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Personal Inviolability in the Legislation of the Russian Absolute Monarchy

Published online by Cambridge University Press:  25 March 2019

Marc Szeftel
Marc Szeftel*
Affiliation:
Cornell University
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Extract

There were no guarantees in the Russian absolute monarchy against arbitrary arrest, arbitrary search, or violation of the secrecy of mail (three main aspects of personal inviolability) before the reform of the judiciary in 1864. As there was no separation between the administrative and the judicial powers, no difference existed between an arrest or search decided upon as a judicial measure and an arrest or search ordered by the police, whether to prosecute an already committed offense or to prevent a violation of law and order. The statutes of 1864 organized justice as an independent power, and to assure this independence they established guarantees of due process of law.

Type
Research Article
Information
American Slavic and East European Review , Volume 17 , Issue 1 , February 1958 , pp. 1 - 24
Copyright
Copyright © Association for Slavic, East European, and Eurasian Studies 1958

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References

1 “Ustav ugolovnago sudoproizvodstva,” Svod Zakonov Rossijskoj Imperii Vol. XVI, part 1, No. 4, ed. 1892.

2 Translation of the term.

3 Sc, of means to evade investigation and trial.

4 Gubernskoe zhandarmskoe upravlenie—subdivision of the Special Corps of Gendarmerie (Osobyj korpus zhandarmov), a military unit with police functions. It was organized in 1826 as “Corps of Gendarmerie”; the word “Special” was added in 1875. The provincial Gendarmerie boards, under Gendarmerie staff officers with units under their orders, were organized by the Ordinance on the Corps of Gendarmerie of 1867 (“Polozhenie o korpuse zhandarmov,” Svod voennykh postanovlenij, ed. 1869). Politically, the Corps was under the administration of the Minister of the Interior (since 1880 he carried the title Chief of the Gendarmes); militarily, it submitted to the Minister of War. The Corps of Gendarmerie performed the following political police functions: it could be called upon by administrative authorities to help them to maintain or to restore public order; it traced and investigated political crimes; it guarded external order in the railroad zones; it inspected passports in certain harbors and on the State border, and it guarded the political prisoners in the fortress of Schlusselburg (on the Ladoga see). It is interesting to point out that the Russian Corps of Gendarmerie was not of Muscovite, but of Western inspiration. It had its roots in the French Revolution, Napoleon's system and the ideology of Freemasonry as expressed in the Decembrists’ ideas. (Nicholas I became acquainted with them during the investigation of the conspiracy.) The French revolutionary gendarmerie, organized during the Reign of Terror to act against the political enemies of the Convention, was utilized by Napoleon for his police absolutism, and the Russian political dreamers of the “Union of Welfare” (part of the Decembrists’ movement) spread in Russia the idea of a benevolent police whose omnipresent and virtuous action watches over justice and welfare … The “legend of the white handkerchief” basically expressed this approach: when Count Benckendorff, the newly appointed chief of the new police, asked Emperor Nicholas I for instructions, a clean handkerchief had just been brought to the Emperor; giving this handkerchief to Benckendorff, he said: “Here is your instruction, the more tears of the unlucky ones you dry with it, the better you will carry out your assignment.” It may be a legend, but its spirit was reflected in the actual instruction Benckendorff gave to the gendarmerie officers, the most striking sentence of which was: “The purpose of your office is prevention and suppression of all evil” (Cf. “Statute on prevention and suppression of crimes” issued shortly afterwards!). No clear and precise limits for action were indicated, no forms prescribed; discretion replaced right, and moral, not legal, responsibility was stressed. A very dangerous width of latitude, sensed by Count Benckendorff himself in the further words of his instruction to the officers: “Now it is patently clear to you, what public good a strict and disinterested accomplishment of your duties may achieve, but at the same time you can easily imagine what harm and evil can be produced by actions contrary to this charitable purpose” … With so much freedom of action much obviously depended on the quality of the gendarmerie officers, on their personal understanding and care for public welfare; as high quality was rare, and understanding usually limited, in practice this lack of rules and guarantees only favored arbitrariness. Cf. I. T. Tarasov, “Lekcii po policejskomu pravu,” Uchenyja zapiski Imperatorskago Liceja v pamjat’ Cesarevicha Nikolaja (Moscow: 1908-1912), II, 99-103.

