even less. A tool has been created from second-tier judges that does not act at its own discretion. To achieve this goal, the courts were integrated into the prosecutor's office system and the party vertical, and the new procedural doctrine made the prosecutor's office the main initiator of judicial activity.

The concept of legality is equated with the understanding of bureaucratic discipline. Norms-declarations are being introduced into the law, allowing any court decision to be interpreted as made in violation of the law. For example, a rule that states that a court verdict must be legal, justified and motivated, or the principle of comprehensiveness, completeness and objectivity. There are no clear criteria for these concepts. There is always the possibility of declaring them violated. The vagueness of the criteria leads to the fact that in their decisions higher authorities begin to be guided by formalism. The correctness of the execution of a court decision becomes the main criterion of its quality to the detriment of its content.

At the same time, the law establishes the possibility of canceling a court decision in connection with a violation that did not affect the verdict, but could have. This opened up great scope for interpreting the slightest deviation from the rules for formalizing a sentence as a violation leading to revocation. If during the period of validity of the Charters of 1864 there was a ban on the cancellation of a court decision only on formal grounds, then during the Soviet period this principle gradually turned upside down. The essence of justice - consideration of the merits of the issue - fades into the background. Scientific publications substantiate the thesis that the slightest deviation from the requirements for formalizing a sentence is unacceptable.

This was not directly reflected in a change in ideology or law, but in fact it can be stated that after the reform of the 1950s, the struggle between the two concepts ends. The institution of the people's court is finally dying. Only traces-memories remain, like assessors who are transformed into “nodded”. The judicial system is built as a strictly structured bureaucratic organization, where the work of each level is monitored.

Since the second half of the twentieth century, the Soviet judicial system has become stable. The personnel training procedure is being established. And at the same time, the courts continue to lose their right to be a source of meaning. The court as a subject disappears. The status of judges and the court as an institution is declining. An ordinary judge at the district level in real status falls below the district prosecutor or his assistant.

The Soviet legal system was able to cope with another problem only by the middle of the twentieth century: the previously established appeal model was such that it did not allow decisions to be overturned due to incorrect assessment of evidence. The idea set out in Court Decree No. 1 was that review of a trial court's decision on the merits is simply not permitted. A court decision could only be overturned if there were gross violations of the law.

There could be no question of revising this position, but it could be reinterpreted: there was an expansion of the understanding of the principle of legality. It was necessary to interpret the assessment by the court of second instance of the factual circumstances of the case as an assessment of compliance with procedural norms, thereby transferring the reversal based on factual circumstances to the group of procedural violations. This made it possible to bypass the principle of direct examination of evidence at the verification stage. The Code of Criminal Procedure establishes the possibility of interpreting a reassessment of factual circumstances as a procedural violation. The reasoning for cancellations on this basis has apparently become more convincing.

After the reform of the 1960s, the eternal reason for raising painful questions about the right of the cassation (supervisory) court to consider questions of fact was eliminated. During the period of the 1960 Code of Criminal Procedure in Soviet scientific literature, there was a decrease in attempts to comprehend the limits of the competence of the court of cassation and supervisory authority. The intensity of the discussions is reduced to a discussion of the details of judicial practice and the nuances of legislative regulation without raising large-scale questions about rethinking the entire system of grounds for cancellation. It should also be taken into account that by the 1950s a layer of law enforcement officers had already formed, brought up in the new tradition, and for them the conflict of the provisions of the Soviet cassation with classical procedural forms did not seem like an acute problem.

The theory of criminal procedure has acquired the appearance of developing a kind of complete knowledge, which, at first glance, does not contain any flaws, and, consequently, no challenges prompting a revision of established doctrines. Thus, the system of legal concepts has lost opportunities for development.

At the same time, self-isolation from world experience occurred. The formation of the Soviet doctrine took place in the context of the analysis of foreign practice, but in the second half of the century this knowledge became inaccessible to most lawyers. Thus, a monolithic model of criminal proceedings was created, which, as a mechanism, is resistant to outside influences, but at the same time incapable of development and is not maintainable. Soviet legal doctrine began to represent not a path of knowledge, but something like a peculiar religious movement, where criticism of basic provisions is not expected. It is in this form that it has survived to the present day, having repeatedly resisted multiple attempts at reform.

During the transition to the post-Soviet period at the turn of the 1990s, a break with Soviet legal doctrine was declared. But this sounded much quieter than in 1917, and most importantly, it was accompanied by extremely minor institutional changes. Personnel, legislation and established practices have been preserved. The Law “On the Judicial System of the RSFSR” of 1981 will finally cease to apply only on March 1, 2013. New procedural codes appeared only 10 years after the breakup with the USSR. Many fundamental innovative proposals were nullified and returned to the starting point.

The formal rejection of Soviet doctrines was combined with careful preservation of established practices. At the time of criminal justice reform, there were no detailed alternative theoretical constructs into which the judicial system could be embedded. Accordingly, it was not possible to melt down the legacy of the old judicial system and cast something new.

Heirs of the “most humane court”