V. TEREBILOV
__TITLE__ THE SOVIET COURT __TEXTFILE_BORN__ 2007-07-13T12:56:44-0700 __TRANSMARKUP__ "Y. Sverdlov"PROGRESS PUBLISHERS • MOSCOW
[1] __TRANSL__ Translated from the Russian by Murad SAIFULIN __DESIGNER__ Designed by Sofia GANNUSHKINAB. Tepe6HJioB COBETCKHH
Ha astute
__COPYRIGHT__ First printing 1973The first legislative enactments promulgated by the Soviet government of Russia in October-November 1917 were Decrees, transferring all power to the workers and peasants, nationalising the land together with its mineral resources, the forests, waters and large enterprises, the transport facilities and the banks of tsarist Russia, and turning them into state property, or property owned by the whole people. At the same time, the government issued decrees repealing the social estates and proclaiming the equality of nations, the separation of the church from the state, the equality of women, and so on.
The new socialist state needed a new law and order. The old tsarist state machine, naturally, could not be used for this purpose; it had, therefore, to be dismantled and replaced by a state apparatus built on entirely new principles.
Together with the other state institutions of tsarist Russia the people abolished the old courts that protected the interests of the ruling classes. The abolition of the old courts gave many lawyers and politicians in the West a pretext for accusing the new Russia of establishing a kind of ``legal vacuum" following the victory of the October 1917 Revolution. The history of the Soviet courts has amply refuted this kind of nonsense. True enough, the old judicial machinery was completely abolished, but this was done in order to replace it by a new judicial apparatus capable of fulfilling the purposes and tasks of the worker and peasant state.
The theoreticians of socialism have never denied the necessity for strict and consistent legal regulation of all aspects 5 of political life. On the contrary, they have emphasised that the socialist state can function only on condition that there is perfect legislation and that the laws are observed by all officials and ordinary citizens, and by all organisations and institutions.
Apart from other administrative and legal institutions, these tasks should also be implemented in a socialist state by simple, democratic and truly popular courts of law. In a letter addressed to August Bebel in 1884, Engels wrote: ``It is in the nature of all parties or classes which have come to power through revolution to demand that the new legality created by the revolution should be unconditionally recognised and regarded as holy.''^^1^^
Lenin, the founder of the Soviet state, elaborating upon this provision, regarded socialist legality as one of the fundamental principles of the socialist state and in this context wrote: ``...Instructions of the Soviet government must be faithfully observed, and care must be taken that they are obeyed by all.''^^2^^
It is common knowledge that the state emerged at a specific stage of social development, when private ownership split society into classes. Together with the state there emerged law, consolidating the order favourable to the ruling class. To sustain this order, the ruling class created organs for the enforcement of legal rules. These organs doubtlessly included the courts, for as Lenin wrote, law ``is nothing without an apparatus capable of enforcing the observance of the rules of law".^^3^^
And in fact in the history of society there has never been a state without courts. Moreover, the courts in all exploiting societies have always served the purpose of oppressing the working people. Like the entire state machine of such societies, the courts serve the interests of the ruling class, propping up the pillars of this society, protecting the political rights and privileges of this class: in slave societies the courts defended the interests of slave-holders, in feudal societies---the interests of the feudal lords and in capitalist societies---the interests of the capitalists.
_-_-_~^^1^^ K. Marx and F. Engels, Selected Correspondence, N.Y., 1936, p. 427.
~^^2^^ V. I. Lenin, Collected Works, Vol. 29, p. 555.
~^^3^^ Ibid., Vol. 25, p. 471.
6Bourgeois lawyers, philosophers and political leaders have always tried to convince public opinion that the courts stand ``above class" and reflect the ``interests of the whole nation''. They maintain that the courts in a bourgeois society are independent of the state, that they defend the rich and the poor alike and that all citizens are equal before the law and the courts. In actual fact the situation is altogether different. In the era of bourgeois-democratic revolutions the bourgeoisie that came to power by ousting the feudal lords proclaimed democratic freedoms and advanced the slogan that ``all people are equal before the law''. ``True, the law is sacred to the bourgeois, for it is his own composition, enacted with his consent, and for his benefit and protection.''^^1^^
The methods and forms of the functioning of the bourgeois court keep changing, but its class essence remains the same. The activity of the courts, especially in developed capitalist countries, seems to be attractive to many people and creates the impression that all citizens are equal in the eyes of the law and the courts. But this is merely an outward impression. The rights provided for by the law in a capitalist state may be used only by those who are able to employ advocates and meet all legal costs. That part of the population which has not sufficient means often lacks legal defence, but not for the reason that the law officially deprives working people of this defence, but for the reason that their economic status prevents them from making use of the constitutional rights. Here is what C. Johnson, a noted US lawyer, wrote on this subject: ``Equality of justice is accepted as a fundamental principle in America... but the principle of equality often vanishes.... Inability to pay court costs and fees and to buy the services of attorneys often separates the rich and the poor by a great gulf.''^^2^^
Of great importance for the capitalist states is the selection of judges to suit vested interests. As a rule, most judges represent the propertied classes or are economically dependent on even wealthier persons who in fact control the election of judges.
As distinct from the bourgeois legal theories, Soviet legal science has never denied or concealed the class character of _-_-_
~^^1^^ K. Marx and F. Engels, On Britain, Moscow, 1962, p. 263.
~^^2^^ C. Johnson, Government in the United States, N.Y., 1956, p. 507.
7 the court. In the original synopsis of his article ``Immediate Tasks of Soviet Government'', Lenin wrote that the proletarian revolution should abolish the old courts, not reform them. ``The October Revolution fulfilled, and successfully fulfilled, this necessary task. In place of the old court, it began to establish new, people's court or, rather, Soviet court, based on the principle of the participation of the working and exploited classes---and only of these classes---in administering the state.''^^1^^In developing this idea, Lenin stressed on many occasions that the task of the court in a socialist state is to combine compulsion and education.
The foregoing enables us to draw the following conclusion: 1) the old court that appeared in capitalist society could not perform its functions in a socialist state and therefore it had to be abolished completely; 2) the socialist state necessarily requires a new court; this court must be formed from amongst working people; 3) the court in a socialist state is called upon to defend its interests and also the personal property and other civil rights protected by the law; 4) the court is needed by the socialist state not only to suppress the resistance of the deposed classes, but also to educate citizens in a spirit of new, socialist relations and in the new rules of the community; 5) the court in a socialist state above all persuades, educates and, when it fails in this, enforces measures of compulsion in accordance with the requirements of the law.
Thus, the socialist state preserves the court and the legal regulation of social relations. Moreover, the court and legal regulation actively promote the progress of socialist society.
The socialist court went through a long and complex process before a sufficiently simple and fully effective judicial system corresponding to the ideas of the socialist state came into being.
__ALPHA_LVL2__ 2. THE FIRST DECREES ON THE COURTSThe first state organ of Soviet justice was the People's Commissariat of Justice, which by the decision of the Second All-Russia Congress of Soviets, dated November 26, 1917, was included in the first Soviet Government.
_-_-_~^^1^^ V. I. Lenin, Collected Works, Vol. 27, p. 217.
8The basic task of this Commissariat was to abolish the pre-revolutionary system of justice and to create a new, Soviet court.
On December 7, 1917, or one month after the successful October Revolution, the Government promulgated a Decree on the Courts (No. 1), which abolished the tsarist judicial system and fixed legislatively the democratic principles governing the organisation of the new courts of law.
Art. 1 of this Decree declared that all the existing judicial institutions of tsarist Russia, such as the district courts, judicial chambers, the Ruling Senate, the military and naval courts and the commercial courts were abolished and replaced by local courts formed on the principle of democratic election. This Decree repealed such institutions as the court investigators, the procurator's office, the jury system and the private bar.
Henceforward the local judges were to be elected by direct democratic procedures. But before such elections were held, the judges were to be elected by district, town and provincial Soviets of Workers', Soldiers' and Peasants' Deputies. Conferences of local judges were to be convened to discharge the function of cassation with respect to local courts.
According to the Decree, preliminary investigation into criminal cases was to be conducted by local judges until such time as the judicial proceedings were entirely reformed. Personal rulings made by these judges to detain and arraign persons were to be endorsed by decision of the entire panel of the local court.
All persons with a good reputation and enjoying civil rights were to be permitted to act as prosecutor and defence counsel both in court and in preliminary investigation.
All court employees were instructed to retain their office and discharge their routine functions under the guidance of officials appointed by local Soviets.
The courts were to pass their decisions on behalf of the Russian Republic, and to be guided in the pronouncement of their judgements by the laws of the deposed governments in so far as they were not repealed by the Revolution, and did not run counter to revolutionary conscience and revolutionary sense of justice. In addition to regular courts, revolutionary tribunals were set up to combat counter-revolution, 9 pillage, misappropriation, sabotage and other abuses by merchants, industrialists and civil servants. The tribunal consisted of a chairman and six assessors elected by provincial or town Soviets of Workers', Soldiers' and Peasants' Deputies.
The Soviets set up investigation commissions to conduct preliminary investigations.
This Decree did more than abolish the old judiciary, it laid the new, democratic foundations of the Soviet court: the election of judges, the participation of people's assessors in court proceedings, public examination of cases and guarantees of the right to legal defence.
Over 55 years' existence of the Soviet state many changes have been introduced into the administration of justice, changes affecting not only certain legal institutions but also many organisational forms of judicial activity. Nevertheless, the basic principles of the functioning of the courts laid down in Decree No. 1, have remained valid to this day.
It should be noted that this law was elaborated with the direct participation of Lenin, the founder of the Soviet state, who also signed it.
Despite the difficulties involved in the implementation of the Decree, despite the sabotage and abuses on the part of the officials of the old judiciary, new, Soviet courts were set up literally in a few months throughout vast territories of Soviet Russia.
Developing Decree No. 1, the Soviet Government adopted, on March 7, 1918, Decree No. 2. The latter further regulated the work of the people's courts. District people's courts were set up to deal with major cases beyond the jurisdiction of a local court. Trials in all courts were conducted in the local languages. This principle, reflecting as it does the Leninist nationalities policy, is strictly adhered to to this day.
Members of the public could participate in court hearings as prosecutor and defence counsel.
Other provisions of Decree No. 2, such as those guaranteeing open and oral hearings, contests between parties, the defendant's right to legal defence, appeals against verdicts are still in force today.
Decree No. 3, issued on July 20, 1918, further delineated the cognizance of local and district people's courts. The cognizance of local courts was extended considerably. In criminal cases they could mete out penalties depriving people of 10 freedom up to 5 years; in civil cases the maximum sum contested in law suits was raised to 10,000 rubles. The decree stipulated the establishment in Moscow of a provisional Court of Cassation with two departments---civil and criminal---to examine appeals against district court decisions.
The first Soviet Constitution was adopted in July 1918, this being followed by a series of legislative enactments on the judiciary, and on civil and family law.
The Statute of the People's Courts of the RSFSR, passed on November 30, 1918, fully confirmed the principle of conducting judicial proceedings in native languages. It made it the court's duty to abide by the laws of Soviet government alone and where an appropriate law was missing---by socialist legal consciousness. It prohibited the application of the laws adopted by deposed governments.
People's courts functioning on provincial territory were directed by the Council of People's Courts. This Council exercised judicial control over the work of people's courts and at the same time acted as a court of cassation.
The Statute demanded the maximum involvement of the working people in the administration of justice. Nearly all cases were to be heard with the participation of people's assessors. Candidate assessors were to be nominated by general meetings of workers and peasants. Only disenfranchised persons could not be elected.