5 This rule is usually referred to as “administrative guarantee.”

6 The First Department of the Ruling Senate (Pravitel’ stvujushchij Senai) was one of the administrative departments of that body. Its members, chosen by the Emperor among high officers of administration and police, did not enjoy permanency of tenure; they could be transferred to another department of the Senate, or altogether into a state of inactivity, on January 1 of any year. The proceedings before the First Department were not public and they were not based on free debate among the parties; a two-thirds majority was mandatory for all decisions concerning complaints about administrative action. Cf. “Uchrezhdenie Pravitel'stvujushchago Senata”, Svod zakonov, Vol. I, part 2, No. 5, ed. 1892, art. 13, 19, and 95; generally on the Senate as administrative court: Baron S. A. Korff, Administrativnaja justicija v Rossii, (St. Petersburg: 1910).

7 “Ustav grazhdanskago sudoproizvodstva,” Svod zakonov, Vol. XVI, part 1, No. 2, ed. 1892.

8 The problem of personal liberty within the Russian judiciary system was best analyzed by P. I. Ljublinskij in Svoboda lichnosti v ugolovnom processe (St. Petersburg: 1906).

9 Art. 249: “The preliminary investigation of crimes and misdemeanors within the jurisdiction of Divisionary Courts is performed by Examining Judges, with the assistance of the police and, in the cases defined by law, of the officers of the Special Corps of Gendarmerie, under the superintendence of Procurators and Assistant Procurators.” In Transcaucasia, the Archangelsk and Black Sea provinces, the provinces and territories of Siberia, the Turkestan and the Steppe territories the justices of peace conducted the investigation (cf. Statute on Criminal Procedure, Book IV, Special order of criminal procedure in some localities of the Empire, passim).

10 “Ustav o preduprezhdenii i presechenii prestuplenij,” Svod zakonov, Vol. XIV, No. 6, ed. 1890, continuation of 1906.

11 “Obshchee uchrezhdenie gubernskoe,” Svod zakonov, Vol. II, No. 1, ed. 1890.

12 Beside these general provisions, the Statute on prevention and suppression of crimes and the Gen. Prov. Establishment both contained a few specific cases when police arrest must be ordered. They concerned minor disturbances of the peace, such as drunkenness (“those who shout and sing songs on streets and alleys, walk at night at nonauthorized hours, and loaf about in a state of drunkenness,” Statute on prevention … art. 154), or asking for alms (ibid., art. 163). Lunatics could also be arrested when not in their asylums, or if their residence was unknown, or if their lunacy was dangerous to themselves and other people (Gen. Prov. Establ., art. 818). So could those who disturbed church services and ceremonies, if they violently resisted (to being removed?) (ibid., art. 800). These provisions are quoted here to show the enormous gap between the scarcity and minor importance of cases concretely referred to by the law, and the very broad application of the privilege to arrest by the police on the basis not of specific texts of law, but of a blanket permission.

13 “Ulozhenie o nakazanijakh ugolovnykh i ispravitel'nykh”, Svod zakonov, Vol. XV, part 1, No. 1, ed. 1885, art. 348, provided for a mild disciplinary penalty for nonobservance of regulations concerning arrests. If there was illegality, articles 1540 to 1544 of the same Code were applicable; they struck with heavy penalties all arbitrary detention, i.e., by any individual, whether acting under official orders or not.

14 They were characterized as “the most deficient part of all Russian legislation, both generally and especially when compared with the English legislation on the same matter” (I. T. Tarasov, op. cit., p. 135).

15 “Obshchee polozhenie o krestjanakh,” Svod zakonov, Vol. IX (osoboe prilozhenie) ed. 1902, Book 1.

16 “Polozhenie o zemskikh uchastkovykh nachal'nikakh,” art. 57, ibid. Book 3, section 1.

