CRIMINAL PROCEDURE IN THE U.S.S.R.
for
Professor Benson
by
John Skotnik
Summer II-I983
00124
TABLE OF CONTENTS
An Introduction
1
Inquiry
9
Arrest
10
Preliminary Investigation
10
Indictment
12
Trial
12
Legislation
14
Investigation and Trial
16
The Judiciary
19
The Rule of Law, The Basis of Justice
22
The Right to Defense
23
Effect of the Trial
25
Criminal Penalties
26
Administrative Pressure Instead of Punishment
28
Comrades' Courts and Collective Responsibility
29
Summary
32
Footnotes
Bibliography
C01£5
CRIMINAL PROCEDURE IN THE U.S.S.R.
An Introduction
Criminal procedure is the part of the law
in the
Union of Soviet Socialist Republics which regulates the
activities of the investigative agencies, the judiciary,
and the Procuracy.
Before we begin a brief overview of the criminal
procedure from start to finish, some definitions are
necessary.
First, there is procuracy.
It is one of the
Soviet systems four branches of government.
It is similar
to a district attorney in the United States, but has much
broader powers encompassing both civil, criminal, and
military matters.
Here, of course, the concern is with
the criminal matters.
"In those cases where a breach of
the law is criminal in character, the Procurator General
of the Soviet Union and the procurators subordinate to
him are obliged:
a) to prosecute those guilty of a criminal offence
so that no crime will remain undiscovered and no
criminal will escape responsibility;
b) to ensure by strict supervision that no citizen
be prosecuted, held criminally responsible or restricted
in his rights contrary to the Law or without foundation;
c) to supervise exact compliance with the laws and
1
regulations by the organs of inquiry and inquest."
eei.<6
The Procurator is based on the ideas of Lenin and is
layed out "by the Constitution of the Soviet Union to
"ensure for the Prokuratura the ability to carry out its
constitutional task of the supervision of exact compliance
with the laws by all the ministiries and institutions
subordinated to them, as well as by officials and citizens
of the USSR." 2
The Constitution
of the laws
of the Soviet Union is the source
and procedures, in addition to the Procuracy.
Legislative competence over criminal procedure is split
between the All-Union (Federal) level and the republican
level.
At the All-Union level, some basic propositions
about criminal procedure and safeguards are stated in the
Constitution including: "participation in court of the
people's assessors" (lay judges who serve with a professional
judge)j "invioability of the person and the dwelling;
secrecy of correspondence; equal treatment of all citizens
regardless of sex, nationality, or race;
independence
of judges; right of defense; supervision of legality by
the Procuracy; and conduct of judicial proceedings in the
local language, with provision of an interpreter for those
3
not knowing the language."^
These propositions are furthered
by the Principles of Criminal Procedure of the USSR and
Union Republics, enacted by the Supreme Soviet of the
USSR (the equivalent of the United States' Congress).
(12)
"These Principles create a uniform system of handling
criminal cases for the entire Soviet Union.
The Principles
require each of the fifteen Union republics to enact
a more comprehensive code of criminal procedure on the
basis of the Principles."
Each of the republics did this
and the latitude available to each republic is evident by
the fact that the Principles contain fifty-four articles,
each of the republics* codes contain a much greater number,
up to four hundred or so.
However, if a norm or rule in
one republic be found to be at variance with something in
the Principles, then the Principle will prevail.
(It would seem that the citizens of the USSR enjoy
almost unlimited freedom, such as "broad political rights
or liberties: freedom of the press, of association, of
assembly, of demonstration,""^
succinct criminal code.
in addition to thier
It must be remembered also, that
"everything is prohibited that goes against the interests
of the people of socialism,"^
so all of the basic propos-
itions and safeguards mentioned earlier are automatically off
if someone or their acts are in variance with the state's
interests, (similar to national defense in the United States?)),
The Principles are made up of six chapters.
has certain general provisions
The first
and the other five regulate
the rights and duties of participants in the criminal
process, pre-trial investigation, trial procedure, appellate
procedure, and execution of judgments.
(24)
0C00128
In the first chapter, "basic propostions about criminal
procedure are given.
Some of these propostions are drawn
from the Constitution for further explanation.
This
chapter states the task of the criminal process as,
"the swift and full detection of crimes, exposure of the
guilty, and proper application of the law so that every
person who has committed a crime shall be subjected to just
punishment and so that no innocent person should be
brought to trial or convicted.
The Criminal process
is to strengthen socialist legality to deter and eradicate
crime, and to educate citizens in a spirit of fulfillment
of Soviet Laws and respect for the rules of socialist
. .
7
communal living."'
The propositions within the first chapter leave no
discretion to the court, the procurator, the investigator,
or the agency of inquiry when there is evidence of a crime,
they must proceed with their duties.