__ALPHA_LVL2__ 3. THE COURTS DURING THE CIVIL WARThe Soviet courts emerged and developed in a grim situation due to the Civil War and the intervention of 14 imperialist states. Black market profiteers and saboteurs, the scum of the old society, together with the open enemies of Soviet government came to the surface and embarked on a bitter struggle against the new social system. The ordinary courts were supplemented by revolutionary tribunals, organs of the Cheka^^1^^ and militia. All these institutions were created to punish all those who attacked the gains of the October _-_-_
~^^1^^ The All-Russia Extraordinary Commission was set up on December 7, 1917 for the purpose of combating counter-revolution, sabotage and profiteering.---Ed.
11 Revolution and to uphold the interests of the workers and peasants who had received civil rights and freedoms.Acts of terror against Lenin and other prominent Soviet government leaders greatly complicated the situation and necessitated the reconstitution of many government bodies, including courts. The Government was forced to take extraordinary measures to enhance the struggle against violations of revolutionary legality and counter-revolution.
As interventionists were driven out of the greater part of the country and the internal counter-revolution was routed, the Soviet power struck roots in all major industrial and agricultural regions. The main task of the state in the changed circumstances was to restore the war-ravaged national economy. This situation enabled the Government to restrict the sphere of application of extraordinary measures and later to abandon this practice, and thus to return to the normal administration of justice through the system of ordinary courts.
The Cheka was reorganised in February 1922; its functions were curtailed and greater control installed over the observance of legality by its officers. The changed political situation made it possible to eliminate the dual structure of the judiciary. In this context mention should be made of the Decree on Strengthening the Activity of Local Organs of Justice, passed by the All-Russia Central Executive Committee on August 25, 1921. The Decree stated that the establishment of the Soviet power throughout the Russian Federation and the transition to peaceful construction made it essential that the activity of all organs and officials should conform strictly to the laws in force, that the Soviets and the entire population should realise that the implementation of revolutionary law was one of the most essential requirements of the Soviet Republic. In this connection, the Decree said, the local organs of justice must institute proceedings against those who committed crimes and violated laws, their work must be improved and their prestige enhanced.
In spite of the fact that the Civil War was not yet over, the Government paid special attention to the observance of law. The Extraordinary 6th All-Russia Congress of Soviets discussed the question of the strict observance of laws. In its resolution the Congress demanded that all citizens and officials abide strictly by the laws, decisions and orders of 12 the central Soviet government. This demand extended to the courts also.
Lenin, who took part in editing the Congress resolution, repeatedly pointed out that the courts should act strictly within the framework of the law, that they should combat violations of the law not only by punishment, but also by educational measures.
The Civil War and foreign intervention interfered with the task of setting up a single system of people's courts. But even under these conditions measures were taken to improve the system of courts then existing.
This reform was carried over in full in November 1922. Separate decrees, decisions and instructions were replaced by one law---The Statute on the Judiciary of the RSFSR. The reform united all judicial institutions into a single system throughout the Russian Federation.
The people's court became its primary link. It examined most cases on a collegiate basis, with the participation of a people's judge and two assessors. Less important cases were heard by a judge individually. The provincial court was a higher organ. The judicial system was crowned by the Supreme Court of the RSFSR.
According to this Statute, people's judges were elected by the executive committees of the Provincial Soviets for a term of one year; while people's assessors were elected by general meetings of factory and office workers, peasants and servicemen.
Members of provincial courts were elected for a term of one year by the executive committees of provincial Soviets and approved by the People's Commissariat of Justice of the RSFSR.
The Supreme Court of the RSFSR supervised the activities of all the courts of the Republic, examined appeals for cassation of the judgements and decisions of provincial courts, and heard the most important cases (a small quantity) as a court of first instance. Members of the Supreme Court of the Republic were elected by the All-Russia Central Executive Committee.
In addition to the above-mentioned courts the Republic preserved the following: a) military tribunals to hear cases of crimes endangering the Army and the Navy; b) military-transport tribunals to hear cases of crimes relating to 13 transport; c) special sessions of people's courts to hear cases of infringement of the labour laws; d) land commissions to deal with land disputes; e) arbitration commissions to deal with cases of property disputes between state organisations.
An approximately similar system of judicial bodies was set up in other Soviet Republics.
Improvements were also made in the organisation of other legal institutions. On May 26, 1922, the RSFSR adopted the Statute of the Bar and two days later---the Statute on the Supervisory Powers of the Procurator's Office.
Thus, as soon as the situation in the country became normal, the Government carried out the judicial reform, which was a step towards strengthening socialist legality and improving the administration of justice.
__ALPHA_LVL2__ 4. THE JUDICIARY IN THE PRE-WAR PERIODThe Treaty on the Formation of the Union of Soviet Socialist Republics, signed on December 30, 1922, stated that the Central Executive Committee of the USSR should set up the Supreme Court of the USSR with a view to establishing revolutionary legality throughout the territory of the country. The functions of this highest judicial body were regulated in detail by the Statute of the Supreme Court of the USSR, approved by the CEC of the USSR on November 23, 1923.
The Supreme Court was to discharge three main functions: to exercise general supervision over legality, to exercise judicial supervision over the courts, and to act as a court of first instance for a definite category of cases.
By virtue of its function of general supervision (or of its constitutional function, as it was called at that time) it devolved on the Supreme Court to give the courts of the Union Republics guiding interpretations of the Union legislation; to draw conclusions about the constitutional legality of the decisions passed by the CEC, the Governments of the Union Republics and the Government of the USSR; and to make representations to the Presidium of the CEC of the USSR concerning the suspension or repeal of decisions taken by other central organs, should they not conform to the Constitution of the USSR.
The competence of the Supreme Court in the sphere of judicial supervision covered: the examination and submission 14 to the Presidium of the CEC of the USSR of protests against the decisions and judgements of the Supreme Courts of the Union Republics, when they ran counter to Union legislation or affected the interests of other Union Republics; the examination and repeal of judgements, decisions and riders passed by the divisions of the Supreme Court of the USSR and decisions taken by other USSR institutions performing judicial functions (the Supreme Arbitration Commission, etc.), when they ran counter to Union legislation; the examination of representations and submission of such representations to the Presidium of the CEC of the USSR with a view to repealing illegal decisions and orders of the Unified State Political Administration of the USSR;^^1^^ and guidance over the activity of the military courts of the USSR.
The original jurisdiction of the Supreme Court of the USSR included the trying of cases involving the highest government officials, criminal and civil cases of exceptional importance, cases affecting the interests of two or more Union Republics, and the settlement of judicial disputes arising between Union Republics.
In accordance with the Statute, the Supreme Court functioned in the form of plenary sessions and four divisions: civil, criminal, military and military-transport.
The period 1924--36 was marked by the further development of the legal basis of the Supreme Court activity and an active search for better forms of the functioning of all other judicial institutions.
The 1924 Constitution of the USSR laid down that the central state organs should elaborate and adopt the Fundamentals of the Judiciary and Legal Proceedings, and also the Fundamentals of Civil, Criminal and Labour Legislation, while the republican organs of power should pass the corresponding codes of laws and other legislative enactments on the basis of these Fundamentals.
In line with this constitutional provision, the Central Executive Committee of the USSR adopted in October 1924 the Fundamentals of the Judiciary of the USSR and the Union Republics. The adoption of this exceedingly important ailUnion law opened up a new stage in the development of the Soviet judicial system.
_-_-_~^^1^^ The Union-Republican body that replaced the Cheka.---Ed.
15Art. 1 of these Fundamentals stated that the courts have the following tasks: to uphold the gains of the October Revolution and the new law and order, to protect the interests and rights of the working people, to strengthen the labour discipline and legal education of the workers, to enforce revolutionary legality in the personal and property relations between citizens. The Fundamentals also established a unified three-tier system of courts throughout the territory of all Union Republics; the people's court, the provincial court and the Republican Supreme Court. Exemptions from this judicial organisation were allowed, but only by special sanction of the Presidium of the CEG of the USSR.
The organisation and activity of the judicial bodies at all levels were to be based on the following principles: 1) justice was to be administered by the working people alone; 2) all judges and people's assessors were to be elected; 3) the state was to pursue its unified judicial policy on the basis of legislation. In accordance with the Fundamentals, every citizen who had not been discredited in court, enjoyed the right to elect and be elected to a Soviet, and had a definite record of social and political service, could be elected a judge.
In every Union Republic, the Supreme Court exercised supreme supervision over the practical functioning of courts and directed them.
This period saw the institution of the bar, called upon to render legal assistance to the population and to perform the function of legal defence in court; and the notaries public whose job it was to certify all kinds of acts, agreements and contracts, etc.
The People's Commissariats of Justice of the Union Republics were made responsible for the supervision of judicial practice and lodging protests against illegal court decisions. Moreover, they exercised general guidance over the work of courts, inspected judicial institutions and issued instructions to all judges, procurators, investigators, notaries public, bailiffs and defence counsels. The People's Commissar of Justice of a Union Republic also headed the Procurator's Office of the Republic.
In addition to the above-mentioned functions the People's Commissariat of Justice of the RSFSR supervised the 16 implementation of the law on the separation of church and state.
The People's Commissariat of Justice also prepared and trained legal workers---a task of great importance at that time, for the country had very few qualified lawyers.
Taking into account the specific situation in certain nonRussian outlying regions, the Government allowed in these regions immediately following the October Revolution the existence of local national courts, functioning on the basis of local customs. For instance, the court of Qadi was allowed to sit in the Ferghana and Samarkand regions ( Uzbekistan). These courts heard cases only with the mutual agreement of litigants. Understandably, they existed for a time and were then abolished everywhere as soon as conditions were such that people's courts could be entrusted with all judicial functions.
On July 24, 1929, the CEC of the USSR adopted a new Statute on the Supreme Court of the USSR, which formulated certain powers of the Court more precisely. In particular, the Court was given the right to provide guidance and interpretation of ail-Union laws on questions arising in judicial practice. The Supreme Court could act in this way both on its own initiative and on the strength of representations made by the Procurator of the Supreme Court of the USSR. Under the new Statute, the Supreme Court was empowered to initiate legislation.
The Supreme Court of the USSR exercised supervision over the legality of decisions taken by the organs of power up to June 1933, that is, before the establishment of the Procurator's Office of the USSR, which was made responsible for supervising the decisions and orders adopted by the departments of the USSR and the Union Republics and also by local government bodies corresponded to the Constitution of the USSR and the decisions of the Union Government.
The period 1927--35 witnessed the development of public courts with extra-judicial cognizance. The purpose of these courts was to draw the broadest possible mass of the population into the administration of justice and to relieve the state courts of the need to hear insignificant cases. Thus, some rural Soviets set up, in 1927, conciliation chambers to deal with civil matters where the value of the object __PRINTERS_P_17_COMMENT__ 2---1738 17 of the dispute was below 15 rubles, and also with minor offences.
Public courts were set up in the countryside in September 1930. They were elected by a rural Soviet from among the local adult residents and were approved by a district executive committee. These courts tried cases of violations of public order, infliction of injuries and civil disputes over sums not exceeding 50 rubles, and some other cases.
By January 1, 1931, the Russian Federation had over 50,000 rural public courts. They existed until 1935.
In February 1931, the CEC of the USSR adopted a decision on the setting up of comrades' courts at factories. This decision was an incentive to the establishment of public courts in many enterprises. Their activity was supervised by local people's courts. Similar courts were set up in small townships and housing co-operatives. They were directed by local Soviets.
The new Constitution of the USSR was adopted in December 1936. In accordance with it the Supreme Soviet of the USSR passed, on August 16, 1938, a law on the judicial system of the USSR, the Union and Autonomous Republics.
