Court system

Image - A judge, assistant, and scribe (1594 engraving).

Court system. In Kyivan Rus’ the courts already had a partly public character. Five types of courts existed: (1) the prince’s court, headed by the prince or his representative (tyvun), in the principality’s capital city or at county sessions, which was a court of the highest rank; (2) the town assembly court or viche, which dealt initially with a variety of cases, but which later was assigned to the most serious ones; (3) the community or people’s court, presided over by elected elders (‘men of justice’), with general jurisdiction, which was the oldest form of court and was based on customary law; (4) private boyar courts, which had the right to decide on the cases of their subjects; and (5) ecclesiastical courts, which had jurisdiction over church people and in cases that involved crimes against the faith, adultery, and so on.

In the Lithuanian-Ruthenian state, on the territories under Lithuanian domination, the old court system remained in force for some time (the grand duke having jurisdiction over his vassal appanage princes). Later (after 1386), the court system changed under Polish and Western influence, and four types of courts came into effect: (1) the state courts—provincial courts for free citizens and central (mostly appellate) courts; (2) city courts in certain privileged cities; (3) community courts (called kopni sudy) based on Rus’ customary law; and (4) domanial courts, for nobles in their disputes with their subjects or tenants on their latifundia (see Domanial jurisdiction). In the Ukrainian provinces under Polish domination in the Polish-Lithuanian Commonwealth the Polish court system was introduced early, with the king’s vicegerent (starosta) having supreme judicial power in a province, followed by city courts (based mainly on Magdeburg law), local community (village) courts, and domanial courts (for more serious local cases and appeals stemming from the community courts).

In the Hetman state (1648–1764), village courts for non-Cossack villagers, company courts for Cossacks on the territory of a military company, and regimental courts on the regiment’s territory were in operation (with every higher court having appellate jurisdiction over the lower one). City, domanial, and ecclesiastical courts were also in existence. All of the above courts were called ‘provincial.’ There was another group of courts, the central courts, which included the General Military Court, the Court of the General Military Chancellery, and the Hetman’s Court (of the Chief Magistrate), with technically unlimited judicial powers. Hetman Kyrylo Rozumovsky’s reform of 1763, which was based on the Lithuanian Statute, changed the Cossack courts into land courts, city courts (regimental), and chamberlain courts (see pidkomorskyi court); the reformed General Military Court remained the supreme court in the system. The courts of the Zaporozhian Sich had a different system, based on the military organization of that territory. The lower courts were those of the kurin otaman and the palanka colonel; higher courts were those of the military judge, of the kish otaman, and of the Sich Council. The kish otaman was considered chief magistrate, and had the power of final decision during wartime. In peacetime his decision could be appealed to the Sich Council, in which all Cossacks could participate.

The Russian court system was introduced on the Ukrainian territories under Russian occupation in 1782. It was based on the existing social estates, and had separate land, city, and provincial courts for the nobility, clergy, burghers, and peasants. After serfdom was introduced, the landed gentry had jurisdiction over their serfs. This system was later replaced (in 1864) by courts of general jurisdiction, rural district courts (volost courts), and courts of appeal. Locally elected justices of the peace had jurisdiction over minor matters. An independent judiciary and trial by jury were introduced. Prosecutors (in criminal cases, under the minister of justice as the chief prosecutor) were attached to the courts.

In the Western Ukrainian provinces annexed later by Austria (Galicia, 1772; Bukovyna, 1774), the Austrian system was initially introduced. The Revolution of 1848–9 in the Habsburg monarchy stimulated reforms towards a modern, more liberal court system, which included county (povit) courts for minor civil and criminal matters, district (okruha) courts for more serious civil and criminal cases and as courts of appeal on decisions of the county courts, and one court of appeal, in Lviv. The Supreme Court in Vienna was the highest appellate court. Trial by jury was introduced for serious crimes, especially political ones. Prosecutors were attached to district courts and the court of appeal. Judges were appointed by the emperor for life. This system was in effect to the end of the Austro-Hungarian Empire (1918).

During the period of the Ukrainian struggle for independence (1917–20), the Central Rada undertook important measures to organize an independent court system, while maintaining some of the former judicial institutions. On 17 December 1917 the General Court was created to serve as the highest judicial body. It consisted of criminal, civil, and administrative divisions. The Hetman government of Pavlo Skoropadsky (1918) reorganized the court system again by creating, on 8 July 1918, the State Senate as the highest court, and criminal, civil, and administrative general court s. In addition, three regional appelate chambers (Kyiv, Kharkiv, Odesa) were established. This system was modeled on the previous Russian court system. Under the Directory of the Ukrainian National Republic the Central Rada’s system was reintroduced. In the Western Ukrainian National Republic an independent judiciary, with the supreme court in Lviv, was provided for by the law of 21 November 1918.

