Til
YURI STETSOVSKY
__TITLE__ The Right of the Accused to Defence in the USSR __TEXTFILE_BORN__ 2007-06-19T13:34:05-0700 __TRANSMARKUP__ "Y. Sverdlov"Translated from the Russian by H. Campbell Cre-ighton, M. A. (Oxon.)
__NOTE__ "Translated" is on title page in original!Progress Publishers
Moscow
[1]Designed by Gennady Gubanov
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__COPYRIGHT__ © HaflarejibCTBO «riporpccc», 1982 English translation © Progress Publishers 1982Printed in the Union of Soviet Socialist Republics
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1203140000 [2] CONTENTS Page Introduction P General Points on the Accused's Right to Defence Chapter 1. Guaranteeing the Accused's Right to Defence: One of the Democratic Principles of Soviet Criminal Procedure Chapter 2. Securing the Accused's Right to Defence in the Democratic System of Soviet Criminal Procedure Chapter 3. Guarantees of the Accused's Right to Defence Part II Defence Counsel in Soviet Criminal Proceedings Chapter 4. The Entry of Defence Counsel into a Criminal Case Chapter 5. Defence Counsel's Procedural Position Chapter 6. Defence Counsel's Procedural Activity Chapter 7. Special Points on the Defence of Minors Part III The Organisation of the Soviet Bar and Securing of the Accused's Right to Defence Chapter 8. The Organisational and Legal Position of Colleges of Barristers Chapter 9. Rights Stemming from Membership of a College of Barristers Chapter 10. Duties Stemming from Membership of a College of Barristers 12 34 79 93 112 127 188 206 207 219 231 243 278 Appendix Subject Index [3] ~ [4] __ALPHA_LVL1__ INTRODUCTIONBelief in the dignity of the human personality and the individual's desire for a peaceful life have been affirmed in the Charter of the United Nations and a number of other very important international documents, but the problems to which the latter are devoted can only be solved on the basis of mutual understanding and mutual knowledge.
Unfortunately, readers' information about Soviet law is often incomplete, and at times even distorted. That is especially so in regard to legal proceedings and legal procedure, which affect a person's basic rights, i.e. his freedom, dignity, and honour, and sometimes his life, in a very direct way. The purpose of this book is to help the reader understand the right of the accused to defence in the USSR.
Before we proceed to describe the right to defence it seems necessary to speak first about Soviet criminal procedure and criminal proceedings, albeit in a very general way.
The concept 'criminal proceedings' emphasises that the main point is the administration of justice, which is done in the USSR only by a court. Soviet criminal proceedings are a special form of state activity, the purpose of which is to detect crimes quickly and fully, to convict those guilty, and to ensure proper enforcement of the law, so that everyone who commits a crime is justly punished, yet no innocent person will be held criminally responsible and convicted.
The Union of Soviet Socialist Republics is a federal, multinational state uniting 15 constituent Union republics. The Supreme Soviet of each Union Republic adopts its own constitution, and its own legal codes and other statutes. The procedure for conducting criminal cases is laid down by the Fundamentals of Criminal Procedure of the USSR and Union Republics of 25 December 1958,^^1^^ and other statutes of the USSR and the criminal procedure codes of the Union republics promulgated in accordance with them.
_-_-_~^^1^^ The Fundamentals of Criminal Procedure of the USSR and Union Republics are included as appendix to the present volume. They will __NOTE__ Footnote cont. on page 6. 5
Irrespective of where the crime has been committed court proceedings are carried on in each republic in accordance with its criminal procedure code.^^1^^
The procedure for court proceedings laid down by criminal procedure statutes is identical for, and binding on, all courts, agencies of the Procurator's Office and preliminary investigation, and in all criminal cases.
All courts in the USSR are formed on the principle of the electivity of judges and people's assessors.
Criminal cases are heard in courts of first instance by a judge and two people's assessors. The latter enjoy equal rights with the professional judge, who presides over the hearings, in the decision of any point arising during the administration of justice.
Soviet criminal proceedings consist of several steps, known as procedural stages: viz. the institution of criminal proceedings; the preliminary examination or investigation; committal for trial (arraignment); the hearing; appeal; execution of the sentence. In addition to these six stages a case sometimes goes through one or two others, viz. review, and re-opening because of newly discovered circumstances. In both these stages enforcement of the sentence may be reconsidered.
The first stage in criminal proceedings is the institution of a case. This may be done by an agency of preliminary investigation, a procurator, or a court only with due cause and on legal grounds. No other authorities have the right to institute criminal proceedings; their raising of the matter of holding a person criminally responsible can be considered solely as grounds for instituting proceedings.
The law contains an exhaustive list of the grounds for instituting criminal proceedings. These are the following: statements and letters of citizens; communications from organisations and _-_-_ __NOTE__ Footnote cont. from page 5. also be found in another translation in Fundamentals of Legislation of the USSR and the Union Republics (Progress Publishers, Moscow, 1974) ,pp 272--295.
~^^1^^ Generally we shall refer to articles of the Criminal Procedure Code of the Russian Soviet Federative Socialist Republic (hereafter CPC RSFSR). Unless otherwise stated, we also have in mind the corresponding articles of the criminal procedure codes of the other Union republics. The codes came into force between 1959 and 1961.
6 officials; articles, reports, and letters published in the press; a confession of guilt; the direct discovery of prima jade evidence of a crime by the preliminary investigation authorities, a procurator, or a court.The grounds for instituting criminal proceedings are the existence of sufficient facts indicating the commission of a crime. If there are no such facts, the institution of proceedings is refused and the complainant is so informed, who may then appeal against the refusal to the procurator or a court of higher instance.
The next step in criminal proceedings is the stage of preliminary investigation in the form of a preliminary examination, inquest. As a rule a preliminary investigation is made in criminal cases; we shall therefore speak of the investigator and not of the person conducting an inquiry.
The law contains clear indications of the delimitation of jurisdiction between the investigators of various bodies (Art. 126 of the CPC RSFSR'deals with this).^^1^^
Observance of the law by the preliminary investigation agencies is supervised by the Procurator-General of the USSR and the procurators under his jurisdiction.
At the stage of the preliminary investigation the accused appears, i.e. the person in relation to whom a warrant to bring him to court as the accused has been issued.^^2^^ At this stage the indictment is drawn up, which, after endorsement by a procurator, is sent with the case to the court.
At the stage of arraignment observance of the laws during the institution of proceedings and investigation of the case is checked and the possibility of a court hearing decided. The decision to arraign the accused is the right solely of a judge. If the accused is under age, or if there are grounds for quashing the case _-_-_
~^^1^^ In the overwhelming majority of criminal cases the preliminary investigation is assigned by law to the competence of investigators of the agencies of the Ministry of Internal Affairs.
A small number of cases of a specific nature are examined by investigators of the Procurator's Office, and a. smaller number still by investigators of the state security agencies.
~^^2^^ When brought to court the accused is known as the defendant; an accused person against whom a verdict of guilty has been found is a convict. The concept `accused' is thus generic and broader than `defendant' or `convict'.
...........
7 or for returning it for further investigation, and in a number of other circumstances, the decision is taken by a court consisting of a judge and two people's assessors.The court hearing is central to criminal proceedings. Only at that stage can a citizen be found guilty in the name of the state of having committed a crime and be sentenced. More than 95 per cent of Soviet criminal cases are heard in the first instance by district or city people's courts. Higher courts hear cases of state crimes specified in the law, of murder with aggravating circumstances, and certain other crimes. Cases of all crimes committed by servicemen, and other criminal cases, too, in individual instances, come under the jurisdiction of military tribunals.
A verdict or judgment may be appealed against, and private complaints lodged against certain rulings of a court of first instance and decisions of a judge (the procurator can correspondingly make an appeal or private protest).
Appeals and protests against the verdicts and rulings of a court of first instance and judges' decisions are reviewed by a court of appeal (second instance), i.e. the criminal bench ( collegium) of a regional, territorial, or city court, court of an autonomous region or autonomous area, the Supreme Court of an Autonomous Republic, or the Supreme Court of a Union Republic, and also by the Military Bench (Collegium) of the Supreme Court of the USSR. A court of appeal consists of three professional judges. Witnesses, victims,^^1^^ and experts^^2^^ are not called to its hearings, but if the defendant or another party is present the court hears their explanations. After the materials of a case have been examined at the stage of an appeal hearing, one of the following decisions may be taken: (a) the verdict is upheld without alteration and the accused's or procurator's appeal or complaint is not granted; (b) the judgment is quashed and the case returned for a new investigation or a _-_-_
~^^1^^ A victim is a person in respect of whom there is prima facie evidence for a preliminary conclusion that his well-being or goods protected by criminal law have been infringed or endangered by a crime.
~^^2^^ An expert is an experienced person called by the investigator or court to explain matters requiring special knowledge in science, engineering, art, or a trade. An expert presents the findings of an investigation made by him, which are a source of evidence.
8 new hearing; (c) the judgment is amended in favour of the defendant (mitigation of the sentence; the striking out of certain points in the indictment, etc.).When the period for making an appeal or protest has expired, or the court of appeal does not quash the judgment, the latter comes into legal force and has to be executed.
At the stage of execution of a court's judgment questions of a conditional release from punishment before the expiry of its term, or of exemption from punishment because of illness, and other matters, have to be decided.
This structure of criminal proceedings may seem excessively complicated at first glance, but in fact the existence of all these stages is quite justified. Each successive stage is a control in relation to the preceding one, and that is important for guaranteeing the rights of the individual and realising the objectives of Soviet criminal procedure.
__*_*_*__Guaranteeing the accused's right to defence is both a constitutional and procedural principle, and one that is closely linked with the principles of the presumption of innocence, the independence of judges and their subordination only to the law, the establishing of substantive truth, the public nature, contentious character, directness, and openness of a criminal trial, use of the national language in court proceedings, and the participation of the public in them. The interaction of these principles guarantees the accused's right to defence, and makes it a real right.
The activity of the public authorities involved in criminal proceedings is of immense importance for realising the accused's right to defence. The investigator, procurator, and court are bound to provide the accused with the chance to defend himself against the charge by the established means and procedures, and also to secure defence of his personal and property rights. It would be quite wrong, however, to present the right to defence out of context of the accused's procedural activity. The securing of his right to defence, and of citizens' other rights, 9 is inseparable from the work of the Bar. Soviet colleges of advocates or barristers render the public comprehensive legal aid. These colleges, or co-operatives of lawyers, are public self-- managing organisations. When a barrister is performing the functions of defence counsel he employs all the means and procedures of defence provided for in law in order to bring out circumstances demonstrating the accused's innocence, and ruling out or mitigating his responsibility, and also gives the accused legal help. A barrister decides his position in a case independently, irrespective of the position of any public authority whatsoever, or of the views of any officials. The organisation and methods of work of colleges of barristers are governed by Article 161 of the Constitution of the USSR and Ail-Union legislation---the Law on the Bar of the USSR^^1^^---passed on 30 November 1979.
Our book is devoted in the main to the principle of securing the accused's right to defence, to the activity of the accused and his defender,^^2^^ and to the organisation of the Bar. In writing it we have drawn on various sources, primarily the Constitution of the USSR adopted on 7 October 1977. A number of the rights of citizens consolidated in it were also provided for in the earlier Fundamental Law (Constitution), but the new Constitution at the same time reflects qualitative shifts in the volume of a Soviet person's rights.
In addition to the Constitution we have employed current legislation of the USSR, international treaties and conventions signed by the USSR, and other acts. We have also drawn widely on materials from the practice of the courts, the Procurator's Office, and the Bar,^^3^^ and (it goes without saying) on the writings of jurists.
The frequent citing of court practice should not be taken, _-_-_
~^^1^^ For the full text of the law see L. N. Smirnov (Ed.). Legislative Acts of the USSR, 1977--1979 (Progress Publishers, Moscow, 1981), pp 330--337.
~^^2^^ Editor's note: in Soviet law the accused's defender need not necessarily be a lawyer. The accused's right to name other persons to conduct his defence is dealt with in Chapter 4, §2.
~^^3^^ Some of these materials are published in the following journals: Bulleten' Verkhovnogo Suda SSSR, Bulleten' Verkhovnogo Suda RSFSR, and Sotsialisticheskaya zakonnost' (hereafter BVS SSSR, BVS RSFSR, and SZ) and various collections of law reports and guiding materials.
10 however, to mean that judicial precedent exists in the USSR. Soviet jurisprudence considers court practice as a factor in perfecting legislation. It is quite possible, in any concrete case, that the investigator or the court will take published judicial practice into account if the need should arise to decide general matters touching on similar cases, but in all cases a decision taken must be based on statute law. That is a constitutional requirement and indefeasible condition of consolidating socialist rule of law.^^1^^I have not tried to throw light on all the problems of the right of the accused to defence and to expound all the views of Soviet jurists on this matter. Some of the views expressed here may be contentious, but the existence of different points of view on any question is natural, and it is impossible for jurisprudence and legal safeguarding practice to develop without it.
The published text is the result of many years' work as a barrister and jurist. I would like to express my gratitude to all those who have helped me improve it.
_-_-_~^^1^^ References to published law reports is not evidence of a great number of quashed or altered judgments. In recent years the number of such cases has fallen by more than a third (BVS SSSR, 1977, 1:3).
[11] __NUMERIC_LVL1__ PART I __ALPHA_LVL1__ General Points on the Accused's Right to Defence __NUMERIC_LVL2__ 1 __ALPHA_LVL2__ Guaranteeing the Accused's Right to Defence: OneThe Constitution of the USSR, in defining the system of principles of the Soviet state and social system, and the fundamental rights and duties of citizens, at the same time defines the basic principles of criminal procedural law.
The principles of criminal procedure are inseparably linked with the character of the social system and the extent of citizens' rights and freedoms. The problem of ensuring the accused his right to defence is therefore resolved in dependence on such broad matters as the degree of democracy in a country and the legal position of the individual in it. The freer a person is in a country the more procedural guarantees he has against illegal detention, arrest, and search, the broader are the accused's possibilities of defending his rights, and the more rigorous are the requirements for proof of guilt. Criminal procedure in turn largely characterises the political regime of a country, the level of development of democracy, and the degree to which civil rights are guaranteed.
The right to defence is a principle consolidated in the Constitution of the USSR, in which it is specially stated that the accused is guaranteed this right. In other words the Soviet all-- people's state not only recognises an accused person's right to defence against an accusation but also guarantees him the opportunity, 12 in fact, to exercise it. The guarantees of this consist in general in all authorities, public and social organisations, officials, and citizens having to observe Soviet laws strictly and without deviation. Article 4 of the Constitution states:
As regards criminal procedure one can speak of guarantees of the accused's right to defence, having in mind the aggregate of provisions whose aim is that everyone who commits a crime should be justly punished and that no one who is innocent should be held criminally responsible and condemned.The Soviet state and all its bodies function on the basis of socialist law, ensure the maintenance of law and order, and safeguard the interests of society and the rights and freedoms of citizens.
State organisations, public organisations and officials shall observe the Constitution of the USSR and Soviet laws.^^1^^
Legal defence of citizens is carried out by Soviet authorities and agencies. In the mutual relations of the socialist state and the individual, the latter functions as a citizen, i.e. as a category of constitutional law. The juridical form of their inter-relations is rights and duties: to the rights of citizens there correspond obligations of the state, and to the duties of citizens rights of the state.
In Soviet jurisprudence citizenship is regarded as a person's stable juridical link with the state or the fundamental legal relation between the state and a citizen, conventionally called the juridical relations of citizenship. The social content of this link or juridical relationship is that the constitutional consolidation of citizens' rights means the state's obligation to provide defence of these rights against unlawful infringements by any authority or social body, official, or private person.
In socialist society it is the state that functions as the principal organisation that has to guarantee citizens' rights and interests. According to the Constitution of the USSR, the securing of citizens' rights is a principle of the Soviet state's functioning. _-_-_
~^^1^^ Constitution (Fundamental Law) of the Union of Soviet Socialist Republics (Novosti Press Agency Publishing House, Moscow, 1977), p 20. All references to the Constitution hereafter are to this edition.---Tr.
13 Citizens' right to legal defence by the Soviet state and all its bodies, agencies, and officials follows without any shadow of doubt from the substance of the Constitution and current legislation. It is no accident that during the debate in the Supreme Soviet of the USSR, it was stated that 'the state takes on itself defence and protection of citizens both on the territory of our country and beyond its borders'.^^1^^On that basis the Soviet Union signed and ratified the International Covenant on Civil and Political Rights, which obliges countries to provide any person with effective means of legal defence (remedy) if that person's rights or freedoms recognised by the Covenant are violated (Article 11, Part II).^^2^^
The Constitution of the USSR obliges the government and local Soviets (Councils) of People's Deputies to carry out measures to guarantee and defend citizens' rights and freedoms (Art 131 and 146). Defence of the rights and interests of citizens is also the duty of courts, the Procurator's Office, the militia, and other state bodies and agencies.^^3^^ According to the USSR Law on Public Notary's Offices, for example, public notaries are obliged to give citizens help in exercising their rights, to explain their rights and duties to them, and to warn them of the consequences of the deeds and documents sworn by them, so that ignorance of the law and other such circumstances cannot be used to their detriment (Art. 8)~.^^4^^
The forms of legal defence by the organs and agencies of the socialist state are thus various; so too are the agencies on which _-_-_
~^^1^^ Izvestia, 2 December 1978.
~^^2^^ See Yearbook of the United Nations 1966 (U. N., New York, 1968), p424.
~^^3^^ This is stated in Article 3 of the Fundamentals of Legislation on the Judicial System of the USSR and Union Republics, and Article 6 of the Fundamentals of Civil Legislation of the USSR and Union Republics (see Fundamentals of Legislation of the USSR and the Union Republics, Progress Publishers, Moscow, 1974, pp 137, 154), Article 2 of the Law on the USSR Procurator's Office, Article 1 of the Law on the USSR Supreme Court, and Article 1 of the Regulations on the Soviet Militia.
~^^4^^ Vedomosti Verkhovnogo Soveta SSSR, 1973, 30: Item 393 ( hereafter referred to as VVS SSSR). (This register publishes the acts of the supreme sovereign authorities of the USSR, to wit, the Supreme Soviet of the USSR, and in many cases, of its Praesidium.)
14 a duty of defending the rights and protecting the lawful interests of citizens is laid. But each citizen is confident that, in the application of the standards and norms of Soviet legislation, his personal freedom, life, and health, his possessions and dwelling, his rights, dignity, and peace are under the reliable protection of the Soviet state.By elevating guarantees of the accused's right to defence to a constitutional principle, the Soviet state makes a number of important duties incumbent on the appropriate public agencies. The preliminary investigation agencies, the Procurator's Office, and the courts are bound to conduct a trial so as 'to provide the accused with the chance to defend himself by the legally established ways and means against the accusation brought against him and to guarantee him protection of his personal and property rights'; and 'to bring out circumstances .. . exonerating the accused and . . . mitigating his guilt' (Art. 13 and 14 of the Fundamentals of Criminal Procedure of the USSR and Union Republics).^^1^^ Performance of these duties gives real substance to the right to defence.
The juridical institutes^^2^^ of the right to defence and of citizenship are also reinforced by the provisions on citizens' equality before the law and the courts, defence of their rights irrespective of their property status and other social factors. These institutes also guarantee the accused's right to the help of an advocate to defend him.
The democratic essence of the principles of Soviet criminal proceedings. Procedural principles are the basic legal provisions and guiding ideas elevated into law that express the substance, purpose, and most typical methods of criminal proceedings. They are peremptory requirements, and observance of them during the investigation and hearing of a concrete criminal case is the bounden legal duty of the investigator, procurator, and court. The decision of all partial matters of criminal proceedings is subject to the procedural principles, and it is impossible to assimilate the substance of the separate procedural norms properly in _-_-_
~^^1^^ Hereafter we shall refer to this statute simply as the Fundamentals.
~^^2^^ A juridical institute is a set of legal norms regulating some one field of similar social relations.
15 isolation from them. Study of Soviet law therefore calls for an analysis of its principles.The court, the Procurator's Office, and the preliminary investigation agencies are bound to observe all the norms of the accused's rights. Any breach of these standards ultimately leads to violation of the principle of ensuring his right to defence and therefore entails the application of legal sanctions against the agencies conducting the case (i.e. return of the case for additional investigation; quashing of the judgment, etc.).
The Constitution of the USSR lays it down that:
No one may be adjudged guilty of a crime and subjected to punishment as a criminal except by the sentence of a court and in conformity with the law (Art. 160).^^1^^
Thus, before a court brings in a verdict of guilty, the accused is not yet guilty and is therefore still granted the right of defence. That is particularly necessary, since measures of procedural coercion may be applied to an accused before the matter of his guilt has been decided. In the final analysis, all the principles of Soviet criminal procedure as well as the individual procedural norms are aimed at ensuring legality at all stages of the progress of a criminal case.
The accused's right to defence is an aggregate of procedural rights granted to him to defend himself against an accusation both personally and with the help of defence counsel. The principle of guaranteeing the accused's right to defence is itself reinforced in the Constitution of the USSR. The varied content of this right is concretised in a whole number of criminal procedural norms.^^2^^
_-_-_~^^1^^ Constitution (Fundamental Law) of the Union of Soviet Socialist Republics, p 116.
~^^2^^ A number of rights of the accused are also provided for in the international conventions signed by the USSR. Article 5, Part II of the International Covenant on Civil and Political Rights says: 'Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant' (Yearbook of the United Nations 1966, p 424). __NOTE__ Footnote cont. on page 17. 16
The right to defence is granted to any accused and continues throughout his trial.^^1^^ The volume of the accused's procedural rights develops and changes as the trial proceeds, but his position as the subject of the trial and the object of his right to defence (namely, demonstration of circumstances refuting the accusation and excluding or mitigating responsibility) remain unaltered. The principle of guaranteeing the accused's right to defence does not depend on the character of the charge, or on the personality of the accused, or on the persuasiveness of the evidence gathered against him.
The normative character of the accused's right to defence and direct application oj the Constitution. We have already stressed that the guaranteed character of civil rights is a most important criterion of socialist constitutionalism. The Constitution of the USSR does not speak simply of the right to defence but about guaranteeing the accused's right to defence. Many norms of special legislation are devoted to this, namely of the Fundamentals, the criminal procedure codes of Union republics, and so on.
The Plenum of the USSR Supreme Court pays much attention to matters of the right to defence, and guiding directive No. 5 of 16 June 1978 on courts' practice of applying laws _-_-_ __NOTE__ Footnote cont. from page 16.
The principles of respect for human rights, and conscientious fulfilment of the obligations stemming from the international treaties and conventions signed by the USSR are reinforced in the Constitution of the USSR (Art. 29). Accordingly it is stated in Article 21 of the USSR Law of 6 July 1978 On the Procedure for Concluding, Implementing, and Abrogating International Treaties of the USSR, that the public bodies into whose competence matters regulated by the USSR's international treaties and conventions fall, shall ensure fulfilment of the obligations undertaken by the Soviet side under the treaties, keep an eye on exercise of the rights belonging to the Soviet side stemming from said treaties, and also the other parties' fulfilment of their obligations (VVS SSSR, 1978, 28:Item 439).
~^^1^^ Suspects also enjoy the right to defence, i.e. persons detained for up to 72 hours on suspicion of having committed a crime. A suspect is also a person against whom preventive measures have been taken before the presentation of an indictment.
A suspect is not necessarily involved in a criminal case, and in the present work we have in mind primarily the accused in the broad sense of the term.
__PRINTERS_P_17_COMMENT__ 2---665 17 guaranteeing the accused the right to defence was devoted to it.^^1^^ The provisions of this important document (we shall be referring to it many times) are aimed at carrying out the diverse norms on the accused's right to defence, the significance of which is also stressed in the decisions of other Soviet courts. The Supreme Court of the RSFSR, for instance, in quashing judgments in concrete cases, has said:the right to defence must be real, actual, and not formal;
the judge presiding in a case is bound to provide the persons involved in a hearing the chance for real guarantee of the rights granted them by the law, and unswervingly observe the norms that guarantee equality of the rights of the parties in a trial,^^2^^ etc.
Rights and duties are the main yardsticks of possible and due conduct. They are mutually dependent and incapable of existing in isolation. The unity of rights and duties is a necessary criterion of the right to defence. This right of the accused's always corresponds to duties of the investigator, procurator, and court.
The duties of the authorities involved in a trial, however, are not the sole juridical guarantee of the right to defence. The Fundamental Law of the USSR (Constitution) is also a juridical guarantee of it, and the many constitutional provisions are undoubtedly important as regards securing this right of the accused. They include the following principles: socialist legality or rule of law (Art. 4); defence of citizens' rights and freedoms (Art. 4, 57); the inviolability of the person (Art. 54); the _-_-_
^^1^^ BVS SSSR, 1978, 4:8--12.
A plenum of the USSR Supreme Court performs several very important functions. For instance, it reviews official appeals (protests) of its Chairman and of the USSR Procurator-General against decisions, judgments, and rulings of its Judicial Bench and directives of the Supreme Courts of Union republics; it reviews documents generalising judicial practice and court statistics, and hands down guiding explanations to courts on matters of the application of legislation during the hearing of cases, etc. The guiding directives of a plenum are binding on courts, other agencies, and officials who are applying the law on which an explanation is given (see Art. 3 and 18 of the Law on the USSR Supreme Court of 30 November 1979).
~^^2^^ BVS RSFSR, 1972, 5:9.
18 inviolability of the home or domicile (Art. 55); protection of citizens' privacy, correspondence, telephone conversations, and telegraphic communications (Art. 56); respect for the individual, and citizens' right to protection by the courts against encroachments on their honour and reputation, life and health, and personal freedom and property (Art. 57); the right to complain against the actions of officials, state bodies, and public bodies (Art. 58)^^1^^; the administration of justice only by a court (Art. 151); the electiveness of judges and people's assessors (Art. 152); the collegial hearing of criminal cases in all courts (Art. 154)^^2^^; etc.The authorities that create legal norms specify the principles consolidated by the Fundamental Law.^^3^^
Addressees of the principle of guaranteeing the right to defence are also social organisations and citizens (Art. 65, 162).
Such social organisations as colleges of barristers are bound to undertake the defence of accused persons, while other social organisations have the right to appoint defenders.^^4^^ In addition, representatives of social organisations and of work collectives may take part in the hearing of criminal cases as social defenders.^^5^^
The normative character of the right to defence enables citizens who are the subjects of this right to use all the means provided for in law to defend themselves against an accusation, basing themselves on Articles 4 and 57 of the Constitution, and to require the authorities to observe the constitutional right to defence, and the laws stemming from it, rigorously and without deviation. It is also important that all citizens are bound to observe the Constitution of the USSR and respect the rights and interests of other persons (Art. 59, 65). For the accused this general duty _-_-_
~^^1^^ Constitution (Fundamental Law) of the Union of Soviet Socialist Republics, pp 48--49.
~^^2^^ Ibid., pp 113--115.
~^^3^^ In execution of the USSR Law of 7 October 1977 on the procedure for putting the Constitution (Fundamental Law) of the USSR into force, a plan was confirmed for the organisation of work on bringing USSR legislation into line with the new Constitution, which provided for the drafting of several very important documents in the sphere of civil rights. See VVS SSSR, 1977, 51:Item 764.
~^^4^^ On this point see Chapter 4, §2.
~^^5^^ See Chapter 2, § 6.
19 to observe the constitutional right to defence is a significant guarantee of exercise of this right. Citizens' constitutional rights are undoubtedly basic rights that must be protected without deviation in life, and must be defended in practice in every way.The constitutional provisions are repeated and concretised in other legislation. At the same time the Constitution of the USSR can for the most part operate not only as the basis for current legislation but also a:; a direct regulator of social relations. If there is a loophole in the law, citizens may cite the Constitution in substantiation of their demands for the competent authorities to decide a case in fulfilment of the constitutional provisions. Before 1959--1961, for example, many points about the accused's right to defence had not been regulated in detail in the legislation on criminal procedure, and Article 111 of the 1936 Constitution of the USSR was directly applied in the conduct of concrete criminal cases. The USSR Supreme Court quashed the decisions of courts if the right to defence guaranteed by Article 111 had been infringed.^^1^^
The constitutional principle of observance of the accused's right to defence is not simply a manifestation of concern for his interests, but is established in the public, legal interest as a guarantee of the proper conduct of criminal cases. Effective protection of the accused's right to defence recognised by law corresponds to the interests of socialist society and the socialist state, which are striving to have every citizen to utilise his constitutional rights to the maximum and to exercise them actively.
The principle of securing the accused's right to defence does not mean granting citizens the possibility to defend their interests to the detriment of the national interest. It is considered as granting them the opportunity, while defending their rights and interests, actively to further realisation of the purposes of Soviet criminal procedure, for one of these purposes is to exclude the bringing of an innocent person to criminal responsibility and to _-_-_
~^^1^^ A short description of these and other criminal cases, and of the decisions taken on them, will be found in the following: L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po voprosam ugolovnogo protsessa. 1946--1962 gg. (Digest oi Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court on Matters of Criminal Procedure 1946--1962), Yurizdat, Moscow, 1964, pp 22, 25, 28--29.
20 prevent punishment of the guilty above the degree of his guilt (Fundamentals, Art. 2).The interests of the individual and the public, legal significance of the right to defence have brought about its steady extension in law in recent years. Since 1959, for instance, a defender has taken part not only in the court stages of the proceedings but also in the preliminary investigation, and since 1963 instances of optional participation of a defender have been increased by legislation, and since 1970 of his obligatory involvement, and so on. The trend of Soviet legislation is to widen the accused's right to defence as the democratic basis of criminal proceedings. This trend is now reflected in the Fundamental Law ( Constitution) of the USSR, according to which the socialist system ensures enlargement of citizens' rights and freedoms (Art. 39).
The principle of guaranteeing the accused's right to defence thus cannot be understood and fully realised in isolation from the principles of constitutional law, from an understanding of the purposes of criminal proceedings, or from the requirement of thorough, full, and objective investigation of the circumstances of a case.
__ALPHA_LVL3__ §2. The Right to Defence Is a Right of the AccusedIn Soviet law the accused is the subject of a broad range of procedural rights, and not the rightless object of the imperious authority of an investigator, procurator, or court. By recognising his right to defence the state ensures him the opportunity of certain conduct and to require certain behaviour on the part of the bodies conducting the case and other legally bound subjects. The constitutional right to defence is a social value, a good that serves to guarantee the individual's law-protected rights and interests, and fully corresponds to the interests of the state. This right is closely linked with recognition of the accused as innocent until it has been otherwise established by the entry into legal force of a court's verdict of guilty. It follows from that, that the accused's right as a subject to defence means (a) the possibility expressed in law of his taking part personally in the trial, performing certain acts in his defence, and requiring appropriate actions from the other persons and bodies involved in the criminal 21 proceedings; (b) his freedom of conduct (also expressed in law) within limits determined by law; (c) the possibility, in certain cases defined by law, to defend his rights with the aid of a defender, and of a legal representative^^1^^ and social defender.
That definition, while not claiming to be indisputable, seems to us to embrace the most essential criteria of the accused's right as a subject to defence.
Explanation of his rights to the accused. Citizens' exercise of their rights, and in particular the accused's exercise of his right to defence, is a necessary and beneficial matter, but unless the accused knows his rights or understands their juridical significance, he cannot make use of them and risks putting himself into the position of a rightless object of investigation.
The Soviet legislator, in trying to guarantee citizens' rights, obliges the authorities and agencies conducting proceedings to explain their rights to the persons involved (Fundamentals, Art. 27). The defender also has no small role in explaining his rights to an accused person.
The explanation of rights is an essential guarantee of the right to defence. Failure by the investigator, procurator, or court to fulfil this obligation is grounds for quashing a verdict. In one case, for example, the judgment was quashed because the investigator had not explained his rights to the accused, including his right to have a defender; in another case the verdict was annulled because the court had heard it with the participation of an appointed defence lawyer, without explaining to the accused his right to choose a defender; in a third case the sentence was quashed because of the absence in the record of the proceedings of an indication that the court had explained the appeal procedure, and because it was not excluded that the convicted woman had not appealed because she had not known her right to do so.^^2^^
_-_-_~^^1^^ For further details about legal representatives of the accused see Chapter 7, §6.
~^^2^^ See P. I. Kudryavtsev (Ed.). Voprosy ugolovnogo prava i protsessa v praktike prokurorskogo nadzora za soblyudeniem zakonnosti pri rassmotrenii sudami ugolovnykh del (Problems of Criminal Law and Procedure in the Practice of Procurator's Supervision of the Observance of Legality in Court Hearings of Criminal Cases), Yuridicheskaya literatura, Moscow, __NOTE__ Footnote cont. on page 23. 22
The provisions of Article 27 of the Fundamentals and several other norms of Soviet law correspond in the main to the international instruments that the Soviet Union is a party to. The countries party to the Final Act of the European Conference on Security and Co-operation in 1975, for example, recognising the importance of the principle of human rights, confirmed 'the right of the individual to know and act upon his rights and duties in this field'.^^1^^
The accused's freedom of conduct within the limits of the law. The accused may, but is not obliged to, make use of his right to defence. As the subject of the proceedings he acts within the limits of his rights when he employs the means and procedures of defence provided for by law. His exercise of the right to defence, or rejection of it, may not be used to his detriment. He has the right, for instance, to have a lawyer or to refuse one, to give evidence or not---and that must not be held against him. Hence, when, from the standpoint of the preliminary investigation agency or the court, he makes unjustified petitions, objections, etc., that is not grounds, for example, for increasing preventive restrictions.
Certain duties are also incumbent on the accused. He is bound not to obstruct establishment of the truth, not to incite, browbeat, or bribe witnesses, injured parties, or experts, destroy documents, and so on. The accused is bound to obey the summons of an investigator or court, not to break written undertakings not to change his place of residence without permission, and to observe the routine of the hearing. His breach of these obligations may involve strengthening restrictive measures, removal from office, arrest or compulsory attendance at court, or expulsion from the courtroom.
The position of the accused as a person who is accused, tried, and prosecuted, it must be stressed, relieves him of legal duty to help the inquiry and the court hearing, to bring out incriminating circumstances, or to give evidence. The law forbids the accused's being forced to give evidence and exaggeration of the _-_-_ __NOTE__ Footnote cont. from page 22. 1976, pp 454, 351--352; L. N. Smirnov (Ed.). Op. cit., p 258; BVS RSFSR, 1974, 11:15.