Both the Constitution (Chapter IX) and the Law on the Judicial System formulated the purposes of justice and the main principles of the courts' functioning. The courts were charged with the following tasks: to protect the social and state system established by the Constitution of the USSR and the Constitutions of the Union and Autonomous Republics against any infringements, to safeguard the socialist economic system, socialist ownership, the political, labour, housing and other personal and property rights and interests of the citizens of the USSR, guaranteed by the Constitution of the USSR and the Constitutions of the Union and Autonomous Republics, the statutory rights and interests of state institutions, enterprises, collective farms, co-operative societies and other social organisations.
Justice in the Soviet Union is administered by courts of law with respect to all citizens alike, irrespective of their social status, property, job held, and their nationality or race.
The Constitution of the USSR and the Law on the Judicial System laid down also other principles of the organisation and functioning of the court: judges are independent 18 and subject to law alone; cases are tried by representatives of the people, by people's assessors; both judges and people's assessors are elected; trials are conducted in the language of the respective Union or Autonomous Republic; trials are, as a rule, open; the defendant has the right to legal defence.
The 1938 Law on the Judicial System of the USSR, the Union and Autonomous Republics established a harmoniously structured judiciary and strictly defined the functions of Soviet courts at all levels. Art. 102 of the Constitution of the USSR and Art. 1 of the Law on the Judicial System provided that justice in the Soviet Union was to be administered by the Supreme Court of the USSR, the Supreme Courts of the Union Republics, the courts of territories, regions, Autonomous Republics and Autonomous Regions, National Areas and also by the special courts^^1^^ of the USSR and people's courts.
The Soviet judicial institutions were divided into the courts of the USSR (the Supreme Court of the USSR, military tribunals and special courts) and the courts of the Union Republics (the Supreme Courts of the Union and Autonomous Republics, Autonomous Regions and National Areas, regional or territory and people's courts). The system of courts was based on the administrative and territorial division of the country and was organically linked with the system of Soviets---the political foundation of the USSR.
Procurators and investigators were withdrawn from the system of Republican Commissariats of Justice and were subordinated directly to the Procurator of the USSR. Thus, two mutually independent systems were created: the system of courts and the system of procurator's offices. Under the Constitution of the USSR, general guidance over these bodies is exercised by the Supreme Soviet of the USSR, which determines and directs the policy of the Soviet state in the sphere of justice.
On July 20, 1936, the Central Executive Committee and the Council of People's Commissars set up the People's Commissariat of Justice of the USSR. Subsequently this commissariat was transformed into a ministry.
The Statute on the People's Commissariat of Justice of _-_-_
~^^1^^ In 1957, the special courts, including the railway and watertransport courts, were abolished.
__PRINTERS_P_19_COMMENT__ 2* 19 the USSR, adopted in 1936, made this body responsible for the exercise of guidance of courts, and the Supreme Court of the USSR for original jurisdiction and judicial supervision. The People's Commissariat of Justice supervised the application of the principles of the judiciary, summed up practice and issued general guidance with a view to ensuring the uniformity of judicial practice. These tasks were fulfilled by the Commissariat through the issue of instructions, the study of definite categories of crimes, the issue of orders on labour organisation in legal bodies, etc. It also directed the system of legal education and regulated the structure, financing and staffing of judicial bodies.Delineating the functions in guiding courts of law between the People's Commissariat of Justice as a state administrative body and the Supreme Court of the USSR as an organ of judicial supervision was a complicated problem. This problem was solved in the following way. Since about half the judgements and decisions were appealed by way of cassation, a large number of cases were not verified by higher courts, though some of them might have involved judicial errors. The latter could be established, for instance, by judicial supervision of some or all cases. The courts were supervised by workers of the People's Commissariat of Justice, who ascertained illegal court judgements and decisions and submitted cases to the chairman of the Supreme Court of a Union Republic or of the Supreme Court of the USSR for their consideration and lodging of the appropriate protests. To eliminate a possible collision between directives issued by the Supreme Court and the People's Commissariat of Justice the latter's guiding instructions on judicial practice were required to be submitted for the consideration of the Plenary Session of the Supreme Court of the USSR and realised in the form of the Court's decisions.
Until 1938 the People's Commissariat of Justice had no representatives of its own in regions and territories, and the courts were directed by the chairmen of regional and territorial courts. In December 1938, the People's Commissariats of the Union Republics set up judicial administrations in the territorial and regional Soviets. These administrations were charged with the task of drawing up proposals on the structure and staffs of the judicial bodies and on other questions. They checked up the examination of complaints in 20 court, saw that the people's assessors participated in court proceedings, etc.
__ALPHA_LVL2__ 5. THE COURTS DURING THE 1941--45 WARThe Great Patriotic War of 1941--45 wrought big changes in the life of the Soviet people. The attack by nazi Germany on the Soviet Union necessitated the mobilisation of all forces both at the front and in the rear.
In the new situation caused by the war effort the Presidium of the Supreme Soviet of the USSR issued a number of enactments aimed at reinforcing the struggle against offenders who were undermining the defence potential of the country. Among the enactments issued on June 22, 1941, the first day of the war, were the Ordinance on Martial Law, the Statute on Military Tribunals set up in localities placed under martial law and in the areas of military hostilities. A state of siege was declared in Moscow, Leningrad and other vitally important centres.
The enactments extended the competence of military tribunals, reorganised railway and water-transport courts into military tribunals, excluded the participation of people's assessors in the work of military tribunals and abrogated the right to appeal against tribunal judgements by way of cassation^^1^^ in localities under martial law and in localities of military hostilities (but retained the system of protesting tribunal judgements by way of supervision),^^2^^ extended the powers of the military command to check the legality of military tribunal judgements, including the right of military councils of fronts to sustain sentences and simultaneously inform the Military Division of the Supreme Court of the USSR or the procurator concerned of their opinion regarding the further examination of cases.
The war circumstances made it essential to wage a determined struggle against wreckers at the front and in the rear, deserters, spies, spreaders of false rumours, saboteurs, etc. It was vitally essential to strengthen state and labour discipline. The war witnessed the growth of the role played by military tribunals which dealt with the most dangerous crimes _-_-_
~^^1^^ For greater detail, see pp. 117-lcS.
~^^2^^ For greater detail, see p. 146.
21 committed both at the front and in the rear. They conducted a series of trials of nazi criminals and their accomplices who committed atrocities in occupied territory. These trials helped to denounce the savage traits of nazism.The complicated and rapidly changing war conditions required the judiciary, especially military judges, to be highly efficient, and to display courage and valour.
Lenin used to say in his time: ``Since war has proved inevitable, everything must be devoted to the war effort: the least slackness or lack of drive must be punished by wartime laws. War means war, and let nobody in the rear or any peaceful occupation dare shirk this duty!''^^1^^
The war changed the cognizance of regional and territory courts. All cases of crimes against the state, of embezzlement of state and co-operative property were withdrawn from their cognizance and placed under the jurisdiction of military tribunals. The military authorities were entitled to submit to military tribunals for examination cases of black market speculation, wilful rowdyism and various other offences, if this was required by the wartime circumstances.
The railway and water-transport courts, reorganised into military tribunals, tried transport workers on a par with servicemen.
The war and its ravages and losses could not but affect the nature of crimes. The first war years saw the reduction of cases of rowdyism, thefts of personal property, domestic and some other crimes and simultaneously the appearance of new, highly dangerous corpora delicti, engendered by the specific conditions of the war: evasion of state service, embezzlement of evacuated cattle and effects, etc. Despite the grim war conditions the courts undeviatingly adhered to the main principles of justice: they held oral, direct and open proceedings, and carefully checked up the grounds for bringing the guilty up for trial. They often suspended the execution of sentences until the cessation of hostilities and imposed other measures of punishment that did not involve the deprivation of liberty.
During the war the Plenary Session of the Supreme Court was very active, giving guidance to courts on major questions involved in the qualification of crimes and on the _-_-_
~^^1^^ V. I. Lenin, Collected Works, Vol. 31, p. 174.
22 application of wartime Union laws. For instance, it provided explanations of great importance for judicial practice---about the classification of thefts of food and consumer goods rations (June 1942), about the classification of actions by persons who evaded wartime mobilisation for permanent work in industry and construction (September 1942), about the pronouncement by courts of riders (April 1943), etc.Towards the end of the war the country was faced with another important task, that of restoring the network of courts on the territory previously occupied by the enemy. It was necessary to erect new buildings for courts, to train new judicial personnel, to supply them with the requisite legislative and other materials, in short to create conditions conducive to their work. The job of restoring the judicial system to normalcy, started in the middle of the war and continued throughout the last period of the war as the occupied areas of the country were liberated, was completed only after the war had ended.
__ALPHA_LVL2__ 6. THE JUDICIARY IN THE POST-WARWhen the war was over, the Soviet people made supreme efforts to rehabilitate the war-ravaged industry, transport, agriculture, and to embark on peaceful construction.
In peace time there was no longer any need for legal enactments which had broadened the competence and cognizance of military tribunals, allowed the hearing of cases without the participation of people's assessors and limited the right to appeal against judgements pronounced in localities under martial law and in areas of hostilities, etc. All these and the other enactments occasioned by the war were repealed, the courts resuming their customary forms of activity.
The reorganisation of special transport courts was carried on step by step. At first the military tribunals for railway and water transport were reorganised into transport courts; for some time the railway and water transport courts existed separately, but in 1953 they were integrated into a single system of transport courts. On February 12, 1957 a law was passed to abolish transport courts. Since then all crimes 23 committed in the transport industry have been heard by people's courts, regional or republican Supreme Courts.
Another important post-war enactment was the ordinance adopted by the Presidium of the Supreme Soviet of the USSR on June 15, 1948, on the disciplinary responsibility of judges. It said that judges have a disciplinary responsibility to the disciplinary collegiums made up of judges. Such collegiums were set up in regional, territory and Republican Supreme Courts.
On May 24, 1955, the Presidium of the Supreme Soviet of the USSR approved the Statute on the Supervisory Powers of the Procurator's Office in the USSR, which vested supreme supervisory power to ensure the strict observance of the law by all ministries, institutions and also by all officials and ordinary citizens in the Procurator-General of the USSR.
In post-war years considerable changes have taken place in the administration of courts. In 1946, the People's Commissariat of Justice of the USSR was reorganised into a ministry responsible for guidance to the courts throughout the country. In May 1956, the Presidium of the USSR Supreme Soviet passed a decision on the abolition of the USSR Ministry of Justice, and transferred the functions of judicial administration to the ministries of justice of the Union Republics. Some time later the ministries were liquidated and their functions were assigned to the Supreme Courts of these republics.
In 1956, the Council of Ministers of the USSR set up a Juridical Commission, charged with the codification and systematisation of the Union legislation, a function formerly discharged by the USSR Ministry of Justice.
On February 12, 1957, the Supreme Soviet of the USSR approved the Statute on the Supreme Court of the USSR. Under Art. 1 of the Statute the Supreme Court of the USSR is the highest judicial organ of the Union. It is charged with the supervision of the judicial activities of all the judicial organs of the USSR and has the right to initiate legislation.
The following year, the Supreme Soviet adopted a number of major legislative acts regulating court proceedings, judiciary and other aspects of the courts' functioning. Chief among them are the Fundamentals of Legislation on the Judicial System of the USSR, the Union and Autonomous Republics, the Fundamentals of Legislation on Criminal 24 Procedure of the USSR and the Union Republics, the Fundamentals of Criminal Legislation of the USSR and the Union Republics, and also the Statute on Military Tribunals, the Law on Amending the Election of People's Courts, the Law on Criminal Responsibility for Crimes Against the State and the Law on Criminal Responsibility for Military Crimes.
