must consider the complexity of the case, the difficulty of the proof of crime's commission, or the special political and public importance of the case.197 Even after granting leave to the people and the defendant to appear on the trial by their respective attorneys, the Provincial Court, when it deems the case to be sufficiently clear, may dispense with their legal arguments at the close of the trial.198 Defendant, although represented on his trial by an attorney, retains the right to question personally other defendants, witnesses and experts, and to give explanations at any stage of the trial,199 and on the hearing of his appeal, if any. 200 The Provincial Court may terminate the examination of any witness at the trial, should it decide that the facts the witness or the witnesses are expected to testify to are already sufficiently proved by the evidence tendered theretofore.201 It may also refuse in its discretion the reading aloud of any written evidence submitted by the parties on the trial.20: The court, alone, on the request of the people and the defendant, has the power to call the witnesses, the experts and for the production of the proofs indicated to it by the parties. Such requests must be accompanied by an indication of facts sought to be proved by the witnesses, experts and other proofs. If the court deems such facts to be irrelevant to the case, it may deny such requests, but must state reasons for such denial in its opinion.2 203 Upon the opening of the trial, the court must explain to the parties their rights, read the names of the judges, explain objections to the personnel of the court allowed by law, and ask the parties, whether they desire to challenge any member of the court.204 The court is not fettered by any formal proofs, but may admit any proofs in its discretion, or demand the production of proofs from any persons not parties to the case. Oath cannot be admitted as a proof.205 The defendant is examined on the trial in this order: by the court, the district attorney, civil plaintiff, defendant's attorney, co-defendants.200 Witnesses are examined singly, and witnesses not yet examined cannot be present in the courtroom.2 In case of the death of a defendant, or the absence on the trial of any defendant or wit 197 Ibid. art. 381. 198 Ibid., art. 397. 207 199 Ibid., art. 277. 200 Ibid., art. 435. ness, his deposition made on the preliminary investigation or to the investigating magistrate may be read in evidence.208 The investigating magistrate must investigate a case both thoroughly and completely.209 He must gather and investigate facts both favorable and unfavorable to the defendant, including facts tending to increase or decrease the degree or the character of the punishment.210 If arrest of an alien is ordered by the magistrate, he must report the same to the Department of Foreign Affairs.211 Searches and seizures are made by investigating magistrates without court's order, except that in the case of mail, prior leave of the district attorney must be obtained.212 The true bill against a suspect is brought forth by the court having the jurisdiction over the crime sitting as an administrative tribunal behind the closed doors.213 In the case of crimes punishable with imprisonment, the presence of the defendant on the trial is required, unless he consents to the trial in his absence or has absconded. The presence of the defendant on trial for lesser crimes is not required.214 However, even when the defendant is present on his trial, but fails to keep the peace or to obey the orders of the court, he may be removed from the courtroom and the case be heard in his absence.21 A sentence passed on an absent defendant must be communicated to him within three days with a notice that he may demand a new trial.216 The court for sufficient reasons may extend the time to bring any appeal.217 Upon discovery of the new evidence, new trials may be requested in the case of acquittals by district attorneys, provided one year did not elapse since such discovery, nor five years since the sentence became final.218 No limitation of time is provided for convictions. The term "new evidence" includes the discovery of the forgery of written proofs and of the commission of any criminal acts by the trial court.219 All the courts in a communist State have a right to administratively review at any stage criminal proceedings conducted in the subordinate courts.220 Any action or refusal to act on the part of the investigating authorities or the district attorneys may be speedily appealed to the court.221 The reports of the investigating magistrates, the indictment of the district attorneys and the sentences of the courts must contain inter alia statements of the class to which the criminal belongs and of the social position held by him.222 The court has a power to award costs against both the defendant and the complaining witness, or either of them, when the case is settled before the trial; it has a similar