~^^1^^ New Times (Moscow), 1975, 32:28.
23 significance of his evidence (Art. 20 and 77 of the CPC RSFSR, Art. 179 of the RSFSR Criminal Code).Denial of guilt is the accused's right and one of his legal means of defence against a charge, and punishment may not be increased on the grounds that he elected to plead not guilty and not some other means of defence. The court, moreover, must give an appraisal of the accused's behaviour in the past (up to and during the time when the incriminated crime was committed), but not during the preliminary investigation or the hearing in court.^^1^^ On those grounds the USSR Supreme Court considers it impermissible for a harsher sentence to be imposed in connection with the defendant's denial of his guilt.^^2^^
Legal relations between the state, its agencies, and the accused. The rights and duties of the subjects of criminal proceedings established by law are realised through a legal relation, viz. the right of one subject corresponds to a certain duty of the other. When the accused has a right, the investigator, the procurator, and the court have duties. Since the accused, for instance, has the right to know what he is accused of, the investigator is bound to present the charge to him, and the court to give him a copy of the indictment; the accused's right to give evidence means that the investigator and the court are obliged to cross-examine him and to make sure that his evidence is included in the court record. On the other hand, since the investigator has the right, for example, to take an undertaking from the accused to appear on summons, the latter is bound to appear at the appointed time; the presiding judge has the right to warn the defendant about the impermissibility of disturbing the court proceedings, so the latter consequently is obliged to obey the judge's instructions.
Karl Marx's dictum 'no rights without duties, no duties _-_-_
~^^1^^ What has been said above does not exclude the court's right to take the accused's giving up of himself, voluntary restitution of damage inflicted, etc.. as extenuating circumstances.
~^^2^^ See E. A. Smolentsev et al. (Eds.). Sbornik postanovleniy Plenuma Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977), Part 2 (Izvestia, Moscow, 1978), pp 325, 329. (The general, guiding interpretations of the Plenum are published in that volume.)
24 without rights'^^1^^ expresses the idea that rights and duties can only really exist in indissoluble connection with one another. For legal practice rights without duties and duties without rights are just hollow sounds. To ensure against that, and to guarantee citizens' rights as subjects, corresponding duties are established. The constitutional lawyer V. A. Patyulin remarked with justification when analysing the problem of the concrete legal relations of the state and the individual in the USSR:The socialist state is not only the vehicle of sovereign powers but also functions in the person of its agencies as a legally obliged subject, as the main guarantor of legal defence.^^2^^
All the participants in court proceedings are thus linked by legal relations, and each of them has procedural rights and bears procedural duties.
The criminal procedural relation is closely linked with the criminal law relation, but these relations are not identical.
A criminal law relation arises the moment a crime is committed, the crime being also a juridical fact for this legal relation. By committing a crime a person puts himself into a certain relationship with the state, which has the right to punish him.
The fact of the commission of a crime has to be established, and also the person guilty of it and other important circumstances, but that is only possible within the context of criminal procedural relations. These relations arise after the commission of a crime. The fact giving rise to them is a procedural act of an investigator, procurator, or court.^^3^^ The carrying out of interrogations, examinations, and other acts is a means of establishing a criminal law relation. And that is the link between these two legal relations.
But when a citizen is brought to responsibility as an accused person or brought to court a criminal law relation is not established. In that case only criminal procedural relations have _-_-_
~^^1^^ Karl Marx. General Rules of the International Working Men's Association. In Karl Marx and Frederick Engels. Selected Works, in three volumes, Vol. 2 (Progress Publishers, Moscow, 1976), p 20.
~^^2^^ V. A. Patyulin. Gosudarstvo i Hchnost' v SSSR (The State and the Individual in the USSR), Nauka, Moscow, 1974, p 214.
~^^3^^ Sometimes also of a citizen (e.g. when an injured party appeals against a verdict).
25 arisen between the authorities involved in the criminal proceedings and the accused, relations that must not be confused with a criminal law one. The latter, in accordance with Articles 158 and 160 of the Constitution of the USSR, can only be established in relation to an actually guilty person and only through the entry into legal force of a court's finding of guilt.A court's verdict of guilty finds the existence of a criminal law relation but is not just the juridical fact that has given rise to this relation. For a judgment does not make a person a criminal, it merely recognises as a criminal him who became one when he committed a crime. If the court, however, found a verdict of not guilty, that means that the defendant did not commit the crime, and that there is consequently no criminal law relation.
The difference between criminal law and criminal procedural relations is of great theoretical and practical significance.
The existence of criminal procedural relations does not mean, and does not predetermine the existence of, a criminal law relation. Criminal procedural legal relations can be ended by the dropping of a criminal case or by acquittal of the defendant. The subject of a criminal law relation is not the accused but the guilty person who actually committed the crime. The suspect, accused, defendant, and convicted are subjects of criminal procedural relations. If an innocent person has been convicted then a criminal law relation does not generally arise between him and the state; in this case the court has established this relation incorrectly and its verdict is liable to be quashed, and all the legal relations arising from it would be criminal procedural ones.
As we see, the delimitation of legal relations in the field of criminal law and procedure helps guarantee the accused's right to defence.
The accused's right to know what he is accused of. As the subject of a trial the accused has the right 'to know what he is accused of and to give explanations of the accusation brought against him' (Fundamentals, Art. 21).
It is the accused's right to know the accusation at all stages of a case. In order for this right to be a real one, the law imposes several duties and obligations on the investigator, procurator, and court. What are these duties? They are:~
26(1) to bring a concrete charge against the citizen promptly and to interrogate him as an accused person;~
(2) to provide the accused with the opportunity to acquaint himself with all the facts of the case and to copy out necessary information from it after the preliminary investigation and in the following stages of the trial;~
(3) to hand the accused a copy of the indictment (and sometimes other documents as well) so that he can prepare his defence ;~
(4) to justify the decisions taken by reasons;~
(5) to limit the hearing to strictly determined limits. As for courts hearing appeals, or reviewing a case in the course of judicial supervision, they have no right to establish or to treat as proven facts that were not established in the verdict or were rejected by it.
Promptness in laying a formal charge against the accused is a very important condition for ensuring his right to defence, and also for a lawful, just investigation and decision of a criminal case. It is when the formal charge is made in the preliminary investigation that a person becomes the accused, compelled not only to submit to measures of procedural coercion but at the same time endowed with important rights. The law therefore establishes several conditions to prevent both hasty and belated charging of a citizen.
A charge with the reasons motivating it is laid only 'when there is sufficient evidence justifying the laying of a charge of having committed a crime' (CPC RSFSR, Art. 143). Although this must be weighty, checked evidence, the laying of a charge is not yet the investigator's final conclusion about the guilt of the person being charged, since the charge may be altered or dropped altogether during further investigation.
The existence of convincing and adequate evidence should prevent the charging of an innocent person, but belated charging may lead to infringement of the right to defence and also to an incorrect direction and result of the preliminary investigation. In order to avoid that, under the criminal procedure codes of several Union republics, 'the investigator shall immediately lay a motivated charge' against the accused with the available adequate evidence pointing to his having committed the crime in 27 question (CPC Uzbek SSR, Art. 122; CPC Estonian SSR, Art. 121).
A. F. Koni, an eminent Russian jurist of the turn of the century, wrote:
Caution is very necessary in charging. This is not simply a legal requirement but a moral one. But caution must not be confused with deliberate slowness, reducing the rights of the accused, who is sooner or later inevitably charged, to nought.^^1^^
Koni sharply and justifiably criticised the `one-sided inquisitorial art' practised in pre-revolutionary Russian courts, which consisted in charging the accused only at the very end of the investigation, almost on the eve of referring the case to the procurator
This opportunity was lacking because the citizen being called to account was in the position of a witness before being charged and it is easy to imagine what this pseudo-witness experienced, and what false, dangerous steps he had taken, 'stunned by his pain' and exhausted by an inquisitorial 'cat and mouse' game.^^3^^when a mass of incriminating facts was immediately hurled at the charged person to defend himself against which, and perhaps to demolish the investigator's prejudices, he was already deprived of the opportunity.^^2^^
When the charge is not laid promptly the citizen is in the role of a witness deprived of the rights that the law grants an accused person. The charged person knows what he is accused of and can defend himself against the charge. The witness, who is asked catching questions, does not know concretely what he is being accused of and cannot defend himself. In addition, the charged person is not obliged to prove his innocence or lesser guilt and has the right in general to refuse to give evidence, while a witness is obliged to do so.
_-_-_~^^1^^ A. F. Koni. Procedures and Tasks of the Procurator's Office. Sobranie sochineniy (Collected Works), Vol. 4 (Yuridicheskaya literatura, Moscow, 1967), p 186. Koni's works published before the Revolution have been reprinted several times in the USSR.
~^^2^^ Ibid., Vol. 1 (Yuridicheskaya literatura, Moscow, 1966), p 136.
~^^3^^ Ibid., Vol. 4, p 185.
28In Soviet criminal proceedings a witness can only be concerned with the affairs of another person and not with his own. A citizen must therefore not be interrogated formally as a witness but substantively as the accused or a suspect. The USSR Supreme Court has stressed, when reviewing concrete cases, that when the actual accused is interrogated as a witness and asked questions intended to implicate him his right to defence is thereby infringed.^^1^^
In whatever quality a citizen is interrogated, the law does not require him to denounce himself or incriminate himself in the commission of a crime. An act like refusing to give evidence, for example, or giving patently false information, or misprision, does not entail criminal responsibility.
In a settlement in the Perm Region, for instance, one Sosnin committed a premeditated murder. A woman, Kopysova, was present. She snatched the knife with which Sosnin had done the killing away from him and hid it near a bath-house. At the first interrogation, as a witness, Kopysova did not tell the investigator either about the murder or about hiding the murder weapon. During subsequent interrogations she confessed to the concealment not previously promised and handed over the knife to the investigators. The Perm Regional Court found her guilty not only of the earlier unpromised concealment but also of perjury. The RSFSR Supreme Court found the conviction for perjury mistaken since, while not revealing the murder by Sosnin at her first interrogation, she had at the same time concealed her own criminal act closely linked with it, and the giving of deliberately false evidence was her means of defending herself against the accusation.^^2^^
Soviet legislation's requirements for prompt charging accord with the International Covenant on Civil and Political Rights. Under Article 14 of this Covenant everyone has the following minimum guarantees during the investigation of any charge brought against him:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. . . .
_-_-_~^^1^^ BVS SSSR, 1969, 1:34--35; 1974, 4:25.
~^^2^^ BVS RSFSR, 1971, 7:13.
29(g) Not to be compelled to testify against himself or to confess guilt.^^1^^
Not only is the timing of the charge important, however, but also its content or substance.
In a resolution of 16 June 1978 on courts' application of the statutes guaranteeing the accused's right to defence, the Plenum of the USSR Supreme Court stressed the need for strict observance of the requirements of Article 21 of the Fundamentals, which guarantees the accused the right to know concretely what he is accused of. The concrete acts with which a citizen is charged must therefore be set out in the charge, the indictment, and the verdict.^^2^^
Concretisation of the accusation limits the range of matters that can be the subject of investigation in a case. Unless he knows the charge, the accused cannot think what he should communicate to the investigator and how to answer the questions being put to him. Soviet criminal procedural law requires the charge to be formulated as clearly as possible so that the accused has a clear idea of all the factual and legal aspects of the offence he is charged with. The charge must therefore state all the elements of the offence (object, objective aspect, subject, subjective aspect).
Under Articles 68, 144, and 204 of the CPG RSFSR the motive of the crime has to be proved and set out in both the charge and the indictment, since the qualification of the offence and the degree of guilt of the person who committed it, and the measure of the punishment, depend on it. Failure of the investigator to comply with the requirements of the law entails the case's being sent back for additional investigation.^^3^^
Some articles of the criminal law do not define the attributes of a criminal act but contain a reference to other normative acts. Articles 85, 211, 253, and 254 of the Criminal Code of the RSFSR, for example, refer to the traffic regulations and rules for operating transport, flying regulations, navigational rules, etc.; Article 88 of this Criminal Code provides for responsibility _-_-_
^^1^^ Yearbook of the United Nations 1966, pp 425, 426.
^^2^^ BVS SSSR, 1978, 4:9.
^^3^^ BVS RSFSR, 1978, 8:12.
30 for a breach of the rules for currency operations, and so on. A charge of breaking operative rules and regulations must concretely name what regulations and what points of them have been infringed. That form of the charge makes it possible to conduct a defence against an accusation of having broken the regulations.^^1^^If an accused person is charged with having committed several offences coming under different articles of the criminal law, the charge must state what concrete acts the accused is charged with under each of the articles (CPC RSFSR, Art. 144, part 2). One Tebyakin, for example, was found guilty by a people's court of misappropriation, negligence, and abuse of his official position. One of the reasons why this verdict was quashed was that the range of the offences had not been demarcated in the charge so that Tebyakin had been deprived of the chance to defend himself against the accusation brought against him.
The charge must contain a statement of the specific part and point of an article of the criminal law, and the wording of the accusation must exactly conform with the terminology of the criminal law.^^2^^
The guiding instructions of the Plenum of the USSR Supreme Court stress that a court has no right to refer in its verdict _-_-_
^^1^^ A railway shop engineer Nesterenko and an engine driver's mate Mikhailenko were found guilty by a regional court of a breach of the safety regulations for the movement and operation of railway transport that entailed an accident. The RSFSR Supreme Court quashed the verdict and found as follows: 'In bringing the guilty parties to account under Article 85 of the Criminal Code of the RSFSR, the preliminary investigation authorities should have charged them with a breach of concrete traffic regulations and rules for the operation of transport. According to the charge and the indictment Nesterenko was charged with breaking Section 45 of the Technical Safety Regulations, but it was not stated what specific rule he had broken' (BVS RSFSR, 1963, 7:9).
~^^2^^ Apropos of a case referred back for additional investigation, for instance, the RSFSR Supreme Court ruled: 'The wording of the charge against Petrov does not correspond to the dispositions of the law under which the committed act was qualified. Consequently Petrov's right to defence against the charge brought against him was limited' (BVS RSFSR, 1974, 2:13).
See also BVS RSFSR, 1975, 8:7.
31 to a qualifying attribute of the crime with which the accused was not charged by the criminal investigation department, without referring the case back for additional investigation.^^1^^ For instance, a court can replace an incorrectly applied point of the article of the Criminal Code on responsibility for premeditated murder with aggravating circumstances by another point of the same article only when this change of qualification does not entail a change in the wording of the charge and does not infringe the defendant's right to defence.^^2^^When cases of crimes committed by a group of persons are being examined and heard, it is very important to establish the degree and character of the involvement of each of the guilty parties in the commission of the crime (executant, organiser, instigator or abetter, accomplice or accessory before the fact---parts 3, 4, 5, and 6 of Art. 17, RSFSR Criminal Code). That also applies to an accusation of having made preparations for a crime or of attempted crime (parts 1 or 2 of Art. 15, RSFSR Criminal Code). In such cases the charge must name the precise acts of the accused and the part of Article 15 or 17. These articles formulate the attributes of various socially dangerous acts and their division into parts is by no means fortuitous.
The accused's right in law to defence presupposes a duty of the investigator and court to check the defence's arguments carefully and without prejudice, and to reflect the results of their checks in appropriate procedural documents. When an application of petition has been refused wholly or in part, for instance, a decision or ruling must be made that indicates the motives for the refusal (CPC RSFSR, Art. 131, 204, and 276); an indictment must set out the arguments adduced by the accused in his defence and the results of checking said arguments^^3^^; and a _-_-_
^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, pp 266, 191, 398, 223--224.
^^2^^ Ibid., p 191.
^^3^^ The USSR Supreme Court considers non-compliance with this requirement sufficient grounds for returning a case for additional investigation (see G. Z. Anashkin (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po ugolovnym delam 1959-- 1971 gg- (Digest of Decisions of the Plenum of the USSR Supreme Court and Rulings of Its Criminal Benches 1959--1971), Yuridicheskaya literatura, Moscow, 1973, p 373.
32 verdict of guilty must include the court's reasons for rejecting the defendant's testimony or declaration (CPC RSFSR, Art. 205, 314).^^1^^All that confirms the conclusion of the Plenum of the USSR Supreme Court that
_-_-_the charge and the indictment are very important procedural documents and must comply exactly with all the requirements of the law, and in particular must contain precise facts on the substance of the charge brought. That is an important condition for guaranteeing the accused's right to defence.^^2^^
~^^1^^ 'Courts may not reject the defendant's declaration in his defence without giving reasons, and must indicate in a verdict of guilty why they do not believe it and why they reject it' (Ibid., p 378).
~^^2^^ BVS SSSR, 1972, 5:32--33.
__PRINTERS_P_33_COMMENT__ 3---665 [33] __NUMERIC_LVL2__ 2 __ALPHA_LVL2__ Securing the Accused's Right to Defence in theThe principles of Soviet criminal procedure are a single system, and are all connected with the accused's right to defence and are therefore of great significance in his exercise of that right. The absence of an interpreter, for example, during a hearing in a language the accused does not speak, is not simply breach of the principle of the national language of court proceedings but also infringes the principle of guaranteeing the right to defence, since the defendant cannot conduct his defence if he does not understand what is happening in the court. And the court is unable to observe the principles of material truth, the contentious nature of a trial, the oral nature and directness of proceedings, etc., if it does not understand the defendant and has not heard his oral explanations.
The democratic principles of criminal proceedings are the same in all the constituent republics of the Soviet Union; so the consequences of a breach of the procedural principles are the same irrespective of the geographical venue, or the economic and national features of these republics.
__ALPHA_LVL3__ §1. The Right to Defence and the Presumption ofSoviet legislation links the right to defence indissolubly with the presumption of innocence, in accordance with which the accused is considered innocent as regards his objective legal position until his guilt has been proved by due process of law.
341. Under the Constitution of the USSR justice is administered only by a court and no one may be found guilty of having committed a crime and sentenced to punishment as a criminal except by the judgment of a court and in conformity with the law (Art. 151, 160).
The presumption of innocence does not reflect the subjective view of any one party in a trial but is the objective legal position. The agencies that are prosecuting a citizen of course believe him guilty, otherwise they would not have charged him. But that is only the conclusion, the view, of the investigator and procurator. The conditions in which they act do not make it possible to decide the matter of guilt, and it remains an open question until the moment comes for its final resolution.
During the preliminary investigation and the hearing in court the accused's guilt is subject to proof (Fundamentals, Art. 15, 16). If the investigator, procurator, and court assumed that the charging of a citizen or bringing of him to court were evidence that the truth had been established and the accused's guilt proved, it would be superfluous to warn them that they may only condemn the guilty, are obliged to bring out circumstances exonerating the accused, to hear his testimony, and to allow his petitions (Fundamentals, Art. 2, 14, and 21). Neither charging nor bringing to court predetermines the matter of guilt ( Fundamentals, Art. 36). That is finally decided as the result of a judicial hearing, and only the court is given the right to adjudge a defendant guilty in the name of the state.
The principle of the presumption of innocence does not permit the accused (defendant) to be identified as guilty, or a person to be considered a criminal just because he has been accused, and premature statements about his guilt to be made (in the press or in any other way).
It is extremely important to the accused for the investigator, procurator, and court to start from a presumption of innocence rather than its antipode, a presumption of guilt. The presumption of innocence defines the content and tasks of the defence. When it is recognised and operates it is possible to refute the accusation whenever doubts arise about the indisputability of the circumstances to which it relates.
Observance of the principle of the presumption of innocence __PRINTERS_P_35_COMMENT__ 3* 35 serves as a reliable defence of civil rights, ensures unprejudiced, objective investigation of the circumstances of a case, and encourages the taking of proper decisions in it. Recognition of the presumption of innocence as an institute inherent in the nature of socialist criminal procedure is confirmed by numerous examples from the practice of the USSR Supreme Court and other Soviet courts.^^1^^
The moral principles, legality, humanism and standards of Soviet criminal proceedings are manifested in realisation of the presumption of innocence, which requires that the judge, procurator, investigator, and barrister exclude any possibility of haughtiness, irritation, or animosity in their attitude to the accused.
The principle of the presumption of innocence stems from the inviolability of the person of citizens; from the fact that, the accused is not yet guilty and is guaranteed the right of defence; and from the fact that recognition of a citizen's guilt is exclusively the competence of a court (Art. 54, 151, 158, and 160 of the USSR Constitution).
The guiding instructions of the Plenum of the USSR Supreme Court point out specially that it is necessary, so as to guarantee the right to defence,
strictly to observe the constitutional principle by which the accused (defendant) is considered innocent until his guilt has been proved according to law and is established by a court judgment that has entered into legal force.^^2^^
The presumption of innocence, consolidated in Soviet legislation, is also provided for in the International Covenant on Civil and Political Rights. The Final Act of the Helsinki Conference contains an obligation to observe the provisions of the international covenants on human rights and to act in accordance with _-_-_
~^^1^^ See S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Criminal Law and Procedure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, pp 274--275, 295--302, 365--366 (this volume gives resumes of decisions on criminal cases taken by the Supreme Courts of the USSR and RSFSR in various years).
^^2^^ BVS SSSR, 1978, 4:9.
36 the objectives and principles of the UN Charter and the Universal Declaration of Human Rights, under which (Art. 11)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.^^1^^
2. Under the principle of the presumption of innocence no one must be treated as guilty of a crime until his guilt has been proved and established by a judgment that has entered into legal force. Measures of procedural coercion are therefore only possible when dictated by extreme need, if it is impossible to protect society without them against a person accused of a heinous crime.
Measures of procedural coercion differ from those of penal punishment. Their objectives are not punishment or retribution. As was noted at a sitting of the USSR Supreme Soviet in 1969,
the legal position of persons held in custody pending trial cannot be the same as that of persons convicted by a court. The regime of confinement regulated by corrective-labour legislations may not be extended to them.^^2^^
Persons held in custody pending trial or on remand may be subjected only to those limitations that are necessary for a proper course of the criminal proceedings, the ensuring of order in places of preliminary custody, and the prevention of mutual demoralisation of arrested persons.
At a certain stage in the course of a case the grounds for preventive restriction of freedom, and especially for custody, often disappear or are altered. Therefore every judge, procurator, and member of a criminal investigation department verifies, within the limits of his jurisdiction, that the preconditions established by law for a need to restrict freedom in a criminal case are present. The Plenum of the USSR Supreme Court demands that _-_-_
~^^1^^ Yearbook of the United Nations 1948--1949 (U.N., New York, 1950), p 536.
^^2^^ Zasedaniya Verkhovnogo Soveta SSSR sed'mogo sozyua, shestaya sessiya (10--11 iyulya 1969 g.). Stenografichesky otchot (Stenographic report of the 6th Session of the 7th Supreme Soviet of the USSR, 10-- 11 July 1969), Moscow, 1969, pp 128--129.
37 courts react more sharply to instances of a lack of grounds for such custodial measures as detention under guard, and to substitute other measures where required.^^1^^Additional limitations on the use of custody pending trial were introduced in the USSR on 8 February 1977, and the exceptional character of this measure was thus again stressed.^^2^^
3. According to Artilcle 43 of the Fundamentals
a verdict of guilty may not be based on suppositions or assumptions and shall be brought in only on condition that the defendant's guilt for the crime committed has been proved during the hearing.
Until guilt has been proved the accused is considered innocent by virtue of the law. Unproved guilt (an unproved accusation) is equivalent to proved innocence. In that case, the court has no right, when bringing in a verdict of not guilty, to include any formulation in its judgment that throws doubt on the innocence of the acquitted person (CPC RSFSR, Art. 314).
In accordance with the objectives of Soviet criminal procedure no innocent person should be arraigned and convicted. And if the occurrence and elements of a crime have not been established, and equally when the involvement of the accused in a penal offence has not been proved, the case is dropped or the accused is acquitted (CPC RSFSR, Art. 208, 234, 309, 349, and 378). Absence of a persuasion of the accused's guilt on the part of the investigator, procurator, and court is sufficient for such a decision.
_-_-_~^^1^^ BVS SSSR, 1977, 1:18; 1977, 2:8.
^^2^^ The procedure was ended whereby detention under guard was the measure of custody elected as a rule for persons arrested for hooliganism. Article 34 of the Fundamentals states that detention under guard is the applicable measure of preventive restriction only in cases of crimes for which the law provides a punishment in the form of imprisonment ( deprivation of freedom). On 8 February 1977 it was laid down that ' detention under guard as a preventive restriction of freedom is applicable in cases of penal offences for which the law provides punishment in the form of imprisonment for a term of more than a year. In exceptional cases this measure may be applied in cases of penal offences for which the law provides for punishment in the form of deprivation of freedom for a period not exceeding one year' (VVS SSSR, 1977, 7:Items 116, 120).
38A verdict of guilty, the Plenum of the USSR Supreme Court instructs, has to be founded on reliable evidence, when all versions arising in the case have been investigated, and existing contradictions explained and appraised. Under the presumption of innocence all doubts that the accusation is proved must, if there is no possibility of removing them, be interpreted in the accused's favour.^^1^^ In its Decision No. 5 of 16 June 1978 on courts' application of the laws guaranteeing the accused's right to defence, the Plenum of the USSR Supreme Court once more reminded courts of the need 'to check existing versions thoroughly' (Point 1) and declared (Point 2) that
a verdict of guilty cannot be founded on suppositions. All doubts that it is impossible to dispel must be interpreted in favour of the accused (defendant).^^2^^
The law's requirement that a conviction may only be made when guilt is proved beyond any shadow of doubt is one of the most important guides in the work of a defender. Penal repression must be based not on probability but only on facts exactly proven beyond doubt. A defender's finding of weak and dubious points in the indictment and supporting documents can help establish the truth and prevent or correct a mistake.
The defender is not always able to prove to the investigator and the court how matters stand in fact, and the law does not require him to do so. But his right to build a defence on a critique of the grounds of the accusation, and to demand, if it is not proved beyond doubt, the rehabilitation of his client precisely because his guilt has not been proved, follows from the prosecutor's obligation to prove the defendant's guilt.
4. He who affirms the defendant's guilt must prove it; and in a hearing the onus of proof lies on the prosecutor. Until he who considers the defendant guilty has proved it, the latter is considered in law to be innocent and, under Article 14 of the _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Sbornik postanovleniy Plenuma Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977), Part 2 (Izvestia, Moscow, 1978), p 326.
~^^2^^ BVS SSSR, 1978, 4:8-9.
39 Fundamentals, the court, procurator, and investigator have no right to throw the onus of proof onto the accused and his lawyer. When the Fundamentals were passed the principle stemming from the idea and spirit of our legislation, that the onus of proof of the accusation lay on the prosecutor and that the defendant was not obliged to prove his innocence, was stressed.^^1^^The accused has the right to prove his innocence, but if he does not exercise that right, the fact may not be held against him. Otherwise non-exercise of his right to defence would threaten him with a very grave consequence, to wit, of being found guilty. If, however, the defendant resorts to his right to defence, but his attempt to demonstrate his innocence is unsuccessful, that fact cannot be used against him and be taken as grounds for finding him guilty either.
5. The possibility of being found guilty only 'in conformity with the law' (Art. 160 of the Constitution of the USSR) means that, in order to refute the presumption of innocence, it is necessary unconditionally to observe a single procedure of court proceedings binding on all courts, agencies of the Procurator's Office and preliminary investigation departments.
It is necessary, before a verdict of guilty enters into force, for the case to have gone through all the appropriate stages of the proceedings and for the procedural guarantees for discovering the truth and protecting civil rights to have been fully observed. If the 'order of court proceedings established by criminal procedural laws' (CPG RSFSR, Art. 1) has not been observed, it means that the presumption of innocence has not been refuted and that the defendant must be considered not guilty.
6. Rehabilitation of the accused is legal grounds both for restoration of his good name and for compensating him for any damages.
In accordance with Article 58 of the Constitution of the USSR, the Praesidium of the Supreme Soviet of the USSR issued a Decree on 18 May 1981 on compensation for damages _-_-_
~^^1^^ Point 2 of Decision No. 5 of 16 June 1978 of the Plenum of the USSR Supreme Court states: 'On the basis of the law the onus of proof lies on the prosecutor, from which it follows that it is inadmissible to lay on the accused (defendant) the onus of proving his innocence' (BVS SSSR, 1978,4:9).
40 suffered by a citizen through the unlawful acts of public and social organisations, and of officials during the performance of their duties.^^1^^ Under this Decree the right to compensation for damages arises when a verdict of acquittal is brought in, a criminal case is dropped in the absence of the occurrence of a crime, the absence of a corpus delicti in the deed, or if a citizen's involvement in the commission of a crime is not proved, or a charge of an administrative offence is dropped.In these cases the preliminary investigation bodies, Procurator's Office or court are obliged, on the request of the citizen, to notify the work collective or social organisations at his place of residence, within a month, of their decision in writing. If information about his conviction, of the institution of criminal proceedings against him or of his arrest has been published in the press, then the editors responsible must, within a month, publish a correction on the demand of the citizen himself, or of his relatives in case of his decease, or of the preliminary investigation bodies, Procurator's Office, or court.
Damages are paid in full to a rehabilitated citizen from public funds. The following are subject to compensation: wages; pension or benefits payment of which was stopped in connection with illegal deprivation of freedom; confiscated property (including money, savings deposits and interest on them, public loan stocks, winnings on them, and other valuables); fines imposed in execution of the court's judgment; court costs and other sums paid by the citizen in connection with the unlawful acts; the sums paid by the citizen to the legal consultation bureau for the legal aid rendered by a barrister. In case of unlawful dismissal from work or unlawful removal from his post, the rehabilitated person must be reinstated in his former work (or post), and where that is impossible in another job (or post) of equal status. The time of detention in custody, of serving the sentence, and the time during which the citizen did not work because of removal from his post are to be counted as length of service. A citizen evicted because of an unlawful conviction is to be given back the premises previously occupied, or where that is not possible is to be allocated well-appointed housing as a priority. The compensation of other losses is also provided for.
_-_-_^^1^^ VVS SSSR, 1981, 21:Item 741.
41These requirements of the Fundamental Law of the USSR, and the norms of legislation in any field, express the practical sense of the presumption of innocence, an objective legal position favouring the accused, the procedural basis of his right to defence, and the determining principle of employing the evidence on the basis of which the question of the guilt or innocence of a person is decided. This presumption of innocence affects all criminal procedural activity.
The presumption of innocence operates up to the entry into legal force of the judgment, i.e. elsa during an appeal. The court of second instance, in checking the legality and validity of the verdict, starts from the point that the accused's guilt must be positively proved by the evidence in the case.
When the judgment enters into legal force the presumption of innocence gives way to a presumption of the truth of the verdict. A lawful, substantiated, and fair judgment reflects the truth.
The truthfulness of a judgment that has come into legal force may only be refuted by a review of the case by way of supervision or because of newly discovered circumstances. The right to defence, however, does not cease with that review and may be exercised both by the accused and the convicted, as the Plenum of the USSR Supreme Court stated in its guiding instruction of 16 June 1978.
__ALPHA_LVL3__ §2. The Right to Defence and the Independence ofWhen we are concerned with freedom and defence of the rights of accused persons and other citizens, justice is expressed in the law and the administration of justice. For the accused the question of who will be his judges is so important that everything relating to the judge's independence cannot help affecting the guaranteeing of his right to defence.^^1^^
_-_-_~^^1^^ In the USSR the following function as courts of first instance: district, urban district (borough) and town (in towns not divided into districts) people's courts, military tribunals in the armed forces, the courts of autonomous areas and autonomous regions, and of cities divided into districts; the courts of regions and territories, the Supreme __NOTE__ Footnote cont. on page 43. 42
Under Article 155 of the Constitution of the USSR judges and people's assessors are independent and subject only to the law.^^1^^ These two provisions constitute a single principle, viz.: judges are subordinate only to the law and are therefore independent; judges are independent and therefore subordinate only to the law.^^2^^ Independence without subordination to the law would mean the arbitrariness of judges. As Karl Marx emphasised,
The judge has no superiors but the law. The judge, however, has the duty of interpreting the law, as he understands it after conscientious examination, in order to apply it in a particular case. . . . The independent judge belongs neither to me nor to the government.^^3^^
Justice is administered in the USSR in exact conformity with the law. The point about judges' being subject 'only to the law' in their administration of justice is taken literally. Not only is the court itself subject to the law, but it also checks the legality of the acts of administrative bodies when hearing cases arising from civil, administrative, labour, and other legal relations. If it is discovered during the hearing of a civil case, for example, that 'separate rules contained in departmental normative acts contradict the law, the court must be guided by the law'.^^4^^ The court _-_-_ __NOTE__ Footnote cont. from page 42. Courts of Autonomous and Union republics, and the Supreme Court of the USSR. All these courts, except district, urban district and town people's courts and certain military tribunals, hear appeals in criminal and civil cases and consider them by way of judicial supervision.
~^^1^^ Article 14 (1) of the International Covenant on Civil and Political Rights also deals with the right of everyone to have his case heard by a competent, independent and unprejudiced court (Yearbook of the United Nations 1966 (U. N., New York, 1968), pp 425--426.
~^^2^^ M. S. Strogovich. Kurs sovetskogo ugolovnogo protsessa ( Textbook of Soviet Criminal Procedure), Vol. 1 (Nauka, Moscow, 1968), pp 126 ff; T. N. Dobrovolskaya. Printsipy sovetskogo ugolovnogo protsessa (Principles of Soviet Criminal Procedure), Yuridicheskaya literatura, Moscow, 1971, pp 164 ff.
~^^3^^ Karl Marx. Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates. In Karl Marx, Frederick Eneels. Collected Works, Vol. 1 (Progress Publishers, Moscow, 1975), p 166.
~^^4^^ V. V. Shubin et al. (Eds.). Sbornik postanovleniy Plenuma Verkhovnogo Suda RSFSR 1961--1977 gg. (Digest of Decisions of the Ple-- __NOTE__ Footnote cont. on page 44. 43 checks the legality of these acts in the hearing of criminal cases as well, in particular in cases of malfeasance, economic and business crimes, etc.^^1^^ Judicial control reinforces legality and protects civil rights.