The Fundamentals of Criminal Procedure set forth the most important principles by which the court is to be guided in hearing criminal cases. They introduced uniformity in the hearing of cases by all Soviet courts irrespective of the area where they function. The Fundamentals clearly defined the following tasks of criminal procedure: the speedy and complete detection of crimes, the exposure of guilty persons and the proper application of the law, in consequence of which every person who has committed a crime would suffer just punishment and no innocent person would be brought to trial and convicted.
According to the Fundamentals the court, the procurator and the investigating body should, within the limits of their jurisdiction, initiate criminal proceedings wherever the elements of crime are revealed and take all measures prescribed by the law to establish the fact of the crime and punish the guilty persons.
The Fundamentals explicitly state that no person is subject to arrest except by the order of the court or with the procurator's sanction; that a remand in custody can only be applied as a preventive measure to criminal cases for which the law provides imprisonment; and that persons may not be kept in custody during the investigation for more than two months, any departure from this principle being allowed only in exceptional cases and only with the sanction of the respective procurator, who may prolong this term for some time.
Justice is administered by the court alone and only subject to the observance of the principles enunciated in the Fundamentals (independence of judges, participation of people's assessors in court proceedings, public nature of trials, and so on), while the supervision over the courts is exercised by the Supreme Court of the USSR.
The Fundamentals define the purposes and methods of procurators' participation in court proceedings. While speaking in court, the procurator sustains the public indictment, 25 takes part in the investigation of evidence, sets forth his opinion on questions that arise and submits to the court bench his considerations regarding the application of criminal law. Should the procurator come to the conclusion, as a result of a judicial examination, that the data of criminal investigation do not confirm the charge brought against the defendant, he is duty bound to drop his charge and explain to the court his motives for so doing.
According to the Fundamentals, the accused has the right to know what he is charged with, to make statements in respect of the charge brought against him, to adduce evidence, submit petitions, have the services of a defence counsel, challenge the members of the court, and so on.
This law also defines the concrete rights and duties of the defence counsel, of the injured party and other persons participating in court proceedings. The procurator, defence counsel, defendant and participants in court proceedings enjoy equal rights in the presentation of evidence and its investigation and in the submission of petitions.
The court assesses the value of evidence in accordance with its inner convictions based on a full, comprehensive and objective examination of all the circumstances of the case. No evidence has predetermined value for the court.
The law also defines the procedure of appealing and protesting against the court's judgements and riders, the timelimit and the procedure for reviewing them. These and other provisions set forth in the Fundamentals of Criminal Procedure constitute a system of procedural guarantees of justice in accordance with the constitutional principles.
As far as the Fundamentals of Criminal Legislation are concerned, they contain the main principles of substantive law which the courts should apply in trials. They define the concept of crime and the purposes of punishment, and also describe penalties the courts may apply and the basic conditions for their application. In particular, they state that all persons committing criminal acts on the territory of the USSR shall be held responsible in accordance with the penal law operating on the scene and at the time of the crime.
A law which renders an act not liable to punishment or reduces the penalty for it acts retrospectively, i.e., is also applicable to acts committed before its promulgation. A law 26 which institutes a stricter punishment for an act or increases the penalty for it is not retroactive, unless otherwise provided for by the law.
A person who, at the time of the commission of a crime, is non compos mentis, i.e., is suffering from chronic mental disease, temporary mental affliction or feeble-mindedness, is not held criminally responsible. The court may apply compulsory medical treatment to such a person, who is previously examined by an appropriate medical institution. A person who, of his own free will, abandons a criminal act before its completion is criminally responsible only in the event of the act actually performed by him containing the elements of crime.
The Fundamentals define the purposes of punishment, emphasising that it is imposed not only as a penalty but also as a means of reform and re-education of convicted persons in a spirit of conscientious attitude to labour, strict observance of laws and respect for the rules of the socialist way of life. Punishment has also the aim of preventing fresh crimes both by convicts and by other persons. It is not intended to inflict physical suffering or humiliation.
Persons who have committed crimes may be sentenced to the following penalties: deprivation of liberty, exile, restricted residence, corrective labour without imprisonment, disqualification from holding a certain office or engaging in certain activities, public censure, and so on. Deprivation of liberty may be imposed for a period not exceeding ten years, and for especially grave crimes for a period not exceeding fifteen years. The period of deprivation of liberty to which a person may be sentenced if he has not reached the age of 18 years must not exceed ten years. A sentence of death by shooting is applied only as an exceptional measure for especially dangerous crimes. The death sentence may not be passed on persons under 18 years or on women who are pregnant at the time when the crime is committed or when a judgement is pronounced.
Punishment may be imposed by the court alone, which in passing sentences must take into consideration the nature of the crime committed and degree to which it is a danger to society, the character of the guilty person and attendant extenuating or aggravating circumstances.
The Fundamentals also lay down the time-limits for 27 charging persons with criminal offences and for the execution of sentences.
The Fundamentals of Civil Legislation of the USSR and the Union Republics adopted in December 1961 state that the economy of the period of the construction of the material and technical basis of communism is grounded in the socialist ownership of the means of production as represented by its two forms---state property (property of the whole people) and co-operative and collective-farm property. Personal property is a derivative of socialist property and is one of the means of satisfying the requirements of citizens.
The law protects both property and non-property rights of citizens. In particular, citizens or organisations have the right to sue at law for retraction of statements defamatory to their honour and dignity, provided the person circulating such statements fails to prove that they are true.
The Fundamentals of Civil Legislation also regulate the right of ownership. They state specifically that the owner has the powers of possession, use and disposal of property within the limits established by law. Personal property may include things intended to satisfy the material and cultural requirements of citizens. Every citizen may have in his personal ownership income and savings derived from his labour, a dwelling-house and a supplementary husbandry, household effects and furnishings. But personal property may not be used to derive unearned income.
The Fundamentals also contain basic rules governing contracts of sale, delivery, lease of property and carriage, disputes arising from payment and credit operations, copyright and law of invention and also obligations arising from injury caused to a person. The law also provides for the legal capacity of aliens and stateless persons.
Civil rights are protected by law, except insofar as they are exercised in contradiction to their purpose in society. They are protected in the statutory manner by the court of law, arbitral court and also by comrades' courts, and trade unions and other mass organisations. In cases specifically prescribed by law, civil rights are protected administratively. Full use in socialist society is made of commodity-money relations in conformity with their new content under socialism, and use is also made of such important instruments of 28 economic development as cost accounting^^1^^, money, price, cost price, profit, trade, credit and finance. All these relationships require legal regulation and sometimes necessitate the invocation of the court of law for settling outstanding disputes. The principles on which they are settled are set forth in the Fundamentals of Civil Legislation.
The Fundamentals of Civil Procedure of the USSR and the Union Republics regulate questions similar to those which are settled in the Fundamentals of Criminal Procedure but with respect to cases arising from civil legal relationships and specifically from disputes in the sphere of family, labour, property, collective-farm, administrative and other legal relationships.
The task of civil procedure is to examine and adjudicate civil cases correctly and expeditiously for the purpose of safeguarding the socialist system of economy and socialist property, protecting the political, labour, housing and other personal and property rights and lawful interests of citizens and also the rights and lawful interests of state institutions, enterprises and collective farms. These Fundamentals state that the courts have jurisdiction over suits about complaints concerning incorrect entries in electoral rolls, acts of administrative organs in connection with the unjustifiable imposition of fines, actions declaring a citizen absent or dead, or legally incompetent in consequence of mental deficiency or feeble-mindedness, and so on. Any person concerned has the right, in the manner established by law, to invoke a court for protection of his infringed or contested right or lawful interest. The parties participating in the adjudication of a civil case enjoy equal procedural rights. Citizens and juridical persons may plead their causes in court either personally or through their representatives (advocates and other persons).
The court may invite representatives of mass organisations to take part in civil proceedings if they wish to present their opinion on the dispute in question.
The court judgement becomes final upon the expiry of the period for bringing an appeal for cassation. Where a cassation appeal or a cassation protest has been brought, the _-_-_
~^^1^^ A principle of socialist economic activity requiring that the results of planned economic operations should be commensurate with costs, that expenditures should be covered from incomes and that production should produce a profit.---Ed.
29 judgement becomes final upon its examination by a higher court sitting in a cassation capacity. This court has the right to rescind the lower court's judgement and change it.Aliens have the right to apply to the courts of the USSR and enjoy civil procedural rights on a par with Soviet citizens.
In line with the aforementioned Fundamentals all the Union Republics adopted, in 1959--61, criminal and criminal procedure codes and, in 1963--64, civil and civil procedure codes, in which they established all other legal institutions regulating the administration of justice according to their national and other specific features.
Especially fruitful in this respect was the period of 1965--71, when the Supreme Soviet of the USSR adopted the following major legislative acts: the Fundamentals of Legislation on Marriage and the Family, the Fundamentals of Labour Legislation, the Fundamentals of Corrective Labour Legislation, and a series of laws on the further extension of powers wielded by local self-government bodies (town and district Soviets of Working People's Deputies).
These and other laws which synthesised past experiences have largely improved the system of current legal rules and guarantees that make for the better functioning of the state apparatus.
Another important measure was taken to strengthen socialist legality: the autumn of 1970 saw the reappearance of the USSR Ministry of Justice and its local bodies. The Ministry was charged, among other functions, with the task of providing organisational guidance to all courts. This means that the ministerial bodies discharge their duties without interfering in the adjudication of criminal or civil cases.
The 24th CPSU Congress held in April 1971 emphasised the prime significance of further improvement in legislation and of strict observance of laws by all officials, ordinary citizens and institutions, and the great value of a perfect system of judicial and law-enforcement bodies for the Soviet socialist state.
__ALPHA_LVL2__ 7. PROMINENT LAWYERSDmitry Kursky was one of the organisers of the Soviet system of justice. He was born in Kiev in 1874, graduated from the Law Department of Moscow University in 1900. 30 He joined in the revolutionary movement in his young years and became a member of the Russian Social Democratic Labour Party in 1904. After the October Revolution, in March 1918, Kursky was appointed People's Commissar of Justice. He held this post till 1928.
Kursky took an active part in drafting the first decrees on courts, the Constitution of the Russian Federation and also its criminal, civil and family codes. In 1919, he participated in the elaboration and promulgation of the Basic Principles of Criminal Law. He edited several journals, collections and books on Soviet law. For some years he directed the Moscow Institute of Soviet Law.
Another organiser of the Soviet judicial system was Pyotr Stucka, who was born into a peasant's family near Riga in 1865. He graduated from the Law Department of St. Petersburg University in 1888. While a student, he took part in the revolutionary movement. He joined the RSDLP in 1903. After finishing the University, Stucka returned to Riga and became editor of the newspaper Dienas lapa. Immediately after the October 1917 uprising in Petrograd he joined the first Soviet Government as People's Commissar of Justice. In 1923, he was elected Chairman of the Supreme Court of the RSFSR.
In addition to his government work Stucka engaged in scientific and pedagogical activities. In 1919, he was elected a member of the Academy of Social Sciences. For many years he was professor at Moscow University and the first director of the Institute of Soviet Law. He was the author of some fundamental monographs, including The Revolutionary Role of the State and Law, The Theory of the State and the Constitution of the RSFSR (1921) and Course of Soviet Civil Law. He wrote over 150 scientific works in law. He also edited The Encyclopaedia of the State and Law, published in 1925--26.
Nikolai Krylenko made an important contribution to the building of the Soviet judiciary. He was born in 1885 in the Smolensk Region where his father was exiled under police surveillance for ``political unreliability''. In 1909, he graduated from the History and Philology Department of St. Petersburg University. In 1917, he took an active part in the Revolution. From 1918 onwards, he was Deputy People's Commissar of Justice and Procurator of the Russian Federation. In 1931, he was appointed People's Commissar of 31 Justice of the RSFSR and in 1936, People's Commissar of Justice of the USSR.