17 “Vremennoe polozhenie o krest'janskikh nachal'nikakh,” ibid., section 7. These powers of administrative arrest not for the purpose of prevention of crime, but for that of disciplinary punishment represented exceptions from the general principle that all penalties be meted out by the courts, and not by administrative authorities. This principle also applied to penalties for violation of orders issued by administrative authorities, as was explicitly stated in art. 29 of the Statute on penalties imposed by justices of peace (“Ustav o nakazanijakh, nalagaemykh mirovymi sud'jami”), Svod zakonov, Vol. XV, part 1, No. 2, ed. 1885. To the already mentioned privileges of administrative arrest must be added the right of the administration of Turkestan, the Steppe region and Transcaspia to subject the natives to arrest for violation of legal orders and for petty offenses; this arrest was of seven days maximum in the two former regions, and of three days maximum in Transcaspia. Cf. The Turkestan Ordinance (“Polozhenie ob upravlenii Turkestanskago kraja”) art. 64 and 702, Svod zakonov, Vol. II, No. 9, ed. 1892; the Steppe Ordinance (“Polozhenie ob upravlenii oblastej Akmolinskoj, Semipalatinskoj, Semirechenskoj, Ural'skoj i Turgajskoj”) art. 39, ibid. No. 10; the Temporary Transcaspian Ordinance (“Vremennoe polozhenie ob upravlen ”), art. 33, ibid. No. 8.

18 The Statute on Criminal Procedure reserved to the exclusive decision by the competent administrative authorities according to administrative procedures another large group of offenses, those of the statutes of Treasury administration (art. 1124). The offenses were listed in the annex to art. 1124, and they concerned the customs administration, the forest administration, the Post department, private gold mining, and a few others. None of these offenses, it seems, was punished by arrest. The two big groups of offenses, referred to by arts. 1214 and 1124 (and the annexes to them), were considered by the legislator to be of a special technical character not involving major legal problems, so that the interest of the accused himself might be advanced by a more summary procedure; on the other hand, he desired not to increase beyond a reasonable degree the obligations of the new courts and the problems of manning them with an adequate personnel. Cf. art. s. t. Administrativnyja nakazanija, Novyj Enciklopedicheskij Slovar', ed. F. Brockhaus & I. Efron, Vol. I, St. Petersburg, .s. d. (1910?).

19 Notes 1 to 7 following art. 1066 enumerated different categories of officials, military and civilian, and the regulations concerning their disciplinary responsibility. Among those officials were mentioned those of volosf and village communal administrations who, for service offenses of little importance, could be punished by land captains, without formal procedure, with an arrest of seven days maximum; one must emphasize that the members of the volost’ courts were part of the volosf administration and were submitted to the same disciplinary power (Svod zakonov, Vol. IX, osoboe prilozhenie, book 1, art. 84; book 3, art. 58; book 7, art. 157). The peasant captains in Siberia, the peace arbitrators (mirovye posredniki) in the Northwestern and Southwestern provinces of European Russia and the district captains (uězdnye nachal'niki) in Transcaucasia had the same disciplinary power (ibid, book 3, art. 446; book 1, art. 146 and 200; book 1, art. 462). In Transcaspia, with regard to the native administration this power extended to one month of arrest maximum (ibid., Vol. II, No. 8, art. 22).

20 There were two other categories of people who were deportable for reasons of behavior: those who practiced vagrancy for the purpose of mendicity must be sent by the police to their native communities (art. 163 of the Statute on prevention); military or civilian officials, dismissed for corrupt behavior, must be expelled from St. Petersburg and Moscow, and their provinces, and sent back to their birthplace. In case they were born in one of these provinces, “they are deported to one of the central provinces, except those of Novgorod, Tver, Viatka, the border provinces and the localities where fairs are being held” (art. 172). Before the law of June 10, 1900, also townsfolk (meshchane, i. e., the nonprivileged part of the urban population) whose behavior was “depraved and corrupt” could be deported by the administrative authorities, upon the decision of their community (art. 186-204).