The person charged
with a crime must be presented with the accusation through
the methods prescribed, or he shall be released if the
action has commenced or the action would be quashed if it
had not begun.
According to the first chapter, no person may be
arrested bther than pursuant to a court decree or by
sanction of a procurator.
In fact, any person held
illegally must be released and the procurator must see to it.
Justice can only be administered by a court, and justice
must be equal, regardless of social, financial, or occupa-
tional status, or ethnic background, race, or religion.
In the first instance, all cases are tried by a panel
made up of one professional judge and two people's assessors,
(citizens chosen to serve), all of whom have the same power
and rights as the others.
Appeals and protests are heard
by a three judge professional panel.
In any case, the
judges and assessors are independent and subordinate only
to the law.
"They are to decide cases on the basis of
the law, in accordance with 'socialist legal consciousness*
o
and are not to be influenced by outside sources,"
(no
common law or stare decisis).
During court proceedings, the local language must be
used.
Participants have the right to speak in their own
language and to have an interpreter available.
Evidence
must also be available in the participants language, so
he can make motions and participate fully in the trial.
The trial must be open to the public, unless state secrets
are involved, even then the courts decision must be announced
publicly.
This chapter states that the accused has the right to
defend himself and must be afforded the right to do so.
The court, procurator, and investigator are to look for
all evidence, incriminating as well as exculpating.
No
one can use force, threats, or illegal means to elicit
information from the accused.
During the trial and investigation, the following
(5)
00130
acts must "be shown: "the occurrence of the crime, the
guilt of the accused in commission of the crime, circumstances affecting the degree and character of the accused's
responsibility, the charater and extent of the damage
9
caused by the crime.'"
To do this, any facts may be used
as evidence, including hearsay, since no particular type of
evidence has a predetermined value.
Defense counsel is allowed to be involved in the case
from the moment the accused is informed of the termination
of the investigation, though counsel may be allowed earlier
if the accused is "incapable of looking after his own interests
adequately."
Defense counsel may be a member of a college
of advocates (lawyers) or he may be represented instead
by a representative of his trade union or a representative of
some other organization.
Each republic may establish
instances in which the accused must be represented by
counsel.
In such cases, if the accused does not contact
counsel, the court and the procurator must seek counsel
for the accused.
Counsel has the right to meet with the accused, to
see the evidence, to present evidence and make motions.
With the permission of the investigator, the counsel may
attend the interrogation of the accused and participate in
the actual investigation of the alleged crime.
All of
this is covered more fully in the second chapter of the
Principles which "states the rights and duties of the accused
(6)
131
defense counsel, victim, civil plaintiff, and civil
defendant, and provides that the court, procurator,
investigator, and person conducting the inquiry must explain
to these persons their rights and must afford them the
opportunity to take advantage of them.
The accused is
granted the right to know the charges against him, to
give explanations in his own behalf, to presenet evidence,
to make motions, to acquaint himself with all the materials
of the case upon termination of the investigation, to have
defense counsel, to take part in the trial, to make challenges
at trial, to appeal the actions and decisions of the investigator, procurator, and court, and to say the 'last'
11
word at trial."
In the third chapter of the Principles, pre-trial
proceedings are regulated.
The principles require a
preliminary investigation by the police, a procuratoral
investigator, a state security agency, or the ministry of
Internal Affairs, for serious crimes— those against the
state, the military, or any other specified crime.
In
most other cases, an inquiry by the police is held where
a preliminary investigation is felt unnecessary.
A suspect may be detained in any of four instances:
"1) when a person is caught in the act of committing a
crime or immediately thereafter; 2) when witnesses indicate
the person as having committed a crime; 3) when traces of
a crime are found on the suspect's person or in his abode;
or k) when other circumstances indicate that the suspect
has committed a crime and when, in addition, he attempts
to escape or has no permanent residence, or when his
12
identity cannot be determined."
Even then, a procurator
must be notified of the detention within twenty-four hours.
Then within forty-eight hours of such notification, the
procurator must either sanction the detention or set the
person free.
While awaiting trial, the suspect may or
may not be free, though normally he may not be held more
than two months pending trial, (this time can be longer if
the case is complex and a higher procurator extends the
time.)
A search of the person or his dwelling may be made
only with the decree of an inquiry agency or an investigator and with the consent of the procurator.
If a search
cannot be delayed for some immediate reason, the procurator's
consent is not needed, though he must be notified within
twenty-four hours.
In the fourth chapter of the Principles, is found the
method of regulating proceedings at trial.
The judge is
the one who decides if a case goes to trial, unless he
disagrees with the procurator's decision to indict.
At that point, the matter would go to an administrative
session of the court, made up of the judge and thetwo
peoples assessors, where the decision to go to trial or
to terminate proceedings would be made.
The fifth chapter of the Principles covers the appellate
(8)
process.