power in the case of a convict, whose sentence is remitted.223 When a convict is unable to pay his fine immediately, the court has the power to postpone its payment, or order it paid in instalments within not more than six months.2 224 The execution of any criminal sentence must be postponed until the convict is in a physical state fit to undergo the punishment, or where the immediate infliction of the punishment will result in an extra hardship for the convict or his family by reason of some special facts or circumstances, such as fire or other natural disasters, prolonged illness or death of a single ablebodied member of the family and etc.225 228 Any person damaged by the act of a criminal may present at any stage of a criminal proceeding, but not later than the opening of the trial, a civil claim against the criminal to be considered and adjudged by the criminal court.228 Such claim is exempt from the payment of all the court fees and duties.227 It is the duty of the investigating magistrate and the president of the trial court to explain to the injured parties their right to present a civil claim.2 Civil claims cannot be considered by the military tribunals, but these tribunals, as well as investigating magistrates, may take steps to safeguard and secure the rights of civil claimants.220 The district attorney may in his discretion undertake the prosecution of a civil claim in a criminal court.230 A claim for civil damages denied either by a civil or a criminal court may not be brought up again in any court, but non-presentation of a civil claim in a criminal court does. not bar the injured party from commencing a civil action to enforce it.281 C.B.R. VOL. II.-39 220 Ibid., arts. 427 and 440. 221 Ibid., arts. 95. 215, 217 and 222. 222 Ibid., arts. 206, 210, 224 and 334. 224 Ibid., art. 460. 225 Ibid., art. 456. 220 Ibid., arts. 14 and 15. 227 Ibid., art. 16. 228 Ibid., arts. 119, 276 and 388. 229 Ibid., arts. 21, 388 and 389. 230 Ibid., art. 54. 231 Ibid., arts. 15, 18 and 328. CONCLUSION. The communist system of basic legal conceptions as revealed on the preceding pages is undoubtedly a result of rationalistic speculation. Should it continue to function for the next fifty or so years, we will then be able to seek in the communist legal institutions then existing the solution of the problems now vexing the philosophers of law. We may expect that the political success of communism in the neighboring countries may aid the spread and the development of its legal doctrines and rice versa. Until such " Until such trial by time" will yield us scientific results, we are bound to delay our judgment on the cyclic nature of human laws. New York City, 2 Rector Street. BORRIS M. KOMAR. THE CANADIAN BAR REVIEW THE CANADIAN BAR REVIEW is the organ of the Canadian Bar Association, and it is felt that its pages should be open to free and fair discussion of all matters of interest to the legal profession in Canada. The Editor, however, wishes it to be understood that opinions expressed in signed articles are those of the individual writers only, and that the REVIEW does not assume any responsibility for them. It is hoped that members of the profession will favour the Editor from time to time with notes of important cases determined by the Courts in which they practise. Contributors' manuscripts must be typed before being sent to the Editor at 44 McLeod Street, Ottawa. EDITORIAL. THE ADMINISTRATION OF JUSTICE. There is an old saying that one cannot get too much of a good thing, and even at the risk of repeating what was said in this column. last month, it may not be amiss to quote from an editorial which appeared in a leading Ottawa newspaper the other day, following the sentence of two of the directors of the Home Bank: "When the directors of the Home Bank were put on trial, the cynics only sneered. Willing victims of the delusion that money can purchase anybody or anything, they smiled patronizingly at the poor unsophisticated people who believed that these powerful bank directors would be given their deserts. "Well, they have had their answer. Fearlessly, impartially, the law fell yesterday upon Clarence F. Smith and C. A. Barnard, as though they were the humblest and most obscure in the land. Not all the influence of wealth, of social and political connections, could stay the hand of justice. These men have gone to prison, just as Peter Smith, a powerful politician, and Aemilius Jarvis, a wealthy financier, went to prison some weeks ago, for transgression of the law. "It is a fine thing for Canada. For it demonstrates beyond question that in this country the courts are incorruptible and just, immune from the influences of wealth, or caste or position-and that is the securest foundation of a political democracy." It is an open secret that recent events, particularly at Toronto, have been so received by the newspapers and the public as to put new heart into the judges and the lawyers, who really look for better things |