The principle of the independence of judges does not permit interference by government bodies, social organisations, and officials in the decision of court cases. Only a higher, superior court has the right to annul or alter the decision of a court. It is also impermissible to publish articles in the press in which the guilt of a citizen or the degree of his responsibility is written about before the pronouncement of judgment, because that contradicts the principles of the independence of judges, the presumption of innocence, and the right to defence. Judges pronounce a person a criminal only when they themselves have gained an understanding of the case, and they themselves have checked and weighed the evidence and come to a firm conviction of the defendant's guilt. No one has the right to coerce judges into taking a certain decision, or to say who they must convict or acquit, what sentence they should impose, etc. Judges decide all these matters independently being guided by the law and following their own conscience and inner conviction.^^2^^
Firm guarantees ensuring real independence of judges and their subordination only to the law are needed for the administration of justice. These guarantees are consolidated in Soviet law and may be divided into procedural ones and judicial ones.
The procedural guarantees include the institute of the challenging of judges.^^3^^
_-_-_ __NOTE__ Footnote cont. from page 43. num of the RSFSR Supreme Court 1961--1977), Yuridicheskaya literatura, Moscow, 1978, p 134. (Guiding instructions of the Plenum of the RSFSR Supreme Court are published in this Digest. They are binding on lower courts and are taken into account in the practical work of other bodies.)~^^1^^ BVS RSFSR, 1974, 7:7.
^^2^^ Procedural independence and the inadmissibility of outside interference also apply to the work of the procurator and investigator, but their independence is not identical with that of judges, because a procurator is subordinate to a superior procurator, preliminary examination is conducted by an investigator under the supervision and guidance of a procurator, and a number of his decisions require the latter's sanction.
^^3^^ The procedural institute of challenge consists of several norms of the Fundamentals and the Criminal Procedure Codes of Union republics, for which see Chapter 6, §5.
44An important procedural guarantee of the independence of judges is their weighing up of the evidence according to their inner convictions based on all-round, full, objective examination of all the facts of the case in their totality, which they make guided by the law and a socialist sense of justice ( Fundamentals, Art. 17).^^1^^ No one has the right to tell a judge how to weigh up the evidence and what he should or should not believe.
Judges are free, in deciding all matters of a case, from the position of the preliminary investigation department, Procurator's Office, and other parties in a trial. The prosecutor and the defender, it goes without saying, try to convince judges of the correctness of their statements about the guilt or innocence of the defendant, and the reliability of certain evidence, and so on, but their affirmations are not binding on the court and judges take only those decisions that they (the judges) believe to be correct.
No superior court, in quashing a verdict and sending a case back for a new hearing, has the right
to predetermine matters of the proof of the accusation or failure to prove it, the reliability or unreliability of any piece of evidence, and the superiority of some evidence over other, of the court of first instance's application of such and such a criminal law, and of the sentence (Fundamentals, Art. 51).
In all cases of a new hearing, which can be held only with a different bench of judges, the judges are obliged to discuss the matters ruled on by the higher court and to take the procedural actions ordered by it, but they are not thereby bound by the decision of the superior court which has no right to direct what verdict should be brought in during the new hearing of the case. In cases of a breach of requirements of Article 51 of the Fundamentals, the judgment of the court concerned cannot be left to stand unaltered.
A people's court, for instance, pronounced a driver Borunov guilty of a breach of the traffic regulations that involved the _-_-_
~^^1^^ Not only judges, but also the procurator and the investigator weigh up evidence according to their inner convictions. A court's evaluation of the evidence, however, has the most important feature that only it can pronounce a citizen guilty of a penal offence in the name of the state.
45 death of a pedestrian. The appeal court quashed the verdict on the procurator's protest because of the leniency of the sentence imposed and sent the case back to the court of first instance for a new hearing. The appeal ruling said that Borunov's guilt 'has been proved and the crime correctly qualified'. This ruling was quashed because it predetermined the substance of the new judgment.^^1^^At the same time the directions of a superior court on the admissibility of evidence are binding; in this regard the higher court does not discuss the proved character of the facts established or rejected by the judgment but states the unlawfulness of the source or of the rules of obtaining the material facts on which the judgment is based. These directions are based on the requirements of the law manifested in the form of evidence.^^2^^
Non-coincidence of the point of view of the judge in a case working conscientiously on the basis of inner conviction with that of a superior court empowered to quash his decision, even when his decision is annulled, not only does not give grounds for holding the judge responsible; such a bringing to responsibility would, on the contrary, contravene the law and would be a gross breach of the principle of the independence of judges.^^3^^
The judge who has to decide a case has no right to consult a member of a higher court on it, and the latter has no right to give him advice.
Another procedural guarantee of the independence of judges from any intervention is the secrecy of their deliberations, the equality of their rights in deciding all matters in a case, and the independence of the members of a judicial bench from one another.
During judges' deliberations in their chamber only the judges may be present who form the bench on the case in question. All matters are decided by a simple majority, the presiding judge giving his vote last. The presiding judge or people's assessor who remains with a particular, personal view has the right to state it in writing in the judges' chamber. Judges may not divulge _-_-_
~^^1^^ BVS RSFSR, 1972, 9:16. Similarly, BVS SSSR, 1974 2:43; 6:35.
^^2^^ For further details see Chapter 3.
~^^3^^ S. V. Borodin (Ed.). Op. cit., p 294.
46 the opinions expressed during their deliberations. They also do not have the right to quit the chamber during the deliberations (except at nightfall, when a break in the deliberations for rest is permissible). Breach of the secrecy of judges' deliberations ' during the reaching of a verdict obligatorily involves annulment of the latter (CPC RSFSR, Art. 15, 302, 306, 307, and Point 5 of Art. 345).Both the judgment and a number of other decisions are reached in chambers (e.g. on challenges, measures restricting liberty, direction of the case for additional investigation, etc.). It is also important that the legislator stresses the independence of judges not only when taking decisions but also 'when administering justice' (Fundamentals, Art. 10), i.e. judges must be guarded from outside influences when performing any procedural act.
The judicial guarantees of the independence of judges include the electivity of judges and people's assessors,^^1^^ the special procedure for their recall before expiry of their term of office, and for bringing to criminal responsibility. The USSR Ministry of Justice and its agencies exercise organisational guidance over courts but may do so only in strict observance of the principles of the independence of judges and their subordination only to the law (Fundamentals of Legislation on the Judicial System _-_-_
~^^1^^ People's judges are elected by the citizens of a rural or urban administrative district by universal, equal, direct suffrage for a term of five years by secret ballot. The people's assessors of said courts are elected by citizens at their place of work or domicile by show of hands for a term of 2~1/2 years. Evidence of the broad representation of all strata of the public in the administration of justice is the fact that around 700,000 persons were elected people's assessors of people's courts in the regular elections of 1977. More than half of those elected were workers and collective farmers, and more than half were women.
The members of superior courts are elected by the corresponding Soviets of People's Deputies for a term of five years.
The Supreme Court of the USSR is elected by the Supreme Soviet of the USSR and consists of the Chairman, Vice-Chairmen, members, and people's assessors. It also includes ex officio the chairmen of the Supreme Courts of Union republics.
The judges of military tribunals are elected by the Praesidium of the Supreme Soviet of the USSR for a term of five years, and people's assessors by meetings of servicemen for a period of 2~1/2 years.
47 of the USSR and Union Republics, Art. 38I, 35, 36 and 37).^^1^^Another guarantee of the independence of professional judges built into the court system is the procedure for disciplining them. This is possible for derelictions of judicial duties committed through negligence, lack of integrity, unscrupulousness, or indiscipline; for breaches of labour discipline; and for the commission of acts unworthy of a Soviet judge. Such acts
undermine the authority of the court, damage the cause of justice, the interests of the state, and the rights of citizens, and must therefore entail strict responsibility.^^2^^
We have already said that a judge may not be disciplined for a mistaken decision taken in accordance with his inner conviction, but there are breaches for which a judge may be held fully disciplinary responsible. These include, for example, the hearing of a case without a defender, when the latter's presence is obligatory; refusal to summon a witness on grounds that prejudge the defendant's guilt; failure to grant a party the chance to familiarise himself with the records of the court proceedings, etc.
There are also important economic guarantees of the independence of judges. Decisions adopted in recent years, in particular the ordinance of the USSR Council of Ministers of 11 August 1970 on measures to improve the working conditions of and material and technical provisions for courts, agencies of the Procurator's Office, and Public Notary's offices, and other measures, have helped consolidate the economic conditions for the independence of judges from local authorities.
__ALPHA_LVL3__ §3. The Right to Defence and the ContentiousThe right to defence is really only ensured in a trial in which the accused is an equal party and as such can defend his _-_-_
~^^1^^ See Fundamentals of Legislation of the USSR and the Union Republics (Progress Publishers, Moscow, 1974), pp 147--148.
^^2^^ Article 1 of the Regulations on the Disciplinary Responsibility of Judges of the Courts of the RSFSR (confirmed by the Decree of the Praesidium of the Supreme Soviet of the RSFSR of 26 May 1976. VVS RSFSR, 1976, 22:Item 771).
48 statements and dispute those of other parties, prove his innocence, or reduce his guilt.A strict division of functions between the accusation and defence and decision of a case with an active, independent position of the court in relation to the parties is a very important feature of the principle of the contentious nature of a trial.
Under the law the functions of prosecutor are exercised by the procurator, social prosecutor, and the victim. It is they who maintain an accusation before a court (Fundamentals, Art. 40, 41, and 24). The civil plaintiff may also be added to these subjects of a trial.^^1^^
The functions of the defence are exercised by the accused, his defender, his legal representative, and a social defender (Fundamentals, Art. 21, 23, and 41).
The court and only the court exercises the function of justice (Fundamentals, Art. 7).
The separation of the accusation from the court means that all matters arising in court must be decided only by it, functioning as the organ of socialist justice and not fulfilling a function of accusation.
With this structure of a judicial hearing the court has the chance to check and weigh up each bit of evidence, and each argument in support of the charge and in favour of the defendant. By including a prosecutor and defence counsel in a trial the .legislator thereby predetermines a polemic and a battle of ideas between them; for one must not forget 'that truth is established by controversy and that historical facts are to be extricated from contradictory statements'.^^2^^
The accused has a definite procedural interest opposed to that of the other party. His equal position as a party to the proceedings is guaranteed by the fact that he is given procedural rights so as to defend his law-protected interests, demands, and statements and to dispute the demands and statements of the opposite _-_-_
~^^1^^ A citizen or organisation that has suffered material loss from a crime and is making a claim for indemnification is known as the civil plaintiff. A party is recognised as civil plaintiff by decision of the investigator or a judge, or by the ruling of a court (CPC RSFSR, Art. 54).
~^^2^^ Marx and Engels in Manchester. In Marx/Engels. Werke, Vol. 28 (Dietz Verlag, Berlin, 1963), p 284.
__PRINTERS_P_49_COMMENT__ 4---665 49 side. In one of the very first Soviet statutes, the Regulations on Military Tribunals of 12 April 1919, it was stated: 'the defendant enjoys the rights of a party during a hearing' (Art. 21).The parties are given equal rights to present evidence, to take part in investigation of it, and to make applications or petitions (Fundamentals, Art. 38). Procedural equality is necessary so that the hearing will in fact be a means of establishing the truth.
Procedural equality means equality of the procedural means by which the parties defend their statements and dispute those of the other parties. Hence everything that is done to maintain the accusation must be also possible for the defence against it. It is also essential that the parties not only have equal rights to defend their statements but also have equal rights to an equal attitude toward them by the court. The requirement of the court's equal, identical attitude to the participants in a case is of great moral significance.
The USSR Supreme Court and the Supreme Courts of Union republics have drawn attention in their guiding instructions and decisions in concrete cases to the need for the strictest observation of the norms guaranteeing equality of the rights of the parties in a hearing. It has been ruled, for example, that
and so on.^^1^^ Similarly, Article 14 (3e) of the International Covenant on Civil and Political Rights says that everyone has the righta court has no right to turn down an application by the defendant for the investigation of circumstances having a bearing on a correct decision of the case;
a defendant's application for the calling of witnesses must be met if the circumstances underlying the application may have a bearing on the case,
_-_-_to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him.^^2^^
~^^1^^ S. V. Borodin (Ed.). Op. cit., p 351.
^^2^^ Yearbook of the United Nations 1966 (U.N., New York, 1968), P 426.
50The Plenum of the USSR Supreme Court, generalising the experience gathered, and stressing the importance of the accused's right to defence, ordered judges in its Decision No. 5 of 16 June 1978 to 'ensure equality of rights of the parties to a hearing in the presentation and investigation of evidence and filing of applications'.^^1^^
Procedural equality must not, however, be understood as actual equality of the parties. In maintaining a public accusation the procurator represents an official agency that has wide possibilities of collecting incriminating evidence and presenting it to the court. In court the procurator takes every advantage of the opportunities to convict the accused that were available to the preliminary investigation department. It is not easy for the accused, however, for all his procedural rights, to overcome the inertia given to a criminal case by the preliminary investigation.
If the right to defence and of involvement of a defence counsel in a case were not guaranteed, the procedural equality of the defendant and of the procurator prosecuting him would be simply formal. To make procedural equality an actual legal right, the law provides for the participation of defence counsel in a case. In a hearing in which a public or a social prosecutor takes part the involvement of defence counsel becomes mandatory. The procurator, moreover, may not be present at a court sitting, but the trial would not cease to be contentious; in such cases the procurator remains a party to the! charge since he has confirmed it and sent the case to court. If the defendant so wishes, the court is obliged to provide for the participation of defence counsel in the case even when the procurator is not present (CPC RSFSR, Art. 48, part 2).
The law, moreover, grants the defendant certain additional rights and means known in procedural theory as favor dejensionis.
The placing of the onus of proof of the accusation on the prosecutor above all favours the defence. Unlike civil proceedings, in which each party must prove the circumstances to _-_-_
~^^1^^ BVS SSSR, 1978, 4:8.
__PRINTERS_P_51_COMMENT__ 4* 51 which it refers as the grounds of its demands and objections (Art. 50 of the RSFSR Civil Procedure Code), it is forbidden by law to throw the onus of proof onto the accused in criminal proceedings.When the defendant denies some circumstance of the case and the prosecutor does not refute him, defender has the right to employ the defendant's statement in his defence.
The criminal procedure codes of Union republics grant defence counsel and the accused the right to put questions last. At that moment the testimony of persons cross-examined is becoming clearer, which makes it possible finally to determine both the range of questions and the tactics of the interrogation. With that procedure the risk of obtaining undesirable answers to questions is reduced.
Another point favouring the defence is that the defendant may, with the permission of the presiding judge, give evidence at any moment during the hearing (CPC RSFSR, Art. 280). After anyone has testified the presiding judge asks the defendant whether he has any questions.
The procurator may not introduce new charges in court, additional to those formulated in the indictment (Fundamentals, Art. 42). The only unknowns are the new evidence that the procurator has the right to introduce at a court sitting. As for the defendant and his defender their position is not limited to the accused's testimony in the preliminary examination. They may introduce a quite new defence version that did not figure in the preliminary investigation.
The rules favouring the defence include the right of the defender to speak last in the court debate and in the review of the case on appeal, and the defendant's right of the last word. If the views of the judges on separate matters differ when judgment is being pronounced, and none of them gets a majority of the votes, the provision on maximum favouring of defence of the accused's interests comes into play. If one of the judges, for instance, considers the defendant not guilty, and the others declare themselves for pronouncing a judgment of guilty but propose different sentences (one suggesting a sentence of two years' imprisonment, and the other of one year's corrective labour), then the vote of the judge proposing to acquit the defendant is 52 joined to that of the judge proposing the lighter sentence (one year's corrective labour).^^1^^
The procedural institute of favor defensionis also includes the following rules: on the immediate implementation of an acquittal and the impermissibility of postponing its execution during cassation or supervisory procedure; on the possibility of a review of a verdict, ruling, or order of the court not in favour of the accused only within a year of their entry into legal force; and on the possibility of a review in favour of the accused without a limiting period (CPC RSFSR, Art. 373, 385).
__ALPHA_LVL3__ §4. The Right to Defence and the Directness ofObservance of the principle of the directness of proceedings ensures the truest transfer of information bearing on a case. The more intermediate links there are the greater is the danger of distortion of information about the circumstances liable to proof in the case. The court therefore does not have the right to limit itself 'to other people's word'; and if 'it rests its verdict on circumstances not investigated by it, the judgment is liable to annulment as giving rise doubt of its veracity'.^^2^^ The obligation to try and obtain information from first-hand sources is directly reflected in the criminal procedure codes of Union republics, in which it is stated: 'if the testimony of a witness is based on the communications of other persons, those persons must also be cross-examined.'^^3^^
_-_-_~^^1^^ L. N. Smirnov (Ed.). Nauchno-praktichesky kommentariy UPK RSFSR (A Theoretical and Practical Commentary on the CPC RSFSR), Yuridicheskaya literatura, Moscow, 1970, p 376. This rule is also applied when appeal rulings are being pronounced (CPC RSFSR, Art. 339).
~^^2^^ L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po voprosam ugolovnogo protsessa 1946--1962 .?,?. (Dieest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court on Matters of Criminal Procedure 1946--1962), Yurizdat, Moscow, 1964, p 215.
~^^3^^ CPC Ukrainian SSR, Article 68; CPC Uzbek SSR, Article 53; CPC Kazakh SSR, Article 49; CPC Azerbaijan SSR, Article 67; CPC Lithuanian SSR, Article 77; CPC Moldavian SSR, Article 60; CPC __NOTE__ Footnote cont. on page 54. 53
The principle of directness does not apply simply to the procedure for investigating evidence; its other aspects encourage exercise of the rights of the parties to a trial, including the accused's right to defence.
The personal presence and participation of the accused and his defender during the investigation and hearing give them a chance to follow their course and results, and also to put questions to persons being interrogated, so as to establish circumstances refuting or mitigating guilt. Direct intercourse makes it possible for the investigator, procurator, and court to answer petitions correctly and quickly, and better to assimilate the arguments of the parties and direct their activity to full and conscientious exercise of their rights and duties.
Breach of the principle of directness hampers exercise of the right to defence. Thus the USSR Supreme Court has said, apropos of a case, that a Soviet court's performance of procedural acts on instructions from another court
infringes the principle of directness and the rights of the parties, and in particular of defendants, who are deprived of the chance to take part in interrogation of the victims and thus to exercise their constitutional right to defence.^^1^^
The principles of directness, contention, and of the right to defence require that living people be heard in a court sitting and not a reading of the record of their testimony. The Plenum of the RSFSR Supreme Court has stressed that the list of circumstances indicated in Article 281 of the CPC RSFSR in which the defendant's testimony may be read is exhaustive.^^2^^ Under Article 281, CPC RSFSR,
The reading in court of the defendant's testimony given during interrogation or the preliminary investigation, and reproduction of tape-recordings of his testimony appended to the record of the interrogation is only permissible in the following instances:
_-_-_ __NOTE__ Footnote cont. from page 53. Latvian SSR, Article 52; CPC Tajik SSR, Article 67; CPC Armenian SSR, Article 60; CPC Turkmen SSR, Article 65.~^^1^^ L. N. Smirnov (Ed.). Op. cit.,pp 196--197.
~^^2^^ V. V. Shubin et al. (Eds.). Op. cit., p 280.
54(1) given subtsantial contradictions between this testimony and that heard in court;
(2) if the defendant refuses to give evidence in court;
(3) when the case is being heard in the absence of the defendant.
On the basis of these rules, when it is impossible for the defendant, a witness, or the victim to be present, or they refuse to give evidence, and when evidence is given to the court that substantially contradicts previous testimony, only the full bench of the court has the right to order the reading of the records, and not the presiding judge or any other party to the trial. Moreover, as the Plenum of the RSFSR Supreme Court has stressed,
a decision to find that the circumstances make it impossible for a person to be present must be taken by the court in each case after discussion of the point,
and the hearing of a case in the absence of witnesses is prohibited unless the views of the parties have been ascertained.^^1^^
Appeal and supervisory instances quash judgments if the record of the examination of witnesses who are not in court is read out instead of their being interrogated, when they are not present at the session for reasons unknown and have not been exempted from attendance.^^2^^ This conception of the law helps the accused to exercise his right to defence and also helps establish the truth in the case. This right cannot be considered real when the accused has had no chance to take part in the interrogation of a witness or of the victim at the preliminary examination, and the court, instead of ensuring their attendance at the hearing, reads the record of the interrogation.
The law permits reading of the record if it substantially contradicts the testimony of the defendant or of a witness, i.e. when it is a matter of testimony that is not another version of certain statements but alters their very essence (e.g. if a witness exposed the accused during the preliminary investigation but declines to do so in court).
_-_-_~^^1^^ Ibid.; BVS RSFSR, 1967, 6:10.
~^^2^^ BVS RSFSR, 1970, 3:10; 1966, 5:12; 1975, 8:13; BVS SSSR, 1965, 5:36; BVS RSFSR, 1976. 4:8.
55The point about reading the record of the interrogation of witnesses and other persons who are not present is decided in the preparatory part of the court proceedings when the parties in the trial are informed who of the persons summoned are present and are given the opportunity to acquaint themselves with the documents (subpoenas or summonses, letters, telegrams, etc.) on the reasons for the non-attendance of other persons. If the testimony of the absent persons is not essential, a ruling is made to hear the case without them, and the reading of their testimony in general becomes unnecessary. At that point it may also be decided to continue the hearing and to read the record of the interrogation of persons whose testimony is essential but whose presence in court is ruled out. If, however, the evidence of witnesses and victims may be significant, and their attendance is possible, a ruling is made in the preliminary part of the court proceedings to postpone hearing of the case to another time and to issue a new summons.
A reading of records alternating with oral testimony may play the role of leading questions; it is therefore only permitted after the free account of the defendant, victim, or witness and their answering of the questions put to them, i.e. when all other means of clarifying the reasons for the substantial contradictions have been exhausted. In this connection there must be no prejudice toward the testimony in court, or doubts in its veracity, simply because it diverges from the evidence given during the investigation of the case.
In the preliminary investigation, for instance, a charge of murder against one Utenin was substantiated by the testimony of witnesses and fellow-accused. In the people's court they did not confirm their evidence. The USSR Supreme Court, returning the case for a new hearing, noted:
the court, in basing its verdict on the evidence of these persons in the preliminary investigation, did not indicate in its judgment why precisely their evidence merited confidence and not the testimony given in court.^^1^^
Observance of the principle of directness thus excludes _-_-_
~^^1^^ L. N. Smirnov (Ed.). Op. cit., p 213. 56
56 preponderance of the material of the preliminary investigation over the facts of the judicial examination. 'The court,' Article 43 of the Fundamentals reads, 'shall found its judgment only on the evidence that has been examined in court session'; the material of the preliminary investigation is only considered by the court to the extent that it has been examined in the session in accordance with the principles of directness and the oral nature of court proceedings, the right to defence, and the contentious character of a trial.Since justice is administered only by a court, the court examination or hearing is primarily, and in the main, an independent investigation carried out in those procedural forms that ensure to the maximum establishment of the truth and protection of the rights of the individual. What happens in court, i.e. the evidence that has been investigated from the angle both of the charge and the defence and is interpreted by the judges directly from first-hand sources and not from the records of interrogations compiled during the preliminary investigation, is of fundamental importance for a lawful, substantiated judgment.
The court examination of material evidence, the locality and premises, and the reading of documents is of no little importance for exercise of the right to defence and for establishing the truth. The accused and his defender and other parties thus have the right to draw the court's attention to certain circumstances connected with investigation of the evidence. If the court, however, has not examined the material evidence, though it had the chance to do so, and has not read out a document during the session, that means that the evidence has not been investigated and it is impossible to refer to it in the speeches in court and in the judgment. In the absence of this procedure a finding of guilty is liable to be quashed since the accused's right to defence has been infringed in this instance.^^1^^
The court has the right, when pronouncing judgment, to take only that evidence into account that has been examined and orally discussed in the session, and to which the accused and other parties could give explanations.^^2^^
_-_-_~^^1^^ Ibid., p 217; BVS RSFSR, 1975, 8:13.
~^^2^^ Here we have in mind that 'a judgment may only be based on evidence that has been directly investigated by the court in the session __NOTE__ Footnote cont. on page 58. 57
Article 37 of the Fundamentals not only establishes the principles of the direct, oral nature of proceedings but also states:
The uninterrupted nature of court examination and the invariance of the composition of the court are important guarantees of implementation of the principles of the direct and oral nature of proceedings. The uninterrupted character of the judicial examination is also expressed in the court's duty to withdraw to its deliberation chamber immediately after hearing the defendant's final word, to set out the judgment in full, to return to the courtroom immediately after signing it, and to read out the full text of the judgment (CPC RSFSR, Art. 299, 318). Breach of the rules on the continuous nature of a court examination and the invariance of the composition of the court entails annulment of the judgment and direction of the case for a new hearing.^^1^^In each case the court session shall continue without interruption except for time allotted for rest. The hearing of other cases by the same judges before completion of the hearing of a case already begun is not permitted.
The administration of justice is not only complicated when a court, without having finished the examination of one case, begins to hear another, and then returns to the first, and so on. Because of the imperfection of human memory, a live, integral, and direct perception is pushed aside by written documents in trials that last many months; it is difficult in such trials, and sometimes impossible, for the judges to form an inner conviction of the trustworthiness of the evidence investigated and the proved character of the facts of significance in the case. The USSR Supreme Court considers, with full justice, that
_-_-_ __NOTE__ Footnote cont. from page 57. that ended with the pronouncement of judgement' (BVS RSFSR, 1975 5:13).it is impermissible to join cases with a considerable number of accused in one of proceedings if that complicates investigation of the evidence and the establishment of truth in a case.^^2^^.
~^^1^^ L. N. Smirnov (Ed.). Op. cit., pp 199--200; S. V. Borodin (Ed.). Op. cit., pp 336, 413.
~^^2^^ BVS SSSR, 1964, 1:27.
58The principle of directness is also expressed, though not in its full content, in the stage of the preliminary investigation.
If, for example, the evidence of a witness or victim is based on communications of other persons, the investigator, and not just the court, is bound by law to interrogate these persons. The investigator only has the right to present a photograph for identification when it is impossible to produce the person himself (CPC RSFSR, Art. 165).^^1^^ When there is only a copy of a document that some person is accused of wrongly compiling, the elementary rules of conducting the investigation require the genuine document to be filed.^^2^^
Reading of the record of interrogations may also be converted into a putting of leading questions during the preliminary investigation, and therefore the USSR Supreme Court stresses that
the trustworthiness and fullness of witnesses' testimony shall not be checked by reading out the testimony of other persons but by means of other investigatory actions provided for by law, to wit, repeated interrogation, confrontations^ the interrogation of other persons, etc.^^3^^
During the preliminary investigation certain procedural acts are sometimes entrusted to other investigation agencies. At the same time the instruction of the Deputy Procurator-General of the USSR of 31 December 1960 (No. 3/100) on the procedure for preparing, delivering, and performing separate claims says that
in cases of a need to make a great many various inquiries in another district, the work should be done, as a rule, by the investigator in charge of the case, by his journeying to the spot.
The law permits the investigator to draw the accused into the performance of separate investigatory actions. That can help defend the accused's rights and to establish the truth in the case. Each time the investigator decides therefore whether it is _-_-_
~^^1^^ BVS SSSR, 1976, 5:24.
~^^2^^ L. N. Smirnov (Ed.). Op. cit., p 140.
~^^3^^ BVS SSSR, 1971, 2:42.
59 expedient to involve the accused in investigating a point from the angle of protecting his rights and the interests of the investigation.Consistent observance of the principle of directness includes the procurator's duty, when necessary, to interrogate a citizen personally to decide whether to issue a warrant for his arrest, and at the end of the investigation to interrogate the accused about his petitions and complaints (CPC RSFSR, Art. 211).
Implementation of the principle of directness not only at the stage of court examination but also in the preliminary investigation thus facilitates full investigation of the circumstances ot a case and defence of the rights and interests of the accused protected by the law.
__ALPHA_LVL3__ §5. The Right to Defence and the Openness ofOpenness is not simply a principle of judicial activity in the USSR but is the basis on which Soviets of People's Deputies and other authorities, public organisations, and work collectives exercise their functions. Under the Constitution of the USSR the broadening of openness and publicity, constant responsiveness to public opinion, and other elements of socialist democracy are the main line of development of the Soviet political system (Art. 9).
The significance of the principle of openness for the administration of justice is due to the democratic character of Soviet court proceedings, the management of affairs in the interests of society, the state, and individual citizens. It is important for the public not only to know the results of a court case but also how it was conducted. Such knowledge convinces citizens that the trial has been conducted with the most rigorous observance of constitutional norms and Soviet legality.
The constitutional principle of the openness of court proceedings helps solve the educational problems facing a court. A court, in hearing a case and pronouncing judgment, acts on those present by public example of proper behaviour, by propaganda for the norms of law and morality, and develops the public's sense of justice. That applies to any court case, and it is the 60 juridical duty of judges to ensure its education influence. More effective realisation of the principle of openness can be furthered by the hearing of criminal cases by assizes in factories, on construction sites, or on collective farms with the participation of social prosecutors and social defenders.
Openness provides the conditions for the public's control of the court's work.
Those present in court may make a record during the proceedings and tell relatives and acquaintances objectively about what they have seen and heard at the court session. Exercise of this right does not require sanction of the court; it is the right of any citizen, and not simply of representatives of the press. Openness gives citizens the chance to realise their constitutional right of criticism and free speech. The work of the courts is criticised through the mass media, at meetings of the voters to whom people's judges are accountable, and in other forms.
Openness thus has a dual character: on the one hand it is the bringing of certain information to the public, and on the other hand a feedback from the public. The latter is a matter already of public opinion which must be studied and constantly responded to (Art. 9, the Coastitution of the USSR), since in the last analysis it is one of the means of expressing the will of the people or of separate sections of the public. It is not only obligatory to develop openness but also very useful for functioning of the political system of socialism. Study of public opinion provides information on the scale of values prevailing in any particular social environment, about the standard of political and legal knowledge, the character of ethical views, and so on, and all that is the basis for developing recommendations on various lines of educational work and the development of the Soviet state system.^^1^^
The atmosphere of open court proceedings requires model fulfilment of their procedural and moral obligations by the procurator and counsel as well as by the judges. There are fewer _-_-_
~^^1^^ See Documents and Resolutions. XXVth Congress of the CPSU (Novosti Press Agency Publishing House, Moscow, 1976), p 88; G. Kh. Shakhnazarov. Apropos of Certain Trends in Development of the Political System of Socialism. Sovetskoye gosudarstvo i pravo, 1978, 1:10.
61 opportunities in open court for deviation from the law and infringements of any kind. The testing in open session of the facts gathered during the preliminary investigation obliges both the investigation agencies and the Procurator's Office strictly to observe legality in their activity preceding the trial.The principle of openness is one of the guarantees of the accused's right to defence, and enables this very important right to be employed more fully. The innocence or reduced guilt of the defendant is demonstrated in open session not only for the court but for the public.
The openness of court proceedings raises the responsibility of witnesses, victims, experts, interpreters, and other persons involved in a case. The testing of their testimony, conclusions, and translations in the presence of the public is an additional stimulus to their conscientious fulfilment of their civil duty, and their rights, too, can best be ensured in an atmosphere of openness.
A judgment may not be founded on a record of the preliminary investigation that has not been reviewed openly.^^1^^ Under the law a departure from the principle of openness is a breach that entails unqualified quashing of the judgment (part 1 of Art. 345, CPG RSFSR; point 9 of Art. 370, CPC Ukrainian SSR).
Openness was recognised as a principle of justice in the first Soviet decrees on courts. The Instruction of the People's Commissariat of Justice of the RSFSR of 23 July 1918 on the organisation and operation of local people's courts stated: 'All court sessions shall be open but if the need arises in special circumstances, the public may be excluded for a time by decision of the court.'^^2^^ It was thus recognised right away that the court could depart from the principle of openness only 'in special circumstances'; the public could be excluded 'for a time' but not for the whole of the court proceedings, and in no other event than 'by decision of the court'.
The law in force today, maintaining continuity, permits only certain limitations of openness, but even when a court hears a case in camera, it acquaints the public with the results of the _-_-_
~^^1^^ E. A. Smolentsev el al. (Eds.). Op. cit., Part 2, p .21.
~^^2^^ Sbornik ulozheniy 1918 g. (Collected Statutes 1918), 53: Item 597.
62 proceedings and the judgment is read out publicly. The list of cases posted for review by a court indicates all those it is intendled to hear, and not just some of them. The court hears the view of the parties on the question of limiting openness, and gives a reasoned ruling, which is read out publicly. It is seldom necessary to hold the whole of a court examination behind closed doors. Generally, as soon as the circumstances whose character required the holding of a closed session have been investigated, obstacles to the public's access to the courtroom disappear.The principle of openness also operates after the pronouncement of judgment.
In what criminal cases can openness be limited?
Under the law the court is obliged to refuse an open session in order to protect information constituting a state secret. The list of such information is established by the USSR Council of Ministers. A limitation of openness is possible in the cases of persons who are under 16 years of age, in cases of sexual crimes and certain others, so as to prevent divulgence of information on intimate aspects of the life of persons involved in the case.
It is a breach of the principle .not only to hear a case in closed session without grounds but also to hold an open trial when the law does not permit it. In a sexual case, for example, the defence counsel declared to the court that he was deprived of the chance to question the juvenile victim in the presence of the public. The court, however, heard the case in open session. The USSR Supreme Court, when quashing the judgment, declared:
In establishing the possibility of hearing cases of sexual offences in closed session, the law has in mind not only the protection of the persons involved in the case from baring the intimate sides of their lives but also the interests of justice in the sense of ensuring the fullest investigation of the circumstances of the case necessary to establish the truth.^^1^^
In accordance with the Constitution of the USSR the personal life of citizens, the secrets of their correspondence, or of their adoption, or their medical, notarial, and other personal secrets _-_-_
~^^1^^ L. N. Smirnoy (Ed.}., Op. cit.,,p. 199.. 63
63 are protected by the law. Correspondence and diaries, and interrogation and other procedural acts relating to their deeply personal, intimate affairs may therefore only be read out in open session with their agreement.Any citizen aged 16 and above has the right to be present in open court but no one has the right to obstruct the administration of justice, and citizens who create a disturbance in court may be removed from the hall by order of the presiding judge.