There are two types of appeals, as follows:
cassational appeals by the defendant and cassational protests
by the procurator, similar to appeals in the United States,
If the time for appeal or protest has expired, then the
case may still be reviewed by a higher court on the
protest of certain high-ranking judges and procurators.
The last chapter of the Principles deals with the
entry of a judgment into force and its execution.
13
The principle itself and current writings ^ provides
that a judgment enters into force only after the time for
appeal or protest has expired or, after consideration of
the appeal or protest, if filed.
With this out of the way, a look at how the action
occurs is in order.
First, a note that in the Soviet Union
the victim of the offence may, and often does, bring a
civil claim for damages, so there is a civil side to the
proceedings which may confuse the trial.
Secnnd, note
that 'Soviet criminal procedure has four main stages:
those of inquiry, preliminary investigation, administrative
session and trial."
Inquiry
"When an offense is reported or suspected, the
first stage is usually an inquiry conducted by an agency
15
of inquiry."
The police are the main agency, though
others may have standing to inquire, especially in cases
(15)
134
of offenses against the state.
These others may include
fire department officials, frontier guards, governors of
prisons and labor camps, boat captains, and heads of
Artie outposts.
No matter who the inquiry agency is, it
has the same duties in each situation, such as, "inspecting
the scene of the crime, organizing searches, preserving
16
evidence, and detaining a suspect."
The agency must
decide whether to start a criminal case within three days
of notification of the the offense.
In minor cases, the
agency gives the case directly to the court, while in
most cases, the inquiry is followed by a preliminary investigation.
Arrest
Without the procurator's permission, no one may be
arrested, though they may be detained by the agency.
This concept is very important to the Soviets and that
fact is shown by the presence of this rule in the Constitution.
The suspect may be kept in custody before trial only
in a case which could result in the suspect's loss of
liberty.
allowed.)
(Bail is technically available, but is seldom
"Only in very exceptional circumstances may a
person be detained without a charge having been made against
17
him, and then for not more than ten days."
Preliminary Investigation
(10)
00135
This usually "begins with the charge being read to
the accused by either the police or an investigator
connected with the procurator's office.
The accused is
questioned as to his guilt and as to whether he wishes
to make a statement.
If he makes a statement, he will
be questioned on the contents of his statement.
The
investigator cannot use threats or force to secure a
confession and must seek all facts relevant to the case,
both against and for the accused.
This is required by
law.
The accused may remain silent and may have a lawyer
though at this stage he is not entitled to one by right.
(This issue of right to counsel is widely debated within
the Soviet Union.)
The accused may question any witnesses
who have been called by the investigator.
If the investi-
gator refuses any of the requests of the accused, he must
be prepared to give adequate reasons in writing.
The preliminary investigation must be completed
within two months, though as mentioned previously, it
can be extended in certain cases, but for no longer than
18
nine months.
Theoretically, the preliminary investiga-
tion could be extended beyond that, but the accused would
have to be released from custody.
If the investigator decides that there is no case
against the accused, he is discharged.
Otherwise, the
investigator will allow other participants to examine the
(11)
case file, and any of them may ask for further investigation.
Finally, the accused is allowed to examine the entire
file and is at this point, entitled to counsel, which must
be available.
The accused can request further inquires
and they must be made or adequate reason given for refusal.
With permission of the procurator, the investigator
may place the accused into 'collective probation', under
supervision by some group or organization for the purpose
19
of re-education.
7
This would end the case. The investiga-
tor could also refer the case to a Comrades' Court, to
be discussed later.
Indictment
After the indictment is received by the court, the
professional judge decides whether it should be certified
for trial.
If he feels it should not go to trial, then the
case goes to an administrative session of the judge and
the two peoples assessors, who jointly decide whether a
trial is warranted.
The session may quash the case,
remand it for further investigation, or certify it for
trial.
If trial is certified, the accused must get a
copy of the indictment and all evidence at least three
days prior to the trial.
Trial
Trial is in an open court, unless it involves state
(12)
secrets.
The procurator usually prosecutes, though a
union or other official may.
The accused may have counsel,
a relative, or an offical to represent him.
If he has not
retained counsel, one will he appointed for him.
The accused is first asked if he has any objection
to the makeup of the court.
Any judge or assessor may
be disqualified if he has any interest in the outcome of
the trial.
The judge or assessors may be challenged by
any party to the case, before or during the trial.
If
the person challenged denies the accusation, the other
two members of the court decide the outcome.
If the court
were unchallenged when it could have been, then it is still
illegally constituted and its decision would be quashed
regardless of its merits, on appeal or review.
(In Soviet Law, even if the accused admits to the
indictment, he cannot be convicted without evidence to
corroborate his admission.)
Witnesses are called in an order agreeable to all
parties.
Witnesses are considered only as witnesses, not
as for one side or the other.
to assist the court.
Their purpose is merely
Each is asked some introductory
materials, such as name and address.
