Приговор при свечах / Judgment in candlelight - Владимир Анатольевич Арсентьев

“At the very exit from the town there rose an extraordinarily huge and extraordinarily dreary yellow house that had absolutely nothing in common with any house I had hitherto seen. It had a great many windows, and over every window there was an iron grating; it was enclosed by a high stone wall, and the big gate in that wall was closed tight; and behind the grating of one of those windows stood a man in a grey cloth blouse and a cap to match, with a yellowish puffy face. On that face was written something complicated and painful, something which, again, I had never seen in my life: a mixture of the deepest longing, sorrow, blunt resignation, and at the same time some passionate and somber dream… Of course, I was told what that house was, and what that man was; it was from father and mother that I learned of the existence in the world of that particular class of people called criminals, convicts, thieves, murderers. But then, the knowledge we acquire during our short personal life is too scanty – there is another, infinitely richer, that with which we are born. My parents’ explanations would not have been enough to account for the feelings which the grating and that man’s face called forth in me: I felt for myself, I divined for myself, with the aid of my own knowledge, his peculiar, his uncanny soul. The peasant had been terrible stealing through the oak undergrowth in the dale, with an axe at his belt. But he was a brigand – I never doubted that for a moment; it was something very terrible, but also fascinating, fairy-tale. But this convict, this grating…”[130]

Bunin’s genius “felt for himself, divined for himself, with the aid of his own knowledge” the “peculiar, uncanny soul” of the prisoner, studying his disconnection and indignity by using feelings, conscience, intuition, and knowledge. To achieve the same result in modern times, one will most likely need not only the above means of understanding but also the experiences of others who survived in critical conditions. The knowledge arising from such experiences can lead to personal well-being, a peaceful state of mind, harmony. This condition comes when we refrain from condemning our own kind, who did not necessarily create trouble for themselves. Intuition will pave the way for feelings; the mind will follow that way and discover the legal reality, where the person is the creator of their own world. Then the big closed gate in the prison wall will open up by itself, as it happened in the case of the author and his convict.

For the sake of life itself, a natural human being tries to exercise the natural birthrights they cannot be unaware of by experiencing and grasping the surrounding reality. One strives to not only exist but also live as a human being, and there is no law outside the human being. Count Mikhail Mikhailovich Speransky (1772–1839), the founder of Russian legal science, argued that beyond the law “there are no truly free people in Russia, apart from paupers and philosophers”[131]. That’s why Count Speransky developed the first unified legal code for Siberia (1819–1822) and later organized and codified the legislation of the Russian Empire.

The civil society of Russia reaped the seeds sown by Mikhail Speransky in 1864, just after the abolition of serfdom, when the judicial reform laid foundation for the justice system.

This book is about the human right to be not the means but the end of the state’s existence and operation. In such a state, the ideals of freedom, equality, and fairness form the fundamental basis of criminal justice, safeguarding the peace of law and order in the civil society and thereby determining our general behavior.

Chapter I: truth never prevails without struggle and challenge

1.1. The Dissenting Opinion

In the Russian criminal justice system, a judge’s dissenting opinion in a panel hearing of a case has no value for the criminal procedure per se, because that opinion has no procedural independence and does not result in any legal effect. For this reason, dissent remains extremely rare in the Russian criminal procedure. The dissenting judge must sign the verdict made by two other judges. If a judge principally disagrees with that verdict, they may express their dissent in a specific written document, which they draft immediately in the chambers or submit no later than five days since the announcement of the verdict. The dissenting opinion, formulated that way, must not contain any statements made during the deliberation on or reaching of the verdict; neither can it include any information on the court judges’ positions with regard to the case nor violate the confidentiality of judicial deliberations in any other way.

However, dissent as a cultural phenomenon of criminal justice can reveal the characteristic qualities of intelligentsia involved in the administration of justice. It merits particular attention because it can, for instance, bring to light the democratic independence of a judge.

Without violating the confidentiality of judicial deliberations, which is protected by law, we will now expand on the problem of dissent associated with the judge’s direct responsibilities to adjudicate and exercise their personal choice in the actual situation of criminal proceeding. In doing so, we will go slightly beyond the framework of criminal justice.

Psychologically, the source of one’s reasoning is experience received from the sensory organs. A judge who does not personally examine the evidence does not receive any information from the senses and therefore cannot have any reasoning. Unaware of the relation between the events and objects in the environment, such a judge cannot have a choice. Thus, the judge cannot operate the facts and is no longer competent as a researcher. Instead, a bureaucrat type appears that considers the just