Openness may aJso be limited for participants in a trial, viz. for the defendant and his legal representative, the victim, the civil plaintiff and the civil defendant and their legal representatives, experts, interpreters, and specialists. But they are excluded from the courtroom in exceptional cases and solely by a reasoned decision of the court when they disturb the conduct of the proceedings and do not obey the presiding judge's instructions.
The defendant may also be removed in the interests of establishing the truth during the interrogation of another defendant or a juvenile witness. The removal of an under-age defendant is not excluded during the investigation of circumstances that could adversely affect his morals. After his return to the courtroom the defendant is informed of the substance of the evidence given in his absence and granted the chance to put questions and give evidence.
Sometimes, however, there are unwarranted limitations of openness for the parties in the proceedings because of an erroneous understanding of the law. A court, for example, ruled that a case should be remanded for additional investigation but did not read out the full text of the ruling. The counsel involved told the accused's relatives about the substance of the ruling. His conduct was found improper by the court and reported to the chairman of the praesidium of the regional college of barristers. The RSFSR Supreme Court did not agree with this action and ruled that the incomplete reading out of the ruling infringed the principle of openness, and that counsel had the right to communicate the substance of the ruling to the accused's relatives since the court examination had been open.^^1^^
_-_-_~^^1^^ BVS RSFSR, 1963, 12:10. Similarly, BVS RSFSR, 1977, 4:9.
64 __ALPHA_LVL3__ §6. The Right to Defence and the National LanguageThere are around 130 languages of the native people of the Soviet Union. These languages are spoken in 15 Union republics and 20 Autonomous republics, eight autonomous regions, and ten autonomous areas. The issue of the language of court proceedings is of great political importance in a multinational state. The Fundamental Law of the USSR specially stresses the juridical and actual equality of the nations and nationalities, the right of citizens to national equality, to their national language and national dignity, the possibility of being taught in school in their mother tongue, and the publication of laws and other acts of the USSR Supreme Soviet in the languages of Union republics.^^1^^ The Soviet Union also confirmed these provisions in the Final Act of Helsinki.^^2^^
In accordance with the principle of the national language of court proceedings none of the parties to a case should be limited in their rights because of ignorance of the language in which the trial is conducted; at any stage of the proceedings each of the parties has the right to employ his mother tongue both orally and in writing. The principle of the national language operates at all stages of Soviet criminal proceedings and breach of it by the preliminary investigation agencies or the court is absolute grounds for quashing the judgment.^^3^^
The constitutional principle of the national language of court proceedings is developed and concretised in the Fundamentals of Legislation of the USSR and Union Republics on the judicial system (Art. 10) and on Criminal (Art. 11) and Civil Procedure (Art. 10). It is reflected in the criminal procedure _-_-_
~^^1^^ See the preamble and Articles 34, 36, 45, 64, 116, 156, and 159 of the Constitution of the USSR.
~^^2^^ 'The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere' (New Times, Moscow, 1975, 32: 28).
~^^3^^ S. V. Borodin (Ed.). Op. cit., pp 270, 334, 411; BVS RSFSR, 1977, 5:5.
__PRINTERS_P_65_COMMENT__ 5---665 65 codes in accordance with the constitutions and national composition of the Union republics. The CPC of the Azerbaijan SSR, for instance, establishes conduct of court proceedings in the Azerbaijan SSR and the Nakhichevan ASSR in Azerbaijanian, in the Nagorno-Karabakh Autonomous Region in Armenian, and in areas with an Armenian or Russian majority correspondingly in Armenian or Russian (Art. 16). In several Union republics, it must be noted, the law does not provide for the possibility of conducting court proceedings in Russian,^^1^^ a decision that follows from what Lenin wrote in 1914:We, of course, are in favour of every inhabitant of Russia having opportunity to learn the great Russian language.
What we do not want is the element of coercion. . . . We do not think that the great and mighty Russian language needs anyone having to study it by sheer compulsion.^^2^^
The main point when the matter of the language of court proceedings is being decided is not the fact of the investigator's or members of the bench's fluency in a certain language but what language is spoken by the majority of the public in the place where a criminal case is being investigated and subsequently heard. Members of a minority of the local population who do not speak the language of the Union Republic, Autonomous Republic, autonomous region, or autonomous area, have the right to be acquainted with the case through an interpreter. The principle of the national language is therefore infringed even when an interpreter takes part and the investigation and court documents are handed to the accused in a language he speaks, if the investigation or court proceedings are conducted in a language other than that of the majority of the local population.
The hearing of a case may be conducted within a republic in different languages, for example the preliminary investigation and hearing in Chuvash,^^3^^ but the appeal (cassation) proceedings in the RSFSR Supreme Court in Russian. At the same time it is _-_-_
~^^1^^ CPC Ukrainian SSR, Article 19; CPC Georgian SSR, Article 15.
~^^2^^ V. I. Lenin. Is a Compulsory Official Language Needed? Collected Works, Vol. 20 (Progress Publishers, Moscow), p 72.
~^^3^^ The Chuvash ASSR is part of the Russian Soviet Federative Socialist Republic.
66 impermissible, within one and the same locality, to conduct the preliminary investigation in one language and the court hearing in another. Inadequate knowledge by persons involved in a case of the language in which the proceedings are conducted cannot, moreover, serve as grounds for a change of venue.^^1^^The connection between and development of the constitutional principles of the national language in court proceedings, and securing of the accused's right to defence are distinctly traceable in the Soviet legislation of recent years. The majority of the criminal procedure codes adopted in 1959--1961 in Union republics provide, for instance, for the mandatory involvement of defence counsel if a defendant does not speak the language in which the hearing is being conducted. In 1970--1972 participation of defence counsel was recognised as mandatory during completion of the preliminary investigation of the cases of persons not speaking the language of the legal proceedings, as well as in the hearing.^^2^^
The law does not limit the accused's right to choose a lawyer on the grounds of the latter's ignorance of the language in which the trial is being conducted:
The defender's ignorance of the language in which the court proceedings are being conducted cannot serve as grounds for excluding him from participation in the case. In such cases (the Plenum of the USSR Supreme Court explains) the court must, in conformity with Article 159 of the Constitution of the USSR and Article 11 of the Fundamentals of Criminal Procedure of the USSR and Union Republics, provide the services in the trial of an interpreter.^^3^^
The law obliges the investigator, procurator, and court to explain to the accused and the other parties involved in a case the rules on the national language of the legal proceedings and to provide them with the possibility of putting these rules into practice (Fundamentals, Art. 13, 27).
It is the duty of the investigator, procurator, and court to provide the services of an interpreter in a case. Everyone is _-_-_
~^^1^^ S. V. Borodin (Ed.). Op. cit., p 282.
~^^2^^ VVS SSSR, 1970, 36: Item 362; 1972, 6: Item 51.
~^^3^^ BVS SSSR, 1978, 4: 10.
67 entitled 'to have the free assistance of an interpreter if he cannot understand or speak the language used in court'.^^1^^ This provision of the International Covenant on Civil and Political Rights is also applied in the USSR in the pre-court stages of proceedings. The fees of the interpreter are paid from public funds in cases both of rehabilitation and conviction of the defendant (Art. 107 of the CPC RSFSR).The investigator, procurator, and court must ascertain whether the accused speaks the language in which the proceedings are being conducted. They are obliged, on their own initiative, without waiting for a request, to ensure that the accused is handed a copy of the indictment, for example, translated into the language he speaks, and to ensure the participation of an interpreter and of defence counsel in the case. Information that the accused does not speak the language in which the proceedings are being conducted is necessary and sufficient grounds for performing these acts.
An accused's declaration about his ability to understand the case, however, does not entitle him to refuse an interpreter. Such a statement is only of value when the accused really speaks the language of the proceedings fluently. For example, two accused, Minosian and Makhmudov, declined the assistance of an interpreter during the preliminary investigation. At the court hearing, however, they declared that they had been unable to acquaint themselves with the documents signed by them during the investigation and that they had not understood certain of the matters in the case. The court, convinced of the trustworthiness of their declaration, ruled that the case be returned for further investigation.^^2^^
An accused's refusal of counsel is operative in instances when the refusal is voluntary and not forced, and the initiative is that of the accused himself. The USSR Supreme Court and the Supreme Courts of Union republics consider a display of court initiative as regards the accused's refusal of counsel to be a procedural breach when, in connection with the non-appearance of the lawyer at the session, the court ascertains whether the _-_-_
~^^1^^ Yearbook of the United Nations 1966, p~426.
~^^2^^ BVS SSSR, 1966, 3: 26--28.
68 defendant agrees to the case being heard without defence counsel. In exactly the same way the principles of guaranteeing the accused's right to defence and of the national language of the proceedings are infringed when it is ascertained from an accused who does not speak that language whether he agrees to the investigatory activity in the case or the court hearing being conducted in the absence of an interpreter who has not shown up.The persons not speaking the language of the court proceedings include those parties to the case who are unable freely to understand that language in written or oral form, and to give explanations in it to all the questions arising during the trial, although they have a certain familiarity with the language. The case of Minosian and Makhmudov already referred to presents certain interest in this respect. The USSR Supreme Court hearing the case by way of supervision stated:
The court, having heard the defendants, was convinced that they did not speak Russian fluently enough to be able to fully understand and comprehend the essence of all the materials of the case without the help of an interpreter. . . . The fact that Minosian had lived in the city of Donetsk for some time before being called up for military service and spoke Russian in intercourse with the people around him, does not refute and cannot refute his statement about his poor knowledge of Russian. . . . Under the law the accused has the right to know what he is accused of, to give an explanation concerning the accusation laid against him, and to acquaint himself with all the available materials in the case. Since Minosian and Makhmudov were not sufficiently fluent in Russian they had no chance to exercise these rights. . . . The aforementioned breaches of criminal procedural law are so substantial that until they are eliminated the case cannot be heard in court and must be returned for supplementary investigation.^^1^^
The provision of an interpreter secures the accused the opportunity to defend himself. It is obligatory when any procedural act is being carried out (interrogation, search, confrontation, etc.) involving persons who do not speak the language in which the proceedings are being conducted. The statements or _-_-_
~^^1^^ Ibid. Similarly, BVS SSSR, 1971, 1:42; BVS RSFSR, 1974, 10:12.
69 testimony of such persons obtained without an interpreter are not admissible. The USSR Supreme Court considers thatthe provision of an interpreter for a defendant who does not speak the language in which the court proceedings are being conducted is a constitutional principle of Soviet justice nonobservance of which entails annulment of the judgment.^^1^^
An interpreter makes it possible to establish contact with the accused and other persons who do not speak the language of the proceedings and to investigate the information obtained from them. He, moreover, ensures that the parties in the case have the opportunity to exercise their rights and duties more fully. The judge, investigator, procurator, or defence counsel has no right to take the duties of an interpreter onto himself, since such a confusion of procedural functions not only deprives the translation of the procedural guarantees but also reduces the standard of performance of the party's procedural functions. The USSR Supreme Court has recorded, for example, that 'it is not permitted to merge the duties of judge and interpreter in one person'.^^2^^
An interpreter must be provided in proceedings from the moment it becomes known that the accused or some other person involved in the case does not speak the language being used. All procedural acts involving these persons must be conducted with the help of an interpreter. In the case of Davarashvili, a Georgian, for instance, accused of persistent hooliganism and resistance to a militiaman, the investigatory acts were carried out with the participation of an interpreter, but when the accused was presented with all the papers in the case the investigator had not provided the services of an interpreter; so the court remanded the case for additional investigation.^^3^^ Translation of the investigation documents is not allowed in court, and since the indictment is an investigation document its translation into the accused's mother tongue should have been ensured by the investigator rather than the court. The RSFSR Supreme Court qualifies the handing of an indictment to a defendant compiled in a _-_-_
~^^1^^ See S. V. Borodin (Ed.). Op. cit., pp 270--271, 411.
~^^2^^ Ibid., p 287.
~^^3^^ See BVS RSFSR, 1970, 11:16. Similarly, BVS SSSR, 1971, 1:40.
70 language that he does not know well as a gross breach of a citizen's constitutional right.^^1^^If the accused had an interpreter during the preliminary investigation the court must not begin its hearing without one and must not bring him in only after some of the court examination has been made. Inopportune involvement of an interpreter in a case is an essential breach of the law on criminal procedure.
The fullness of the translation is also an important matter. It must be complete and not selective. It is not permitted, for example, to present a precis of the indictment in translation, rather than the full text of the indictment, or a translation of part only of testimony, questions, petitions, etc.^^2^^
There is a view in the procedural literature that it is mandatory to hand the accused the following documents in translation: the investigator's decision on a petition or application filed and the procurator's decision on a complaint; a summons to appear before the investigator or a court; copies of the record of a search or of the detention and seizure of documents or property; notifications of the abandonment of criminal proceedings during the preliminary investigation and copies of a court's ruling on the termination of a case at the stage of committal for trial; copies of. the indictment; copies of a ruling of an organisational session of the court or decisions of the judge altering the list of persons summoned to court; copies of the judgment^^3^^; and copies of the protest or appeal at the stage of appeal or cassation _-_-_
~^^1^^ See S. V. Borodin (Ed.). Op. cit., p 335.
~^^2^^ BVS RSFSR, 1974, 10:12.
~^^3^^ In point 20 of the decision of the Plenum of the USSR Supreme Court on the practice of courts' application of the laws guaranteeing the accused the right to defence, the Plenum drew the attention of courts to the fact that 'according to the law copies of the judgment must be handed to the convicted or acquitted person translated into the language that he speaks and within the period laid down in the CPCs of Union republics.
`If the persons enumerated have been deprived, as a result of nonobservance of these requirements, of the possibility to appeal against the judgment, that fact must be treated as grounds for renewal of the missed appeal period or for quashing of the court's ruling by the court of cassation' (BVS SSSR, 1978, 4:11).
71 proceedings.^^1^^ Apart from these documents, however, the accused may also receive copies of any other documents of a criminal case. Insofar as he does not know the language in which the proceedings are being conducted the Constitution of the USSR guarantees him 'the right to become fully acquainted with the materials in the case ... [through] an interpreter' (Art. 159). This is his right at the end of the preliminary investigation, after committal for trial, and during the court hearing, and also after the signing of the record of the court session.An interpreter may take part in a case if he is sufficiently competent, i.e. if he is fluent in the languages needed for the translation, knows the subject-matter of the investigation, and is able to transmit information accurately. Information about the education and occupations of the interpreter must be available in a case, and he is bound to transmit this information to the investigator or the court on the demand of the parties to the proceedings. Discovery of an interpreter's incompetence excludes him, in accordance with the law, from taking part in a trial.
According to the law an interpreter must not only know the languages required but must also have no direct or indirect personal interest in the case. In particular an interpreter may not take part in a case if he is a victim, civil plaintiff, civil defendant, or witness, and also if he has been involved in the case as an expert, specialist, person conducting an inquiry, investigator, prosecutor, judge, the defender, the accused's legal representative, representative of the victim, civil plaintiff, or civil defendant.
The accused's right to defence and the rules of the national language of legal proceedings presume knowledge by the judges, prosecutor, defence counsel, and investigator of the language in which the case is conducted. With poor knowledge of this language, and in the absence of an interpreter, they lack the possibility to comprehend the arguments in defence of the accused and to obtain adequate information on the circumstances liable to proof in a criminal case. The judgment is therefore liable to _-_-_
~^^1^^ L. N. Smirnov (Ed.). Nauchno-praktichesky kommentariy UPK RSFSR, p 32.
72 annulment if a case is heard without an interpreter and if even one judge is involved who does not speak the language in which the proceedings in the case are being conducted.Implementation of the constitutional principle of the national language in legal proceedings thus ensures equality of citizens, protects the rights of the accused and other parties in a trial, and guarantees establishment of the truth and the adoption of a lawful, substantiated, just decision in a criminal case. That is why the Plenum of the USSR Supreme Court states that
__ALPHA_LVL3__ §7. The Right to Defence and the Participation ofany limitation of the rights of the accused, defendant, and defence counsel caused by their ignorance of the language in which the proceedings are conducted, and failure to ensure these persons of the opportunity to employ their mother tongue at any stage of the case is a material breach of the norms of the law on criminal procedure.^^1^^
The participation of representatives of social organisations and work collectives in the proceedings of civil and criminal cases has been elevated in the USSR to a constitutional legal principle.
Representatives of organised public opinion may take part in Soviet criminal proceedings as social prosecutors and defenders, and their activity is closely bound up with matters of ensuring the accused's right to defence. Social bodies, it must be said, not only have the right to select their representatives to take part in the hearing of criminal cases but also enjoy other rights corresponding to the interests of the accused. Realisation of these rights can help stop a criminal case or encourage rejection of a plea for the application of measures of social coercion (CPC RSFSR, Art. 7-10, 234, and 259); taking of the surety of a social organisation as a preventive restriction (CPC RSFSR, Art. 95); the transfer of conditionally sentenced persons to correction at work (CPC RSFSR, Art. 304, 359); the transfer of persons released on parole before expiry of their sentence to education _-_-_
~^^1^^ BVS SSSR, 1978, 4:10.
73 by a social organisation (GPG RSFSR, Art. 363); expunction or remission of a sentence (CPC RSFSR, Art. 370).The different forms of participation of the public in a criminal case have special features. Taken together they are a principle of Soviet criminal procedure.
Social prosecutors and defenders exercise opposing procedural functions, which is reflected in the law according to which the first accuse and the second defend (CPC RSFSR, Art. 250).
If the facts of the court examination lead a social prosecutor to the conclusion that it is necessary to drop the charge, he may drop it (CPG RSFSR, Art. 250). As for the social defender, he may be recalled by his organisation if previously unknown circumstances have come out in the hearing that convict or materially increase the defendant's criminal responsibility. These individual cases, however, do not alter the general position that the main direction of the procedural activity of a social defender is to defend, and of a social prosecutor to prosecute.
Social prosecutors and defenders are chosen by social organisations or work collectives at the place of work, study, or residence of the defendant or victim.
The law does not list the cases in the examination of which social prosecutors and defenders are allowed to take part, and it is hardly possible to indicate these cases precisely. It has, therefore, to be recognised that social defenders and prosecutors may take part in any court of first instance irrespective of what offence the defendant is charged with.
A social organisation, or work collective, student body, etc., has the right to decide independently whether to select a representative to appear in the trial; if it does so, then he appears as a social prosecutor or a social defender.
In order to decide whether to name a social defender, and especially a social prosecutor, it is necessary to have information on the case. This may be provided, for instance, by the procurator, the accused, or his defender. To avoid one-sided, incomplete interpretation of the circumstances of the case the court provides a social organisation or collectivity of working people with the chance to familiarise themselves with its materials.
After completion of the preliminary investigation (but not 74 earlier, because the charge may be altered or in general dropped), the investigator and procurator may contact the social organisation and recommend it to name a social prosecutor.
Defence counsel can also appeal to social organisation to discuss the matter of appointing a social defender.
If, however, representatives of the public apply to the court, the procedure for putting forward social prosecutors and defenders and drawing up their credentials must be explained to them, but the judge has no right to recommend them to appoint such prosecutors or defenders to take part in the trial. The Plenum of the RSFSR Supreme Court has justly noted that a judge's suggestion
on the involvement of a social prosecutor or defender in a case will in fact prejudge the position in the case. The Procurator's Office and the Bar should respectively take on the business of schooling the representatives of the public to take part in a case.^^1^^
A social defender may be elected either by a general meeting of the social organisation or work collective or by a meeting of a collegial body of the organisation concerned (e.g. the factory trade union committee). The minutes must indicate the numbers present, the agenda, who was the main speaker, and must record the speeches made at the meeting (or session), and the text of the resolution.
The minutes must reflect the decision to appoint a social prosecutor or defender and the petition for their right to take part in the trial. The credentials of social prosecutors and defenders are confirmed by copies of the minutes or an authorisation issued on the basis of the decision taken. The minutes are signed by the chairman and secretary of the meeting (session) and authenticated by its seal or stamp. The aid of the defence counsel is sometimes found to be very helpful when the credentials of a social defender are being drawn up.
To the right of the public to appoint representatives there is a corresponding duty of the court to consider the matter of _-_-_
~^^1^^ BVS RSFSR, 1967, 4:2.
75 permitting social prosecutors or defenders to take part in a hearing. The USSR Supreme Court, for instance, has stated:If there is a petition from the public in a case for the right of a social prosecutor to take part in a hearing, the court is obliged to decide this application on its merits.^^1^^
Social prosecutors and defenders may not take part in a case when they do not have proper credentials or both have been appointed by one and the same organisation, and when the social prosecutor or defender has a personal interest, direct or indirect, in the outcome of the case, or has taken part or should have taken part in it as a witness.^^2^^ Given the existence of such circumstances, they must refuse performance of their duties or be removed from involvement in the case on the initiative of the court or by petition of the parties.^^3^^ The decision to remove a social prosecutor or defender must be set out in a reasoned ruling of the court, and the organisation concerned should be given the chance to consider the matter of appointing another representative.
It is not permitted to refuse social prosecutors and defenders the right to take part in proceedings on grounds of guarding a state secret or intimate aspects of the affairs of persons involved in the case against disclosure, since they may also take part in closed sessions of the court. The court may not refuse permission for social prosecutors and defenders, either, on the grounds that the case is of no social significance and that the personality of the defendant is such that a social defender should not take part, and so on. As the eminent Soviet jurist M. S. Strogovich writes:
_-_-_The public itself takes the decision on all these matters and the court has no right to give instructions to it, the more so that the court has not yet in general had its say on the guilt and responsibility of the accused; that it can do only in the judgment.^^4^^
~^^1^^ BVS SSSR, 1963, 1:34.
~^^2^^ BVS SSSR, 1977, 1:14.
~^^3^^ This procedure is provided for in the CPC Ukrainian SSR (Art. 59, 61) and the CPC Estonian SSR (Art. 231, 232). In other Union republics the gap in the law is compensated by application of analogues of the law on criminal procedure (Fundamentals, Art. 18; CPC RSFSR, Art. 59, 61--63).
~^^4^^ M. S. Strogovich. Op. cit., Vol. 2 (Nauka, Moscow, 1970), p 195.
76The social defender is a participant, a party in the trial. He does not represent the defendant in the court but the social organisation or work collective defending the latter. The defendant therefore has no right to reject the social defender.
Defence counsel and the social defender perform the same procedural function and are equal participants in the hearing. That does not mean, however, that their procedural positions are identical.
First of all, the social defender, unlike the defence counsel, whose involvement depends on the defendant, appears in a trial only when a social organisation or work collective decides it is necessary, and he takes part just so long as the public he represents consider it necessary.
The participation of defence counsel in a case in no way limits the possibility of a social defender's involvement. And the mandatory participation of defence counsel in a case is not invalidated on the grounds that a social defender has been named for the defendant.
The social defender's participation in the speeches in court does not deprive the defendant of the right to speak in his own defence.^^1^^ That is explained, once again, by the fact that the social defender is not his representative. In addition, the social defender has no obligation, in contrast to the defence counsel,
to employ all the means and procedures of defence indicated in the law to elucidate the circumstances exonerating the accused or mitigating his responsibility, and to render the accused the necessary legal aid (Fundamentals, Art. 23).
That, however, in no way contravenes the provision that the social defender must implement precisely the defence, without the right at any moment of the trial to take up a position unmasking or convicting the defendant.
As a party the social defender is endowed with equal rights with the other parties to present evidence, take part in investigation of it, file petitions and make objections or challenges, and to speak in court. He exercises the function of defence of the _-_-_
~^^1^^ If the defendant has a defender, the latter also may take part in the speeches of the parties.
77 defendant and puts his view to the court on circumstances mitigating the defendant's guilt or exonerating him, and on the possibility of his being sentenced conditionally or freed from punishment, and put on probation with the social organisation or work collective in whose name the social defender appears (CPG RSFSR, Art. 250).The court is obliged to explain his rights to the social defender and to give him the chance to exercise them ( Fundamentals, Art. 27).
The very fact of the appointment of a social defender for the defendant has a favourable effect on the latter's position. The interaction and mutual help of the defence counsel and social defender strengthen the defence and encourage a fuller interpretation of the circumstances of the case from different angles.
Defence counsel is interested in upholding the prestige of the social defender, maintaining his rights, and creating the optimum conditions for his successful performance of the functions of defence of the defendant and so fulfilling the public's mandate. Although the social defender is not tied to the defence counsel's positions, that does not exclude their striving for joint action to achieve their common aim. And the defence only gains from such actions.
In that connection counsel explains the essence of the charge against their client to the social defender and the criminal law that the defendant is accused of breaking, tells the defender of the procedure for familiarising himself with the case, and of the relevant rules of procedure, and advises him on how to put questions in court, helps him draw up petitions or applications, and the theses or plan of his speech for the defence, and so on.
[78] __NUMERIC_LVL2__ 3 __ALPHA_LVL2__ Guarantees of the Accused's Right to Defence __ALPHA_LVL3__ §1. General and Procedural Guarantees of the RightLegality and civil rights are protected by the action of a developed system of guarantees, which includes both general ( economic, political, and ideological) and special (juridical) guarantees.
(a) The economic guarantees of the rights of Soviet people are the socialist mode of production and the social relations built up on its basis.
(b) The political guarantees of the rights of the individual are the existence of working people's state power. The whole system of the political organisation of Soviet society is intended to secure citizens' rights and freedoms.
(c) The ideological guarantees consist in the education and training both of officials and of the Soviet people in a spirit of profound democratism, and in the creation of an atmosphere of confidence in the sanctity and inviolability of citizens' constitutional and other rights and of intolerance toward any breach of legality.
Legal standards, understood as the ideological and legal state of society at a given stage of its historical development, are part of the ideological guarantees of the accused's right to defence.
The reasons for a breach of the accused's right to defence sometimes lie in the inadequate legal knowledge and standards 79 of officials and are manifested in attempts to get round the law on some excuse and to oppose `expediency' to it, which allegedly makes it possible to pass over the law. A resolute struggle is being waged against that view. The USSR Supreme Court has ruled, in particular, that
no breach of legality can be justified by references to its being necessary in order to strengthen the fight against crime. Every criminal case, irrespective of the character and gravity of the crime committed, or the service or public position of the accused, must be decided in strict conformity with the requirements of the norms of criminal and procedural law.^^1^^
The raising of legal standards has always been an extremely important problem. High legal standards and a feeling for the law and legality help make the law's requirements an inner habit; and the struggle to raise these standards is one of the means of strengthening the rule of law and the rights of Soviet citizens. The job of society and the state is to make knowledge of the law the property of all working people,^^2^^ because a clear idea of each and everyone of their rights and duties is a sine qua non for consolidating law and order and the rule of law. Daily purposeful activity to educate in the law and raise legal standards is one of the most important tasks and trends in the development of Soviet society.
The significance of the general guarantees is inestimable. But for all that they cannot of themselves, in the absence or inadequacy of legal guarantees, ensure the rights of the individual. It is therefore necessary to stress both the interconnection of general and legal guarantees and the fact that it is their combination that provides the optimum possibility to defend civil rights.
The whole of Soviet criminal procedure and each of its _-_-_
~^^1^^ E. A. Smolentsev et at. (Eds.). Sbornik postanouleniy Plenuma Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977)? Part 2 (Izvestia, Moscow, 1978), p 20.
~^^2^^ The matters of state and law are included in secondary school curricula and the systems of higher and specialised secondary education and of advanced training. Legal knowledge is spread by the Soviet press, radio, and television.
80 principles and institutes are a system of guarantees of the proper investigation and hearing and just decision of a criminal case. In a narrower sense procedural guarantees are the means established by law by which citizens involved in criminal proceedings can actually defend their rights and interests.The guarantees of the accused's right to defence have a special place among the procedural guarantees of the individual's rights. That is because it is his rights and interests that are particularly affected by the course and outcome of a trial, and the law grants him a set of procedural rights by employing which he can dispute the charge. The accused has the right, for example, to file petitions and to have counsel. In the first case the procedural guarantees of this right are the duty of the investigator and the court to accept, discuss, and comply with an application or petition when it has a bearing on the case. In the second instance it is the duty of the investigator and court to admit the defence counsel chosen by the accused or to assign him counsel if the accused has been unable to engage a lawyer.
The procedural guarantees of the accused's right are at the same time guarantees of justice. In order to punish the really guilty procedural guarantees are needed against the danger of punishing the innocent. Conviction of the innocent is not only a disaster for the person himself but also the possibility that the criminal will escape responsibility. To administer justice it is necessary to establish the truth in a case, and to do that the accused must have the chance to dispute the charge and to present evidence and arguments in his defence. Non-observance of the accused's right is not only a breach of his rights but also of the interests of justice, and entails a mistaken decision of a criminal case. Therefore the strictest observance of the procedural guarantees of the accused's rights corresponds fully to the objects of Soviet criminal procedure and is a sine qua non of every actual criminal's being justly punished and of no innocent person's being held criminally responsible and convicted ( Fundamentals, Art. 2).
Procedural guarantees of the right to defence and the sanctions against breach of it. The Constitution of the USSR requires unswerving observance by the authorities of the guarantees of a citizen's personal liberty, inviolability of his home, and of the __PRINTERS_P_81_COMMENT__ 6---605 81 guarantees against being unlawfully brought to criminal responsibility and convicted, which obliges the authorities conducting a trial to observe the norms guaranteeing the rights of a suspect, the accused, the latter's counsel and legal representative, the victim, the witness, and other citizens, in the strictest manner.
Under Article 13 of the Fundamentals the court, procurator, and investigator are obliged to provide the accused with the chance to defend himself by the means and procedures established by law against the charge brought against him and to ensure protection of his personal and property rights. These same bodies are obliged to explain their rights to the accused and other persons involved in the case and to provide them with the opportunity to exercise these rights (Fundamentals, Art. 27). These duties are not simply moral requirements; they are also juridical obligations, and non-fulfilment of them entails the application of legal sanctions.
The legal sanctions help guarantee the accused's right to defence and the rights of the other citizens involved in criminal proceedings. They are of four types: namely, procedural law, criminal law, disciplinary, and civil law.
The practice of the USSR Supreme Court and of the Supreme Courts of Union republics witnesses that when there is a breach of Articles 13 and 27 of the Fundamentals by an investigator, procurator, or court, the highest judicial instances apply criminal procedural sanctions in the form of the quashing of a judgment, return of the case for a new investigation, etc.
Article 23 of the Fundamentals requires the defence counsel to employ all the means and procedures of defence indicated in the law in order to ascertain circumstances exonerating the accused or mitigating his responsibility, and to give the accused legal aid. Counsel's consciousness of his moral responsibility for a breach of the prescriptions of Article 23 of the Fundamentals is of great import. But if he has not brought out circumstances favouring the accused, that does not relieve the investigator or the court of the duty to bring out circumstances exonerating the accused or mitigating his guilt (Fundamentals, Art. 14); otherwise the truth would not be established and the purposes of the criminal proceedings would not be realised. The rules stipulated in Articles 23 and 14 of the Fundamentals are inseparably linked 82 and their fulfilment is ensured on pain of the judgment being quashed or other legal sanctions being applied.
For instance, one Gulov, charged with a particularly big embezzlement, pleaded not guilty. In quashing the judgment and ordering a new hearing, the Criminal Bench of the USSR Supreme Court stated that the barrister,
in spite of Gulov's objections to his participation as defence counsel, continued to appear in court but as a matter of fact, as is clear from the record of the hearing, did not take part in the investigation of the materials of the case. In his speech he in fact supported the charge brought against the defendant by the procurator. The barrister, by appearing in the trial, thus in fact did not defend Gulov's rights and interests. Nevertheless, Article 23 of the Fundamentals obliges counsel to employ all the means and procedures indi< ated in law in order to ascertain circumstances exonerating the accused or mitigating his responsibility, and to render the defendant the necessary legal aid. The court, by infringing Gulov's right to defence and not granting him the opportunity to give an explanation in regard to the charge brought against him because of his removal from the courtroom, did not, in breach of Article 14 of the Fundamentals, take all the measures stipulated by the law for a thorough, full, and objective investigation of the circumstances of the case that both incriminated and exonerated the accused, and aggravated or mitigated his guilt.^^1^^
The consequences in the case of Abashev, who denied the charge against him, were similar, but the lawyer considered his guilt fully proved. In this case the court refused the defendant's petition to change his lawyer. The judgment was quashed for breach of the right to defence.^^2^^
The application of procedural sanctions does not simply consist in quashing or altering a judgment, returning the case for a new hearing or a new investigation, or the dropping of proceedings in the case, but also consists in recognition of the invalidity of the records of interrogations, the results of searches and seizures and other procedural acts performed without _-_-_
~^^1^^ BVS SSSR, 1972, 1: 25--27.
~^^2^^ BVS RSFSR, 1976, 5: 7-8.
83 observation of the guarantees of the individual's rights established by law.^^1^^Criminal law sanctions are established for coercion to give evidence, for patently illegal arrest and detention, for bringing an obviously innocent person to criminal responsibility, for judges' pronouncing a deliberately illegal judgment, ruling, or decision, for obtaining evidence through breach of the secrecy of citizens' correspondence or of the inviolability of their domicile (Art. 176-- 179, 135, and 136 of the RSFSR Criminal Code).
Disciplinary sanctions are established for breach of official duties by the persons conducting an interrogation, and by investigators and procurators, and for judges' official omissions and despicable acts.^^2^^
The appropriate authorities also bear liability in regard to property for damage done to the person or property of citizens by the actions of officials of the interrogation and preliminary investigation agencies and the court in instances, and within the limits, specially stipulated by law.^^3^^
Broadening of the procedural guarantees of the accused's rights. The legislator provides the accused and his counsel, legal representative, and the social defender the full opportunity to enjoy their procedural rights .The activity of the investigator, procurator, judge, and barrister, permeated with consciousness of the unconditional mandatoriness of procedural and other norms, corresponds to the spirit of socialist legality.
The Plenum of the USSR Supreme Court requires the strictest observance by courts of the norms that guarantee the rights of the parties in a hearing, and explains that
defence counsel, by giving the defendant help in exercising his procedural rights, thereby promotes a proper, all-round review _-_-_
~^^1^^ See Chapter 3, §2.