Krylenko was one of the organisers of the Supreme Court of the USSR and attended the first Plenary Session of the Supreme Court of the USSR, held between April 18 and 24, 1924. He took part in drafting the Constitutions of the Russian Federation and the USSR, and also the bill on the Procurator's Office. He also taught law in colleges and held the chair of criminal law at Moscow University. In 1934, he was awarded the degree of Doctor of State and Legal Sciences. He was the author of over 80 books.
A great deal towards strengthening socialist legality and Soviet justice was done by Vladimir Antonov-Saratovsky. He was born in Saratov in 1885 and graduated from the Law and the History and Philology departments of Moscow University. He joined the RSDLP in 1902. In September 1917, he was elected Chairman of the Saratov Soviet of Workers' and Soldiers' Deputies. From 1921 onwards he was Rector of the Sverdlov University in Moscow and later chairman of the Legislative Commission of the Soviet Government. Between 1923 and 1938, he was a member of the Supreme Court of the USSR and subsequently Chairman of the Judicial Division of the Supreme Court of the USSR for Criminal Cases.
Another prominent lawyer was Pyotr Krasikov, who was born into a lawyer's family in Krasnoyarsk. He graduated from the Law Department of St. Petersburg University and joined the revolutionary movement in the early 1890s. After the October Revolution he was appointed Deputy People's Commissar of Justice and in 1924, Procurator of the Supreme Court of the USSR. Between 1933 and 1938, he was Vice-Chairman of the Supreme Court of the USSR. Krasikov was the author of many articles on legal matters.
Alexander Vinokurov, a notable statesman, Lenin's friend and comrade-in-arms, was the first Chairman of the Supreme Court of the USSR. He was born in Dnepropetrovsk in 1869, graduated from Moscow University in 1894. At the end of 1917, soon after the October Revolution, he was elected Chairman of the First Petrograd Bolshevik Duma and in April 1918, he was appointed People's Commissar of Social Security. Vinokurov presided over the Supreme Court of the USSR between 1924 and 1938.
32He was succeeded in this post by Ivan Golyakov who was born into a large peasant family in 1888. In May 1919, he joined the Red Army as a volunteer. In 1933, he was elected a member of the Supreme Court of the USSR and in 1938, its chairman. Golyakov was the author of over 40 books, including the fundamental research The Court and Legality in the Russian Fiction of the 19th Century. He also engaged in giving lectures and for many years headed the All-Union Institute of Legal Studies.
Between 1948 and 1957, the Supreme Court of the USSR was chaired by Anatoly Volin, who was born into a fisherman's family in the Krasnodar Territory in 1903. In 1930, he graduated from the Soviet Law Department of Leningrad University and lectured in colleges till 1936.
From 1957 to 1972 the Supreme Court of the USSR was presided over by Alexander Gorkin. He was born into a peasant family in the Tver Province in 1897. During the first post-revolutionary years he worked in Tver as Secretary to the City Soviet and later as Chairman of the Executive Committee of the Tver Provincial Soviet. In 1937, he was elected Secretary of the Central Executive Committee of the USSR, and in 1938, Secretary of the Presidium of the Supreme Soviet of the USSR.
In September 1972, A. Gorkin was succeeded by Lev Smirnov, an eminent lawyer who held before this appointment the post of the Chairman of the Supreme Court of the Russian Federation.
In 1946--51, Andrei Piontkovsky, an eminent jurist, was elected a member of the Supreme Court of the USSR. He was born in 1898 and in 1918 graduated from the Law Department of Kazan University. He is the author of many fundamental works on the theory of criminal law. He participated in drafting the Fundamentals of Criminal Legislation of the USSR and the Union Republics, the Criminal Code of the RSFSR and other legislative acts. He is a Merited Worker of Science and a Corresponding Member of the Academy of Sciences of the USSR.
Among major Soviet lawyers one should also mention Roman Rudenko who holds the post of the Procurator-- General of the USSR since 1953. His brilliant performance as public prosecutor at the Nuremberg Trial and at other big trials won him the praise of both lawyers and the public at large.
__NOTE__ Missing page "33" at bottom of this page in original. __PRINTERS_P_34_COMMENT__ 3---1738 [33] __NUMERIC_LVL1__ Chapter II __ALPHA_LVL1__ PRINCIPLES OF SOCIALIST JUSTICE __ALPHA_LVL2__ 1. THE ELABORATION OF THE PRINCIPLESAs we have noted, the Soviet socialist state needed a new system of justice as to both form and content, purposes and tasks. It had to be initiated with the adoption of relevant laws, but to do so in the brief period of the October Revolution was practically impossible. For this reason recourse was had to some of the old laws, provided they did not run counter to revolutionary conscience and revolutionary legal consciousness. The task was complicated by the fact that the Republic needed laws not merely new ones but those based on socialist principles right from the beginning, from the very first days of the 1917 Revolution.
These principles were originally formulated in the first programme of the Russian Social-Democratic Labour Party, adopted in 1903, and were developed in Lenin's works on the state and revolution. This meant that by the time the Soviet power came into being, there had been a practical possibility of elaborating the most essential legislative acts based on the new, socialist principles.
Immediately after the Revolution these principles of socialist justice received legislative recognition in the first Decrees of Soviet government, specifically in Decree No. 1 on the courts and in the subsequent Decrees on the courts, adopted in 1917 and 1918.
To the general question as to what principles underlay socialist justice, the answer primarily was as follows: the socialist essence of the new Soviet courts was expressed, among other things, in the fact that judges were elected to 34 their office by the working people alone and that the courts were fully accessible to the population.
Of course, the reader should not imagine that right from 1917 the young Soviet state succeeded in formulating all the principles of socialist justice in a final and exhaustive form and, moreover, in implementing all of them in practice. This position was not achieved at once. The state needed time and a great deal of persistent work before these principles were expressed in law and in practice. The first postrevolution years saw only the initial, though very important, steps in outlining some of the major principles of socialist justice and in highlighting the need for the further improvement of these principles.
The present Programme of the CPSU passed by the 22nd Party Congress is a new stage in the further development and improvement of the principles of socialist justice. It says specifically:
``Justice in the USSR is exercised in full conformity with the law. It is based on truly democratic lines: election and accountability of the judges and people's assessors, the right to recall them before the expiry of their term, the publicity of court proceedings and the participation of prosecutors and advocates from the general public in the work of the courts, with the courts and investigating and prosecuting bodies strictly observing legality and all the norms of judicial procedure. The democratic principles of justice will be developed and improved.''^^1^^
From this excerpt one may draw the following conclusions: an intrinsic feature of Soviet justice is constantly to develop and extend its democratic principles, the latter being characterised by the further strengthening of socialist legality, greater protection of the rights and lawful interests of citizens and extended participation of the public in the administration of justice. The Programme of the CPSU stresses the demand for the strictest observance of law in the working of courts and other legal bodies, and lays down the major principles of justice.
It must be stressed that Soviet legislative practice acts on the CPSU Programme which points to the need for the further development and improvement of the democratic _-_-_
~^^1^^ 'fhe Road to Communism, Moscow, 1961, p. 552. 3*
35
35 principles of justice. Thus, in December 1958, the Supreme Soviet of the USSR adopted the Fundamentals of Legislation on the Judicial System of the USSR, the Union and Autonomous Republics and the Fundamentals of Criminal Procedure of the USSR and the Union Republics. That was a big step forward in the matter of improving the administration of justice. But the continued democratisation of the Soviet state and social system called for the solution of new tasks, those of transferring certain state functions in safeguarding public order and legality to non-government organisations. In this connection some changes and addenda were introduced in the Union and Republican legislation with a view to developing and improving the principles of justice. In particular, the lawmaker introduced public surety, that is the release by the court of persons who have committed first minor offences in the care of a mass organisation or a work collective on their petition; the legislature also provided for the participation of voluntary prosecutors and defence counsel drawn from among the public; it extended the jurisdiction of comrades' courts and set up voluntary people's patrols for the maintenance of public order.The Fundamentals of Civil Legislation and the Fundamentals of Civil Procedure of the USSR and the Union Republics, passed in 1961, and the Fundamentals of Legislation on Marriage and the Family, adopted in 1968, developed and extended the democratic principles in the sphere of civil relationships.
The principles of Soviet justice develop and undergo further democratisation in conjunction with measures directed to the democratisation and evolution of the entire system of the state organs. The CPSU Programme says in this context: ``All-round extension and perfection of socialist democracy, active participation of all citizens in the administration of the state, in the management of economic and cultural development, improvement of the government apparatus and increased control over its activity by the people constitute the main direction in which socialist statehood develops in the period of the building of communism.''^^1^^ Socialist justice also develops in this direction.
The principles of socialist justice have received full and _-_-_
~^^1^^ 'The Road to Communism, p. 548.
36 comprehensive treatment in Soviet legal literature. The scholarly discussions resulted in their uniform understanding. But the way of classifying these principles and some other pertinent theoretical problems are still a matter for lively discussion. The author does not set himself the aim of presenting the different views of Soviet jurists on controversial questions and has, therefore, restricted himself to making a brief review of the principles enunciated in the legislative enactments. __ALPHA_LVL2__ 2. ADMINISTRATION OF JUSTICEArt. 102 of the USSR Constitution says: ``In the USSR justice shall be administered by the Supreme Court of the USSR, the Supreme Courts of the Union Republics, the Courts of the Territories, Regions, Autonomous Republics, Autonomous Regions and National Areas, the District (Town) People's Courts and also by the military tribunals.''
This means that the court alone, in the name of the state, may declare a person guilty of a crime and impose a criminal punishment on him.
In the sphere of family, marriage, labour and other civil relations and only in cases provided for by the law, the court alone has the authority to decide which of the parties to a dispute has violated the law, to decide which of the citizens concerned is to be deprived of personal property, labour and some other rights or limited in their exercise, and to apply other measures of coercion. All the other legal bodies or institutions (the procurator's offices, investigation agencies, the bar, organs of the Ministry of Justice, and so on) assist the courts in discharging their major functions.
In most criminal cases the court hearing is preceded by the large, complicated and exceedingly important work of collecting and investigating evidence. It is done by organs of inquiry (e.g., the militia, the commanders of military or naval units, etc.) and organs of preliminary investigation (e.g., the procurator's offices). According to Soviet procedural law this stage is called preliminary investigation. The term ``preliminary'' is used not accidentally. After the respective organ of inquiry or preliminary investigation has collected material and performed the necessary formalities, 37 the case with an indictment is transferred to the relevant procurator. The material is thoroughly verified by him and having satisfied himself that it provides grounds for court examination, the procurator submits the case to the court for consideration on its merits.
Inasmuch as the tasks of the investigator and procurator coincide with those of the court, for all of them are concerned to reveal the fact of crime, to detect guilty persons and objectively to study the adduced evidence of their guilt, an impression may be created that citizens suspected of a crime are considered guilty prior to trial. This impression is totally erroneous. The law says explicitly: ``Justice in the USSR shall be administered by the court alone.'' It should be added that the administration of justice consists of two inextricably linked stages: the first stage, where the court decides whether an arraigned person is guilty or not, and the second stage, where it passes a decision on the application or non-application of penalties in respect of that person. Moreover, the court takes its decisions on these questions independently of the views of the investigator and procurator on the question of whether the indictment has been proved or not.
Thus, the conclusions arrived at by the investigator and procurator regarding the guilt of a person have a preliminary character and the court's judgement alone has the legal effect of recognising the arraigned person as guilty or nonguilty. The court alone decides on the penalty to be applied to the person guilty of a crime.
