Academic journal article Contemporary Readings in Law and Social Justice

The Judicial Procedure: Unity and Differentiation

Academic journal article Contemporary Readings in Law and Social Justice

The Judicial Procedure: Unity and Differentiation

Article excerpt

ABSTRACT.

The study of judicial procedure in terms of history revealed that contemporary judicial procedure derived from the old public institutions. The notion of judgement as a trial phase is very important. Political and extraordinary bodies during the totalitarian regime breached the principle of equality before the law. This is why the viability of judicial and law reform as an indispensable component of the society reform is widely recognized by modem civilization

Keywords: judicial procedure; public institutions; law reform; modem civilization.

In modem times, the judicial legislation of bourgeois states is characterized by partial or total renunciation to bourgeois-democratic procedural guarantees that were essentially formal, deformed.1 The United States of America were not satisfied with the composition of the Court of juries, selected from the small and middle bourgeoisie, especially in the trial of criminal cases in which capitalist monopolies were particularly interested.

The report of the "National Commission for ensuring legality" in the U.S. shows that "concerning the jurors, several aspects were found, such as: the forgery of lists, but also the obvious removal from the jury, of people who might have proven some independence of opinion, and also the intimidation of jurors in order to obtain the conviction sentence". Relevant extracts from the mentioned report are published in Professor P. I. Liublinski's work paper.2

However, even such a selection of jurors from those considered as "reliable" did not always represent a convenient tool for the governing group of the monopolistic and reactionary bourgeoisie. That is why, in a number of states, under one form or another, the Court of juries is dissolved or its legal scope and the volume of its work is drastically reduced .

Thus, in 1924, in "Weimar" Germany, the reform of judicial organization was developed, abolishing the court of jurors. Its name was kept in the law (articles 81-82 of the Law referring to judicial organization), but it referred to the court composed of a single college formed of three permanent members of the court, together with the so-called jurors. Such a composition, in "Shoffen" substance, of the college ruling all the legal and procedural issues, including those related to the defendant's guilt, was fully providing sentences that were convenient to the permanent competence of judges, namely to the governing class. This explains how in Weimar Republic, all the Kaiser judges remained untouched on their seats.3

The same modification of the court of juries was found also in France which at that time was occupied by Hitler's Germany in 1940, by issuing a special decree by "the head of Petain Government". Even after the expulsion of Nazis from France and the restoration of the Republic, the court of juries still existed, but only on paper. Under its name, a combined college composed of three permanent judges (members of courts of appeal and five assessors) was functioning. The aspirants to the position of "jury" had to possess a certain "census of residence".

Both in England and in the USA, a series of measures limiting the jurisdiction of the court of juries was undertaken, and that was due to the extension of the legal competence of single judges (court of summary jurisdiction). In addition, in England the practice of applying the law in criminal appeal (1907), subordinated firstly the Court's legal work, to the supervision and management of the Court of Criminal Appeals, and secondly it provided to the Court, the opportunity to increase the punishment within the review of the sentence contested by the convicted.4

In a number of states in North America, in the 30's of the twentieth century, it was introduced the prosecutor's right to contest to higher courts, the acquittal sentences, ruled by the Court of juries; that fact was considered in the Anglo-American procedure theory as a unacceptable attempt to the defendant's rights and to the rights of the "people" on the behalf of whom, the jury had given an acquittal sentence. …

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