^^2^^ This is dealt with by such acts as the RSFSR Regulations on Judges' Disciplinary Responsibility of 26 May 1976, and the Regulations on Incentives and Disciplinary Responsibility of the Procurators and Investigators of the Agencies of the USSR Procurator's Olfice of 24 February 1964.
~^^3^^ See Article 89 of the Fundamentals of Civil Legislation of the USSR and Union Republics (in Fundamentals of Legislation of the USSR and the Union Republics, Progress Publishers, Moscow, 1974, pp 188--189).
84 of the case and the bringing in of a lawful, substantiated, just verdict.^^1^^
The Plenum of the RSFSR Supreme Court also considers it necessary to carefully check
observance of the procedural guarantees of the parties to a trial, and to react more sharply to breaches of the law committed both during the investigation and the hearing of a case.^^2^^
It is far from simple to establish the criteria of the satisfactoriness of procedural guarantees, so that the natural question arises whether their broadening would not lead to abuse of them. The French jurist Le Poitevin wrote, apropos of this, that when one pan of the scales is raised the other is inevitably lowered, and that it is unlikely that a stable balance would be struck some time between activity tending to the punishment of guilt, and defence.^^3^^
There cannot be such antagonistic contradictions in socialist society. Under socialism the individual and his needs, rights, and freedoms are always taken into account when state and public cases are being decided. Everything in the relations _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 22.
~^^2^^ BVS RSFSR, 1972, 2:4; 1972, 7:4.
~^^3^^ Cited from N. N. Polyansky. Sud'ba protsessual'nykh garantiy lichnoi svobody vo Frantsii (The Fate of the Procedural Guarantees of Personal Liberty in France), USSR Academy of Sciences Press, Moscow, 1946, p. 74.
Capitalist jurists, it must be noted, are not unanimous on this point. Prof. Yale Kamisar of Minnesota University, for example, points out that `liberal' rules of criminal procedure cannot in themselves affect the level of crime and so threaten law and order in general. On the contrary, the facts on the work of the police in those areas of the United States where such rules have long been introduced provides evidence that it is precisely there that the police began to collect evidence more carefully, without relying on accused persons' confessions and other constitutionally dubious evidence (see K. F. Gutsenko. Ugolovny protsess osnovnykh kapitalisticheskikh gosudarstv (Criminal Proceedings in the Main Capitalist Countries), Lumumba Friendship University Press, Moscow, 1969, pp 48--49; B. S. Nikiforov's foreword to V. M. Nikolaichik. SShA: `Bit' o pravakh' i politseiskoe rassledovanie (The USA: 'The Bill of Rights' and Police Investigations), Nauka, Moscow, 1973, pp 13--16).
85 between the state and the individual is interpreted both from the positions of the state and from those of the individual. It is not fortuitous that the preamble to the Constitution of the USSR says that developed socialist society is 'a society in which the law of life is concern of all for the good of each and concern of each for the good of all'.^^1^^ But here, too, the personal interests of the individual do not always coincide with the public interest. And it is not excluded in developed socialist society that rights may not be exercised conscientiously. The right to complain, for example, may also be used by dishonest people, slanderers, grabbers, and moneygrubbers. That does not imply, however, that the guarantees of the right to complain should be limited. On the contrary, it is much more important to provide all honest citizens with the chance to defend their rights actively. That is why the 1977 Constitution of the USSR does not limit, but extends, the guarantees of the right to complain, and formulates the principle by whichactions by officials that contravene the law or exceed their powers, and infringe the rights of citizens, may be appealed against in a court in the manner prescribed by law (Art. 58).
Due attention to the individual's rights, and in particular to the rights of the accused, helps strengthen the fight against crime. To strengthen the guarantees of the individual's rights is also to strengthen the fight against crime, and to further successful solution of the tasks of Soviet criminal procedure. The absence of procedural guarantees is much more dangerous in its consequences than the striving of individuals to abuse them. The new Constitution of the USSR has formulated the civil rights much more fully than before. Firm guarantees against infringements of civil rights and freedoms, abuse of power, and bureaucratic distortions have also been created in the USSR. This has been expressed in particular in the further improvement of criminal procedural norms, which was provided for in the plan for bringing USSR legislation into conformity with the Constitution.^^2^^
The accused's right to defence embodies prevailing moral _-_-_
~^^1^^ Constitution (Fundamental Law) of the Union of Soviet Socialist Republics (Novosti Press Agency Publishing House, Moscow, 1977), p 14.
~^^2^^ VVS SSSR, 1977, 51: Item 764.
86 principles. The principle of fairness, impartiality, and justice is organically linked with the principle of ensuring the accused's right to defence. This link is so close that observance of the right to defence is construed in the law as just while its contravention is recognised as unjust and unlawful. Thus the objectives of criminal procedure includeproper application of the law so that everyone who commits a crime will be subjected to just punishment and no one innocent will be called criminally to account and convicted (CPG RSFSR, Art. 2).
The Criminal Procedure Code also says that the grounds for quashing or altering a judgment are obstacles to realisation of those objectives, such as
the one-sidedness or incompleteness of the preliminary inquiry, preliminary investigation, or court examination (Art. 342); punishment is recognised as not corresponding to the gravity of the crime or the personality of the convicted person when it, while not contravening the limits stipulated by the appropriate criminal law, is clearly unjust in its scope either from leniency or from severity (Art. 347).
The right of the accused to defence, being aimed at protecting the individual's rights, is itself a moral value in that it upholds the value of the individual and the principles of morality. That is why any infringement of this right is not only unlawful but also amoral.
The social value of the right to defence is due to its objective necessity and capacity to yield great benefit. Without it personal liberty is inconceivable and so too is realisation of the objects of Soviet criminal procedure. The accused's right to defence has such objective, valuable properties as formal definiteness,^^1^^ obligatoriness, and compulsoriness in case of its infringement. It is closely linked with society's spiritual affairs, morality, and culture, _-_-_
~^^1^^ By the formal definiteness of a right the Soviet jurists mean the fullness, precision, and categorical nature of its content, and the clarity (unambiguity) of the norms. If the rights and duties of the parties to a trial have been consolidated in law with adequate fullness and precision, that reduces the formal possibilities of arbitrary actions and evasion of the law.
87 and with the principles of justice dominant in society. Understanding of the right to defence as a high social value presents broad opportunities for raising its prestige and, from the ideological aspect, for guaranteeing a strengthening of socialist legality. __ALPHA_LVL3__ §2. Guarantees of the Right to Defence and theThe position of the individual in criminal proceedings is not determined solely by the guarantees directly safeguarding citizens against unlawful arrest, search, and other coercive procedural measures. The rules on the admissibility of evidence are also of immense significance. The truth in a case can only be established and a verdict of guilt substantiated on the basis of sound, reliable evidence. It is not a matter of indifference at all to the socialist state and society how the objectives of a trial are reached; in its decision on strict observance of laws during the hearing of criminal cases of 18 March 1963, the Plenum of the USSR Supreme Court emphasised that
a judgment may not be based on materials of the preliminary investigation that have not been examined in court session with observance of orality, openness, and directness, or on materials obtained in contravention of the procedural rules for gathering evidence.^^1^^
Under Soviet law nothing obtained from sources not indicated in law or in contravention of the law or norms of morality, and nothing that cannot be verified, is evidence and may convict an accused. For example, the behaviour of a bloodhound, an anonymous letter, or the testimony of a witness or victim based on hearsay cannot serve as evidence. And the use of hypnosis (even with a citizen's agreement) and similar actions is ruled out in search for clues and investigation.
Factual data obtained as a result of criminal breach of the norms defining the procedure for gathering evidence, it goes without saying, cannot be employed as evidence. Criminal responsibility is established (by Art. 179 of the RSFSR Criminal _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 21.
88 Code) for forcing any person to give evidence, and also for cases when a person is arrested or detained in order to obtain evidence, or held in custody longer than the established period without the appropriate sanction of Article 178 of the RSFSR Criminal Code.^^1^^ The findings of an unlawful search, acquaintance with citizens' postal and telegraphic correspondence, or the tapping of their telephone conversations is also not evidence.^^2^^The rules for gathering, discovering, and fixing facts about the circumstances of a case are guarantees of civil rights and of the soundness of the information obtained in the appropriate way. It is necessary to check observance of the procedure of gathering evidence in each case. And if, contrary to Article 1 of the RSFSR Criminal Procedure Code, the 'procedure of criminal proceedings established by the criminal procedural laws' has not been observed and citizens' rights have been infringed, the facts so obtained are inadmissible. A verdict of guilty brought in on the basis of such facts cannot be considered lawful and substantiated. The Supreme Courts of the USSR and RSFSR, for example, state:
a judgment cannot be based on an identification of the person of the accused made in contravention of the requirements of criminal procedural law^^3^^;
an 'investigatory experiment' carried out in contravention of the law
has no value as evidence and witnesses to an unobjective investigation of the circumstances of the case^^4^^;
_-_-_~^^1^^ In the USSR custody may not be employed as a preventive restriction except by decision of a court or with a procurator's sanction in cases directly stipulated by criminal procedural legislation.
~^^2^^ Citizens may only be searched, their documents seized, and their correspondence attached, or seized in postal and telegraphic offices, on grounds and in the manner established in law (CPC RSFSR Art. 12, 135, 168--177).
~^^3^^ BVS SSSR, 1971, 2:37. Similarly, L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po voprosam ugolovnogo protsessa 1946--1962 gg. (Digest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court on Matters of Criminal Procedure 1946--1962), Yurizdat, Moscow, 1964, p 103.
~^^4^^ BVS SSSR, 1966 5:29. Similarly, E. V. Boldyrev and A. I. Pergament (Eds.). Nauchny kommentariy sudebnoi praktiki za 1971 god __NOTE__ Footnote cont. on page 90. 89
an investigated object may have the force of material evidence only if it has been removed and produced in court in the manner stipulated by law^^1^^;
the testimony of a juvenile victim, in respect of whom an improper method of interrogation has been employed, cannot be recognised as evidence in a case^^2^^;
expert evidence obtained in a case in breach of the accused's rights established by law cannot be the basis of a charge.^^3^^
An essential guarantee of obtaining trustworthy evidence and securing civil rights is the explanation of citizens' procedural rights to them. If these are not explained, or a person takes part in a case as an improper subject, che reliability of his testimony is inevitably open to doubt. That can happen when, given sufficient evidence for the laying of a charge, a person is interrogated not as the accused but as a witness. The actual facts recorded in the minutes of the interrogations of such `witnesses' are not admissible as evidence.
The accused is obliged to report for -questioning, and that is provided for by the rules on bringing to court and restrictive Measures. But these rules are intended to ensure presence in person and are not compulsion to give evidence. The accused is not bound, though present at an interrogation, to give evidence and even more so to incriminate himself, and it is necessary to explain that to him. The investigator explains the accused's right to give evidence and in some cases also the significance of sincere repentance. The giving of evidence is the accused's right, and he may use his evidence as a means of defence, but whether he does so depends on himself. The laying of an obligation on the accused to testify, and even more under pain of unpleasant consequences to follow (e.g. detention as a restrictive measure, increase of punishment for refusing to give evidence, or for giving false testimony) would be inadmissible coercion to testify. It is not only a breach of the right to defence but also undermines the basis on which the reliability and admissibility of the _-_-_ __NOTE__ Footnote cont. from page 89. (A Theoretical Commentary on Court Practice for 1971), Yuridicheskaya literatura, Moscow, 1972, pp 173--182.
~^^1^^ L. N. Smirnov (Ed.). Op. cit., pp 138, 142.
~^^2^^ Ibid., p 99.
^^3^^ Ibid., p 126.
90 accused's evidence rests, viz. its voluntary character. The law therefore not only forbids making it incumbent on the accused to prove his innocence, but also prohibits 'to solicit testimony from the accused and other persons involved in a case by force, threats, or other unlawful measures' (Fundamentals, Art. 14).The last instruction extends to cases of the interrogation of witnesses, the victim, suspects, and experts, as well as of the accused. The prohibition of the use of 'other unlawful measures' refers to any means that create a danger of distortion of the truth, or breach of the rights of the persons involved in the criminal proceedings, and a danger of discrediting the authorities involved.
The use of material obtained by means of unlawful measures is prohibited by law irrespective of what ends have prompted their obtaining, since 'an end which requires unjustified means is no justifiable end'.^^1^^
In finding a procedural act inoperative it is of no matter whether the law has been broken in consequence of a mistake ( honest misapprehension), guilty disregard of procedural `formalities', or criminal actions. The grounds for the application of such a law-enforcing measure are not the elements of the disciplinary infringement of regulations or crime of officials but their improper performance of their procedural duties. The Plenum of the USSR Supreme Court, in abandoning a case of bribery, for instance, stated that the testimony of the convicted persons, Wulfius and Dukarevich, to which the court had had recourse as the main evidence, 'had been obtained as a result of the investigator's improper methods'.^^2^^ When there is not sufficient evidence for such a conclusion in a case, the facts on unlawful methods of conducting the investigation brought out during the proceedings are subject to obligatory checking.
Testimony is also unreliable and inadmissible when it has been given by the accused, witness, or victim under the influence _-_-_
~^^1^^ Karl Marx. Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates. In Karl Marx, Frederick Engels. Collected Works, Vol. 1 (Progress Publishers, Moscow, 1975). p 164.
^^2^^ BVS SSSR, r966, 5:29. Similarly, BVS SSSR, 1971, 2:33--37.
91 of persons who are not involved in the inquiry or investigation. The basis for the conviction of one Filippenko for robbery with violence was the testimony given by the victim. In abandoning proceedings against Filippenko on appeal, the Criminal Bench of the RSFSR Supreme Court stated:As appears from the evidence of the victim, witness Airiants threatened her, demanding that she testify in court that Filippenko was the person who attacked her. Under the influence of Airiants's threats the victim altered her evidence and began to state that the attack on her was committed by Filippenko.^^1^^
The problem of the admissibility of evidence is closely bound up with observance of the principles of Soviet criminal procedure and the protection of other social and moral values.
_-_-_~^^1^^ BVS RSFSR, 1964, 7: 12. Similarly, BVS SSSR, 1970, 5:28--30.
[92] __NUMERIC_LVL1__ PART II __ALPHA_LVL1__ Defence Counsel in Soviet Criminal Proceedings __NUMERIC_LVL2__ 4 __ALPHA_LVL2__ The Entry of Defence Counsel into a Criminal Case __ALPHA_LVL3__ §1. The Grounds for the Involvement of Counsel inBy rendering aid in defence of an accused person's rights a barrister in that way encourages a lawful, substantiated, just decision of a criminal case. That is also why the investigation or hearing of a case without defence counsel, when his participation is mandatory by law, is absolute, unconditional grounds for annulling a judgment.
What are the grounds for the mandatory involvement of defence counsel in Soviet criminal proceedings?
(1) The accused's desire to have a defender is such grounds. Article 48 of the Criminal Procedure Code of the RSFSR (CPC RSFSR) and the corresponding articles of the criminal procedure codes of the other Union republics state that the participation of defence counsel shall be ensured by the investigator or court on the request of the accused. That means their obligation to take steps to retain a barrister by agreement. If, however, the accused and his relatives cannot, for some reason, engage a lawyer, one is appointed by the college of barristers at the request of the investigator or the court. Refusal of an accused's Request to be provided with the services of a lawyer entails annulment of the judgment, since it is a breach of the right to defence.^^1^^
_-_-_~^^1^^ Paragraph 11 of the decision of the Plenum of the USSR Supreme Court on courts' practice of applying the laws guaranteeing the accused's right to defence (BVS SSSR, 1978, 4: 10).
93At what moment the accused asks for the services of a lawyer is not of decisive importance. What is important is that he has considered it necessary to have legal aid. Malyshev, for example, accused of persistent hooliganism, asked at the end of the preliminary investigation for his case to be heard with the assistance of a lawyer. Because the people's court did not satisfy this petition, the RSFSR Supreme Court annulled all the judicial decisions in the case and ordered the court to ensure the assistance of defence counsel in a new hearing.^^1^^
How do matters stand, however, when the defence is entrusted to a certain barrister appointed for the purpose?
In defence by agreement with a legal consultation bureau, the accused has the right to choose a lawyer, but his demand for a certain barrister to be appointed does not mandatorily have to be met.
By law the distribution of duties among barristers is the exclusive competence of the college of barristers. It is not a procedural matter, so that the investigator, procurator, judge, or court cannot join in its discussion and have no legal grounds to demand the appointment of a certain barrister. When ensuring the participation of defence counsel in a case by appointment the college takes into account the barrister's life and professional experience, the complexity of the case, and other valid circumstances.
(2) The assistance of defence counsel is recognised as mandatory in a number of cases listed in Article 22 of the Fundamentals. According to this federal norm, defence counsel's assistance is obligatory in the preliminary investigation and hearing in the cases of minors, mute, deaf, blind, and other persons who, by virtue of their physical handicaps, cannot themselves exercise their right to defence.^^2^^ In these instances defence counsel is admitted to the case from the moment the charge is laid.
In the cases of persons who do not speak the language in _-_-_
~^^1^^ BVS RSFSR, 1968, 4:10.
~^^2^^ The assistance of defence counsel is all the more obligatory in the preliminary investigation and hearing in the cases of persons who have committed socially dangerous acts in a condition when they are not answerable for their deeds, and persons suffering from mental illness after commission of a crime (GPC RSFSR, Art. 405, 408).
94 which the court proceedings are conducted, and of persons accused of committing crimes for which the death penalty may be imposed, the assistance of counsel is mandatory from the moment the accused is informed of the completion of the preliminary investigation and everything done in the case is presented to him for his information.The assistance of defence counsel may also be mandatory in other instances defined by the legislation of Union republics.
Thus, under Article 49 of the GPC RSFSR and corresponding articles of the criminal procedure codes of other Union republics, counsel's participation in the hearing is not only mandatory in the cases named but is also compulsory in cases in which a public or social prosecutor is involved or persons whose interests are contradictory, and one of whom has a defender.^^1^^
If, in the cases listed, counsel cannot be retained by the accused himself, his legal representative, or other persons commissioned by him, the investigator, procurator, or court is bound to provide for the assistance of counsel in the case.
(3) Finally, there are third grounds for mandatory assistance of defence counsel. The materials in a case may evoke doubts in the investigator, procurator, judge, or court in the accused's capacity to exercise his right to defence by himself. In such situations a defence counsel must take part, since there are grounds for supposing that the accused will not be able to defend himself without counsel's help because of backward development, indifference to the case, or other reasons.
_-_-_~^^1^^ The Plenum of the USSR Supreme Court has explained, in particular, that 'when a barrister defends two or more persons between whose interests there are contradictions (confession by one and denial by the others; exposure of one defendant by another; contradictions evoked by the nature of the charge laid against each of them, etc.), it is incumbent on the courts to provide each of the defendants with defence counsel' (BVS SSSR, 1978, 4: 10).
That is also the duty of the investigator. A barrister Davidovich, for example, appeared in the case of one Puzanov at the stage of appeal proceedings. On studying the case he discovered that three juvenile accused with contradictory interests had had one counsel at the preliminary investigation. On his supplementary appeal, the RSFSR Supreme Court quashed the judgment and remitted the case for a new investigation.
95Under Article 22 of the Fundamentals defence counsel may take part in a case, by decision of the procurator, from the moment the charge is laid. This counsel may be a barrister retained by agreement or one appointed. According to the CPG Georgian SSR (Art. 202), counsel takes part in the preliminary investigation 'when the investigator or procurator recognises this to be mandatory'. According to paragraph 3 of Article 228 CPC RSFSR the matter of the participation of the person chosen by the accused as his defender or the appointment of defence counsel is decided at the stage of committal for trial. The legislator does not limit involvement of counsel to any list of cases, so that this may be any case. The decision of the investigator, procurator, judge, or court is thus a juridical fact creating the legal grounds for the mandatory assistance of defence counsel in a criminal case both in the instances provided for by Article 49 CPG RSFSR and in other instances.
The investigator, judge, and court are bound to inform the college of barristers promptly about the need to appoint a defence counsel. That is necessary in order to avoid difficulties in the allocation of a barrister and for his preparation for the case. The RSFSR Supreme Court considers the law contravened when a court has not notified the college of barristers in time about the appointment of a defence counsel and he does not have time to prepare the case.^^1^^
Defence counsel may not take part in a case, however, against the will of the accused; and as a rule the accused's voluntary refusal of a defence counsel must be accepted.^^2^^
__ALPHA_LVL3__ §2. Persons Who May Be DefendersBarristers generally take part as defenders. The conducting of the defence by a barrister is intended to provide the accused with reliable, qualified legal aid. At the same time the Soviet legislator, when deciding who may be a defender, has also taken other circumstances into consideration, which enables the accused to choose a defender from a wider circle of persons.
_-_-_~^^1^^ BVS RSFSR, 1972, 5:9.
~^^2^^ See Chapter 5, §1.
96One cannot, for instance, ignore the moral motives leading an accused person to ask for a close relative, his legal representative, or some other person to be permitted to defend him, and the legislation of Union republics makes it possible to satisfy such requests.
The persons named may be admitted to the case by decision of the investigator,^^1^^ judge, or court. The accused's request may only be refused by a decision or ruling giving reasons. In the case of M., for example, arraigned on a charge of persistent hooliganism, a barrister was appointed to defend him. M. rejected him and asked for his father to be permitted to defend him. The court turned this application down. In quashing the judgment of the court of first instance, the praesidium of the Gorky Regional Court said that a close relative of the accused may be permitted to defend him under Article 47 CPC RSFSR. The court should have given its reasons for refusing to admit the accused's father as his defender in its ruling.^^2^^
Persons appointed by trade unions or other social organisations may also take part as defenders in the preliminary investigation and in court.^^3^^ They do not always have higher legal training and experience of criminal proceedings; the granting to them of the right to take part as a defender may be clue, for example, to the accused's special confidence in them.
The involvement of such defenders in a case does not depend on the discretion of either the investigator or the court. The praesidium of the District Council of a Voluntary Sports Society, for example, retained legal adviser Fyodorov to undertake the defence of one Konovalov, accused of persistent hooliganism. The accused gave Fyodorov power of attorney to defend his interests in the preliminary investigation and in the judicial instances, but _-_-_
~^^1^^ Articles 36 CPC Estonian SSR, 23 CPC Kazakh SSR, 57 CPC Azerbaijan SSR.
~^^2^^ BVS RSFSR, 1976, 6: 14. Similarly, P. I. Kudryavtsev (Ed.). Voprosy ugolovnogo prava i protsessa v praktike prokurorskogo nadzora za soblyudeniem zakonnosti pri rassmotrenii sudami ugolovnykh del (Problems of Criminal Law and Procedure in the Practice of Procurator's Supervision of the Observance of Legality in Court Hearings of Criminal Cases), Yuridicheskaya literatura, Moscow, 1976, p 349.
~^^3^^ This refers to defenders as such and not to the social defenders discussed above (Chapter 2, §6).
__PRINTERS_P_97_COMMENT__ 7---665 97 the people's court did not permit Fyodorov to take part in the case. The accused refused the appointed defence counsel. In quashing the judgment and appeal ruling, the praesidium of the Tula Regional Court ruled that 'the right of the accused to defence guaranteed by Article 19 CPG RSFSR had been infringed'.^^1^^Soviet legislation forbids the calling and questioning of a defender or defence counsel as a witness. The aim of this is to sustain the public's confidence not only in the Bar but also in a defender who is not a member of a college of barristers.
The procedural codes do not speak of a prohibition on questioning defence counsel, but phrase the matter more broadly: the accused's defender may not be questioned as a witness 'about circumstances that became known to him in connection with performance of his duties of defender' (Criminal PC RSFSR, Art. 72 and Civil PC RSFSR, Art. 61). This prohibition thus extends both to defence counsel and to the representatives of trade unions and other social organisations, close relatives and legal representatives of the accused, and other persons admitted as defenders.
__ALPHA_LVL3__ §3. Circumstances Debarring Persons from a Case asUnlike an investigator, judge, or other persons, a defender may take part in a case even when he is a relative or friend of the accused. It does not follow, however, that there are no circumstances whatsoever debarring a defender from a case. Let us, therefore, consider these circumstances.
According to the USSR Law on the Bar passed on 30 November 1979, a barrister has no right to accept a brief to render legal aid in cases in which he has already given, or is giving, legal aid to persons whose interests are opposed to those of the person requesting him to conduct the case,^^2^^ or has taken part _-_-_
~^^1^^ BVS RSFSR, 1968, 5: 16.
~^^2^^ The courts consider that the assistance of one defender for two accused with opposed interests is equivalent to the absence of a defender, so that the judgment is subject to unconditional quashing (S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Criminal Law and Proce-- __NOTE__ Footnote cont. on page 99. 98 as a judge, procurator, investigator, person conducting an inquest or inquiry, expert, specialist, interpreter, or witness, or if an official to whom the barrister is related has taken part in the investigation or hearing (Art. 7)^^1^^
The Criminal Procedure Code of the Ukrainian SSR stipulates that no person may be a defender if he has previously been involved in the case as a social prosecutor, or court secretary, or is to be interrogated as a witness. In addition, no one who is related to the victim may be a defender (Art. 61).
The Law on the Bar of the Lithuanian SSR stipulates that a barrister may not take part in a case if he is related to a barrister who has been giving legal aid in the same case to a person whose interests contradict those of the person applying for aid (Art. 34).
These norms are intended to ensure the defender's independence from influences that might damage justice or harm the accused, and to further the accused's confidence in his defender.
In the circumstances stipulated by law a person must refuse to perform the duties of a defender. On the same grounds a person may be debarred from a case by the investigator, procurator, or court.^^2^^ The decision debarring a person must be set out in an order or ruling giving reasons.
In the absence of circumstances stipulated by law, however, the investigator, procurator, or court has no right to refuse to permit a barrister, or a person appointed by a trade union or other social organisation, to appear as the defender. The USSR Supreme Court has ruled:
_-_-_ __NOTE__ Footnote cont. from page 98. dure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, p 408; BVS RSFSR, 1973, 4: 15).If such a breach is permitted in the preliminary investigation, the case is remitted for supplementary investigation (BVS RSFSR, 1969, 11: 13; 1976, 2:9).
~^^1^^ Another position is also possible, however. For example, when the investigation is made with the involvement of a defender and the case is later given to an investigator who is related to the defender, the new investigator has no right to take it on. It is the investigator who is removed, not the defender.
~^^2^^ Articles 61 CPC Ukrainian SSR, 43 CPC Kazakh SSR.
__PRINTERS_P_99_COMMENT__ 7* 99 Emacs-File-stamp: "/home/ysverdlov/leninist.biz/en/1982/RADU283/20070619/199.tx" __EMAIL__ webmaster@leninist.biz __OCR__ ABBYY 6 Professional (2007.06.14) __WHERE_PAGE_NUMBERS__ bottom __FOOTNOTE_MARKER_STYLE__ [0-9]+ __ENDNOTE_MARKER_STYLE__ [0-9]+A judgment is liable to annulment if a person enjoying the right in law to appear as a defender is unjustifiably debarred from appearing for the accused as his defender.^^1^^
Such a person appears in a case, with the accused's consent, on the basis of an order from a legal consultation bureau or the accused's power of attorney, and not of a decision or ruling.
__ALPHA_LVL3__ §4. The Retaining, Replacing, and Appointing ofThere has long been a rule, cited in one of the works of that outstanding Russian writer, materialist philosopher, and enlightener of the eighteenth century, Alexander Radishchev, that
a person being tried for, or accused of, a crime is permitted to choose whomever he likes for advice, and if he has no one, then such a person is given him by the court.^^2^^
The accused must have confidence in his defender; therefore he is granted the right to choose him himself. This right operates at all stages of a trial. It is a component of the accused's right to defence; as the USSR Supreme Court has stressed, Soviet criminal procedure legislation consolidates 'the principle of the personal retention of a defender'.^^3^^
A number of guarantees have been established to implement that principle. They include the duty of the investigator, procurator, and court to explain to an accused person his right to choose a defender, and to provide him with the opportunity to retain one (CPC RSFSR, Art. 48, 58).
After the formal decision to institute proceedings against an accused person, the investigator must explain his rights to that _-_-_
~^^1^^ S. V. Borodin (Ed.). Op. cit., p 408.
~^^2^^ A. N. Radishchev. On the Defendant's Right to Challenge a Judge and Choose a Defender. In Yuridicheskie proizvedeniya russkikh myslitelei (Legal Writings by Russian Thinkers), Yuridicheskaya literatura, Moscow, 1959, p 559.
~^^3^^ BVS SSSR, 1972, 1:25. Similarly, paragraph 15 of the Plenum's resolution on courts' practice in applying laws securing the accused the right to defence (BVS SSSR, 1978, 4: 11).
100 person. He must also explain, moreover, that the accused has the right in any case to ask the procurator to admit a defender from the moment the charge is laid.The investigator explains the accused's right to have a defender to him a second time, before presenting him all the materials in the case for his information.
The right to have a defender is also explained in court.
It must be explained to the accused that if for any reason he cannot retain a defender, he has the right to have one assigned to him at the preliminary investigation and in court.
Non-fulfilment of the obligation to explain his right to have a defender to the accused is a material breach of the law and entails quashing of the judgment.^^1^^
The investigator, procurator, and court are obliged not only to explain the accused's right to a defender to him but also to secure him this right.
In addition, however, as has been pointed out in a letter of the Procurator-General of the USSR, 'it is impermissible for the investigator to recommend a certain barrister to the accused'.^^2^^ The same applies to the procurator and court.
While the assistance of a defender is legally mandatory from the moment the charge is laid, it has to be ascertained from the accused (and his legal representative) whether he will retain a defender. When the reply is in the affirmative the charge is not laid for the two days provided for by Article 148 CPC RSFSR.
When the defender comes into a case at the end of the preliminary investigation, the investigator ascertains the accused's wish to have a defender before laying the materials of the case before him. This desire is recorded in these materials, and has to be communicated to the persons whom the accused has asked to retain a defender for him (CPC RSFSR, Art. 48, 102). The USSR Procurator-General has explained that the accused's desire to have a defender must, with his consent, 'be brought to the attention of the accused's relatives or other near ones who could _-_-_
~^^1^^ See P. I. Kudryavtsev (Ed.). Op. cit., pp 351--352, 454.
^^2^^ Letter No. 3/49 of 16 June 1960 on the involvement of a defender and the victim in the preliminary investigation (SZ, 1960, 8:83).
101 take on the retaining of a defender for him'.^^1^^ When the desire to have a defender is expressed after the case has been brought to court, the court must communicate this fact to the person who is retaining a defender on behalf of an accused who is being held in preliminary confinement. The USSR Supreme Court, for instance, in quashing the judgment in the case of Gulov referred to above because of a breach of the accused's right to defence, pointed out that after the arraignment Gulov had made an application in which he requested the opportunity to retain a defender through his relative, but there was no record of this petition in the proceedings and verdict of the court.^^2^^How do things stand, however, if a defender is not retained or the accused has refused one, but later, on becoming acquainted with the materials of the preliminary investigation, has become convinced of the need for legal aid? The answer to that is given in the letter of the USSR Procurator-General mentioned above:
This matter sometimes comes up during the hearing of involved cases with several accused, or after completion of the preliminary investigation of such cases. If a new barrister does not come into the case, the possibility has to be considered of one of the barristers already involved taking on the defence. In that case the assistance of defence counsel is provided, by the general rules, through a college of barristers; but this requires not only the barrister's agreement for him to take part, but also (as in every case when a barrister is undertaking the defence of two or more accused persons) the consent of each of the accused.If the accused has refused a defender, but later changes his decision and petitions for one to be retained, his petition must be granted.^^3^^
The retention of defence counsel is complicated when the accused is under detention. Since detention in preliminary confinement is not a measure depriving the accused of the right to choose a defender, the investigator and court must permit him to see someone who has the opportunity to engage a defender. During the meeting and interview the matter of the entry of _-_-_
^^1^^ SZ, 1960, 8: 84.
^^2^^ BVS SSSR, 1972, 1: 25.
~^^3^^ SZ, 1960, 8: 83.
102 a defender into the case 'with the accused's consent' is also clarified (CPC RSFSR, Art. 48).When defence counsel has already been retained, the legal consultation bureau has the right to inform the body in charge of the case about it in writing. The investigator and court inform an accused who is held on remand of the retention of counsel, the bureau's letter is attached to the file of the case, and the barrister is notified of the time and place where the investigation will be made or the court hearing begun.
The appointment of a defender instead of securing the assistance of one by agreement entails the application of procedural sanctions. If, for instance, the investigator admits a defence counsel appointed by a college of barristers instead of the barrister chosen by the accused, the court sends the case back for additional investigation.^^1^^
There is a rule in Soviet criminal procedure whereby no detrimental legal consequences must follow for the accused because of the improper acts of his defender. This rule also relates to decision of the matter of the participation of a defender in a case by consent. For instance, in the case of Mirzoev, accused of a business crime, a barrister Tariverdiev was retained as counsel. On December 27th he took part in the court session, but because of the non-appearance of witnesses, the court adjourned the case until January 8th. From January 5th to 14th Tariverdiev was away on official business, and on January 8th the court retained another barrister. Mirzoev refused the aid of this counsel, and the court heard the case without him. In quashing the sentence, since infringement of the right to defence is mandatory grounds for annulling a verdict, the Plenum of the USSR Supreme Court said at the same time in its decision:
_-_-_The actions of advocate Tariverdiev and the legal consultation bureau led to non-fulfilment of the agreement to defend Mirzoev's interests and created difficulties for prompt hearing of the case in court. That circumstance, however, should not have entailed restriction of the defendant's legally protected rights, which the court was obliged to secure.^^2^^
~^^1^^ BVS RSFSR, 1968, 8: 12.
~^^2^^ BVS SSSR, 1976, 3: 19, 21.