The principle that justice is exercised only by the courts has been confirmed by the Soviet Union in international agreements. Thus, in December 1948, the Soviet Union signed and later ratified the Universal Declaration of Human Rights, which says specifically that ``everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence" (Art. 11).
__ALPHA_LVL2__ 3. ELECTIVE JUDICIARYAll links of the judiciary, beginning from the people's court and ending with the Supreme Court of the USSR, are formed on the basis of election. The Soviet law does not 38 provide for the institution or the appointment of judges or of their replacement in any way save by election.
In his article ``The Old and New Court'', published in January 1918, Pyotr Stucka wrote: ``Since the first day of the Revolution we had no doubt whatsoever that it is only on the ruins of bourgeois justice that we shall be able to erect the building of socialist justice, more modest in appearance but infinitely more stable in content.... There can be only one reply to the question: by what we are supposed to replace the class court we abolished and that reply is: by an elective people's court.''^^1^^
These words uttered by a highly competent jurist and politician convey best of all the essence and importance of Lenin's principle of an elective judiciary.
The Soviet court has always functioned as an elective and collegiate body. But immediately after the 1917 Revolution people's judges were not elected directly and universally, since this was prevented by the situation caused by the foreign intervention and civil war and the resistance of the exploiting classes. At that time the courts were, as a rule, elected by local Soviets.
With the stabilisation of the situation in the country, its further economic and social development it was possible to confirm in the USSR Constitution, adopted in 1936, that an elective judiciary is a major principle implemented consistently in Soviet practice.
Under the Constitution of the USSR, the Supreme Court of the USSR is elected by the Supreme Soviet of the USSR for a term of five years. The Supreme Courts of the Union Republics are elected by the Supreme Soviets of the Union Republics, and the Supreme Courts of the Autonomous Republics are elected by the Supreme Soviets of the Autonomous Republics---all for a term of five years. As for the Supreme Courts of the Regions and National Areas, they are elected by the Soviets of the respective administrative divisions and also for a term of five years. People's judges of district (town) people's courts are elected by the citizens of the districts (towns) for a term of five years on the basis of universal, equal and direct suffrage by secret ballot.
_-_-_~^^1^^ P. Stucka, Selected Writings on the Marxist-Leninist Theory of Law, Riga, 1964, pp. 229, 235 (in Russian).
39The universal principle of election implies that judges are elected by all citizens of the USSR who have reached the age of 18 years, irrespective of their race, nationality, place of residence, education, creed, social origin, property status and past activities. Women have the right to elect judges and be elected as such on equal terms with men.
The equality of election means that every citizen has only one vote and no elector has any advantage in respect to any other elector.
Direct election implies the election of people's judges by the people themselves, residing on the territory of a given district or town and the absence of any intermediate stages.
Lastly, the election of people's judges is held secretly, with voters rilling in their ballot papers in the absence of anybody, including members of election commissions. This voting procedure guarantees the full freedom of choosing candidates by the electorate. To this we must add that the election expenses are fully borne by the state.
Under the Constitution of the USSR, people's assessors of district (town) people's courts are elected at general meetings of industrial, office and professional workers, and peasants in the place of their work or residence, and of servicemen in military units, for a term of two years.
In conformity with the Fundamentals of the Judicial System of the USSR, people's judges regularly report to their electors on their work and the activity of the court concerned, while judges of regional, territory and town courts as well as the courts of Autonomous Regions and National Areas report to the respective Soviets of Working People's Deputies. The Supreme Courts of the Union and Autonomous Republics account to their Supreme Soviets and the Supreme Court of the USSR accounts to the Soviet Parliament and between its sessions---to the Presidium of the Supreme Soviet of the USSR.
There is no doubt that this procedure of judges reporting back to the electorate or the organs which elected them is natural and conducive to the improvement of judicial work. The electors are entitled to know about the overall activity of the judge they elected and his court.
The reader may raise a question: does not the accountability of judges contradict the principle that judges are independent and subject to the law alone? The long-standing 40 practice of the Soviet court has shown that these apprehensions are unfounded. In their accounts to the electors the judges report on ways of combating crime and on the measures applied by the courts to prevent crimes and on the immediate tasks they face. These reports do not imply any interference on the part of electors in the adjudication of specific civil and criminal cases, which fact is inadmissible.
If a judge does not justify the electors' trust he may be recalled by them. This is an important feature of the democratic nature of the Soviet court. As Lenin put it, ``No elective institution or representative assembly can be regarded as being truly democratic and really representative of the people's will unless the electors' right to recall those elected is accepted and exercised. This is a fundamental principle of true democracy....''^^1^^
To prevent the right of electors to recall judges from becoming an instrument of pressure on them this procedure is strictly regulated by the law. This precludes the possibility of recalling a judge when his activity and judgements fully meet the requirements of the law.
Before 1958, both people's judges and people's assessors were elected for a term of three years. In December of that year it was considered advisable to elect judges to all links of the judicial system every five years. This lengthy period enables the judge to study the district he serves, to get acquainted with local conditions and to acquire experience. For this reason Art. 109 of the USSR Constitution was amended in 1958 to provide for a five-year term of sitting of the court bench. After this term expires the judge may be elected for a second time. In December 1958, the Supreme Soviet of the USSR reduced the term of service of people's assessors from three to two years, inspired by the desire to draw into the administration of justice ever more Soviet citizens.
In many states judges are appointed and not elected. Some bourgeois jurists claim that the judges should not be replaceable, and that this practice would consolidate their independence. Life, however, shows that this affirmation is unfounded, since the ``greater independence of judges" is purely outward in appearance. The principle of judges being _-_-_
~^^1^^ V. I. Lenin, Collected Works, Vol. 26, p. 336.
41 permanently appointed contributes, in our opinion, to the appearance in them of feelings of superiority, self-confidence, conceit, and infallibility, these qualities being responsible for judicial errors and even arbitrary actions.Moreover, in those states where judges are irremovable and appointed by the President or some other high person in office, they have to agree, willy-nilly, with the opinion of those who appointed them and to protect their interests. If we bear in mind that in most such states judges are appointed from among the members of propertied classes, it will become clear that such courts serve primarily the interests of the class whose representatives appointed them and with whom they are connected personally.
__ALPHA_LVL2__ 4. PARTICIPATION OF PEOPLE'S ASSESSORSUnder the present law, all criminal and civil cases are adjudicated in courts of first instance, the exception being cases of petty hooliganism, minor thefts and certain insignificant civil cases. The cases are normally tried by three persons---the chairman (a permanent judge) and two people's assessors. This procedure applies to all courts---from the people's court to the Supreme Court of the USSR. But when a case is heard in cassation or supervision proceedings, that is, after it has been tried fully in a court of first instance, it is examined upon the appeal against the judgement by three permanent judges, that is, in the absence of people's assessors.
It should be stressed that in all courts the permanent judge and the people's assessors enjoy equal rights. The trial is directed by the judge who acts as chairman at court proceedings. All other questions concerning the substance of the case are settled by the bench collectively.
In the early Soviet years, people's assessors were elected in a peculiar way. The local Soviets used to compile lists of candidate assessors from among the citizens who had voting rights. At a later stage, lots were drawn to determine who would participate in a regular session of the people's court. Although this principle of choosing candidate assessors was elaborated in greater detail and the drawing of lots was 42 abolished, it was practically impossible to hold universal elections of people's assessors in the early Soviet years.
The USSR Constitution of 1936 and the 1938 Law on the Judicial System of the USSR established a new procedure of election---direct election of people's assessors to people's courts and indirect election of people's assessors to higher courts, that is, their election by Soviets. But this measure proved in practice to be inadequate. During elections lists of candidate assessors in each electoral district included between 100 and 150 persons, which seriously impeded the comprehensive discussion of every candidate. As a result the voters had a poor knowledge of the candidates nominated. This explains why in December 1958 the procedure of election was changed once again. Since that time people's assessors for people's courts are elected not in electoral districts but at general meetings of factory, office and professional workers, and peasants in the place of their residence or work, of students in the educational establishments, and of servicemen in military units. People's assessors for higher courts are, as heretofore, elected by the respective Soviets. This procedure allows for full discussion of every candidate.
Today every citizen of the USSR who has reached the age of 25 by election day can be elected a people's assessor. The law provides for no limitation on grounds of nationality, sex, education, political or religious views, and so on.
A total of 600,000 people are elected to all links of the Soviet judicial system throughout the country. At the last election of people's assessors 40 per cent of them were elected from among industrial workers and nearly 15 per cent from among farmers. Women constitute over 40 per cent of elected assessors. Practically all nationalities residing on the territory of a Union Republic are represented among people's assessors. By way of illustration we may cite the national composition of the assessors' body in Georgia: of 10,720 people's assessors Georgians number 8,390; Armenians, 705; Russians, 595; Azerbaijanians, 227; Abkhazians, 214; Ossets, 418, and so on.
People's assessors elected for two years are called to take the bench in rotation: they are empanelled by rota for not more than two weeks a year, except where a longer period is necessary to conclude the hearing of a major case opened with their participation.
43People's assessors elected from among industrial, office and professional workers retain their regular wages or salaries while discharging their duties in court. People's assessors who are not factory or office workers are reimbursed for their expenses in connection with the discharge of their duties in court. The procedure and amount of reimbursement is fixed by the legislation of the Union Republics.
As said earlier, the people's assessors, when discharging their duties in court, enjoy the same rights as the judge. Before the court starts its proceedings they have the right to make themselves conversant with all the material of the case and take part in the administrative sitting where the question of the possibility of hearing the case on its merits at the trial is decided. At this stage they have the full right to question the accused persons, witnesses, experts, plaintiffs and respondents, examine exhibits, study documents, and so on, the presiding judge enjoying no privileges over the people's assessors.
All questions arising during a trial are settled by the court bench collectively. The equality of rights enjoyed by the people's assessors and the permanent judge is also observed in the courtroom where the bench passes a judgement or decision. Each member of the bench, including people's assessors, expresses his opinion on whether the fact of crime has been proved or not, on whether the defendant is guilty in each specific case. The presiding judge expresses his view and casts his vote last. If a member of the bench does not concur with the opinion of the two other members, he is obliged to sign the judgement or decision, but at the same time has the right to set out his minority opinion in writing, which is not made public but is entered in the record of the case. Cases in which a dissenting opinion has been entered are examined by a higher court in a cassation or supervision proceeding.
As is evident from the foregoing, the principle of people's assessors' participation in the trial of cases is closely interlinked with another important principle---the collegial adoption of judgements and judicial decisions. The presiding judge is vested with the function of directing the trial of cases, all procedural matters and all questions pertaining to the substance of cases always being settled by the whole bench.
44People's assessors may be recalled before the expiry of their term, but only by the organ or electors who elected them. The procedure of recalling is governed by the relevant legislative acts.
The activity of people's assessors is not confined to their participation in court proceedings. As a rule, they conduct vast explanatory work among the population, make reports on legal subjects to electors, assist judges in the verification of the execution of judgements and decisions, and so on.
__ALPHA_LVL2__ 5. INDEPENDENCE OF JUDGESArt. 112 of the Constitution of the USSR says: ``Judges shall be independent and subject to the law alone.'' This constitutional tenet is reproduced in the Fundamentals on the Judicial System of the USSR (Art. 9), in the Fundamentals of Criminal and Civil Procedure of the USSR (Art. 10 and 9 respectively) and also in the Criminal Procedure and Civil Procedure Codes of all Union Republics.
The principle that judges are independent and are subject to the law alone is closely linked with the demand for the strict observance of law by the court itself. These two important principles underlie socialist justice.