21 Prior to the law of June 10, 1900, “rural residents” (and meshchane) of bad behavior whom their communities placed at the disposal of the administration were sent to Siberia, where they joined criminals sentenced to deportation by the courts, whether in connection with penal servitude, or without it. In the period preceding the reform of June, 1900, which replaced deportation of peasants to Siberia by compulsory residence anywhere in the Empire, and cancelled all deportation for meshchane, there were 300,000 compulsory settlers (ssyl'nye) in Siberia. Fifty percent of them were convicts and the remaining 50 percent were people removed by their communities for bad behavior. Only 30,000 of the 300,000 settled as agriculturists; 70,000 were landless laborers; 100,000 were daylaborers only occasionally employed and the remaining 100,000 idle vagrants. The unsatisfactory and even dangerous character of this situation came to the attention of the Russian Government in 1839 already, and the reform was finally decided upon in 1900. Cf. A. P. Salomon, Ssylka v Sibir’ (St. Petersburg: 1900), pp. 337 and 339, memorandum submitted to the Imperial Committee on the abolition of deportation. After 1900, only criminals continued to be deported to Siberia, as well as politically neblagonadezhnye. See Laws on social status (Zakony o sostojanijakh), Svod zakonov Vol. IX, book I, art. 683 and annex to it, ed. 1899 and Statute on prevention and suppression of crimes, art. quoted.

22 See infra, p. 21.

23 Emperor Alexander III, by a secret decree, authorized the Minister of the Interior in 1881 to open private mail for higher interests of State security. This decree was preserved under seal, by a special official, communicated to every new Minister upon his appointment, and put again under seal. On its basis at the Post Office of St. Petersburg, and later on, at some other post offices of the Empire, “perlustration” cabinets were organized (the public called them “dark cabinets”). Letters of certain persons were intercepted and communicated to the Minister either in the original or in a copy; letters of dignitaries and members of the Imperial Court remained, in copies, with him, the remaining copies being delivered to the Police department. Data, thus obtained, served only as information, and could not be used in inquests and investigations. Cf. Alexander Spiridovich, Zapiski zhandarma, (Kharkov: 1927), pp. 59-60.

24 This Statute was renamed “Ustav blagochinija i bezopasnosti”—Statute of good order and security, in the 1916 edition.

25 The ordinance of Aug. 14, 1881 (“Polozhenie o merakh k okhraneniju gosudarstvennago porjadka i obshchestvennago spokojstvija”) was renewed between 1881 and 1905 every three years, and on June 25, 1905, for one year. As the Committee of Ministers itself pointed out in its journal of Feb. 10, 1905, these rules “which, when issued, had a temporary and exceptional character, have assumed the character of permanent legislation, completely unforeseen, because of the vastness of territory and the length of time of their application … These rules have been now existing uninterruptedly for 22 years; under their action an entire generation came of age which never saw another system of upholding public order and knows about common laws of the Russian Empire only from books” (Vladimir M. Gessen, Iskljuchitel'noe polozhenie, (St. Petersburg: 1908), p. 170).

26 or with a fine of three thousand rubles.

27 … “cases about criminal state actions, liable to prosecution following the procedure denned in articles 1030, 1031 and 1032 (note) of the Statute on Criminal Procedure” … (Statute on the prevention and suppression of crimes, art. 1, note 2, annex I, position 31). The special procedure referred to was defined in art. 1032 of the Statute on Criminal Procedure; it meant trial without jury by the High Courts (Sudebnyja Palaty) alone, or in more important cases, reinforced by representatives of estates, unless a special Imperial order directed the case to be tried by a Special Board (Osoboe Prisutstvie) of the Ruling Senate, with the participation of the representatives of estates.

Articles 1031 and 1032 enumerated most of the articles contained in chapter III of the Criminal Code (Ugolovnoe Ulozhenie, Svod zakonov, Vol. XV, part 1, No. 2, ed. 1909) as promulgated on June 7, 1904 (with regard to art. 125 on June 16, 1905). Those mentioned in art. 1030 followed the special procedure unconditionally, while those quoted by art. 1031 followed it only if the crime was connected with an offense referred to by art. 1030 or was politically motivated. The note to art. 1032 prescribed separate trial by the Divisional Court of certain politically motivated crimes if they were combined with other nonpolitically motivated: insulting stupidly, ignorantly or in a state of drunkenness the Emperor, the Empress, the Heir, a member of the Imperial Family, or the memory of the Emperor's father, predecessor or grandfather (Criminal Code, art. 1033, 1063, and 1072).