103When a defender's participation is mandatory the investigator and court have no right to take measures to appoint a counsel without first establishing whether one will be retained. Only when counsel has not been retained or
the presence of the defender chosen by the accused is impossible for a lengthy period, do the investigator and court have the right to suggest that the accused retain another defender, and if he refuses, to appoint counsel for him through a college of barristers.^^1^^
In the case of Dryannykh, for instance, accused of murder, the defence counsel who took part in the preliminary investigation was not able to be in court for a long time, and another counsel was retained on the proposal of the court. In quashing the verdict the RSFSR Supreme Court pointed out an infringement of the requirements of Article 48 CPC RSFSR under which 'the court was obliged to suggest that Dryannykh retain another defender' instead of appointing a counsel.^^2^^
When an investigator or court intends to appoint counsel, the officials of the college of barristers ascertain whether steps have been taken for the counsel retained to take part. A college of barristers only has the right to assign a counsel when it is impossible for the counsel retained by agreement to take part.
A retained dejence counsel may only be replaced when it is impossible for him to take part for a lengthy period.
In the preliminary investigation presentation of the file of the case may not be postponed until the attendance of retained counsel for more than five days.
The issue of counsel's attendance also arises in court. Such circumstances as the following are taken into account in its decision: counsel's preceding involvement in the case; the volume of work undertaken by him in preparing the defence; the intricacy of the case; the length of his non-appearance, and the reasons for same; the motives of the defendant's reluctance to ask for _-_-_
~^^1^^ Article 58 CPC Azerbaijan SSR. Article 48 CPC RSFSR says the same.
^^2^^ BVS RSFSR, 1972, 5:11. Similarly, BVS SSSR, 1972, 1:25; RVS RSFSR, 1977, 1: 9.
104 another defender. A need to change the selected counsel may arise, for example, when he is unable to take part in the case because of protracted illness.The 'lengthy period' of which the law speaks is understood differently by the courts. The Plenum of the USSR Supreme Court, for example, when quashing the judgment and subsequent decision in the case of Mirzoev, previously mentioned, said that the barrister retained would have been able to take part in the case in seven days' time, and that it was impossible to consider that lengthy in the sense envisaged by the law.^^1^^ The same also applies to exercise of the right to choose counsel in appeals. For example, a barrister requested postponement of the hearing of an appeal from November 24th to December 8th because of the pressure of another trial. In quashing the appeal ruling the USSR Supreme Court said:
The superior court's unjustified refusal of the barrister's petition for postponement of the hearing of the appeal, and its examination in his absence, must be considered an infringement of the convicted person's right to defence.^^2^^
A court is obliged to consider and decide a petition to postpone the hearing of a case.
A barrister has the right to attach a legal consultation bureau's certificate, or other document, confirming his inability to be present at the time specified by the court, to a petition for postponement of the hearing of a case in a court of first or second instance. If his client does not agree to retain another barrister, the certificate also indicates that.
A legal consultation bureau will sometimes not accept a case because it is impossible for a barrister to undertake it at the time named by the court. In that case it communicates the reason to the client either orally or in writing, and also the time when the barrister chosen by the client can be in the court of first or second instance.
_-_-_~^^1^^ BVS SSSR, 1976, 3: 20.
^^2^^ L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po voprosam ugolovnogo protsessa 1946--1962 .?,?. (Digest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court on Matters of Criminal Procedure 1946--1962), Yurizdat, Moscow, 1964, p 27.
105The accused's opportunity to petition for a change of defender is an essential guarantee of the right to defence. He has the right to submit such a petition either during the preliminary investigation or in court.
It is also possible to change defence counsel when the accused does not know who he wants concretely to act as such for him. In the case of Abashev, for example, accused of rape, the RSFSR Supreme Court said:
The reference in the court's ruling to the fact that Abashev had not named a specific defender cannot be an objection to a change of counsel, since Abashev had stated that he had agreed that his defence could be undertaken by any other barrister with whom he could work out a common position.^^1^^
Cases are possible when, after the start of the judicial investigation, the defendant petitions for a change of counsel because he has come to the conclusion that the latter lacks the skill to conduct his defence or is unwilling to do so in a proper manner. Such a petition must be satisfied despite the difficulties associated with the need (because of the principles of continuity and directness) of going through the preliminary, organisational part of the hearing and of the court examination all over again. The above-mentioned Abashev, for instance, had petitioned for a change of counsel. In quashing the judgment, the RSFSR Supreme Court pointed out the groundlessness of the arguments of the court, which
had refused to grant the petition and in its ruling had had recourse to the argument that Abashev had not made this petition at the beginning of the hearing. ... In accordance with Article 46 CPC RSFSR an accused person may present a petition at any stage of a trial.^^2^^
If counsel has been appointed, he is released from involvement in the trial in the case of a defender having been retained either by the accused or his relatives. Refusal to admit the counsel retained on agreement on the grounds that an assigned one is _-_-_
~^^1^^ BVS RSFSR, 1976, 5:~8.
~^^2^^ Ibid.
106 dealing with the case would be a breach of the accused's right to defence.A barrister's right to conduct a case anywhere in the Soviet Union broadens the opportunities for choice of counsel.
In the absence of such a right a citizen might not be able to turn to a defender enjoying his confidence and would be forced to entrust his defence only to a barrister of the consultation bureau of the venue of the trial. Article 6 of the USSR Law on the Bar also takes it into account that a barrister appearing as defence counsel is legally empowered to represent the accused 'in all state and social organisations within whose competence decision of the relevant matters falls'.^^1^^
The law does not limit the number of counsel who may defend an accused person. Voluminous, intricate cases and the need to study special matters are common in practice at the Bar. In such cases 'an accused person may have several briefed counsel' at the preliminary investigation and in court (CPC Estonian SSR, Art. 36). The criminal procedure codes of the other Union republics also do not fix any limit on the number of defence counsel, and cases are met in which several are involved.^^2^^
Joint work presupposes a solidarity and mutual help of counsel, which does not hamper demarcation of their functions. The counsel therefore decide, before each interrogation, which of them will put what questions, and in what order, who will present what materials of the case, and so on. They decide, depending on the concrete circumstances, whether they will make one speech for the defence or whether each of them will speak.
_-_-_~^^1^^ The legislation of pre-revolutionary Russia allowed barristers to conduct cases only within the district of the judicial chamber with which they were registered. They had no right, as well, to take a number of cases in military courts. Not only were the rights of citizens thereby limited but the barrister himself was converted into a functionary of sorts, chained to his district.
~^^2^^ M. Yu. Raginsky. The Participants in a Trial and Their Rights and Duties. In A. M. Rekunkov and A. K. Orlov (Eds.). Kommentariy k Ugolovno-protsessual'nomu kocuksu RSFSR (Commentary on the Criminal Procedure Code of the RSFSR), Yuridicheskaya literatura, Moscow, 1976, p 71; see also A. A. Zdanovich (Ed.). Kommentariy k Ugolovnoprotsessual'nomu kodeksu BSSR (Commentary on the Criminal Procedure Code of the BSSR), Byelorussian University Press, Minsk, 1973, p 55.
107 __ALPHA_LVL3__ §5. A Barrister's Acceptance of an Accused's DefenceUnder the Constitution of the USSR colleges of barristers are available to render legal aid, and a barrister can only refuse to take on the defence of an accused person for good and valid reasons.
A barrister is obliged to be scrupulous in the means and methods of defence, and must not undertake it if the client makes the retainment conditional on the employment of means that distort or misrepresent the circumstances of the case. But neither the law nor ethical norms give a barrister grounds to consider himself a judge making a preliminary judgment that gives him the right to decide whether or not the accused is worthy of his defence. Every accused person has the right to defence in all criminal cases. It is impermissible to find an innocent person guilty and convict him and if the facts of the court investigation do not bear out the charge laid against the defendant, the procurator withdraws the accusation. A guilty person can and must be defended so long as the means of defence are lawful; and the more difficult the defence the more the accused needs it. The public authorities holding the trial also need a qualified defence, since a defence counsel helps establish the truth and the rendering of a just judgment in a case.
A barrister cannot propose to accept the defence provided the accused acknowledges his guilt. He cannot refuse the defence either because of the public's indignation at the crime the accused is charged with. The more public opinion is aroused against the defendant the more danger there is of the court's being subconsciously biased in the matter of clarifying both the fact and the degree of the defendant's guilt. The more aroused public opinion is the more important it is to observe justice, to secure qualified defence, and not to surrender to the whims of the public mood.
At the same time cases are possible in which the barrister has the right to refuse to take on the defence. One cannot, for example, deem refusal unjustified in an involved case calling for great professional experience and knowledge, if the barrister considers that his knowledge and experience are inadequate to the case. A barrister also has the right not to take on a defence when he is a person closely linked with the victim or has been 108 the latter's representative in another case. A barrister cannot defend an accused person when the defence would involve disclosure of secrets confided by another client. He also cannot accept the defence of two accused persons if one of them objects. And as we have already noted, the law lays down a number of circumstances barring a barrister from a case (see §3 of this Chapter).
According to Article 23 of the Fundamentals 'a barrister has no right to decline the defence of an accused person if he has taken it on himself. In that connection we need to answer the following questions: (1) at what moment is defence considered accepted? (2) are cases admissible that give a barrister grounds for refusing to continue a defence? (3) what in general is understood as a barrister's refusal to continue the defence of an accused person ?
The retaining or briefing of a counsel to conduct a certain case is confirmed by an order of the legal consultation bureau, but the defence cannot yet be considered accepted in the sense of the law when the barrister has received the ordei and has presented it to the investigator or court. By no means all the circumstances that might debar him from the case are always known then. The contract between the client and the legal consultation bureau, moreover, is a civil bargain that does not automatically entail criminal procedural consequences. Conclusion of the contract gives the barrister the right to receive an order but does not define the moment when he comes into the case. That moment is determined by the norms and standards of criminal procedure and not of civil legislation. In accordance with Articles 47 and 48 CPC RSFSR a barrister who has received an order of a legal consultation bureau is not involved in the case until the moment of his entry stipulated in law arrives, and until the accused agrees to the assistance of this barrister.
Only by talking with the accused and becoming acquainted with the substance at least of the charge, and certain of the facts underlying it, can the barrister determine his position. Co-- ordination of the position of the barrister and accused is an important precondition for a successful defence. The barrister, having ascertained in an interview that the accused objects to the position he has planned, can refuse to take part in the case, after 109 explaining to the accused the latter's right to get legal aid from another barrister.^^1^^ These actions do not put the accused in danger of being left without defence counsel if he disagrees with the barrister's stand. With the chance to get help from another barrister, the accused's right to defence is not prejudiced.
The defence is thus considered accepted after the accused has stated his agreement with the position outlined by the barrister.
Circumstances stipulated in law that debar a barrister from a case may also come out when he has already undertaken the defence. In that situation he must take steps to be released from the action, but in such a way as not to prejudice the accused. In other cases it is unlawful for a barrister to drop a defence he has already undertaken.
The USSR Supreme Court quashed the judgment in a case, for example, in which the court granted the request of a barrister to be released from the case because his position diverged from that of the defendant.^^2^^
The counsel acted similarly in the case of Zhitnov, who had denied the charge against him. During the hearing the defendant declared that he had broken with his counsel Ganushchak because she was not familiar with the case and they differed about it. The barrister confirmed that her position diverged from that of the defendant and that she 'was forced to recognise his guilt'. That statement was made, moreover, before the procurator had even made his opening speech on the indictment. The case was heard, however, with the participation of counsel Ganushchak, and because of that breach of the defendant's right to defence the USSR Supreme Court quashed the judgment.^^3^^
A counsel's refusal to dispute circumstances material to the defence, or refusal to appeal when the client considers it necessary, is also classed as a refusal to continue a defence. The RSFSR Supreme Court has said, for example:
From the record of the session one sees that counsel Sh. did not put a single question, even to his client Furmanov, during _-_-_
~^^1^^ A barrister communicates his inability to take on the case to the client and to the manager of the consultation bureau so that the latter can provide a change of counsel.
~^^2^^ BVS SSSR, 1972, 3: 25--26.
~^^3^^ BVS SSSR, 1974, 4:23. Similarly, BVS SSSR, 1972, 1: 25.
110 the hearing. He also did not lodge an appeal, although the convicted minor protested at the verdict. In these circumstances it must be recognised that Furmanov was in fact deprived of defence, which is an essential breach of the law under Article 345 CPC RSFSR, entailing quashing of the judgment.^^1^^
Refusal to continue a defence is thus either counsel's overt or covert commission of acts aggravating the accused's position, or his omission of all acts permissible by law that could have a favourable result for his client. In all these cases defence counsel infringes the law and does not perform his professional duty. This position entails not only procedural sanctions but also disciplinary responsibility.
_-_-_~^^1^^ BVS RSFSR, 1976, 2:9.
[111] __NUMERIC_LVL2__ 5 __ALPHA_LVL2__ Defence Counsel's Procedural Position __ALPHA_LVL3__ §1. The Relation between Defence Counsel andRelations between the parties to Soviet criminal proceedings are regulated by law. All of them are bearers of rights and duties, all of them are subjects of procedural relations. Any procedural act of any of them is a juridical fact that gives rise to, alters, or ends a procedural relation.^^1^^
The investigation and decision of a criminal case in the form of procedural relations mean that the authoritative powers exercised by the investigator, procurator, and court are combined with their duties in relation to the citizens involved in a criminal trial. Citizens not only have duties in relation to the authorities but also rights by which they defend their interests. Repudiation of criminal procedural relations or belittling of their significance would put a citizen in a position in which he would be deprived of the chance to defend his rights or would be materially restricted in doing so.
The theory of legal relations was first developed in civil law, but it is also important in other branches. In criminal procedural law it is of paramount theoretical and practical importance, since it is inseparably linked with the position of the individual in an action and with the constitutional principle of securing the accused's right to defence.
_-_-_~^^1^^ A major contribution to developing the problem of legal relations has been made by the eminent Soviet jurist M. S. Strogovich. He devotes special attention to it in his latest work Sovetskiy ugolovno-protsessual'ny zakon i problemy ego effektivnosti (Soviet Criminal Procedural Law and Problems of Its Effectiveness), Yuridicheskaya literatura, Moscow, 1979, pp 88--98.
112We have already spoken above (Ch. 1, §2) of the procedural relations between the authorities and the accused. These legal relations also exist between citizens, counsel and accused, included.
The defender has very real procedural duties in relation to the accused. The latter has the right to require his counsel to use all the means and methods of defence provided for in law to bring out circumstances demonstrating his innocence or ruling out or mitigating his responsibility. Counsel and accused are associated in this by criminal procedural relations.
Counsel represents the interests of the accused and helps him exercise his rights independently of the other parties in the case. For that purpose the law grants him broad procedural rights and recognises him as a party.
The relation between counsel and client, however, differs materially from that between representative and client in civil law and procedure. The differences consist in the following.
(1) In civil law and actions the representative may substitute for the client.
In Soviet criminal procedure defence counsel may not substitute for the accused, but acts together with him, for if a verdict of guilty is found the punishment is borne solely by the accused.
The operative criminal procedural legislation does not permit the hearing of a case in the absence of the defendant, even with his consent, when a sentence of deprivation of liberty may be imposed. The defendant's pretence at the hearing is necessary both to protect his rights and for a full, all-round investigation of the circumstances of the case.^^1^^ Not being a substitute for the defendant, defence counsel has no right to declare his agreement to a case's being heard in absentia. Such a declaration would infringe the right to defence and be an obstacle to the purposes of criminal proceedings.
_-_-_~^^1^^ No departure is permitted whatsoever from the rules that secure the defendant's participation in a hearing. For example, Krikheli, accused of a business crime, was ejected from the courtroom for creating a disturbance during the session. According to the law, the defendant should first have been warned of the possibility of her being ejected for a repetition of the disturbance. The Moscow City Court quashed the judgment on defence counsel's appeal, because of the infringement of Krikheli's right to defence.
__PRINTERS_P_113_COMMENT__ 8---665 113Counsel is also unable to substitute for the accused in a number of other instances. Only the accused himself, for example, can exercise his right to give evidence. The decision to arraign cannot be presented to the counsel, who takes part in a case from the moment of the arraignment, in place of the accused. At the end of the preliminary investigation, the investigator has no right to present the file of the case to the counsel instead of to the accused, and so on.
If counsel acted in place of the accused, that would be to recognise that the latter bore all the unfavourable consequences of the former's improper conduct of the case, but that is incompatible with the law's requirements on establishing the truth and securing the accused's right to defence.
It follows from the substance of Articles 13 and 14 of the Fundamentals that defence counsel's improper behaviour should not entail procedural consequences detrimental to the accused. Counsel's refusal, for example, to get an appeal deadline restored that was missed by his fault does not signify that the defendant may be denied this appeal.
(2) In civil proceedings a barrister is not a party but simply the representative of a party. He does not act in his own name but in the name of the party represented.
In criminal proceedings defence counsel acts in his own name. He is not simply the representative of the accused but is also a party exercising his procedural rights in order to aid the accused.
(3) In civil representation, the spokesman has the right at any moment to repudiate the power of attorney given to him (RSFSR Civil Code, Art. 69).
In criminal proceedings a barrister has no right to repudiate the defence of the accused that he has undertaken.
Still, the differences noted above and the recognition of counsel as a party in no way mean the absence of a close link between him and the accused. According to the general rule counsel takes part in a trial only by consent of the accused. At any moment the latter has the right to repudiate him and he is then released from further participation in the case.
In the criminal procedure codes in which the term `defender' is explained, the legal character of the defender's relation with the accused is noted. In the CPC Georgian SSR it is said: 'A 114 ``defender" is a person empowered in the manner laid down in the present Code to defend the accused and to render him legal aid' (Art. 25). A similar explanation is given in the CPC Kazakh SSR: 'A ``defender'' is a person empowered in the manner established by law to represent the interests of the accused and to render him legal aid' (Art. 21).
'A barrister appearing as ... defence counsel,' Article 6 of the Law on the Bar of the USSR says, 'is empowered to represent the rights and lawful interests of the persons applying to him for legal aid.'
The existence of a close procedural link between accused and defence counsel must thus be stressed. This link is traceable at all stages of a trial. When an appeal has been lodged by one of them, for example, the other may, even after expiry of the appeal period, associate himself with it by lodging a supplementary appeal.
Recognition of defence counsel as a party does not provide grounds for conclusions about his full procedural independence. Defence counsel (or a defender) does not have the right, when the accused denies his guilt, to adopt a stand aimed at bringing out circumstances that mitigate the latter's guilt. This cannot be done since the law prohibits a defence counsel from taking a stand incriminating his client. For instance, the law prohibits one and the same person from defending accused persons whose interests are contradictory. That prohibition reflects the idea that defence counsel has no right in any circumstances to incriminate his client, and that would be inevitable if the interests of the clients were contradictory.
In cases when the accused does not consider himself guilty, defence counsel has no right to recognise the charge as substantiated. Both the USSR and RSFSR Supreme Courts conclude that any other attitude of counsel to the position of his client means that 'in fact he would be deprived of defence'.^^1^^
Incriminating words pronounced by defence counsel make a much stronger impression than the prosecutor's statements. Such expressions on the part of counsel may be the result of his lack of ability or reluctance to find evidence in the case that _-_-_
~^^1^^ BVS RSFSR, 1976, 5: 7; BVS SSSR, 1974, 4: 23.
115 confirms his client's plea of not guilty. It is therefore not counsel's denial of the charge that is dangerous for justice but his denial of his client's plea of not guilty.Defence counsel has a serious responsibility to the person who has entrusted his defence to him. A barrister cannot uphold the accused's striving to employ any illegal means of defence whatsoever, because he would then be proving to counter justice, instead of furthering it. It is therefore necessary to stress counsel's independence of the accused's wish to exercise his defence by unlawful means or immoral methods. But counsel never has the right to forget that he is needed in a trial to defend the accused and not to support the charge in any way whatever, overt or covert.
There may be differences of opinion between an accused person and his counsel during the conduct of a defence. A barrister can and should dispute a charge acknowledged by his client when the materials of the case do not support the charge. The legislative expression of counsel's duty to disagree with the accused when he pleads guilty to an unsupported charge is in Art. 77 CPG RSFSR: 'The accused's confession may only be made the basis of an accusation when the aggregate of the available evidence in the case confirms it.'
Here is an example of such a divergence of opinion. A 16-- yearold youth, Victor S., was detained in a case of robbery. At the first interrogation, as well as at the hearing, he confessed. Some of the circumstances in the case gave grounds for thinking that Victor's confession was self-accusation, and that he was accusing himself falsely so as to save his elder brother from responsibility.
In his speech for the defence in this case counsel Ya. S. Kiselev said to the court:
Victor S., whose defence was entrusted to me, wanted to be found guilty. He exerted much effort to that end. He tried to hide the one who was really guilty. And I, Victor's counsel, am acting against his will and against what he considers his interests, in blocking his strivings. Have I the right to do so? For I am acting despite his wishes and without his agreement. Have I the right to do so?
The answer to that question can only be given on the basis of the general principles of a barrister's activity. A barrister has no right in any conditions and however he feels to damage 116 his client, to aggravate his position, and to prove him guilty of a crime. Ne nocere (do not injure)---that is the duty of defence counsel; in transgressing it he ceases to be a defender, thereby infringing the requirements of the law.^^1^^
In fact, when defence counsel begins to injure his client and to prove him guilty of crime, he not only breaks the general principles of a barrister's function but 'ceases to be a defender, thereby infringing the requirements of the law'. Such behaviour by a barrister does material harm to the interests of justice.
Differences are also possible between counsel and accused on the matter of the qualification of the crime confessed by the client when counsel substantiates the need to invoke the law on a less grave crime.
Cases are not excluded when the accused presses counsel to challenge or petition, and the latter sees no grounds for a challenge or considers the granting of a petition would worsen his client's position. In such cases counsel explains to the accused that he has the right to perform such and such a procedural act himself, and the consequences of such an action. If the accused does not take counsel's advice, the latter, while not supporting the accused's action, at the same time does not inform the investigator or the court of his objections.
Information about a number of circumstances relating to the accused's personality or to the charge presented against him is sometimes lacking in a case. Sometimes none of the parties to an action knows about them, except the accused. These circumstances may exonerate him or mitigate his responsibility, but they may also be unfavourable. And if the accused objects to counsel's intention to check certain circumstances, the latter must take these objections into account. The accused needs a firm conviction that counsel will not do anything to harm him. It is therefore impossible to recognise the action of a counsel admissible who petitions for a supplementary examination against his client's will or lodges an appeal when the client is opposed to doing so.
Counsel's procedural independence can be limited by his client in several other instances as well.
_-_-_~^^1^^ Ya. S. Kiselev. Sudebniye rechi (Court Speeches), Lenizdat, Leningrad, 1967, p 212.
117For example, an accused person, having the right to refuse counsel, has the right to withdraw the latter's appeal. But it is not admissible for counsel to withdraw his appeal without the convicted person's consent, because that would mean leaving the latter without defence.
When counsel sees no grounds for appealing, but his client considers the verdict unjust and calls on counsel to draw up a reasoned appeal, the latter cannot refuse his client such legal aid. Refusal would be an unlawful rejection of defence by counsel.
Thus, since counsel is tied by the will of his client, we can only speak of his limited procedural independence. Notions about his complete procedural independence, and his independence of the accused, have no basis in law. Counsel is endowed with broad procedural rights in order to conduct a defence but not to shirk it, or to commit acts detrimental to his client.
The accused's refusal of a defender. Since defence is the accused's right, he may defend himself, but is not obliged to. And since he has the right to have a defender, he also has the right to refuse one at any moment in the course of the case (CPC RSFSR, Art. 46, 50). That applies to the following: (a) rejection of an assigned or retained counsel because of a desire to have someone else, either a certain person or anyone; (b) rejection of an assigned or retained counsel because of the accused's intention to defend himself personally; (c) rejection of any retained or assigned counsel in connection with the latter's reluctance or lack of opportunity to conduct the defence.
All accused persons have the right to decline counsel, but the refusal is not binding on the court, procurator, or investigator if it has been made by a minor, mute, deaf, blind, or other person whose physical or mental handicap renders him incapable of exercising his right of defence personally, or by persons not speaking the language in which the proceedings will be conducted, or for whom the penalty could be a death sentence (CPC RSFSR, Art. 50, part 2). But still, if such an accused voluntarily and deliberately rejects defence counsel, the rejection must be accepted. There have been cases in legal practice when, for example, a minor's rejection of a defender has been accepted.
As a rule, however, an accused person needs a defender, and 118 when he refuses one it is not without reason. Although he is not obliged to explain his reason for refusing counsel, the investigator and court must try to ascertain it, reflect it in the case, and eliminate it. An accused person sometimes declines one counsel, but wants another. In that case a change of defender should be ensured; otherwise it entails quashing of the judgment. It is not by chance that the law stipulates that rejection of counsel is admissible only on the initiative of the accused himself. The investigator and court have no right to ask the accused whether he agrees to acquaint himself with the file of the preliminary investigation or to take part in the court proceedings without defence counsel. They have a different duty, namely, to explain to the accused his right to have a defender, taking into account that the investigation can only be completed and the hearing begun without one when the accused gives a negative reply to the question of the investigator or presiding judge whether or not he wants to have a defender. The substance of the matter is not that the accused 'has not declared his wish to have a defender' but that he 'has declared his unwillingness to have a defender'.^^1^^ In quashing a judgment and remitting a case for a new investigation, the RSFSR Supreme Court stated:
The minute of the ending of the preliminary investigation and presentation of the file said that Petrov 'did not express a desire to have a defender', which is not equivalent to the accused's refusal of one. There are no facts in the case witnessing to Petrov's refusal of a defender.^^2^^
An accused's refusal of counsel is operative when it is declared in the presence of same. In other cases it is considered forced.^^3^^ _-_-_
~^^1^^ M. S. Strogovich. Kurs souetskogo ugolovnogo protsessa (Textbook of Soviet Criminal Procedure), Vol. 2 (Nauka, Moscow, 1970), p 151.
~^^2^^ BVS RSFSR, 1973, 8: 11--12.
~^^3^^ S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Criminal Law and Procedure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, pp 285--286.
119 This position, it must be stressed, applies not only to the stage of the court hearing but also to the preliminary investigation.^^1^^As has already been said above, counsel is retained through the conclusion of a contract between a legal consultation bureau and the client, but the signing of that contract does not yet give rise to criminal procedural relations. They do not arise between the parties to the contract but between the accused and counsel. Therefore, when a barrister has accepted a defence, he can only be rejected by the will of the accused and not of the other persons who retained him, and the accused's rejection must be accepted by the investigator and court.
When a barrister has not yet accepted a brief the person making the arrangements with the consultation bureau may cancel them on the basis of the rules of Article 401 of the RSFSR Civil Code. In this case, however, there is not the criminal procedural act that the accused's rejection of counsel would constitute, but a rejection of an agreement or contract, provided for in civil law.
The criminal procedure codes of several Union republics indicate that defence counsel may be released from a case by the ruling of a court or the decision of an investigator. This rule has a dual basis. (1) The accused's motives for rejecting counsel have a bearing on a correct decision of the case, and when the accused states them they should be recorded in the file of the case. (2) Every party to an action enters into certain legal relations with the authorities involved in the criminal proceedings. The law obliges the parties to comply with a definite procedure during the investigation and decision of a criminal case. The accused's statement of his rejection of counsel obliges the investigator and court to take a decision releasing the counsel from the case, and until that decision is taken, the barrister has no right to consider himself released.
_-_-_~^^1^^ In agreeing to the need for a new examination of a case, for instance, the USSR Supreme Court stated: 'It is not clear from the record of the announcement to the accused of completion of the preliminary investigation and the presentation to Kebuladze of everything found in the case, whether defence counsel was invited to the performance of this investigatory action' (BVS SSSR, 1971, 1: 43). Similarly, BVS RSFSR, 1973, 8: 12.
120 __ALPHA_LVL3__ §2. Relations between Counsel and CourtDefence counsel enters into certain procedural relations with the court. The court has a special place in a trial, different from that of the other parties in criminal procedural activity. It is the master of the action.
In Soviet criminal procedure the court hearing is based on the principles of competitiveness, controversy or contest. The court must therefore sustain and develop in every way the procedural efforts of the sides directed toward an all-round, full, objective investigation of the circumstances of the case, eliminating everything from the hearing that has no bearing on the case. This support of the court is of principled significance for clarifying the relations that take shape between defence counsel and the court.
By defending the defendant's rights, counsel helps administer justice. In addition, however, he helps the court avoid only those mistakes that can damage the defendant. Since counsel helps the administration of justice only as regards defence of the defendant's rights and interests, any assistance by him to the charge against the defendant is a breach of the right to defence and of a barrister's duty.
Counsel is independent of the court in his employment of all the ways and means of defence provided for in law, and in deciding his procedural position. This is a very important fact for characterising the relationship of counsel and court.
The judge presiding at a session, who acts in the name of the court, guides the course of the session. The people's assessors enjoy all the rights of a judge in the administration of justice, and the activity of the presiding judge is in no way a violation of the constitutional principle of collegiality. The subordination of the sides to the presiding judge is limited solely to dispositions affecting procedure in the session, and the procedure of examining the evidence itself. Precise compliance with the procedural legislation is required of the presiding judge, and also efficient, tactful guidance of the course of the hearing.
Often after an interrogation by the judges and procurator, counsel has to make the replies to their questions more precise. He has the right to cross-examine. Counsel's opportunity to 121 T cross-examine or put supplementary questions to the defendant, a witness, or expert is not at all excluded. On that basis the presiding judge cannot ask counsel to withdraw his question on the excuse that evidence is investigated for the court and that everything is quite clear to it. In order to defend counsel must have the opportunity to clarify the circumstances of the case independently of their clarity to the presiding judge. The investigated circumstance, moreover, cannot in general be considered elucidated until the court withdraws to the consultation room to establish its verdict.
The presiding judge has the right to disallow a question of a side in two cases only: when it is a leading question, or has no relevance to the case. If a question is disallowed for any other reason, it may cause a one-sided or incomplete investigation of the circumstances of the case, a breach of the right to defence, and the finding of a mistaken verdict. If the presiding judge disallows a question without grounds, the side has the right to request that an objection to the act be recorded. The record of the session should contain 'an indication of the facts that the persons involved in the case asked to have certified in the record' (GPS RSFSR, Art. 264).
The Plenum of the USSR Supreme Court has more than once pointed out the duty of judges to pay the same attention to all the parties to a hearing and strictly to observe the norms guaranteeing their rights.^^1^^ These instructions are intended to bolster the authority of barristers.
At the same time one must not forget, either, a barrister's duties in respect of his client and the court. Counsel may or may not agree with the actions of the court or of the presiding judge, but has no right to dispute them during the session, to start an argument, or to quit the courtroom. He is obliged to defer to the court, and if he considers its acts improper, to lodge a protest against them at the end of the session. Counsel's objections, noted in the record of the session, will serve as evidence _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Sbornik postanovleniy plenums Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977), Part 1 (Izvestia, Moscow, 1978), pp 50--51, 57--63; Part 2 (Izvestia, Moscow, 1978), p 36.
122 of his statements contained in an appeal. Wren there are adequate grounds for it, counsel may file a challenge.It will be clear from what we have said that counsel's procedural position can be defined as follows: counsel is a party called upon to represent the accused and, independently of all the other parties to an action, to employ all the ways and means of defence indicated in law in order to bring out circumstances exonerating the accused, or ruling out or mitigating his responsibility, and to render the accused the necessary legal aid.
__ALPHA_LVL3__ §3. Relations between Counsel and ProsecutorThe conduct of judges, the procurator, and counsel, and the whole judicial process are meant to mould respect for the standards of law and morality and for human dignity. And so that 'lessons in public morals and practical politics'^^1^^ may be drawn from court proceedings, the professional parties in an action have to convince the people present in court of their legal and moral irreproachableness.
The opposite nature of the procedural functions of prosecutor and defence counsel determines their relations; they are procedural opponents. But the final aim of their activity is the same: both the procurator and the barrister further the administration of justice and therefore have the right in a trial to the same attention, confidence, and respect.
The normal course of a trial largely depends on the relations of the sides. The prosecutor and defence counsel are obliged, when arranging their relations, to start from the importance of the procedural function of the opposing side, and to remember that it is necessary for the court to bring out and evaluate all the possible versions in the case, and to know the weak points of the charge as well as the strong ones.
A contentious process is unimaginable without polemic enabling the truth, and a proper, just decision of the case, to be established. The polemic is based on the law and the strict moral discipline of the sides. A fitting, business-like, correct polemic is evidence of the high professional qualities of the barrister and the procurator.
_-_-_~^^1^^ V. I. Lenin. Casual Notes. Collected Works, Vol. 4 (Progress Publishers, Moscow), pp 393--394.
123The question of the basis and limits of the pleadings does not apply simply to the speeches of the sides but also to the other parts of the hearing.
In the preliminary investigation, for example, a witness exposed the accused, but in court he changed his evidence despite having been warned of his criminal responsibility for giving deliberately false evidence. During questioning the procurator was unable to extract evidence from the wiiness confirming the version of the indictment, told him that a long term of imprisonment was imposed for perjury, and again asked him whether he confirmed his previous testimony. Such questioning caused defence counsel to object: he asked for a declaration of the prosecutor's infringement of the requirements of the law prohibiting the soliciting of testimony by threats to be entered in the court record. A barrister cannot act otherwise; if he did he would throw doubt on his own readiness to conduct the defence.
Counsel is obliged to pay due attention to the prosecutor's opinions, and to be precise in disputing them. If the prosecutor has not mentioned important evidence that the judges could not help remembering, defence counsel should lodge a protest against the evidence and not pass it over in silence.
Counsel can and must dispute mistaken, dubious, and unjust statements by the prosecutor. But no one needs a dispute for dispute's sake, and counsel only gains in the eyes of the judges if he agrees with statements of the prosecutor's that are neutral for his client, and displays patience in regard to the mistakes of his procedural opponent when these do not prejudice his client.
The victim also exercises the function of accuser. Often the accused has a dislike for him and is annoyed by his behaviour. Defence counsel, naturally, has no right to adopt this attitude toward the victim. His correctitude and understanding of the latter's suffering can keep the victim from making statements prejudicial to his client.
__ALPHA_LVL3__ §4. Relations between CounselBarristers form a professional group united not simply by formal membership of the Bar but also by a community of procedural 124 position, functions and means of exercising these functions, customs, and interests. This community of profession makes it incumbent on barristers to maintain comradely relations; and the basic principles determining their relations with one another include collectivism and mutual help. In the eyes of progressive members of the Russian Bar, whose best traditions the Soviet Bar has inherited, defence counsel was represented as vir bonus, dicendi peritus (a good man, experienced in speech), upright in his solidarity with comrades.