Following the approval by the Soviet government of the Decrees on Peace, the Land and the Courts the subsequent development and improvement of legislation resulted in the promulgation of codes and other legislative and normative acts. Today the Soviet Union has a simple, democratic and easily understandable system of legal rules. However, the mere adoption of laws and the elaboration of a system of legislative enactments does not guarantee the consolidation and development of new social relations. To do this it is required that everybody should always unswervingly and consistently observe all the laws on the Statute Books.
Great importance attaches to the court which is called upon to prevent infringements of law and punish lawbreakers. But since the court is the organ which is to combat all violations of law and to strengthen socialist legality, it is natural that it should itself observe legality in its own activity. The principle of legality in court proceedings implies the duty of the bench to be guided strictly by the law in the proclamation of all its decisions. This is implicitly stated in 45 Art. 6 of the Fundamentals of Legislation on the Judicial System of the USSR: ``Justice in the USSR is administered in complete accordance with the legislation of the USSR and the legislation of the Union and Autonomous Republics.''
The observance of law in the administration of justice has invariably been kept in mind by the Ministry of Justice and the Supreme Court of the USSR. The instruction, adopted by the Plenary Session of the Supreme Court of the USSR on March 18, 1963, says in part: ``No breaches in legality may be justified by references to the need to intensify the eradication of crime. Every criminal case, regardless of the nature and gravity of the crime committed, of the official or social status of the defendant, must be adjudicated in strict conformity with the rules of criminal and procedural law.''^^1^^
The Plenary Session of the Supreme Court drew the attention of all judges to the fact that it is highly inadmissible to divide breaches of the law into ``significant'' and `` insignificant''. It said to this effect: ``Some judges consider socalled `insignificant' formal departures from procedural law requirements admissible, forgetting the fact that undeviating observance of the statutory procedural rules is a sine qua non of ascertaining the truth in a case and of adopting a correct decision.''^^2^^
It follows from the foregoing that it is completely inadmissible to make even the slightest departure from procedural law. Only by sticking to this condition can one hope that the truth in a case will be ascertained and that the court's decision will comply with the law.
While educating Soviet citizens in the spirit of the exact and undeviating implementation of the Soviet laws, the judges themselves must be a model in observing socialist legality. The meeting of this requirement is not only their moral and official duty, but also the indispensable condition of an effective eradication of crime. The realisation of the principle of legality in the administration of justice must be, in addition to anything else, secured by the requisite organisation of the judicial system and reliable procedural guarantees contained in the laws in force.
_-_-_~^^1^^ Collected Decisions of the Plenary Session of the Supreme Court of the USSR, 1924--70, Moscow, 1970, p. 252 (in Russian).
^^2^^ Ibid.
46The principle of legality in court has its own specific features: by taking decisions the court applies the current law but does not create any new legal norms. Soviet legislation settles this problem in clear-cut terms. Art. 9 of the Statute of the Supreme Court of the USSR says that the Plenary Session of the Supreme Court ``gives the courts guiding instructions on questions pertaining to the application of laws in judicial proceedings.'' This warrants the conclusion that the Supreme Court instructions do not create new norms of law but only explain to the courts the existing norms of the law in force. They merely explain how the legal norms should be applied to various situations and crimes.
The Soviet legal doctrine does not at all claim that the court does not depend on the policy pursued by the Soviet state, on the will of the working class and all working people, and on the tasks involved in building socialism. The Soviet people's will is expressed in the laws, by which the courts are bound to be strictly guided. Thus, when we speak about the independence of judges, we refer to the fact that the judges can and must adjudicate criminal and civil cases only in strict conformity with the law and independently of any external and extra-judicial factors, in the absence of intervention on the part of any bodies, officials or private citizens.
The independence of judges and their subordination to the law alone are two aspects of one thing. The first aspect is that the court is strictly guided by the law and the second implies that in adjudicating cases the judges are independent of any external intervention. Art. 10 of the Fundamentals of Criminal Procedure says on this score: ``Judges and people's assessors shall adjudicate criminal cases on the basis of the law, in accordance with the socialist concept of justice and in conditions that preclude any outside influence on the judges.'' Art. 9 of the Fundamentals of Civil Procedure runs as follows: ``Judges and people's assessors shall adjudicate civil cases on the basis of the law, in accordance with the socialist concept of justice and in conditions precluding any outside influence on the court.'' In practice this means that all persons speaking in court or appealing against its actions (the procurator, defence counsel, the injured party, and so on) are entitled to express their opinion and convince the court of the righteousness of their position, but that the 47 court passes its decision regardless of their opinions. Any interference in the adjudication of cases on the part of officials, government, Party or any other organs is totally impermissible.
The Soviet state seeks to implement the principle that judges are independent in their activity by adopting various legal guarantees and organisational measures. One of the most important guarantees is the election of judges on a democratic basis, which places the judge in a position that makes him independent of any official or of any form of interference in the adjudication of cases.
The lawmaker has also established special guarantees for the independence of judges in the examination of criminal and civil cases. For instance, the law provides that judgements and decisions on civil matters are to be issued in a special conference room to which nobody has access apart from judges and assessors. Further, the law stipulates that all court decisions are taken by a simple majority vote, the judge, who is in minority, being entitled to affix to the judgement his dissenting opinion. The law also provides for special disciplinary measures applicable to judges guilty of mishits in their work or misdemeanours in their behaviour. Judges have disciplinary responsibility to special disciplinary collegiums made up of judges only.
A judge can be recalled from his office by the electors alone, after a collective discussion of the matter. This procedure is specially regulated by the law to guarantee the all-round discussion and objective solution of the matter. Judges are not liable to criminal proceedings, cannot be dismissed or arrested without the sanction of the Presidium of the Supreme Soviet of a Republic; while judges of the Supreme Court of the USSR cannot be removed from office or arrested without the sanction of the Presidium of the Supreme Soviet of the USSR. This provision especially is a real guarantee of the independence of judges.
These legal guarantees apart, great importance attaches to the instructions issued on this point by the organs of the Communist Party, which exercises political guidance of the state. But Party leadership does not interfere administratively in judicial activity. Party bodies keep an eye on the state of the eradication of crime and other infringements of laws, on the measures adopted to prevent offences, on 48 the improvement of legal propaganda among the people; they render the courts assistance of an organisational character. Party bodies do not interfere in the adjudication of criminal and civil cases. Party directives ban any intervention by Party bodies in the administration of justice.
The same applies to the local Soviets. They have the right to hear reports made by judges on crime, on measures to strengthen legality, on measures to popularise Soviet laws and on general questions of judicial work. But the Soviets cannot interfere in the operational activity of people's courts, or in the adjudication of criminal and civil cases.
To provide additional guarantees for the independence of judges the lawmaker established that judges must appraise evidence according to their inner conviction, based on an all-round, complete and objective examination of all circumstances of the case as a whole and guided by the law and the socialist concept of justice. No evidence has a predetermined effect for the court.
If the higher court quashes a court judgement in cassation or supervision proceedings, it cannot indicate what judgement or decision the court of first instance should pass, nor can it recognise facts not recognised by the court of first instance as ascertained facts. Thereby, the court of first instance, which hears the case for a second time, is not bound to pass a judgement coinciding with the recommendations of a higher court. It must review the case once again and appraise the evidence in a way that corresponds to the inner conviction of the judges hearing the case and deliver a judgement based on the circumstances verified at a court sitting.
__ALPHA_LVL2__ 6. THE PUBLIC NATURE OF TRIALSArt. 111 of the Constitution of the USSR states that in all the courts of the country cases shall be heard in public, unless otherwise provided for by law. This principle means that judges carry out their work in full view of the people--- all court sittings at which criminal or civil cases are heard are attended by citizens, all court decisions and the evidence underlying these decisions are made public, the judicial proceedings are widely covered by the press, radio and television.
__PRINTERS_P_49_COMMENT__ 4---1738 49Publicity in court is needed primarily for the purpose of increasing the educational effect of judicial examination and judgements amongst the population: the more people attend the court sittings, the more chances there are that lessons will be learned contributing to the prevention of further crimes.
On the other hand, public control over the work of judges contributes to the improvement of the quality of the trial. People attending trials have an opportunity of being convinced personally of the objectivity with which the trial is conducted, which is conducive to the spread of respect for the court and the work of judges.
Art. 12 of the Fundamentals of Criminal Legislation states: ``In all courts cases shall be heard in public with the exception of those cases where publicity would be detrimental to the maintenance of state secrets. In addition to this, cases may be heard in camera by the considered decision of the court when they concern crimes committed by persons under the age of 16 years, in cases of sex crimes and also in other cases when it is deemed necessary to prevent the spread of information on the intimate sides of the lives of those concerned in the case. In all cases court judgements shall be pronounced in public.''
The principle of the public hearing of civil suits is formulated similarly in Art. 11 of the Fundamentals of Civil Legislation. All this shows that exceptions in Soviet law are minimal and there is little reason to assert that it is advisable to hear in open trials cases involving the study of intimate human relations or sex crimes. In our opinion, there is no need for this. Other statutory limitations relate to the protection of state secrets. This practice is absolutely essential and is adopted by all countries.
In referring to the importance of holding public hearings of bribe-taking, Lenin wrote: ``From the standpoint of principle it is essential not to leave such matters within the confines of bureaucratic institutions, but to bring them out into the public court---not so much for the sake of inflicting strict punishment (perhaps a reprimand will suffice), but for the sake of publicity and for dispelling the universal conviction that guilty persons are not punished.... We must not be afraid of the courts (our courts are proletarian) or of publicity, but must drag bureaucratic delays out into daylight for 50 the people's judgement: only in this way shall we manage to really cure this disease.''^^1^^
Bearing in mind the educational influence of trials, we must not forget that they have a great educational effect on the defendants as well, for they are obliged to account not only to the court itself, but also to some extent to the representatives of the public, to their comrades and relatives who are present at the trial.
Of great importance in securing the educational impact of the trial are the businesslike atmosphere of hearing, the proper behaviour of the participants in proceedings, the judges' lack of bias towards them, the objective form of formulating questions by the court and the high quality of the documents it compiles.
A special role is played by the chairman, whose actions and behaviour must be subordinated to the main goal---the comprehensive, complete and objective investigation of the circumstances of each case.
The courts hold travelling sessions, i.e., hearings organised at local enterprises, institutions, collective or state farms and conducted with the strictest observance of all procedural guarantees. They are an effective means of educational work, for they attract many people to courtrooms and especially those interested in some particular case. These sessions take place, as a rule, at enterprises where a crime has been committed or where the defendant or the injured party has worked, for this practice may exercise the greatest educational effect on the people attending them.
The coverage of trials in the press is an important means of making them public. It stands to reason that the methods employed to give wide currency to cheap sensation or relish the most disgusting elements of crimes are alien to the socialist concept of justice. This kind of press coverage of trials tends to corrupt the unstable members of society, whereas the Soviet style of press coverage primarily pursues an educational purpose, serving to foster in its readers intolerance of crimes, respect for the law, the court and the rules of socialist community life.
Judicial proceedings in the Soviet Union are conducted orally, all evidence being verified by the court itself. In _-_-_
~^^1^^ V. I. Lenin, Collected Works, Vol. 36, pp. 555--56.
__PRINTERS_P_51_COMMENT__ 4* 51 addition to checking up the materials of preliminary investigation, the court acquaints itself with all available evidence, discusses the value of every piece of evidence, reveals new evidence and makes an independent appraisal of it. The trial is conducted via personal and hence oral questioning by the court of all witnesses, defendants, injured parties and other persons participating therein.Art. 37 of the Fundamentals of Criminal Legislation states: ``A court of first instance, in hearing a case, shall examine the evidence of the case directly; question the defendants, the injured parties and witnesses; hear the findings of experts; examine exhibits, and read out records and other documents.'' In line with this provision Art. 43 of the Fundamentals contains the following rule: ``The court shall base its judgement exclusively on the evidence examined at the trial.''