Then each is asked
to make his statement about the matter before the court.
While the witness makes his statement, he cannot be
questioned, though he can be questioned by the court or
any party, afterwards.
Questinning continues until no one
(13)
has further questions.
Regarding the accused, he is not required to testify
and such may not "be viewed as an admission of guilt.
If
he does decide to testify, he cannot be criminally liable
for perjury.
The accused, unlike other witnesses, is not
limited in his testimony.
He may give arguments, explanations,
and hypotheses to be considered by the court.
After all the evidence has been given to the court,
all parties are asked if they feel there is any further
things that should be brought out.
If not the prosecutor
closes, followed by the accused's counsel.
Either side
may reply to anything said by the other, but the accused
must always have the last word.
In fact, after all of the
closing speeches, the accused is entitled to make a speech
of his own to the court.
Up to and including the time at which the judges
retire to consider the decision of the case, the entire
matter can be sent back to the procurator for more investigation.
If not, then the judge and the assesors
decide based on only the evidence given in court, what to
do with each case.
Dissenting opinions are allowed, but
are made part of the record only, and are not publicized.
LEGISLATION
The current rules and laws of criminal procedure
in the Soviet Union were enacted in response to what was
(14)
00139
as excesses "by Stalin.
Now, as a whole, the criminal law
and rules of procedure of the Soviet Union are the sum
total of the laws and rules of the USSR at a federal level
and the laws and rules of each of the fifteen republics.
Most of the rules regulating crime are within the
individual competence of legislatures of each republic.
While the USSR Code of Criminal Procedure contains less
than one hundred articles, that of Kazakhstan, for instance,
20
contains over 400 articles.
The USSR laws and rules
form the foundation of the codes of each republic in
order to provide easier use and application of their laws.
All of this is not to say that these rules and laws
are set in stone.
Soviet legal practice has shown that
all legal rules are not of equal worth.
Some have been
replace by new ones, while others have been reworded for
greater clarity and precision.
But these are facelifts
only, for the fundamental premise is still solid and no
basic changes have been necessary.
Improved rules of criminal law show the clear preference of Soviet legislators for measures of persuasion of
violators, through public and administrative pressure,
rather than coercion.
"The new Constitution of the USSR
adopted in October 1977.
marked a new stage in the develop21
ment of Soviet Law."
"The Constitution formulates
principles regulating the relations between the state and
the individual, it broadens the practical meaning of rights
(15)
00140
and freedoms and strengthens the safeguards for exercising
them.
It has also given constitutional force to the new
social, economic and political rights and freedoms of Soviet
22
citizens."
Through Article 57 of the Constitution, all
Soviet state todies, all public organizations and officials
must have respect for the individual and must protect
the rights and freedoms of the citizens.
This is considered
2'
as one of the ten cardinal principles of Soviet internal life. The Soviet Constitution emphasizes the allegiance of the
Soviet state to the principles and ideas of the United
Nations Charter, the Declaration of Human Rights, the International Covenants on Human Rights, and the Final Act of
the Helsinki Conference on Security and Co-operation in
24
Europe.
Indeed, the Soviet Constitution entails all
the freedoms of the United States Constitution and then
some.
INVESTIGATION AND TRIAL
One of the most important roles in criminal law,
including the investigation of crimes, is played by the
agencies of the procurator's office-state bodies vested
with the supreme poweres of supervising the precise and
uniform observance of the law by all government departments,
organizations, industrial enterprises and officials, and
by all Soviet citizens.
All agencies of the procurators
office locally or at the republic level are subordinate
(24)
0C00141
to the Procurator General of the USSR, who is appointed
by the Supreme Soviet for a five year term.
(At present,
the Procurator General of the USSR is Alexander Mikhailovich
Rekunkov.)
He appoints the procurators of the union
republics, autonomous republics, territories, regions,
and autonomous regions for similar five year terms.
He
does also confirm the apointments made by the procurators
of the union republics to posts as procurators of autonomous
areas, districts, and cities.
All of these procurators and their agencies are
independent of local government bodies and officials.
They
are subordinate only to the Procurator General of the USSR.
The decisions of each procurator are binding on all, from
corporate type entities to people.
The procurator supervises
the observance of the law at all stages in the administration
of justice.
He assures that the laws regulating the practices
of the investigator are closely complied with.
The procurator
carries out recent Soviet
legislation which has tended to curtail the use of arrest
as a preventative measure.
Measures to secure the appear-
ance of the accused (such as recognizance, guaranty of
defendant's appearance with criminal responsibility for
non appearance as given by a public organization, bail and
detention) can be used only if there is sufficient evidence
to show that the accused might try to avoid an inquiry,
25
investigation or trial.
(12)
The role of the procurator in overseeing the entire
matter through its trip through the criminal system is
important.