A barrister has a moral responsibility not only for his own actions but also for those of his colleagues. It is therefore his duty to show a comrade consideration and encouragement when he sees that the latter is confused and does not know circumstances that may prove essential. But in coming to a comrade's aid it is necessary to act so that this help does not seem lecturing or unsolicited interference.
The interests of co-defendants, for example, may not be linked on some important circumstances. The counsel of one of them does not petition for the calling of an expert or for production of a document, or does not question a witness. From the standpoint of the other barrister this prejudices the defendant whom he is not defending. In that case help on his part consists not in petitioning or questioning the witness but simply in expressing his opinion to his comrade. A barrister who interferes in the work of a comrade cannot be sure of his Tightness, because the latter may be conducting his defence on a plan under which it is not necessary to petition or question in general or it may become necessary at another moment in the trial.
The collectivism in the Bar is explained by public law interests, for a striving to co-ordinate efforts in defence, to avoid mistakes both by oneself and by a comrade, and a readiness to help the latter correspond to the interests both of clients and justice.
Respect for a colleague is a guiding rule for appraisal of a barrister's actions. Without it the prestige of the Bar cannot be maintained and a defence properly conducted.
Sharp conflicts often arise between defendants in court, and a dispute between their defence counsel is also not out of the question. Restraint and correctitude are necessary, however, in a dispute, otherwise not only will the self-respect of a comrade 125 be wounded and his good name suffer, but the dignity of the court and Bar will also suffer.
Collectivism also presupposes observance of the moral rules of a barrister's entry into a case.
If the barrister retained learns, for example, that a counsel has been assigned, he should immediately inform his colleague of his retention; otherwise his fellow barrister may put in work on preparing a case in which he will not have to take part.
When one retained counsel is replaced by another, the new barrister should ascertain why the change occurred. If no shortcomings are indicated in the conduct of the defence, the absence of grounds for the change is explained to the client. Whenever the brief is accepted, it is necessary to notify the predecessor of the fact.
Under the existing procedure the client himself applies to a barrister for help and it is not permitted for the latter to propose his services to a client.
Not only is a barrister's direct proffering of his services excluded but also covert acts by him aimed at getting a case. Selfadvertisement is particularly blameworthy and censurable in statements calculated not so much to affect the court as the public present at the session.
[126] __NUMERIC_LVL2__ 6 __ALPHA_LVL2__ Defence Counsel's Procedural Activity __ALPHA_LVL3__ §1. Defence as a Procedural FunctionThe function of defence is a procedural activity directed to bringing out circumstances exonerating the accused, or ruling out or mitigating his responsibility, and to protecting his personal and property rights. Defence is a reaction to an accusation; it accompanies it, and where there is an accusation there is also a defence that opposes it and fights it. Defence is the conscious, purposive activity both of the accused (suspect) himself, and of the defender, legal representative, and social defender. These persons are the subjects of the defence function, and are united by a common procedural interest.
From the fact that counsel defends the accused it by no means follows that the latter can only be found guilty because counsel has been unable to demonstrate the flimsiness of the accusation. If counsel has not proved circumstances exonerating the accused or mitigating his responsibility, that does not release the authority conducting the trial from its duty to bring out these circumstances. If the theory of Soviet criminal procedural law and investigatory and judicial practice started from the possibility of shifting the onus of proof onto the accused and his defence counsel, that would essentially diminish the activity of the investigator, procurator, and court in the search for truth, and would weaken 127 their role in consolidating legality and defending the rights of citizens.
The role of the authorities involved in a criminal case is very great for realisation of the right to defence because it is they that are obliged to ensure the accused the possibility to defend himself by the ways and means established by law against the charge brought against him (Art. 13 of the Fundamentals). Unless this duty is fulfilled the accused's right to defence becomes unreal. The investigator's granting of a petition of the accused, however, the procurator's refusal to support a public charge, the finding of a verdict of not guilty by a court, and so on, do not confirm the performance of a procedural function. In our view one must differentiate between defence in the constitutionallaw sense and defence in the criminal procedural sense. The performance of acts favourable to the accused by a public agency is evidence of its fulfilling of its duty to make an all-round, full, objective investigation of the circumstances of the case, and not of its exercise of a procedural defence function.
With mixed procedural functions it would be extremely difficult to reduce judicial errors, defend the rights of the individual, and find the truth. Karl Marx, speaking of criminal proceedings in which 'judge, accuser and defender are combined in a single person', remarked that 'this combination contradicts all the laws of psychology'.^^1^^ Such a situation is inherent in an investigative process in which procedural functions are combined and the accused is not the subject of a trial but the rightless object of an investigation.
The Soviet legislator considers the merging of procedural functions to be inadmissible. The delimitation of functions prevents the putting of demands to the subjects of a trial that are incompatible with their purpose in the trial, and stimulates moulding of the professional habits in investigator, procurator, judge, and defence counsel needed for successful exercise of their procedural functions.
The accused person is usually not able to conduct his own _-_-_
~^^1^^ Karl Marx. Comments on the Latest Prussian Censorship Instruction. In Karl Marx, Frederick Engels. Collected Works, Vol. 1 (Progress Publishers, Moscow, 1975), p 130.
128 defence, and the activity of defence counsel (the USSR Supreme Court has stressed) is 'a most important guarantee of justice and a sine qua non of a successful fight against crime'.^^1^^A barrister is needed and is necessary for the defence, and it is just that which the accused, the Soviet state and society expect from him. In the apt expression of A. F. Koni, 'the channel between the Scylla and Charybdis of accusation and exoneration is narrow and tortuous'.^^2^^ In this channel defence counsel is the pilot, who must never move toward the accusation. To ascertain circumstances exonerating the accused or ruling out his responsibility, to try to soften circumstances detrimental to his client, without allowing any distortion or misrepresentation, and not only to refute the erroneous part of the charge but also to insist on the unproven character of everything doubtful in it, that is defence.
Defence counsel's exercise of his most important rights will be discussed below.
__ALPHA_LVL3__ §2. Counsel's Meeting with the AccusedIn developing the constitutional principle of securing the accused's right to defence, the legislation of the Soviet Union and its constituent republics points out the accused's right to communicate with his defender.^^3^^ The granting of a right to them to meet and communicate by correspondence rests on several important reasons.
The accused is usually legally ignorant and has no experience of taking part in criminal trials and is therefore not in a position to resist persons so experienced in prosecution as the investigator and procurator. Since incapacity for independent defence may complicate establishment of the truth and entail other _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Sbornik postanouleniy Plenuma Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977), Part 2 (Izvestia, Moscow, 1978), p 17.
^^2^^ A. F. Koni. The Jury. Sobranie sochineniy (Collected Works), Vol. 1 (Yuridicheskaya literatura, Moscow, 1966), p 357.
~^^3^^ Article 23 of the Fundamentals; CPC RSFSR, Articles 51, 202; Articles 12, 6, and 13 of the Regulations on Detention in Custody; Article 27 of the RSFSR Corrective Labour Code.
__PRINTERS_P_129_COMMENT__ 9---685 129 undesirable consequences, the legislator has introduced the defender into criminal proceedings, in his dealings with whom the accused obtains the advice and help of a specialist that he needs.The law grants the accused and the defender the opportunity to see each other alone, because the accused may, in the presence of an investigator, judge, or other person, decide not to learn everything from counsel that interests him in connection with the case, either because he is afraid of aggravating his position or for some other reason. They not only meet alone but also in a situation of mutual confidence. The accused, of course, expects counsel's advice, i.e. the advice of a learned and experienced lawyer. No less valuable, however, is the moral support that counsel gives him. It is very important that the accused person facing an investigator and court be a person whose moral state is not an obstacle to presentation of all the arguments in his favour rather than a dispirited, cowed person.
During the interview the accused tells his counsel about the behaviour he is being blamed for, about the motives of that conduct, and about his past. In the course of the talk counsel sometimes gets to know something that is not in the file of the case but mitigates or even eliminates criminal responsibility. A result of the talk may be counsel's demand, through the consultation bureau, for information necessary for the defence, or a petition for its production by the investigator or court. During the interview the client informs counsel about his relations with co-accused, witnesses, victims, or other facts about persons involved in the case. That makes it easier for counsel to appraise the evidence, and helps him prepare his questioning and other procedural acts. The lines of the defence are also mapped out during the talk. Finally, counsel also uses the interview to explain the accused's procedural rights to him, and also his own rights as counsel.
Interviews with the accused are necessary not only at the preliminary investigation but also for preparation for the hearing of the case, and for appealing against the verdict. The defendant needs consultations with counsel, as well, during the hearing, and breaks in the session are used for that purpose.
A barrister fulfilling the duties of defence counsel should not forget that he is called into a criminal trial to further justice. 130 Counsel has no right to abuse the trust of the state and to recommend something against the law to the accused. During the interview counsel explains to the accused 'the meaning of the charge laid, and the significance of the evidence' (CPG Uzbek SSR, Art. 180; CPC Lithuanian SSR, Art. 227; GPG Azerbaijan SSR, Art. 222); which of his actions are considered criminal according to the wording of the charge; the substance and sanction of the criminal law by which the actions he is accused of are characterised.
Counsel explains to the accused the significance of the evidence that both confirms and refutes the accusation. And of course he explains to the accused the significance of his testimony. If the accused confesses, counsel has the right to remind him that sincere repentance can mitigate responsibility. When, in counsel's view, the accused is clearly guilty, but denies his guilt, counsel points out to him that the material evidence refutes his stand, but at the same time does not persuade his client of the need to plead guilty.^^1^^ Such pressure on the accused risks consequences harmful to justice. It is not excluded that the court's conclusion will coincide with the accused's and not with counsel's view. It must not be forgotten, furthermore, that counsel's function does not in general include furthering the charge. The state disposes of sufficient means to prove the accused guilty and does not need counsel's aid in this respect.
It may be, too, that the accused confesses while counsel considers the charge unsubstantiated and unlawful. In that case counsel tells the accused his opinion and warns him that he will fight the charge. For confession may be important when the accused understands the legal significance of the circumstances that lead him to plead guilty. `Confessions' are known in practice to be based on a misunderstanding, mistake, etc. An _-_-_
~^^1^^ With any other solution of this matter the client would not only be under pressure from the accusing authority but also from him who is called upon to defend his interests. The Soviet jurist I. B. Mikhailovskaya writes that such a practice exists among American attorneys, who often influence clients to plead guilty (I. B. Mikhailovskaya. The Procedural Position of the District Attorney and Counsellor in US Criminal Procedure. In V. N. Kudryavtsev et al. (Eds.). Voprosy bor'by s prestupnost'yu, Issue 14 (Yuridicheskaya literatura, Moscow, 1971), p 179.
__PRINTERS_P_132_COMMENT__ 9* 131 accused man, for example, confessed to having inflicted grievous bodily harm, but did not understand that his actions were not criminal since they were committed in a situation of justified selfdefence. Counsel, not agreeing with the charge, explained the law to him. In another case, counsel, having studied the case, discovered a very material contradiction in the accused's statements confessing his guilt. Counsel had doubts whether the accused knew the actual circumstances of the crime and whether, consequently, he was guilty of it. Counsel has to inform his client of his intention to fight a doubtful charge.Some jurists suggest that counsel should not point out to an accused person the disparities between his confession and the law or the circumstances of the case, seeing it as the instigation of the accused to refuse confession. Such arguments, however, which indicate an overestimation of the accused's confession, deviate from the defender's tasks and are refuted by practice.
One Shchelkin, for example, was convicted of the negligent killing of a 17-year-old youth Pyzhov. The latter was killed in the forest during the haphazard firing of shotguns belonging to six persons. Shchelkin did not deny the possibility that it was he who killed the victim at a distance between three and six metres. According to the forensic experts, however, the victim was killed at a distance of half-a-metre. Furthermore the shot and wadding extracted from the victim's corpse differed from those confiscated from Shchelkin. The Plenum of the USSR Supreme Court quashed the verdict of the regional court and all subsequent judgments, and remitted the case for additional preliminary investigation, because Shchelkin's accusation was not confirmed by the evidence of the case, and it was not out of the question that someone else had committed the manslaughter, and not the convicted man. The Plenum's decision noted that Shchelkin, in the main, confirmed his previous testimony in court, but declared that, after the barrister had explained the sense and significance of some of the evidence to him, he began to doubt that Pyzhov was killed by a shot fired by himself rather than by someone else who was on the spot of the incident and took part in the shooting.^^1^^ Counsel's explanation of the sense and _-_-_
~^^1^^ See L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SS&R po voprosam ugolovnogo pro- __NOTE__ Footnote cont. on page 133. 132 significance of the evidence thus led the accused to alter his confession. That, however, did not prejudice justice but furthered it, and led to the quashing of an unsubstantiated judgment.
This conception of counsel's duty to explain the evidence to the accused is confirmed by the disciplinary practice of the praesidiums of colleges of barristers. In one disciplinary case, for example, the praesidium of the Moscow Regional College of Barristers ruled that explanation of the substance of his actions to a client cannot be considered instigation of the accused by counsel.
In the cases provided for by Article 22 of the Fundamentals, counsel is permitted to take part in a case from the moment the charge is laid. The right to interview alone arises for such counsel after the laying of the charge but before his client is questioned as an accused person.^^1^^
Breach of the Regulations on Detention in Custody, under which
entails quashing of the judgment.detainees have the right to interview alone from the moment of the admission of defence counsel into the case, confirmed in writing by the person or agency in charge of the case, without limitation of the number or length of the interviews (Art. 12),
Since barrister and accused meet alone, no one has the right to demand information from the latter about his interview with _-_-_ __NOTE__ Footnote cont. from page 132. tsessa 1946--1962 gg. (Digest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court on Matters of Criminal Procedure 1946--1962), Yurizdat, Moscow, 1964, p 30.
~^^1^^ In proceedings in which compulsory measures of a medical character are employed, counsel is permitted to take part in the case from the moment it is established that the person who committed socially dangerous acts is mentally ill. The right to interview also arises from that moment (CPC RSFSR, Art. 51, 405).
The possibility of an earlier rendering of legal aid is provided for by Article 12 of the Consular Convention between the Governments of the USSR and USA of 1 July 1964, Article 15 of the Consular Convention between the USSR and the Socialist Republic of Romania of 14 March 1972, and other consular conventions (VVS SSSR, 1968, 29: Item 261; 1973, 18: Item 225; 1978, 50: Item 829; 1979, 15: Item 224; 1981, 11: Item 283, etc.).
133 his defender. As for counsel, he is obliged to keep the substance of his talks with the accused secret (Art. 7 of the Law on the Bar of the USSR). The investigator and court have no right to infringe the secrecy of the accused's intercourse with his defence counsel and may not question counsel about circumstances of the case that are known to him through performance of his duties as defender (CPG RSFSR, Art. 72).Can a legal consultation bureau correspond with an accused person who has been held in custody as a measure of restraint? That question must be answered in the affirmative in accordance with Articles 6 and 13 of the aforesaid Regulations. A consultation bureau has the right to transmit a letter to the accused, through the investigator or court, informing him of the retention of counsel by his relatives or other persons and communicating the name of the barrister retained. On the basis of the requirements of Articles 13 and 27 of the Fundamentals the investigator and court are obliged not only to inform the consultation bureau of the time of admission of counsel but also to deliver such a letter to the accused. The accused in turn has the right to inform the consultation bureau in writing of his agreement to being defended by the barrister retained, or his wish to change him for another barrister, or his rejection of a defender in general. The accused's letter must be delivered to the consultation bureau (Art. 13 of the Regulations on Detention in Custody).
Not only do the barrister and legal consultation bureau have the right to correspond with the accused, but so do his relatives, in accordance with the Regulations on Detention in Custody. During the preliminary investigation of the case of the American pilot Powers for espionage, for example, Powers received letters from his relatives.^^1^^ In certain cases permission for such correspondence is also given by the courts.
_-_-_~^^1^^ An American U-2 aircraft on board which there was reconnaissance apparatus was sent over the USSR on 1 May 1960. Soviet rocket troops shot down the aircraft, which was piloted by Powers. This case was heard in open court on 17--19 August 1960, and the Military Bench of the USSR Supreme Court found Powers guilty of espionage.
134 __ALPHA_LVL3__ §3. Acquainting Counsel with the File of the CaseThe instruction in Article~23 of the Fundamentals that counsel has the right
is an essential condition for realising the accused's right to defence and for establishing the truth. Acquaintance with the file enables counsel to check whether investigation of the case was all-round, full, and objective. Without studying the file, he cannot help the accused and thereby decision of the purposes of the criminal proceedings.from the moment he comes into a case ... to familiarise himself with all the evidence of the case and to copy out needed information from it
Koni, recalling his experience as procurator and judge, wrote:
Those words can also be applied to defence counsel.First and foremost I considered it necessary, of course, to make a study of all parts of a case, carefully considering the variants of the testimony of one and the same persons during interrogation and investigation, and acquainting myself particularly carefully with the material evidence.^^1^^
The court, procurator, and investigator are obliged to provide defence counsel with the opportunity to familiarise himself with the case (Art. 27 of the Fundamentals; CPC RSFSR, Art. 51, 201, 236, 264, and 328).
All the materials of the case must be presented to the defender without exception. The material presented must be contained in a file and provided with a schedule, and the items of the file numbered. If film or tape recording has been used in conducting the investigation, it must be demonstrated or played back to the accused and his counsel.
A barrister taking part in the preliminary investigation must not only study all the material evidence himself, but must also help the accused to do so. He must also explain to the accused _-_-_
~^^1^^ A. F. Koni. Methods and Tasks of Procurator's Office. Sobranie sochineniy (Collected Works), Vol. 4 (Yuridicheskaya literatura, Moscow, 1967), pp 149--150. Similarly, Vol. 1, p 370; Vol. 5 (Yuridicheskaya literatura, Moscow, 1968), p 119.
135 that the possibilities of defence are diminished both during the preliminary investigation and in court if the accused is not well acquainted with the case and does not copy out needed information from the file.The presentation of the file to defence counsel at the preliminary investigation is recorded in a minute, which is mandatory. The minute records
Failure to present all the materials to defence counsel is an essential breach of the law on criminal procedure and entails remission of the case for additional investigation by the procurator or court. Such a breach cannot be compensated in court. The procurator, for instance, applied for adjournment of the session in a case so that the defendant could acquaint himself with the file of the case. The USSR Supreme Court ruled that his submission was inadmissible because acceptance of it deprived the accused in practice of the right afforded him in law to petition for supplementary preliminary investigations.^^1^^what materials precisely were presented for familiarisation (number of volumes and items) and where acquaintance with the files was made, and for how long (CPC RSFSR, Art. 102. 203).
In the cases of minors and of persons who, because of physical or mental handicaps, cannot defend themselves independently, counsel has the right to acquaint himself with the material evidence and copy needed information from the file from the moment a charge is laid against these persons (CPC RSFSR, Art. 47, part 2, and Art. 51, part 2). He also has the right, from that moment, to take part in all investigative acts and to familiarise himself with the records of same (CPC RSFSR, Art. 51, parts 3 and 4).
Counsel and accused sign the minute about acquaintance with the materials of the completed preliminary investigation at the same time and in each other's presence. It is of no significance whether they familiarised themselves with the file together or separately. The investigator has no right to ask the accused to sign this minute if counsel has not completed his study of the _-_-_
~^^1^^ BVS SSSR, 1971, 1:42.
136 file and not discussed with the accused whether to petition for a supplementary preliminary investigation. Separate signing of the minute could give rise to various misunderstandings and doubts about whether counsel had given the accused legal aid, and consequently whether the accused's right to defence had been secured.In a number of instances additional investigations are made after presentation of all the materials of the case to the accused and his defender. That obliges the investigator to acquaint accused and counsel with the file again (CPC RSFSR, Art. 204, part 4). Non-fulfilment of this obligation is also grounds for remitting the case for additional investigation.^^1^^
After committal for trial, joint or separate study of the case by barrister and client is possible, as during the preliminary investigation. If the defendant is held in custody he is afforded the opportunity in court to acquaint himself with the case, or does so at the place of detention.
New evidence sometimes comes to hand after the court proceedings have begun. This evidence has to be produced for the parties, read out, and investigated; otherwise a judgment based on it would be an essential breach of the law on criminal procedure.^^2^^
Cases may be separated whenever necessary. The Praesidium of the RSFSR Supreme Court has ruled that
a case in respect of separate accused must be heard in court in such a manner that they have the unqualified opportunity to familiarise themselves with all the evidence in the case bearing on the charges preferred against them (the testimony of the other accused and witnesses, the examinations of experts, and so on).^^3^^
According to the Praesidium's conclusion, a separated case is 'heard as a supplementary action to the main case'.^^4^^ Both counsel _-_-_
~^^1^^ BVS SSSR, 1970, 6:35; L. N. Smirnov (Ed.). Op. cit., p 183; BVS RSFSR, 1971, 8: 9.
^^2^^ L. N. Smirnov (Ed.). Op. cit., pp 216--217; BVS RSFSR, 1975, 8: 12.
~^^3^^ Ugolovno-protsessual'ny kodeks RSFSR (Yurizdat, Moscow, 1948), p 155. Similarly, BVS SSSR, 1966, 6:26.
^^4^^ Ibid.
137 and accused have the right to familiarise themselves with all this evidence.Counsel must be afforded sufficient time to acquaint himself with all the evidence in the case both at the preliminary investigation and in the court stages of the trial. The impermissibility of limitations of any kind stems from the requirements of Articles 13, 23, and 27 of the Fundamentals. Since federal law does not impose time limitations for acquaintance with the evidence in a case, there is no foundation for regulation of this time by reference to the date of completion of the preliminary investigation or beginning of the court hearing.
The investigator must present the evidence gathered, with an eye to the scope of the case and the date of completion of the preliminary investigation. Any limitation of the time for acquaintance with the evidence is also impermissible when the period for the preliminary investigation is expiring or has already expired. In these instances the period is prolonged. The court hearing is equally named with such a calculation, so that the parties to the action can study the file and make the necessary extracts.^^1^^
When study of the file takes several days, some investigators compile special registers (timetables) in which they record what materials were presented each day to the accused and counsel. Since the register or timetable is not a procedural document but a working one of the investigator's, the law does not oblige the accused and counsel to sign it.
Clients sometimes apply to legal consultation bureaux for a barrister to conduct the case on the day the court hearing begins. This circumstance is not grounds for refusing to accept the commission. In these cases the barrister appears at the hearing and petitions for an adjournment to study the case. The court is obliged to grant the petition and to give him enough time to acquaint himself with the case and prepare a defence.
On the matter of time the USSR Supreme Court has ruled _-_-_
~^^1^^ The Plenum of the USSR Supreme Court has explained: 'The court (judge) must appoint the hearing of a criminal case within the period prescribed by law, considering the length and complexity of the case and other circumstances, so that the defendants and their counsel have a real opportunity to acquaint themselves with the evidence and prepare the defence' (BVS SSSR, 1978, 4: 10).
138 that 'the accused's right to defence cannot be considered secured if his counsel has not been afforded sufficient time to study the case'.^^1^^Defence counsel has the right, when studying a case, to make extracts of the information he needs, and he independently decides what volume of extracts he will make. If he considers it necessary to make copies of any evidence in the case, the law also puts no limitations on his doing so.
A barrister's dossier of extracts from the file may include various notes and information on the substance of his talks with his client, and so on. On the basis of the law protecting a barrister's secrecy, he has no right to divulge the contents of his dossier and the officials involved in the proceedings have no right to acquaint themselves with it (Art. 7 of the Law on the Bar of the USSR).
__ALPHA_LVL3__ §4. Petitions by CounselCounsel's efforts are directed to convincing the investigator, procurator, and court to reach decisions favourable to the accused. He makes applications or petitions, both when he declares it necessary to call a witness or examine a paper, and when making his speech for the defence and an appeal.
By the term `counsel's applications or petitions', however, is not meant his statements apropos of the actions of parties to the proceedings, challenges, speech for the defence, his acts to lodge an appeal, his comments in regard to the content of the record, or his written motions about the substance of the accusation against the defendant. In the theory and practice of Soviet criminal procedure, by `counsel's applications or petitions' are meant all his other requests for the performance of procedural acts and the taking of decisions favourable to the accused.
In the preliminary examination, and in the subsequent stages of a trial, counsel makes applications when the granting of them can eliminate or mitigate the accused's responsibility.
Counsel should not make an application when he is doubtful whether it will lead to the establishment of circumstances serving _-_-_
~^^1^^ L. N. Smirnov (Ed.). Op. cit., p 22.
139 accusation. Unless he is convinced that the result will be favourable to the accused, or at least neutral, he does not make an application.The making of an application or petition is an effective means of defence. Every lawful, substantiated application by counsel furthers all-round, full investigation of the circumstances of the case and establishment of the truth, the taking of correct, just decisions in the case, and in the end satisfaction of the purposes of criminal proceedings.
An application may be based on the evidence of the case or on additional evidence produced by counsel. When counsel learns of information favourable for the defence from the accused or his relatives, or from other persons, he petitions for inquiries to be made to check and establish these facts.
Counsel may make an application orally or in writing. An oral application is noted in the record, while a petition is appended, in addition, to the file of the case. A petition is preferable since it is prepared more carefully and contains references to the material evidence of the case, to the law and the practice of applying it, and to the specialist literature.
Counsel and the accused need to co-ordinate their actions for the defence, including the making of applications. At the same time counsel has the right to express his view on the applications made by the parties to the trial, but is not obliged to do so. A barrister knows his right in this regard and when necessary exercises it. The task of the investigator and court, therefore, includes clarification of whether counsel wishes to express his opinion on the filing of an application, and to grant the application if it has a bearing on the case. As for counsel's applications, they are considered in the light of their substantiation. The investigator and court have no right, for instance, to reject an application by the accused or his counsel on the grounds that one of them does not support it.
In the criminal procedure codes of most of the Union republics it is an established rule not to fix a definite period for the preparation of a petition. The need for any time limit is determined by the complexity and size of the case, and the law contains a principled instruction that the investigator must provide defence counsel with the opportunity to make applications on matters of 140 significance for the case (CPC RSFSR, Art. 202, 19, and 58).
Voluminous cases are studied by accused persons and their counsel for a long time. Even before they have finally completed this work, they may file petitions, prompt consideration of which helps the accused and counsel to make a new application or take some other procedural action.
Because of the significance of the applications of the parties to an action, the Plenum of the USSR Supreme Court has ruled that it is necessary to eliminate chances of a superficial consideration of them at the stage of arraignment,
paying due attention as well to the substantiation of a refusal to grant similar petitions and applications made during the investigation^^1^^;
in the case of an unsubstantiated rejection by the investigator of an application by the accused or his counsel for clarification of circumstances having an important bearing on the case, and when the inadequacy of the investigation cannot be made good in the court sessions, the court should discuss the question of remitting the case for additional investigation.^^2^^
When there is no question of the inadequacy of the investigation, the court decides on the substance of the accusation. Doctors Sotnikova, Knyazeva, and Dudko, for example, were accused of criminally negligent treatment, as a result of which a woman patient died. The forensic medical examination made in the case, although it indicated some negligence in the doctors' action, at the same time noted the absence of a connection between the negligence permitted by them and the ensuing death. Counsel's petition for the case to be dropped was turned down by the investigator without substantiation. The People's Court of the Tushirio District of Moscow acquitted all three defendants.
A decision on an application must not be made dependent on its being lodged for the first time or its having been already filed and refused. An application must also not be turned down, it goes without saying, on grounds predetermining the _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 48.
~^^2^^ Paragraph 9 of the decision of the Plenum of the USSR Supreme Court on courts' practice of applying laws securing the accused the right to defence (BVS SSSR, 1978, 4: 10).
141 defendant's guilt. If an application concerns circumstances that may have a bearing on a proper investigation and rinding in the case, it must mandatorily be granted (GPC RSFSR, Art. 131, 204, and 276).^^1^^ __ALPHA_LVL3__ §5. Counsel's Submission of EvidenceProof is the heart and core of all defence counsel's procedural activity in a criminal case. In order to avoid mistakes in connection with the submission of evidence, counsel has to decide the main line of his efforts correctly and to know what he must prove and how far he must prove it.
Circumstances exonerating the accused or mitigating his responsibility are subject to proof by counsel.
Counsel also clarifies circumstances excluding the accused's criminal responsibility. These are facts ruling out the social danger of the act (necessary self-defence, extreme need); circumstances witnessing that the person who committed a socially dangerous act was not responsible for his actions or was under the age of legal responsibility for the categories of case defined by the criminal law; facts witnessing to the petty nature of the act; circumstances excluding sentencing (an amnesty, or the statute of limitations); facts providing grounds for substituting administrative penalties or corrective, educational measures for measures of criminal punishment.
The actions the defendant is accused of are often accompanied with the infliction of material damage. When defence counsel disputes the charge that also disputes the possibility of an award of damages. In other cases he adduces arguments why the scale of financial damages should be reduced.
In certain categories of case other circumstances are also subject to proof by defence counsel. In the cases of defendants who are minors, for example, a barrister elucidates the living conditions and upbringing of his client, the existence of adult instigators, and the adolescent's level of mental development.
Counsel also has the right to take steps to clarify the reasons and conditions encouraging commission of the crime (although a _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 17. 142
142 barrister has no obligation in general stemming from the law to concern himself with these matters in all cases). Defenders' attention to problems of the concrete causes of criminality heightens the social significance of their speeches and the ideological purpose of court trials.When the establishing of the subject-matter of evidence corresponds to a point that defence counsel must prove, the determination of the limits of proof is correlated to how far counsel must investigate a criminal case.
The investigator and procurator are obliged to prove the charge. The task of defence counsel is narrower. He petitions for a case to be dropped or for an acquittal, even though it has not been proved that the accused is not guilty. The grounds for such a petition are that the accused's guilt has not been proved beyond doubt. Even more, the establishing of another person, and the substantiating of his guilt for the commission of the crime being tried, do not come within the province of counsel's proof.
A barrister must always be guided by common sense and not risk anything. If he is unable to overcome his doubts whether, for example, to question a witness, it is better not to interrogate him at all. The pre-revolutionary jurist P. S. Porokhovshchikov (P. Sergeich) wrote:
The most important rule for the defence is that counsel must. . . in order to delineate his task rationally, be careful and cautious; otherwise his client will pay for it.^^1^^
The law grants the accused and his counsel the right to present evidence, and obliges the investigator and court to give them the chance to exercise this right.
According to the Law on the Bar of the USSR, moreover, a legal consultation bureau has the right to ask public authorities and social organisations for various documents connected with rendering the accused legal aid. The material demanded may not only characterise the accused's personality and state of health but also have a direct bearing on the substance of the charge _-_-_
~^^1^^ P. Sergeich. hkusstvo rechi na sude (The Art of Court Pleading), Yuridicheskaya literatura, Moscow, 1960, p 333.
143 preferred against him (copies of invoices, receipts, contracts, orders, and instructions, or certificates of the existence of these documents in the files of institutions, enterprises, or organisations, etc.).The conclusions of scientific institutions, or other bodies, obtained by a barrister on the demand of a legal consultation bureau may have a substantial bearing on a case. Barristers often append letters from citizens to the appeals lodged by them, and also the references and testimonials of corrective labour institutions about the convicted persons, and so on.
Certificates and testimonials can also be demanded in respect of other persons than the barrister's client if such are needed to refute their evidence against the accused.
In some cases photographs and a plan of the scene of the crime have a material bearing on the defence. Counsel has the right to inspect the scene and to photograph it or compile a plan if that does not infringe anyone's interests.
A bus driver, Korotkov, for example, was accused of having caused a collision between his bus and a mobile crane through a violation of the highway code. As a result of the collision the bus was rendered unfit for use. Korotkov pleaded guilty. The barrister assigned to defend him in the people's court went to the spot of the accident and became convinced that the diagram of the road accident was inexact, and that, for that reason, any conclusion that his client was guilty was mistaken. At the court session eye-witnesses refuted Korotkov's testimony in which he acknowledged his guilt. In his speech for the defence the barrister asked for the defendant to be acquitted. The People's Court of the Dzerzhinsky District of Moscow remitted the case for a new investigation, in the course of which the case was dropped.
An application for the inclusion of additional material in the file of the case cannot be rejected on the grounds that the material is unreliable as evidence. While verdicts of guilty must be based on unquestionably reliable evidence, contrary verdicts do not have to meet such a demand. An acquittal, or the dropping of a case, is possible as well in the absence of absolving facts that do not evoke doubt of their reliability, the decisive thing here being that the incriminating facts evoke doubt. If 144 evidence were interpreted solely as reliable information the right of the accused and his defence counsel to present evidence would be limited, because they could only exercise this right when the reliability of the facts presented as evidence was obvious to them. In many cases that requirement is unrealisable since the accused and counsel have not got the procedural means to check the facts presented (this check is by no means always possible for them even beyond the limits of procedural form). The reliability of evidence, moreover, can only be determined when it is examined in connection with the other evidence, and for that reason it is necessary to grant an application for the facts presented to be admitted as evidence even before the matter of their reliability has been settled.^^1^^
Defence counsel, like any citizen, can talk to people and elicit information from them needed for the defence, but he does not have the right to demand a statement from them, since it would otherwise have to be recognised that they had a duty to answer his questions.
Defence counsel presents to the investigator and court only such information as exonerates the accused, and mitigates or excludes his responsibility. His applications for evidence to be produced have to be granted if they indicate what circumstances a witness, expert, etc., can confirm. In that connection counsel must 'indicate what circumstances precisely the supplementary evidence is needed to establish' (CPC RSFSR, Art. 276, 204, and 131). In order to meet these requirements of the law, counsel sometimes needs preliminary acquaintance with the supplementary material he introduces into a trial; otherwise, instead of presenting information favouring the accused, he may prove to be his accuser, a person aggravating the position of his client.
Deciding counsel's procedural position. Defence counsel's procedural position is his view of the main legal and ethical questions in the case he is defending during a trial.