Thus, in pronouncing its judgement the court cannot take into account evidence not verified by the court itself in open trial. According to the Criminal Procedure Codes of the Union Republics, the courts may confine themselves to the oral pronouncement of testimony given by witnesses and defendants at the stage of preliminary investigation only in exceptional cases. The court is duty bound to question all the requisite persons and obtain their personal oral explanations.
__ALPHA_LVL2__ 7. THE LANGUAGE OF JUDICIAL PROCEEDINGSUnder the Constitution of the USSR (Art. 110), judicial proceedings are conducted in the language of a Union or Autonomous Republic or of an Autonomous Region and in cases provided for by the Constitutions of the Union or Autonomous Republics, in the language of a National Area or of the majority of the district where the trial is held. All persons taking part in a trial, who do not know the language in which proceedings are being conducted, have the right to acquaint themselves with all the materials of the case through an interpreter and to speak in court in their native language. Documents concerning the investigation and the trial are handed to the accused person, translated into the language he understands.
52This constitutional provision guarantees the equality of citizens before the law and the court, regardless of their nationality, and creates conditions for the complete defence of the interests of the persons accused of committing crimes. In consequence all those present at the trial have a real possibility to appraise the court's actions and draw correct conclusions from the case.
__ALPHA_LVL2__ 8. THE RIGHT OF THE ACCUSED TO DEFENCEIn speaking about the right of the accused to legal defence, provided for in Art. 111 of the Constitution of the USSR, we must bear in mind all the relevant legal norms which he can use to defend himself against the charge made. The defendant has the right to know what he is charged with, to get acquainted with the materials of the case before they are sent to court, to participate in the investigation of evidence during the trial, to challenge the judges and other participants in the trial, to appeal against the judgement, and so on. Objectively, all these rights constitute the defendant's right to defence.
The right to defence is sometimes understood by the layman merely as the defendant's right to have the services of an advocate (defence counsel). This conception is wrong, since the defendant's rights are protected by many other procedural guarantees. For instance, when a preliminary investigation is over, the investigator concerned is duty bound to present all the materials of the case to the defendant and enable him to study them and file the requisite petitions. Within three days before the court begins the trial, it is obliged to hand a copy of the indictment to the defendant, which guarantees him the real possibility of preparing himself for his defence in court.
Like the public prosecutor, the injured party and other participants in the trial, the defendant has the right to participate in the investigation of evidence, adduce new evidence, submit petitions and challenge the members of the bench, give explanations regarding the testimony by the injured party, witnesses and findings of experts. The accused has the right to the last plea in court.
53The right to have defence counsel is of especial importance to the accused person. The law guarantees the provision of qualified legal aid. Every district and town has a legal aid bureau and a bar association staffed by professional lawyers, or advocates, whose function is to give legal aid to the population.
Before 1958, the defendant could use the services of defence counsel only at court sittings, but not at the stage of preliminary investigation. The Fundamentals of Criminal Procedure, acting on the need further to democratise criminal procedure, extended the right of the accused person to defence by allowing him to have a defence counsel either from the moment when he receives an indictment or when the preliminary investigation is terminated and he has been handed all the materials of the case for his perusal.
The law provides for the mandatory participation of defence counsel in a number of cases. In particular, his participation is mandatory in cases in which a prosecutor takes part, in cases of minors and of persons who by virtue of physical or psychic deficiency are incapable of defending themselves in court. If the defendant does not possess sufficient means to pay for an advocate's services, while the court recognises that the participation of defence counsel in a trial is mandatory, the relevant bar association, on the court's motion, is duty bound to appoint an advocate and pay him the requisite fees out of its funds.
To this must be added the defendant's right to defence guaranteed by the statutory procedure for appealing against court judgements. Every convicted person and his defence counsel have the right to appeal to a higher court against any decision taken by a lower court. If the case is to be examined in a court of second instance as a result of the appeal lodged by the defendant or his representative, the court is duty bound to inform the convicted person or his representative of the day of hearing, and they are entitled to be present during cassation proceedings and give their explanations.
Infringement of the right of the accused person to defence is a gross violation of the law and leads to the unconditional quashing of the court sentence or decision in question.
54 __ALPHA_LVL2__ 9. THE EQUALITY OF CITIZENS BEFOREArt. 5 of the Fundamentals of Legislation on the Soviet Judicial System says: ``Justice in the USSR shall be administered in accordance with the principle of the equality of all citizens before the law and the court irrespective of their social, property and official status, their nationality, race or religion.'' There are neither legal disabilities nor privileges for any national groups in the Soviet Union. Nobody can count on the court's treating one guilty person differently from another one who has committed a similar crime, other conditions being equal. The court is duty bound to apply the law, irrespective of nationality, origin, property or official status. This is facilitated both by legislation and by judicial activity aimed at combating all kinds of national enmity and inequality.
In December 1958, the Supreme Soviet of the USSR passed a Law on Criminal Responsibility for Crimes Against the State and qualified a violation of national or racial inequality as a state crime. This law provides for criminal liability for the propagation of racial or national enmity and hatred, likewise for a direct or indirect restriction of human rights or the institution of direct or indirect advantages for citizens on grounds of racial or national origin.
It is necessary to emphasise, however, that the main achievement in solving the national question in the Soviet Union consists in the abolition of the economic and cultural inequality of nations, in their attainment of actual equality in all spheres of social life, and not only in the establishment of criminal responsibility for the crimes of instigating national or racial enmity, etc. The abolition of actual inequality required much more time than the elaboration of legal norms relating to the political equality of nations. The solution of the national question in the USSR, the consolidation of the friendship of peoples in the multinational country constitutes one of the major achievements of socialism in the sphere of national relations.
The Soviet law protects not only national or racial equality, but also the equality of men and women in the socio-- political, cultural and economic spheres. Art. 122 of the Constitution of the USSR accords women all rights. Infringement 55 of their right to participate in political, social and cultural activities constitutes a corpus delicti.
Soviet women play an important role in the judiciary, this being exemplified by the following figures. The Supreme Courts of the Union Republics have on their benches many women: they comprise 25 per cent of their members. Women also constitute over 33 per cent in the Supreme Courts of the Autonomous Republics, the courts of territories and regions. Every third judge in the people's courts---the main link of the judiciary---is a woman.
Persons of different creeds and atheists enjoy full equality before the law and the court. The latter does not seek to ascertain whether this or that participant in the trial is a believer or an atheist. Freedom of religious worship is protected by law.
__ALPHA_LVL2__ 10. THE PRINCIPLES OF JUSTICEThe question of the rights and duties of foreign nationals who stay or reside on Soviet territory temporarily is also regulated in the Soviet Union in complete conformity with the principles of socialist justice. It must be stated that the Soviet state applies the principle of full equality to all aliens regardless of their national origin, sex, religion, creed, etc.
The law gives all aliens equality of status with Soviet citizens both in the sphere of civil, family, labour and other relations and in the sphere of criminal responsibility. Exemptions with regard to their legal status are few and do not go beyond the framework of the usual limitations applicable to the aliens in other states, in full conformity with international law and custom.
Legislation on aliens. Art. 14 of the Constitution of the USSR states that legislation on the rights of aliens comes within the jurisdiction of the USSR, which means that legislation in this sphere is ail-Union and not Republican. In accordance with this constitutional provision, the rights of aliens are regulated by the norms contained, in the first place, in the following all-Union laws: the Fundamentals of Civil and Criminal Legislation, the Fundamentals of Legislation on Marriage and the Family, the 1938 Law on Citizenship of the USSR, the Merchant Marine Code of the 56 USSR (1968) and the Customs Code of the USSR, adopted in 1964.
Beside Soviet internal legislation the legal status of aliens in the USSR is governed by international treaties entered into by the USSR with other countries. In this connection the Fundamentals of Civil Legislation, for example, state that where an international treaty or agreement to which the USSR is party establishes rules other than those contained in Soviet civil legislation, the rules of the international treaty or agreement shall apply.
Prominent among the treaties and agreements now in force are the treaties on legal aid dealing with civil, family and criminal cases. Such treaties have been signed with the GDR, Bulgaria, Mongolia, Poland and other socialist states. Consular agreements and conventions, signed with many countries, including Austria, the FRG, also contain norms concerning aliens. Many legal questions are regulated in trade agreements concluded with Britain, Belgium, Sweden, Japan, Turkey and other states.
Questions of citizenship. Aliens and stateless persons resident in the USSR or abroad may be received into Soviet citizenship regardless of their nationality or race, but only by formal application to the Presidium of the Supreme Soviet of the USSR or of the Union Republic in which they are resident. Marriage of a foreign citizen of either sex does not entail the acquisition of Soviet citizenship. This question is settled according to the general procedure. Adoption of a Soviet citizen by an alien or vice versa does not entail any change of citizenship. Children between the ages of 14 and 18 are required to give their consent on change of citizenship. Soviet citizenship may be relinquished only in special cases provided for by an ordinance adopted by the Presidium of the Supreme Soviet of the USSR.
Entry and exit of aliens. These questions are regulated by the Regulations Governing the Entry into the USSR and the Exit from the USSR, approved by the Council of Ministers of the USSR on June 19, 1959, and also by the Ordinance on Criminal Responsibility of Aliens and Stateless Persons for Malicious Violation of Movement Rules on Soviet Territory, adopted by the Presidium of the Supreme Soviet of the USSR on July 23, 1966 and by other enactments.
57Soviet legislation follows the established practice adopted in most countries to the effect that aliens are admitted or expelled by duly authorised bodies. It contains no restrictions to admission to be imposed on account of political or religious views, race or nationality and the like.
An alien is allowed to enter the USSR or to leave it only if he has a special passport or other analogous document, with the appropriate Soviet entry or exit visa, unless special arrangements have been agreed upon between the Soviet Union and the country concerned.
Soviet law establishes criminal responsibility for violating the Soviet entry or exit rules. Thus, Art. 20 of the Law on the Responsibility for Crimes Against the State imposes a punishment of up to three years of imprisonment for exit from or entry into the country, or crossing the border without the proper passport or permission from the competent authorities. This does not apply to aliens who arrive in the USSR without due documents or special permission, if they do so to seek asylum in accordance with the Constitution of the USSR. This Law (Art. 21) also establishes criminal responsibility for entry into or exit from Soviet air space without due authorisation and deviation from air routes and the infraction of other rules governing international flights.
Aliens coming to the Soviet Union must observe all the customs and currency regulations that operate in the country, including the relevant articles of the Customs Code of 1964. In particular, their luggage undergoes customs inspection at points of arrival, this measure being prompted by the complete ban on bringing into the country firearms, narcotics, pornographic literature, printed matter prejudicial to the USSR and so on. At the same time aliens are entitled to bring into the country articles required for personal use. They are forbidden to take out of the country firearms, materiel, articles of ancient art (icons, paintings), and so on.
All aliens arriving in the Soviet Union or leaving it must fill in a customs declaration, which lists all their articles and valuables. The articles, currency and valuables not listed in a declaration are subject to confiscation. Foreign currency and various valuables may be brought into the country without any limitations, but in order to be taken out of the country they must be registered at the customs on entry.
58A special residence permit is required for a long stay in the Soviet Union.^^1^^ All persons who have arrived to stay temporarily or permanently and who have received a residence permit can freely travel about the country in the same way as Soviet citizens with the exception of certain specified localities, entry into which requires special permission from the official authorities. These limitations are imposed on state security grounds. Aliens who have violated the established rules of residence may be ejected to a permanent place of residence or fined. They may even be held criminally responsible, but only in special cases stipulated in law.
It is clear from the foregoing that Soviet l