Under the interwar Polish regime in Western Ukraine, Polish laws established (by the decree of 6 February 1928) a modern court system, with county courts and district courts, courts of appeal, and the supreme court in Warsaw. Trial by jury was in effect until 1928; it was then abolished and replaced by lay judges.

Under Soviet rule various decrees of the Russian Soviet Federated Socialist Republic, beginning with the first Decree on Courts of 24 November 1917, replaced the tsarist system with a new system. After the occupation of Ukraine by the Bolsheviks these decrees were put into force and were later substantially copied in Soviet Ukrainian legislation. The new Soviet system consisted of people’s courts and revolutionary tribunals, the latter being given the task of trying ‘counterrevolutionary crimes.’ For the purpose of ‘fighting the counterrevolution,’ the Cheka, a non-judicial security agency using terror as its principal weapon, was also established, and the Cheka troika (collegium of three) became an extrajudiciary, repressive body. Two later decrees of the Ukrainian SSR (1922 and 1925) brought about further changes in the court system, each based on the Soviet Russian model.

On 25 December 1958 the Foundations of Legislation Concerning the Judiciary of the USSR and the Constituent Republics were enacted by the Supreme Soviet of the USSR. The Ukrainian Law Concerning the Judiciary was approved by the Supreme Soviet of the Ukrainian SSR on 30 June 1960. Under this law the court system consisted of raion people’s courts, oblast courts , and the Supreme Court of the Ukrainian SSR. Raion (municipal if in a city) people’s courts constituted the lowest and basic courts, with jurisdiction over most simple civil and criminal cases. Oblast courts dealt in the first instance with specified civil and criminal cases (eg, divorces, first-degree murder, high treason) and also acted as courts of appeal against decisions of the people’s courts. The Supreme Court of the Ukrainian SSR acted primarily as a court of appeal against the decisions of the oblast courts , but also had jurisdiction over certain civil and criminal cases of exceptional importance. It also heard protests against lower court judgments made by the procurators general of the Ukrainian SSR and the USSR and reviewed the decisions of the lower courts. The Supreme Court of the USSR had supervisory jurisdiction over the decisions of all republican courts, including Ukraine’s supreme court.

Under the provisions of the law, judges of the people’s courts were elected directly for five years, but only from among candidates submitted by the Communist Party or Party-controlled civic organizations; judges of the oblast courts and of the supreme court of the republic were elected for five years by the respective oblast soviets or the Supreme Soviet of the Ukrainian SSR. All judges were ‘accountable to their constituents,’ had to report to them, and could be recalled if their decisions failed ‘to agree with the policies of the Party and the government.’ This made questionable the provision that the judges were, in their decisions, ‘independent and subject only to the law’: their understanding and interpretation of the law had to be based on ‘socialist consciousness of the law’ as formulated by the Party and had to be compatible with its policies. By the same procedures, ‘people’s assessors’ (lay judges) were elected to sit with professional judges in people’s courts and oblast courts.

Soviet law provideed for an open court; in practice, however, the majority of criminal cases, especially those of a political character, were tried behind closed doors. Other rights granted by law to defendants, such as the right to a defense counsel and the right to use the native language in court, were equally restricted in practice.

Certain civil or even criminal cases could be adjudicated by agencies other than the courts. Disputes between state or co-operative institutions and between enterprises were decided by government arbitration; within enterprises, housing projects, collective farms, and so on, so-called comrades’ courts decided on disputes between members and even punished them for minor violations of the law. Most characteristic, however, was the practice based on the act of 5 November 1934 (never repealed) of the USSR that granted the NKVD (later KGB) the right, through ‘special boards,’ to apply to persons deemed socially and politically dangerous such punitive measures as exile, banishment (from capital and large cities, or industrial centers), and confinement in ‘correctional’ labor camps without any of the safeguards of the judicial system.

BIBLIOGRAPHY
Lashchenko, R. Lektsiï po istoriï ukraïns'koho prava, 2 pts (Prague 1923–24)
Chubatyi, M. Ohliad istoriï ukraïns'koho prava, 3rd edn (Munich 1947)
Kutrzeba, S. Historia ustroju Polski w zarysie, 8th edn (Warsaw 1949)
Berman, H.J. Justice in the USSR (New York 1963)
Bardach, J. Historia państwa i prawa Polski, 8th edn (Warsaw 1965)
Pashuk, A. Sud i sudochynstvo na Livoberezhnii Ukraïni v XVII–XVIII st. (1648–1782) (Lviv 1967)
Suslo, D. Istoriia sudu Radians'koï Ukraïny (1917–1967 rr.) (Kyiv 1968)
Kucherov, S. The Organs of Soviet Administration of Justice: Their History and Operation (New York 1970)
Wagner, W.J. (ed). Polish Law throughout the Ages (Stanford 1970)
Juviler, P.H. Revolutionary Law and Order: Politics and Social Change in the USSR (New York and London 1976)

Yurii Starosolsky

[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]




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