"It embodies Lenin's principles with respect
to the role of supervisory oversight in guaranteeing
26
legality."
That is to say, it works no matter who or
what is being investigated or tried.
Further, it is
important to note that, "The party holds rigorously to
account, Communist
27 procurators who do not perform Party
and State duty." '
This is to point out that the party
routinely monitors all procurators.
After the procurator has overseen the investigation
and if he has certified the case to the court, then the
court takes over.
It is not bound to follow the advice of
the procurator or the investigator.
The court does not
regard as proven at all, the things revealed in the course
of the investigation.
It views all of this as merely
charging the person.
"No one may be judged guilty of a crime, or subjected
to punishment as a criminal except by the sentence of a
court and in conformity with the law," reads Article 160 of
the Soviet Constitution.
This formulation of the presumption
of innocence based on Article 160 is contained in point 2
of the decree of the full bench of the USSR Supreme Soviet
of June 1 6 , 1 9 7 8 , which read: "An accused is regarded as
innocent until his guilt has been proved by the procedure
28
provided by law and a verdict has entered into legal force."
(18)
00143
These statements epitomize the skepticism inherent in the
court towards the evidence offered by the procurator.
Just as the courts must look at all evidence whether
incriminating or exculpating, it must also look askance
at each bit of evidence.
Such is what the Supreme Court of the USSR obliges the
Soviet courts to do; that is to render a judgment of conviction only on the basis of reliable and exhaustive
proof, when all the possibilities in the case, and all the
contradictions that have arisen in the course of the trial
29
have been clarified and balanced against uncontestable facts.
"All the unresolved doubts as to the soundness of the charges
preferred by the accusing 30
party are to be interpreted in
favour of the defendant."
The procurator must prove his
case, the defendant does not have to prove his innocence.
If this rule is violated, those who violate it are themselves
subject to prosecution.
THE JUDICIARY
The Soviet Judiciary is made up of the Supreme Court
of the USSR, the Supreme Courts of the union and autonomous
republics, territorial, regional and city courts, the courts
of autonomous regions and areas, and district (city)
people's courts, and military tribunals in the armed forces.
The Supreme Court of the USSR and the military tribunals
deliver opinions or judgments in the name of the USSR while
(19)
mm
all other courts render judgments in the name of the union
republic that they represent.
The highest judical body of a union republic is its
own Supreme Court.
The highest court of the entire country
is the Supreme Court of the USSR.
the USSR has many functions.
The Supreme Court of
It tries cases of great
importance as a court of first instance, it reviews judgments
in the exercise Of its supervisory powers, sentences and
decisions of lower Supreme Courts; it submits proposals
to the Supreme Soviet on laws.
Most importantly, the
Supreme Court provides guidelines on questions arising in
judicial practice.
The basic unit of the Soviet judicial system is the
people's court, which works in every district and city
which is not divided into districts.
These courts try 99.9
per cent of civil cases and more than 97 per cent of
31
criminal cases.
These courts consist of a judge, called
a people's judge, and two peoples* assesors, who, unlike the
jury familiar to Western courts, have equal rights with the
judge.
All of the people's judges are elected by citizens
of their respective districts by secret ballot for a term
of five years.
"One quarter of the 9,230 people's judges
working at present have been elected for the first time;
one out of every three of them is a woman and almost one
half are persons who are not members of the Communist Party
(20)
00145
of the USSR." 32
The people's assessors are elected at meetings of
citizens at their workplace or residence hy open "ballot,
for a term of two and a half years.
"In 1979, about 720,000
men and women-about half of them for the first time-were
elected people's assessors of district (city) courts.
Fifty-three point six percent were women and 53
per cent
33
were persons who were not members of the Communist Party."
Higher judges are elected by central and local
government organs, such as the Soviets of People's Deputies,
for a term of five years.
Members of the Supreme Court of
the USSR are elected by the USSR Supreme Soviet.
"In its
present composition the Supreme Court of the USSR was elected
in April 1979.
It consists of a Chairman of the Supreme
Court, two Vice Chairman, 19 members and 45 people's
assessors.
The Chairmen of the Supreme Courts of the union
republics are ex officio members of the Supreme Court of
the USSR."32*
(Since I972, the Chairman of the Supreme Court has been
Lev Nikolayevich Smirnov.
Prior to this he was Chairman of
the Supreme Court of the Russian Federation.
All judges
of the Supreme Court have a long history of service to
the USSR through various judicial bodies.)
(21)
00146
THE RULE OF LAW, THE BASIS OF JUSTICE
One of the most important principles of Soviet justice
is the equality of citizens before the law and the court.
This is well set out in the laws of each republic as well
as the Constitution (Article 156).
The equality of Soviet
citizens in all spheres of economic, political, social and
cultural life ensures the equality of citizens before the
court.
The law is the only decision making criterion for the
courts.