28 The ordinance of Aug. 14, 1881, did not include any specific powers to authorize governors of provinces which were not in a state of emergency to issue compulsory decrees with penal sanction (art. 15) and to decide administratively on cases about violation of these decrees (art. 16, part 1). There was only the general provision of art. 3, on the basis of which the Minister of the Interior could submit to the Emperor about any temporary measure necessary for the preservation of State order or public tranquility. Whatever the legal basis, such special privileges were given to certain governors by the same Imperial decree which prorogated the Ordinance, or by separate decrees. Cf. also Statute on prevention, notes 6 and 7 to art. 1. One should distinguish from the state of emergency (iskljuchitel'noe polozhenie) the martial law (voennoe polozhenie) which, on the basis of the law of June 18, 1892, could be proclaimed by the Emperor simultaneously with mobilization of troops in localities of importance for national defense (annex to art. 23 of General Provincial Establishment). Such a proclamation suspended in these localities the action of the Ordinance on measures for the protection of State security and public tranquility, and entrusted this protection to the military commanders. These commanders were given the same rights the administrator-in-chief enjoyed under extra- ordinary protection. Finally, one should note the extraordinary powers which the Em- peror gave ad hoc to Governors-General of certain localities to cope with revolutionary movement or banditry. Such powers between 1861 and 1904, on several occasions, were given to the Lieutenant-General (later Governor-General) of the Kingdom of Poland; they were given to the Governor-General of St. Petersburg by the decree of Jan. 11, 1905 (after the “Bloody Sunday” of Jan. 9). These powers were still broader than those under extraordinary protection, and they were essentially temporary. Only in the Caucasus, some of those powers, although called temporary, had a permanent character. Thus, a series of Imperial decrees, from 1893 to 1899, gave to the Lieutenant-General of the Caucasus the privilege to transfer to military jurisdiction all cases concerning brigandry, premeditated murder, robbery with violence, arson, if they were committed by natives, or Persian and Turkish subjects (even if these crimes did not have any political character), Startute on Criminal Procedure, art. 1255, note 1. The text of the note contained the words: “as temporary measure, as long as brigandry is not eradicated in the Caucasian region”; the note still appeared in the 1914 edition of the Statute. See also Uchrezhdenie upravlenija Kavkazskago kraja, Svod zakonov Vol. II, No. 7, ed. 1892, art. 26: the Ad-. ministrator-in-Chief for civilian affairs could, on his own authority, order deportation of any native accused of a major crime; he could also take any other measure for the pro- tection of public order, and inform the Emperor of it through the Minister of the Interior.

29 It was usually a locality situated on the periphery of European Russia or in Asian Russia: provinces of Archangelsk, Astrakhan, Vologda, Olonec, Perm, Vjatka, the Ural territory, and the provinces and territories of Siberia and Central Asia.

30 From 1894 to 1901 this was the procedure ordinarily applied to political crimes: During this period there was not even one trial of a political crime by a nonmilitary jurisdiction.'See G. N. Shtil'man, Popovodu nekotoryh izmenenij v porjadke proizpodstva po delam o prestupnykh dejanijakh gosudarstvennykh, (Pravo, 1904, No. 28).

31 Persons generally defined as politicheski neblagonadezhnye, i. e., “not reliable politically.” This was not a legal term although mentioned in some legal texts, but both the concept and the term were commonly used in the administrative practice. V. Vodovozov defined neblagonadezhnost’ (to which he adds neblagonamerennost', i. e., wrongmindedness, another term used with regard to politically suspects) in the following terms: “such characteristics of an individual which mark him because of his way of thinking, even if he did not commit any crime, as a person able to commit a crime and therefore dangerous, or, at least, troublesome.” (Blagonanamerennosf i blagonadezhnost', Movyj Enciklopedicheskij Slovar’ (St. Petersburg: 1912?, VI, 832). “Certificates of reliability” were required from any candidate for a position of public trust or for admission to a public school; they were given by the police on the basis of information collected on the individual's way of life, acquaintances, reported actions, and expressions of opinion. Certain ideologies were “unreliable” per se, such as liberalism, let alone socialism; certain groups were less “reliable” than others. Especially “unreliable” were groups where liberal (or socialist) ideas were supposed to be current: lawyers (they defend criminals, and even political criminals!), people employed by the zemstvos (contact with the population as well as higher level of education!), elementary school teachers (for the same reasons), University students, and (because of the students, and only in periods of more violent reaction) University professors. To these groups should be added certain ethnic and religious groups (the oppressed ones) such as Poles and Jews. For a Government official neblagonadezhnost’ was a legal cause for discharge, and here the term was used by the law itself. The famous “third point” of the Statute on service by Government appointment (Ustav o sluzhbe po opredeleniju ot pravitel'stva, Svod zakonov, Vol. III , ed. 1896, art. 838) permitted discharge of an official by his superiors “without the former's request” and “without indicating the causes and procedure of the discharge.” This was the negative counterpart of the “administrative guarantee” covering the official's reprehensible actions from the normal application of justice. There was also reference to art. 788 of the same Statute which said: “The officials who are unable to carry out … their duties, or in the superior's judgment are unreliable for some reason or other or have committed a fault known to superiors, but which cannot be proven by facts … ”