It is important that neither the court, nor anyone
else, should have the right to act on their personal evaluation of the law.
be strictly applied.
As long as the law is in force, it must
It is the solemn duty of the judges
and people's assessors to apply the law.
The judges and people's assessors are shielded from
pressure by the secrecy of conference of judges.
This
means that in the conference room where the case is discussed
and judgment given, there must be not people present
other than the judge and the people's assessors.
The
election of the judges and the people's assessors also
reduces the pressures availabale to move them, since they
are answerable only to the electorate.
The main concern for implementing the principle of
independence and ensuring legality rests with the judges
themselves.
"It is precisely for this reason that con-
stituents, in electing judges and people's assessors to this
(22)
147
high office, pay so much attention not only to their competence and experience hut also to their moral integrity
and honesty, as well as to such qualities as their ability
to take independent decisions, to be consistent and fair
36
in their judgments and to stand their ground when necessary."^
THE RIGHT TO DEFENSE
A special place is held by the constitutional right of
the accused to legal defense.
This Constitutional right
follows the accused throughout all stages of his case.
It is rooted in the presumption of innocence.
An accused
person is not yet a guilty person and he must not be regarded
as a criminal.
This right allows the accused to defend himself,
through the use of all legal facilities, with or without
the help of a lawyer.
This right obliges the procurator,
investigator, and the court to explain to the accused, his
rights and to ensure that he can use these rights.
For
this reason, the Constitution of the USSR and other pieces
of legislation refer not only to the right of the accused to
defense but also to the question of enforcement of this
right.
From the moment that he is charged, the accused is
entitled to the right of defense.
He must be told what is
the accusation and that he must answer only those questions
that have a direct bearing on that matter.
(23)
01)148
At the end of
the preliminary investigation, the accused can see his file
and copy out facts he wants, and the investigator must
provide him with the full evidence in the case.
Within three days, the accused must get a copy of the
indictment.
This document sums up the evidence gathered
in the course of the preliminary investigation and formulates
the charge.
It is read out in public at the start of the
trial and defines the limits of the court proceedings.
Defense at the trial is provided by lawyers, who
are members of the colleges of lawyers (bars), which are
voluntary public organizations giving legal assistance to
organizations and individuals.
Retaining a lawyer is
economically reasonable for any Soviet citizen.
(For
example, the fee charged for the conduct of a criminal
case in a court of first instance is up to 20 roubles,
with 1 rouble equal to 1.5 dollars in Novemeber, 1980.
The charge for an appeal in the same case
could be up to
32 roubles, if it lasted only one day, with 12 roubles a
37
day added for each day thereafter.) '
In some cases legal assistance is free.
These cases
would include alimony cases, labour disputes, workmen's
compensation, unsafe workplaces .
Free assistance is
also given to servicemen on active duty, women who
are heroines of the State.
The presidium of the bar of
lawyers or the head of a legal consultation office can
release him from payment, in view of his property status
(24)
0C149
(that of the applicant).
(Soviet law also grants the accused the right to counsel
on his first appeal.)
EFFECT OF THE TRIAL
The truth as established by the decisions of the courts
are only one aspect of the Soviet criminal procedure.
Another is the moral and educational effect on the accused.
The law requires the court to foster respect for the law
in the people.
The judges meet their electors every day
and the electors see how well they chose.
This helps to
promote legal awareness among citizens and educates them.
Greater than that is the fact that the court proceedings
show all citizens that all are equal before the law.
Citizens
are impressed when they see that the presumption of innocence
is more than mere words, when they see the accused exercise
his rights, and when they see justice triumph as the
sentence is read in court.
Of course, this educational impact can only be achieved by the court scrupulously observing all the rules of
law, including the rules of procedure, and by respect
being shown for all those taking part in the trial.
Visiting sessions, where court comes to the workplace to
sit, are especially great since all are in front of their
colleagues.
If they see that the judges are conducting
a fair and unbiased trial and that they are active and
27
(15)
expert at their job and unyielding to any outside influence
than the trial they are witnessing can be of the utmost
moral and educational value.^
This remains true, no
matter what the outcome of the trial.
CRIMINAL PENALTIES
The main penalties of the Criminal Code of the USSR
are: deprivation of liberty, exile and banishment from
certain cities and regions, and correctional labor without
deprivation of liberty.
Deprivation of liberty (imprisonment) is one of the
most severe forms of punishment.
It consists of forcibly
isolating the offender from society for a term prescribed
in the sentence of the court and in making efforts to
reform and re-educate him.
Deprivation of liberty is pre-
scribed for terms ranging from three months to ten years
for especially grave crimes, or for crimes that have
grievous consequences.
Terms of up to fifteen years'
deprivation are prescribed for crimes commtted by dangerous
recidivists.
Exile and banishment form certain cities and regions
consists of the removal of the convicted person from his
place of residence, with settlement somewhere else.
Banishment from certain cities and regions consists of the
removal of the convicted person from
his place of residence
with a ban on residence in specified localities.
(15)
00151
The terms
of exile and banishment from specified localities cannot
exceed five years.
Both are imposed to keep the convicted
person away from the seen of his crime.
These forms of
punishment cannot he used on person under eighteen,
pregnant women, women with children undwr eight.
Correctional labor without deprivation of liberty is
the most often used penalty.
It is prescribed in more
than fifty percent of the articles of the various criminal
39
codes.
y
It is imposed on persons for crimes which do
not pose a serious danger to society and on those who
can be reformed without isolation.
It can be assigned for
terms ranging from one month to one year, with part of
the offenders earnings (up to twenty percent) given to
the state.
The convicted person cannot have his regular
vacation and his time in punishment is not figured for
seniority.
Finally, there is the possibility of a fine.
The
amount of the fine is set by law and depends on the nature
of the crime, and how the offender feels about it now.
Soviet law has recently tended to add other options
to the list of punishments.
"In a decree of February 8,
1977, the Presidium of the USSR Supreme Soviet established
a rule whereby a person guilty of lesser crime which does
not constitute a great danger to society, may be absolved
of criminal responsibility, if it is found that he can be
reformed and re-educated without a punitive measure being
(27)
00152
imposed on him.
In such an instance . . . one of the
following decisions may be taken:
1. To take administrative action against the guilty
person;
2. To pass the material in the case to the local
comrades' court for consideration;
3. To pass the material in the case to the local
Commission for the Affairs of Minors; or
To let the organization or the work collective
from which the guilty person comes assume responsibility for him.
For the first time the procedure of absolving a person of
criminal responsibility and allowing work collectives to
assume responsibility for him, or allowing a comrades' court
40
to take up the case, has been given legal expression."
ADMINISTRATIVE PRESSURE INSTEAD OF PUNISHMENT
Administrative action is often recommended to the
court after the preliminary investigation.
The people's
judge studies this recommendatinn to see if the law
contains a rule relating to the offense in question, then
hears what the accused person has to say, interrogates
witnesses, and examines facts in evidence.
If the judge
finds that the proceedings have been discontinued on good
grounds, he may resort to one of the following administrative
penalties: a fine of up to 50 roubles, correctinnal labor
at the offender's place of work for a term of rom one to
two months which consists in the deduction of up to 20
percent of his pay, or arrest for up to fifteen days.
Most frequently used, is the fine, with the labor used
(28)
the least.
A decree adopted by the Supreme Court of the
USSR on September 7, 1978. recommends that arrest not be
used on offenders who can be reformed and re-educated
by the
imposition of fines or by the imposition of a
term of correctional labor at the place of work.
The decision to use administrative measures may be
appealed against.
If appeal is taken, it must be filed
within seven days, it will then be examined at a higher
court.
COMRADES' COURTS AND COLLECTIVE RESPONSIBILITY
A comrades' court is not a court in the traditional
sense of the word, it is not a state body.
It is freely
chosen body of public representatives, which performs no
legal functions.
It cannot find a person guilty or inno-
cent nor can it impose any punitive measure on him.
The Comrades' courts are elected by general meetings at
fatories, institutions, farms, schools, or by meetings
kl
of residents of a district, for a term of two years.
At present there are more than 200,000 comrades'
courts in the Soviet Union.
Each operates according to
the regulations endorsed by the Presidiums of their republic,
as regards their powers, rights and obligations, the procedure for the examination of cases, the pressure that they
can apply, the procedure of appealing their decisions,
(29)
and other questions.
These regulations ensure the lawful
nature of the activities of these public bodies, protect
citizens from unwarranted interference in their private life,
and give the bodies a legal basis for doing their jobs.
The main idea behind the concept of the comrades'
courts is the prevention of law-breaking and education of
people by persuasion and community influence.
The court
has the trust of those who elected it and is answerable to
those same people.
The courts deal with people who have
violated some local more.
The idea is to deal with such
offenders before they commit an act that would be dangerous
and would incur criminal responsibility.
Comrades' courts can take up cases involving the work
place, the home, parties, in addition to minor violations
of the law.
The dismissal of a minor criminal case and
its transfer to a comrades* court is allowed if the crime
in question does not pose a great social danger and if the
guilty person may be expected to reform without criminal
proceedings being instituted against him.
Such rules
vary from one union republic to another.
A person may be absolved of criminal responsibility
and have his case transferred to a comrades' court only
with the permission of the procurator or the court after
completion of the investigation or inquiry.
If the case
is transfered, the person can have no criminal penalty
imposed against him.
That is not to say, that the offender gets off lightly.
Trial hy a oonrades' court is painful, because he has to
face people
time.
with whom he has worked or lived for a long
The offender feels that his actions have brought him
into conflict with the law and his entire collective.