32 Beside deportation, i. e., compulsory residence in a locality determined by the administrative authorities, Russian legislation of the absolutist period knew expulsion, i. e., removal of a person from a given locality, with free choice of residence elsewhere. As deportation meant also expulsion from one's usual place of residence, the Russian legislative terminology did not draw a clearcut line between these two administrative penalties : the Ordinance on protection of State order and public tranquility called both of them vysylka, although it would be more adequate to call “deportation” ssylka. Expulsion was mentioned by the Statute on the prevention and suppression of crimes (art. 1, note 1) as a means available to local administrative authorities, in certain special cases, without any formal judicial procedure; besides “prohibition of residence in the capitals and other localities,” this note mentioned “putting under police surveillance” and “expulsion of foreigners beyond the border.” This “prohibition of residence” most often concerned the capitals, i. e., St. Petersburg and Moscow, and their provinces; it could also concern the province where the person lived, all cities where there were universities, all industrial centers, etc.; this depended on the cause for expulsion, and on the point of view of the authority that ordered it. Specially emphasized by the Statute was the right of the Governors- General, Governors of provinces and City governors to expel a person from a locality which was in a state of emergency (Ordinance on protection, art. 16). Compulsory residence, however, did not follow automatically, and it could be ordered only by the Minister of the Interior following the procedure we have described, even if the person was deported to the locality of his birth, (ibid., note).

See also General Provincial Establishment, annex to art. 22, pos. 7: “The commandant of a fortress is authorized, even in time of peace, to prohibit residence therein to any person, whose presence may be considered harmful for public tranquility and the security of the fortress” (law of April 14, 1887).

33 The Ordinance on police surveillance also contained numerous limitations placed on the occupational, public, commercial, educational, and judicial activities of'thepodnadzornyj (art. 21-28 and 30).

34 Before 1881-87, when political deportation and police surveillance became regulated by special legislation, thousands of suspects were deported and subjected to surveillance on the basis of the Emperor's direct commands. From 1881 to 1905 an ever increasing number of persons suffered from them on the basis of this special legislation. In the 1880's, they mostly belonged to the intelligentsia; when, in the 1890's, the labor movement came to prominence, workers appeared among those who were deported in an ever increasing, and finally, preponderant number. On several occasions (a solemn event, such as coronation, or a more liberal trend in the Government's policy) there were massive cancellations of deportations: 1880, 1883, 1891, 1896, 1904. On Oct. 21, 1905, in connection with the Manifesto of Oct. 17, all podnadzornye were liberated.

35 Cf. V. M. Gessen, Policejskaja reforma v trudakh komissii stats-sekretarja Kakhanova, I zvestija Sankt-Peterburgskago Politekhnicheskago Instituta, 1905, Vol. III.

36 See in this connection Baron A. E. Nolde, Otnoshenija mezhdu sudebnymi i administrativnymi vlastjami i sud'ba osnovnykh nachal Sudebnykh Ustavov v pozdnejshem zakonodatel'stve (Sudebnye ustavy 20. XI. 1864 g. za 50 lět, t. II, Petrograd 1914, ed. by the Ruling Senate); also E. N. Berendts, Vlijanie sudebnoj reformy 1864 g. na gosudarstvennyj i obshchestvennyj byt Rossii (ibidem).