The case is tried in public, with at least three
members of the court present.
If the court finds that the
person is guilty, it can apply a measure of public censure
or re-education.
It can force the the accused to publicly
apologize to the victim or the collective, any of this without
notice to the local press.
The decision of the court may be appealed to the
relevant representative group that elected the court.
It may be affirmed, quashed, or remanded for
retrial.
In day to day activities, the comrades' courts seek
to inform the people
of the essence of legal rules and
moral standards and to tell
of their efforts to avoid
possible conflicts.
Collective responsibility goes back to Lenin's early
days,
"if instead of going to jail for thieving, a worker
is let to stay at his factory with other workers accepting
joint responsibility for him, his very presence in full
view of all honest folk will produce much better results
than an investigation and trial can hope to achieve.
The
atmosphere of a work collective can reform weak members,
(15)
156
42
the comrades with a lesser degree of social awareness..."
A person cannot he released to collective responsibility
if he has not pleaded guilty or if he insists on trial.
Before a person can be released to his collective, it must
file an application to have him so released,
If the application is granted, the collective must
take action to reform and re-educate the offender.
He
must be active and show good results and take part in the
cultural and social life of the collective.
If the offender
does not respond, he will find himself back in the courts
for trial ana prosecution.
SUMMARY
The Soviet Union has some unique ideas in its approach
to criminal procedure.
On paper they sound quite good,
but no matter how objective I may try to be, my upbringing
in the United States makes me skeptical of the realities
of the day to day operation of the system.
Of course,
I can see the exceptions operating in both the Soviet
and American systems, for example, the Soviets might say
something is against the law because it is against the
interests of the state, while here we say it is against
the interests of national security.
The Soviets have some ideas that work, and their system
is interesting.
(32)
FOOTNOTES
1.
F.J.M. Feldbrugge, Encyclopedia of Soviet Law, at 548.
2.
Id. at 5^6.
3.
Id. at 195-
4.
Id.
5.
B.A. Ramundo, The Soviet Legal System-A Primer, at vi .
6.
Id.
7.
See note 3 supra.
8.
Id. at I 9 6 .
9.
Id.
10.
Id. at 197.
11.
Id.
12.
Id. at I 9 8 .
13.
Lihus, The Presumption of Innocence and Termination
of Proceedings in Criminal Cases, Soviet Law and
Government, Summer 1982, at
, —
—
14.
E.L. Johnson, An Introduction to the Soviet Legal
- " gysrtwr a^t ft?.
=
=
15.
Id.
16.
Id.
17.
Id. at 1 1 8 .
18.
Id. at 119.
19.
Id.
20.
Kj. Sheinin, Crime Prevention and Law, at 11.
21. T&. at 13.
22.
Id.
23.
Id.
24.
Id. at 14.
25.
Id. at 17.
35
Novikov, The Law of the Procuracy of the USSR, Soviet
Law and Government, Fall 1981, at 34.
-
27.
Id.
28.
See note 13 supra
29.
See note 20 supra
30.
Id.
31.
Id.
at 23.
32.
Id.
at 24.
33.
Id.
34,
Id.
35.
Id.
at 31.
36.
Id.
at 34.
37-
Id.
at 38.
CO
Id.
at 43.
39.
Id.
at 51.
40.
Id.
at 54-55.
41.
Id.
at 6 0 .
42.
Id.
at 64.
•
26.
at 47.
0 0 1 5 9
BIBLIOGRAPHY
ARTICLES
Libus, I.A., "The Presumption of Innocence and Termination of Proceedings
in Criminal Cases," Soviet Law and Government, Summer 1982, pp. 34-48.
Novikov, S . G . , "The Law of the Procuracy of the USSR," Soviet Law and
Government, Fall 1981, pp. 50-67.
BOOKS
Feldbrugge, F.J.M., Encyclopedia of Soviet L a w , Oceana Publications,
Dobbs-Ferry, N . Y . , 1973.
Gunther, J . , Inside Russia T o d a y , Pyramid Books, New Y o r k , 1962.
Johnson, E.L., An Introduction to trie Soviet Legal S y s t e m , Methuen and
C o . , London, 1969.
Ramundo, B . A . , The Soviet Legal System- A Primer, ABA Press, 1971.
Sheinin, K . , Crime Prevention and L a w , Novosti Press Agency Publishing
H o u s e , Moscow, 1981.
van den Heuvel , C.C., Soviet Perceptions of East-West Relationships,
ABA Press, 1977.
TELEPHONE CALLS
Embassy of tne Union of Soviet Socialist Republics, Washington, D.C.,
July 5 , 1 3 , 1 4 , 1983. (Not very helpful people.)
Permanent Mission of the Union of Soviet Socialist Republics to the
United Nations, New York City, New Y o r k , July 1 3 , 1983. (Great
people, very nelpful and they speak good English.)