By taking part in the preliminary investigation counsel becomes acquainted with the investigator's position set out in the order laying the charge. If he comes to the conclusion that the _-_-_
~^^1^^ E. F. Kutsova. Garantii prav lichnosti v sovetskom ugolovnom protsesse (Guarantees of the Individual's Rights in Soviet Criminal Trials), Moscow University Press, Moscow, 1972, pp 85--90.
__PRINTERS_P_145_COMMENT__ 10---665 145 charge is not substantiated or has been wrongly qualified, his position can be set out in an appropriate petition or appeal. But counsel's position is by no means always clarified at the preliminary investigation, and no one obliges him to inform the investigator whether or not he considers his client guilty and how he will conduct the defence in court.Before the case goes to trial the procurator has already decided his position. Having convinced himself of the correctness of the indictment, he confirms it. The position of defence counsel, however, takes shape during the whole hearing and is set out in his speech for the defence. Counsel brings out and presents to the court all the facts in favour of his client, and disputes everything dubious and unproven in the accusation. In his speech for the defence he is not tied by the character of the questions asked earlier or the applications filed.
The stand taken by counsel does not depend on whether the investigator or the court agrees with it. Any other approach would orient him on adapting his actions to the expected verdict, and that would lessen his activity, and compel him to refrain from disputing important matters and to reject actions with which the court might not agree. As a result the defence would prove to be defective and timid, which would only harm his client and the interests of justice.
The lawful interests of the accused and the lawful means of defence. When a barrister is applied to for legal aid in a civil case, he asks himself every time about the legality of the interests with whose defence it is proposed to entrust him. In individual cases the answer may come even before the case goes to court, but it is impossible very often to distinguish a lawful interest immediately from an unlawful one. More often than not that calls for study of the arguments of the other side and a careful judicial investigation.
In a criminal trial, as in a civil action, a barrister has the right to defend only the lawful interests of the accused, victim, civil plaintiff, and civil defendant, i.e. to defend interests recognised by the state. But while it is difficult in a civil case to distinguish the client's lawful interests from unlawful ones before final investigation of all the evidence and arguments, it is even more difficult in a criminal action.
146Defence counsel does not know, when he takes on a criminal case and conducts it, whether the accused's denial of his guilt is related to his lawful interest. And the court, too, does not know, before pronouncing judgment. Only when the judgment comes into legal force does the answer to the question of guilt get the necessary definiteness.^^1^^
A barrister must not, of course, defend the accused's unlawful or illegal interests. But it is the accused's right, and one of his procedural guarantees, to deny the charge preferred, and a barrister is obliged by virtue of the law to defend the rights of his client. If an application of counsel's, therefore, is turned down, that does not mean that he was defending an unlawful interest of the accused in filing it.
The accused's interest in defending himself by lawful means is lawful independently of whether or not he confesses. Whatever counsel's view of the proof of the accusation, he is obliged to defend this interest, i.e. to bring out circumstances favourable to the accused.
The matter of the accused's lawful interests is linked with the issue of lawful ways and means of defence. The connection, however, is not grounds for confusing the two concepts.
A barrister has no right to support the accused's striving to conduct his defence by unlawful means. He cannot support an accused's attempts to mislead the investigator or court by suborning witnesses, presenting talse documents, and so on.
A barrister defends by legal means, and only by legal means. Each of his actions, and each act is governed either by the law or by the rules of his professional ethics.
Counsel's inner convictions and the character of his conclusions. It is not just the court that can decide the substance of a case. The procurator and investigator take such decisions during the preliminary investigation when, having weighed up the evidence according to their inner convictions, they drop a criminal case. The court, procurator, and investigator also take other decisions in a case, and the law speaks only of their inner convictions.
At the same time the other parties to an action (and even _-_-_
~^^1^^ Even then a review of the judgment is not excluded either by supervision procedure or because of newly discovered circumstances.
__PRINTERS_P_147_COMMENT__ 10* 147 people not involved who are present in the courtroom) may form inner convictions of one kind or another in regard to the matters being decided by the court. But neither defence counsel nor the other parties, except the investigator, procurator, and court, can take a decision in a case. Counsel's inner convictions therefore do not have the same significance as those of the officials mentioned, and there are no grounds for equating theirs with counsel's.Does it follow from this that counsel takes part in a case with no convictions of his own? Of course not. Counsel performs his procedural function only when he believes in the Tightness of the line of defence chosen and defended by him. Belief in the rightness of the procedural position decided on is necessary because without it inconsistency in the defence is inevitable, and also lack of self-confidence in counsel, and lack of conviction in his arguments.
It is not necessary, however, for counsel to expound his personal view of the case to the investigator or court, but it is necessary for him to extract everything from the evidence in the case that favours the accused. In that he bases himself only on the evidence, and no extraneous information confirming the accusation absolves him from employing all the facts of the case (and the facts presented in addition by himself) that witness to the accusation's lack of substantiation. Any other decision would be equivalent to his refusal to continue the accused's defence.
Barrister L., for instance, who had not been involved in the court of first instance, was asked to take the case in the appeal court. Having studied it he came to the conclusion that there were no grounds for an appeal and therefore decided not to undertake the defence. The praesidium of the college of barristers to which he belonged stressed, in connection with this case, that, as V. I. Weger wrote in his Distsipima i etika ( Discipline and Ethics) (Pravovaya zashchita, Moscow, 1925), such an argument cannot in general be grounds for refusing a defence. Reference to the barrister's subjective convictions did not alter the case. As it turned out in this instance the court found several material infringements and quashed the judgment, and that means that L.'s subjective convictions were refuted by the objective ruling of the court which had come into legal force. In 148 acquainting himself with a case, analysing the facts and evidence, and examining the material from the angle of an appeal, Weger concluded, counsel should not surrender to subjective impressions, but should do his duty; he is bound to render his client legal aid.
In fact, the investigator and court need not counsel's statements about the innocence or reduced guilt of the accused, but his arguments and reasons in favour of the thesis he defends. Facts in favour of the accused do not lie on the surface. It is counsel's duty to find them in the case, put them together, and give them an interpretation in favour of the accused. That precisely is what is demanded of defence counsel.
Counsel cannot base himself on evidence of whose patent falsity he is convinced, but he cannot be required to adduce only true facts because, unlike the authorities involved in the action, he does not have the chance to test his statements beforehand.
In the theory of Soviet criminal law a number of norms are given various interpretations. A different understanding of the criminal law is also a frequent phenomenon in judicial practice. And that obliges defence counsel to subject the interpretation of the criminal law presented in the indictment, whenever possible, to criticism.
Counsel can also argue in favour of a legal norm when he is not convinced of the correctness of his interpretation of it, since
the job of the court is to weigh up all the possible pros and cons for one conception of a legal norm or another, and this task will be lightened for it only if both sides exhaust all the possible arguments in favour of one conception of the norm or another. A barrister is not in court so as to make a legal confession of faith but so as to present everything that favours the accused, the facts in favour of the accused being able to include the circumstance that the accused's guilt may be considered differently, from the legal standpoint, than it is in the accusation.^^1^^
One Simonov was brought to court, for example, on a charge _-_-_
~^^1^^ N. N. Polyansky. Pravda i lozh v ugolovnoi zashchite (Truth and Falsehood in Criminal Defence), Pravovaya zashchita, Moscow, 1927, pp 53--54.
149 of indecency (Art. 120 of the RSFSR Criminal Code). The victims were admitted to be minors who had reached sexual maturity. The prosecutor argued that responsibility lay under Article 120 for the commission of indecent acts in relation to a person 'who had not come of age, i.e. reached 18. For the corpus delicti it was irrelevant whether this person had reached sexual maturity.'^^1^^Defence counsel, while disputing the proof of the accusation, gave another interpretation of Article 120 in which
by minor should be understood, as in Article 119, only persons who have not reached sexual maturity. A literal interpretation of Article 120 would lead to an incorrect conclusion that sexual intercourse with a person who had not come of age but had reached sexual maturity was not criminally punishable while the commission of indecent acts with same was a crime.^^2^^
Counsel stressed that indecent acts in relation to minors who had reached sexual maturity were not recognised as criminally punishable not only by certain academic jurists but also by judicial and procuratorial instances, and forensic medical men. From that position, he said, they could not require the defendant, who had no relation to the application and interpretation of the norms of criminal law, to be aware of the illegality of indecent acts not only with minors who had not reached sexual maturity, but with all minors without exception.
It was fit and proper for counsel to give such an interpretation of Article 120 of the RSFSR Criminal Code. The court knew the prosecutor's understanding of this norm, and therefore should not have been indifferent to another explanation and theoretical interpretation of it. The clash of the prosecutor's and counsel's _-_-_
~^^1^^ G. Z. Anashkin, I. I. Karpets, B. S. Nikiforov (Eds.). Kommentarly k ugolovnomu kodeksu RSFSR (Commentary on the Criminal Code of the RSFSR), Yuridicheskaya literatura, Moscow, 1971, p 285.
~^^2^^ M. I. Kovalev et al. (Eds.). UK RSFSR. Kommentariy (RSFSR Criminal Code. Commentary), Sverdlovsk Legal Institute Press, Sverdlovsk, 1962, p 184.
Article 119 of the RSFSR Criminal Code provides for responsibility for sexual intercourse with a person who has not reached sexual maturity.
150 opinions gave the court the opportunity to find the correct sense of the law: it agreed with counsel.In the rare instances when the accused denies his guilt but counsel does not find other evidence in the materials of the case that contradicts the charge, the question arises of how he should express his attitude toward the proof of his client's guilt.
It is sometimes said that counsel should draw a conclusion about proof of the accusation, or treat it as unproved. But drawing a conclusion about proof of the charge cannot mean anything except substantiation of the accusation, which counsel has no right to do. And when one speaks of counsel's right to recognise the defendant's guilt while the latter denies it, or when one considers that counsel has no obligation in that case to introduce evidence of guilt, it is a question precisely of substantiation of the indictment. The court, of course, has no need of `avowals' by procurator or counsel. It expects arguments from the two sides, reasons, and evidence that support the positions taken by them. If counsel, however, were to demonstrate why he agrees with the accusation denied by the defendant, that would inevitably convert the defender into a prosecutor.
In instances when counsel does not find evidence in the case that refutes the accusation denied by his client, he therefore does not concur with the proof of it. He does not dispute his client's position and does not argue with him, but limits himself to setting out all the arguments in favour of his client stemming from the evidence when the court does not agree with the defendant (in spite of his testimony which is one of the sources of evidence in the case) and finds him guilty.
This position differs essentially from that when counsel confirms himself in an often premature conclusion that his client's guilt is proved. In that case the accused, if he has not already rejected this `defender', is forced to repudiate him.^^1^^
The fullness of the defence. Counsel petitions for rehabilitation of the accused. It would seem that there were no need in that case to bring out circumstances characterising the latter in _-_-_
~^^1^^ L. N. Smirnov (Ed.). Nauchno-praktichesky kommentariy UPK RSFSR (A Theoretical and Practical Commentary on the CPC RSFSR), Yuridicheskaya literatura, Moscow, 1970, p 310.
151 a positive way, since conviction of the innocent is inadmissible irrespective of whether he is a good person or not. It may seem that counsel can also not throw light on the matter of an erroneous classification of the accused's actions if, in his view, those actions do not in general form a corpus delicti, and so on. In fact, however, if the description of the accused or questions of classification and of grounds for remitting punishment were excluded from the province of counsel's proof, and all his efforts were concentrated simply on refuting the charge, he would risk not doing his duty.While applying for an acquittal counsel has no right to ignore the possibility that a verdict of guilty will be found. By the phrase 'counsel is obliged to use all the ways and means of defence prescribed by law' the legislator expressed the idea that none of the circumstances exonerating the accused, or mitigating or ruling out his responsibility, is a matter of indifference to justice and that the state counts on the defender to bring them out. Counsel's view of the accused's innocence does not yet mean its recognition by the investigator, procurator, or court. Counsel does not know whether they will agree with his application for rehabilitation of the accused, and so he is obliged to mobilise all the facts of the case favouring his client, and to adduce all the arguments that are in his favour. That is counsel's duty at every stage of an action in which he is involved.
Fullness of defence is also necessary during an appeal. Practice at the Bar indicates that everything confirming the unsubstantiated character of a judgment must be included in an appeal for annulment or review, drawn up by a barrister. Counsel must point out all the breaches in his complaint or appeal since he is not in a position to foresee whether the body concerned will evaluate a breach committed as material or not. The breaches, when taken separately, may seem inessential, but taken together in the aggregate they may prove material. A critique in an appeal of the whole conduct of the case can have a bearing on the fate of the judgment and subsequent verdicts.
In his appeal a barrister not only can, but must, substantiate the proposition that even when the charge had been proved the court had no grounds for awarding the convicted person such a heavy sentence. In the plea of his appeal a barrister does 152 not refer to the need to quash or alter a judgment. There are no alternatives there, and only one conclusion: counsel asks for the judgment to be quashed. Such an appeal, however, will contain everything that witnesses in the accused's favour, and if the court does not concur in the need to quash the judgment, it may draw grounds from the barrister's appeal to reduce the sentence of his client.
It is not easy, undoubtedly, to pose the question of rehabilitation, and in the same petition for a case to be dropped, in the same speech for the defence, the same appeal or protest to substantiate the erroneousness of the classification or questions of the application of an amnesty. Experience at the Bar is needed for that, and appropriate legal erudition, and of course maximum conscientiousness in working on a case. That is needed, however, because counsel has no right to attach exaggerated importance to his view of the case, and must bring out not just some but all the circumstances in favour of his client.
An experienced barrister, when drawing his final conclusion about his client's innocence, will find room for a positive characterisation of the accused. He will try to convince the court that even if the charge has been proven the accused's actions may not be qualified under the law on the graver crime cited in the indictment, and give solid reasons why the qualification is mistaken, and so on. All that in no way indicates an alternative posing of the matter by counsel. Counsel presses precisely for acquittal of the defendant but, while doing so, he sheds light as well on other points in his client's favour so that the court can employ them if the verdict is one of guilty.
In our view the fullness of defence that the law imposes on counsel is one of the basic principles of criminal defence.
Change of original position. In some cases the procedural position adopted by counsel during the preliminary investigation is altered in court. That is quite natural because an independent investigation of the evidence is made in court, during which the wording of the indictment may undergo changes of some sort or be refuted altogether. We can therefore say with full confidence that counsel is not tied in court to the stand he took at the preliminary investigation.
Can counsel take up a different position in an appeal from 153 the one he defended in the court of first instance? Undoubtedly he can.
Counsel has the right to appeal against the commission of procedural acts that he himself asked for or against which he did not protest, if different evaluations of their effect on the judgment are possible. Counsel has the right, for example, to refer in an appeal to an unwarranted refusal to call a witness, even when he had earlier agreed to the hearing of the case in the absence of this witness, or had even opposed the calling of said witness.
The sides are not obliged to inform the court of the reasons why they alter their position. A court of appeal does not have the right to refuse to hear an appeal or protest on the grounds that the position set out in it diverges from that the party to the action took in the court of first instance, or because he has not explained the reasons for his change of position.^^1^^
Counsel's behaviour must, of course, be consistent. But it is not out of the question that he took a mistaken stand in the court of first instance. The mistake may be recognised as a result of his critical review of his position either under the influence of the reasons of the judgment or because he has obtained additional information.
A mistaken position and counsel's commission of incorrect procedural acts in the court of first instance should be corrected in the court of second instance. Counsel's adherence to principle consists in his recognition and prompt rejection of the mistake made, and not in aggravation of it. We can consequently only speak of counsel's need for careful preparation of his procedural position and responsible attitude toward it, so that he will not subsequently have to abandon it, and not about continuing an obviously mistaken position in an appeal.
__ALPHA_LVL3__ §6. Counsel's ChallengesThe legislator, in demanding objectivity and all-round, full investigation of the circumstances of a case and securing of the rights of the parties to the action from the authorities concerned _-_-_
~^^1^^ I. D. Perlov. Kassatsionnoe proizvodstvo v sovetskom ugolovnom protsesse (Appeal Procedure in Soviet Criminal Proceedings), Yuridicheskaya literatura, Moscow, 1968, pp 61--62.
154 in criminal proceedings, established the procedural institute of challenge as a guarantee of these requirements.The aim of the institute of challenge, moreover, is to create an absolute conviction in the persons involved in a case, and in citizens present at the session or learning about the trial from some source or other, that the case was instituted, investigated, heard, and decided quite impartially and objectively, which significantly raises the moral prestige and authority of court proceedings.
Challenge when there are doubts about the impartiality of the person challenged. Article 18 of the Fundamentals reads:
A judge, people's assessor, procurator, investigator, person conducting an inquiry, court secretary, expert, specialist, and interpreter may not take part in the proceedings of a criminal case and are liable to challenge if they are personally interested, directly or indirectly, in that case.
When there are circumstances that might give a pretext for doubting the impartiality of the persons listed, they are bound to refuse to take part in the proceedings. For it is primarily they who know in what instances they have no right to take part in the proceedings of a case. As for the other parties, they do not always by any means know of these circumstances.
If refusal to take part is not declared and grounds for challenging are known to the parties to the action, they have the right to make a challenge, either verbally or in writing. The regulations about declaration of interest and challenges anticipate quashing of verdicts on grounds of the illegality of the composition of the court, or the personal interest of the investigator, procurator, or other officials, discovered during checking of the case.
The criminal procedure codes of the Union republics, developing Article 18 of the Fundamentals, give an approximate list of grounds for challenge (CPC RSFSR, Art. 59 to 61, 63 to 67, 374, and 377). The Soviet legislator, allowing for the complexity and diversity of life's phenomena, does not attempt to list all the possible grounds for challenge; the law therefore contains a very general indication in principle for the removal from a case of a judge, procurator, investigator, court secretary, expert witness, 155 specialist, or interpreter in regard to whom circumstances have been shown that throw doubt on their impartiality.
If there are circumstances entailing challenge of the persons named in Article 18 of the Fundamentals, not only do the decisions become inoperative but so, too, does the evidence obtained by or through them. The representative of the civil plaintiff, for example, as a person interested in the outcome of a case, cannot take part in the proceedings as an expert witness; a consequence of the involvement of such an expert would be recognition of his conclusion as inoperative, and the calling of new expert evidence, enlisting persons with no personal interest in the outcome of the case.^^1^^
The fact that a verdict of guilty can only be found by a court means that no one, including the judges, has the right to decide the question of guilt before a verdict of guilty is brought in. A judge's whole conduct, his statements, the questions he puts, and his attitude to the persons involved in the case, must demonstrate his complete objectivity. If a judge declares, for example, that the defendant is not speaking the truth, any further hearing of the case may prove an empty formality.
It is sometimes enough to protect his client's rights for a barrister to object to the judge's improper acts and to ask for his statement to be noted in the record of the session, without challenging the judge.
At the same time the law sanctions all measures to remove a biased judge from a case. The USSR Supreme Court concludes that a judgment is subject to absolute repeal if there are facts in the case throwing doubt on the impartiality of a judge who took part in deciding the verdict.^^2^^ The aim of the rules on challenging a judge is to ensure an objective, unprejudiced trial, and counsel's challenge, when there are grounds indicated in the law, upholds the authority of the court. Departure from these _-_-_
~^^1^^ BVS RSFSR, 1966, 5: 11; BVS SSSR, 1972, 1: 28; BVS RSFSR, 1974, 7: 8.
^^2^^ S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Criminal Law and Procedure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, pp 287--288, 351.
156 rules infringes the right to defence, and the judgment is therefore quashed.^^1^^The persons listed in Article 18 of the Fundamentals must form their view of a case on the basis of the information they draw from the facts of the case alone. If their view is formed in any other way they have no right to come into the case. A judge (or other official), for example, has no right to take part in the hearing of a case if he has been interrogated, or may be interrogated, as a witness. Under the CPG Moldavian SSR a judge is liable to challenge
and under the GPC RSFSRif he has conducted the official investigation or checked the circumstances of the case or been involved in the taking of decisions about it in any social or state body (Art. 22);
an expert witness cannot take part in the hearing of a case . . . if he has made an inspection or audit in the case that has served as grounds for instituting proceedings (Art. 67), and so on.
In this respect the ruling of the USSR Supreme Court in the case of Sinelobov is of principled importance. The eye-- witnesses of hooliganism he was accused of were persons, one of whom was later involved in the case as investigator, and another as people's assessor. In quashing the judgment found in the case, the USSR Supreme Court said:
_-_-_A judge who is an eye-witness of the action or omission charged even before all the circumstances of the case have been checked appears in court with an already formed opinion that prevents him, with all good conscience, from being an impartial judge bound to find a verdict according to his convictions based on a hearing of all the circumstances of the case in their aggregate. ... In the meaning of the law, the view of a judge expressed in the judgment of a case must thus be formed exclusively as a result of hearing and weighing up all the circumstances in the case, and not before the case is heard.^^2^^
~^^1^^ BVS RSFSR, 1977, 3:12.
~^^2^^ Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR 1943 g. (Digest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court 1943), Yurizdat, Moscow, 1948, p 150. Similarly, Sovetskaya yustitsiya, 1976, 3:17.
157 In the Supreme Court's conclusion,is an obstacle to objective, all-round investigation of the facts of a case both by the investigator himself and by the judge.the fact that the investigator is an eye-witness of the crime charged, and already has his own view of the case even beiore starting the investigation, based on his personal impressions,^^1^^
The duty to point out circumstances raising doubts of the challenged person's impartiality. Under Article 61 CPC RSFSR 'reasons must be adduced for a challenge'. In other words, when a party to an action lodges a challenge he must indicate the concrete facts on which it is based (e.g. a family relationship between a people's assessor and the victim; second involvement of the judge in the hearing of the case; and so on).
An approximate list of the grounds for challenging a judge or other persons is given in the criminal procedure codes of the Union republics; it is said, moreover, that they cannot take part in a case if 'other circumstances are shown that throw doubt on their impartiality'.^^2^^ Thus, for a challenge to be granted it is necessary and sufficient to point out circumstances calling the challenged person's impartiality in question.
A judge has the right to give an explanation apropos of declaration of his self-interest (CPC RSFSR, Art. 62). As for the challenger, he has the right to present evidence confirming his challenge. He may not, however, always be able to do so, but it does not generally follow that he has to refrain from challenging or has to call for evidence to be produced to confirm his challenge. The criminal procedure codes do not provide for the hearing of a case to be postponed in order to obtain such evidence and subsequently check it in court, since that would drag the case out and divert the court from its task of judging the case on the facts. The USSR Supreme Court has ruled: _-_-_
~^^1^^ Ibid.
~^^2^^ Article 32 CPC Uzbek SSR; Article 53 CPC Georgian SSR; Article 28 CPC Azerbaijan SSR; Article 29 CPC Lithuanian SSR; Article 22 CPC Moldavian SSR; Article 24 CPC Armenian SSR; Article 25 Turkmen SSR; etc.
158The law does not oblige the sides making a challenge to present evidence of the circumstance communicated by them that serves as the grounds for the challenge.^^1^^
The importance of the convictions of counsel and the accused when challenging. A party to an action, before the challenging, has the right to ask the person to be challenged to communicate certain information about himself. Counsel may know, for example, when and by whom an investigator or a procurator was appointed to his post, or when a judge or people's assessor was elected, and whether their period of office has expired. He has the right to know what is the education, speciality, and length of service in that speciality of an expert witness, by what an interpreter's knowledge of a language is attested, and so on.
Counsel cannot cite information whose patent falsity he is subjectively convinced of. He therefore does not have the right to make and sustain a challenge based on such information.
At the same time counsel does not always have the opportunity and means for a preliminary checking of his statements and may also introduce statements about whose truthfulness he does not yet have any facts and whose truthfulness or falsity he can equally assume. Counsel can also try to demonstrate the truthfulness of those facts that seem doubtful to him himself. In that way he helps dispel doubts and further a well-grounded judgment. In doing so, it goes without saying, he must try to avoid discrediting the person challenged.
Counsel sometimes does not agree with the accused's intention to challenge. In that case he states his point of view in detail to his client, and if, all the same, the accused challenges, counsel does not express his disagreement with the challenge to the investigator or the court. Counsel has the right, for example, to limit himself, in reply to a question from the presiding judge _-_-_
~^^1^^ Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR 1944 g. (Digest of Decisions of the Plenum and Rulings of the Benches of the USSR Supreme Court 1944), Yurizdat, Moscow, 1948, pp 188--189.
159 about his attitude to a challenge made by the defendant or another party to the action, to a reminder about the need to take a decision on the challenge.A barrister cannot help taking into consideration that a petition or challenge made by him and other procedural acts entail serious consequences for the client he represents. That is why he takes the accused's view into account when challenging, and challenges in accordance with his client's wishes. A barrister may not take the accused's point of view into account only when the latter is unable to defend himself independently because he is not of age or because of physical or mental handicaps.
The consideration of challenges and complaints about their rejection. A challenge made must be considered and decided. A challenge left undecided is grounds for quashing the judgments made in a case. In the case of Rykunov and others, for instance, the RSFSR Supreme Court ruled: 'If the court has not examined the challenging of a judge in the manner established by law, the judgment is liable to annulment.'^^1^^
The ruling on a challenge is decided by the court in the consultation chamber and is set out in a separate document (CPG RSFSR, Art. 62, 261). This procedure provides the judges with the opportunity to discuss it calmly without outside interference, and to make a reasoned ruling on this very important matter. The parties may lodge an appeal if they disagree with the ruling.
As for the decision on the challenging of a party in the preliminary investigation, it may be appealed against to the superior procurator (GPG RSFSR, Art. 218 to 220).
__ALPHA_LVL3__ §7. Counsel's Participation in the Court HearingIn the USSR a court is the sole body administering justice. All the pre-trial activity of the preliminary investigative bodies, while important for discovering crimes and unmasking the persons accused of them, is preparation for the court's examination of the case.
At the hearing the circumstances of the case are investigated on the basis of openness, directness, and contentiousness. It is _-_-_
~^^1^^ BVS RSFSR, 1977, 3: 11. 160
160 then that the principle of securing the accused's right to defence and other procedural and ethical principles operate most fully. During the hearing in court counsel has the right to lodge petitions and challenges; to express his opinion on the possibility or impossibility of hearing the case in the absence of any of the persons summoned to court and in regard to applications and petitions and the manner of investigating the evidence; to raise objections to the commission of acts in court that restrict or infringe the rights of parties to the action; to take part in the investigation of evidence from the standpoint of defence of his client and to question witnesses, victims, defendants, and expert witnesses for that purpose; to take part in examinations and inspections; to take part in the pleadings; and to file motions in writing with the court in regard to the substance of the prosecution of his client.Participation in the court interrogation. Establishment of the truth is inconceivable without a critical checking of the evidence, and the court makes that check with the assistance of defence counsel.
Persons are summoned to court to confirm the charge preferred against the defendant according to a list compiled by the investigator. Having once signed the record of the interrogation they usually try to repeat their testimony in court as set down in it. That, plus the danger of getting an answer unfavourable for his client and complicating his position, calls for special skill in a counsel taking part in the court questioning.
During questioning counsel brings out new information for the defence or ferrets out aspects of already known circumstances that favour his client. Counsel may put any questions to the persons being examined if they bear on the case and are properly worded. The presiding judge has no right to rule them out.^^1^^ It is impossible, for example, to rule out a question to a witness on the grounds it does not relate to the circumstances for which the witness was summoned on counsel's application. Departure from this procedure is an essential breach of the law on criminal procedure.
_-_-_~^^1^^ When the form of a question, and not its substance, evokes an objection from the presiding judge, he himself puts it, or suggests to phrase it differently, but does not rule it out.
__PRINTERS_P_161_COMMENT__ 11---665 161Since the prosecutor and defence counsel perform opposing procedural functions in a hearing, each of them strives during interrogation to prove that he is right and the position of his procedural opponent is wrong. A barrister so questions the accused, victim, witness, and expert that the answers to his questions will be taken by the court in favour of his client's innocence or reduced guilt. His questions counter the prosecutor's convicting questions. Counsel puts them to refute the position of the indictment expressed in the procurator's questions. That comes out particularly clearly during cross-examination, when the questions and answers are concentrated around some circumstance or another.
Every case is individual and calls for a special approach, but there are no cases in which a barrister has any right to appear in court unprepared. He also prepares carefully, of course, for the court questioning. For that he discusses the assembled evidence with his client. During the discussion information may come out that helps counsel avoid mistakes. Counsel agrees a list of questions with the defendant for the persons examined in court. They also agree on who will put what questions in court.
When taking part in questioning counsel is guided by the prescriptions of procedural law and the ethical norms of the court examination. These norms demand a correct attitude toward the person questioned, conduct of the examination without any shortness of temper or irritation or unwarranted emotionality, and without retorts apropos of the answers obtained, etc. Departure from the procedural and ethical rules of examination can entail undesirable consequences for, and disciplining of, the barrister.
Counsel endeavours to avoid conflict situations, but if some one of the parties in the hearing puts a leading question, for example, or confuses the person being examined, a barrister has the right, basing himself on his client's interests, to make an appropriate statement which is noted down in the record of the session.
Participation in the pleadings. The making of a speech for the defence gives counsel a chance to subject the wording of the indictment to developed criticism and to expound all the arguments in favour of the defendant to the court. In that he 162 takes into account that the value of the critique lies in its truthfulness and the social significance of the issues raised. Like all his activity in court, counsel's speech for the defence is aimed at persuading the judges of the correctness of his stand and at bringing them to a verdict favourable for the defendant.
Participation in the pleadings is an important right of a side and a premise for finding a just verdict. The RSFSR Supreme Court has ruled that
In a decision on courts' practice of applying laws securing the accused the right to defence, the Plenum of the USSR Supreme Court stressed that 'a court must not limit the parties in the pleadings when they are expounding their arguments on the substance of the accusation'.^^2^^depriving the procurator and a barrister of the right to plead in court ... is a material breach of the criminal procedural law since it deprives the court of the opportunity to go thoroughly into a case and can affect the finding of a lawful, sound verdict.^^1^^
The onuses of proof of the sides in the pleadings do not coincide. The procurator is bound to bring out circumstances in his speech that both incriminate and exonerate the accused, and also facts that aggravate or mitigate his responsibility. In the speech for the defence the court's attention is drawn only to circumstances that exonerate the defendant or rule out or mitigate his responsibility. At the same time a barrister subjects the arguments and evidence on which the accusation is based to critical analysis.
One must, when examining the onus of proof of the parties in the pleadings, dwell upon each instance of the procurator's waiving of the charge. When the procurator refrains from maintaining the accusation counsel's task is simplified, but since that rejection is not mandatory for the court, counsel must not simply support the procurator but must make a comprehensive speech for the defence and in it pull all the arguments and evidence to pieces. That way he can dwell on much in favour of the defendant that the procurator perhaps did not mention when _-_-_
~^^1^^ BVS RSFSR, 1970, 6: 10.
~^^2^^ BVS SSSR, 1978, 4: 11.
163 refuting the charge. They may differ on the motives and grounds on which a verdict of not guilty should be based, and these differences need to be elucidated and argued in the speech for the defence.The procedural position and substance of the speech for the defence are predetermined by counsel's procedural function. He is needed in an action for the defence, and not for anything else. Therefore a speech in which he asks for a lighter sentence when the defendant has pleaded not guilty calls for resolute objections.
An effective plea, especially in an intricate case, calls for careful preparation. On the basis of Articles 13 and 27 of the Fundamentals the court is bound to allow a petition for a granting of the time needed to prepare a plea.
In the pleadings counsel speaks after the public and social prosecutors, the private prosecutor, the civil plaintiff and civil defendant, or their representatives. That order favours establishment of the truth and securing of the defendant's right to defence.
In cases in which there are several defenders they discuss the order in which the speeches for the defence will be made and petition the court for their proposal. Counsel endeavour, moreover, to see that their own speeches present the arguments for the defence in orderly fashion and are not a piling up of speeches haphazardly following one another.
When the interests of the defendants are contradictory each of them is mandatorily provided with a defender (CPC RSFSR, Art. 49, para. 5). The legislator bases himself on the fact that the counsel of one defendant in such a situation may be forced to incriminate another defendant. In that connection the counsel who may incriminate the other defendants must speak first. With that order the most favourable conditions are created for defence of the other defendants, and their counsel have the chance to refute not only the prosecutors' arguments but also those of the other counsel. When counsel come to agreement on this sequence of their speeches for the defence, their proposal is adopted by the court, but when they propose a different order or do not reach agreement, the sequence of their speeches is decided by the court.
164Departure from the order of pleadings stemming from the procedural law is treated as a breach of the defendant's right to defence.
A collision of defendants' interests complicates defence counsel's work. He cannot leave attacks on his client by other accused or their counsel unanswered, but this rebuff is only admissible 'within the limits of necessary defence'. Counsel must restrict himself to the strict limits of a professional dispute, and endeavour to limit the defence to the minimum really necessary to refute the charge or mitigate his client's responsibility. Counsel's statements against other accused are only considered justified when it is otherwise impossible to defend the accused person who has entrusted his fate to him. Counsel must be as tactful as possible and restrained in relation to those accused against whom his arguments are directed.
Counsel has no right, without adequate grounds, to shift his client's guilt onto other persons or to make it lighter by aggravating their guilt, or even more to worsen the position of other persons when his client's interests do not require it. In the case of one Fyodorov, the barrister demonstrated the extortion of a bribe from his client.^^1^^ He ended his speech for the defence with a plea for Fyodorov's acquittal and a heavy sentence for the bribe-taker Khovrin. The barrister's efforts directed to securing Fyodorov's acquittal were quite legitimate. As for the plea for a heavy sentence for Khovrin that was not caused by the need to defend Fyodorov and in fact converted defence counsel into a direct and unlawful prosecutor.
Aggravation by counsel of the contradictions between the interests of their clients may get a hostile reception from those present at the session and often does harm to all the defendants in the case.
Since estrangement of counsel strengthens the prosecution and weakens the defence, counsel endeavour, if the facts of the case permit, to unite and co-ordinate their efforts for the defence. In a trial with several defendants the defence is not the isolated, _-_-_
~^^1^^ Under Article 174 of the RSFSR Criminal Code, a person giving a bribe is exempted from criminal responsibility if the bribe has been extorted from him.
165 separate speeches of the individual counsel, but the purposeful collective activity of all the representatives of the defence. The contradictory interests of the defendants do not rule out solidarity of counsel on positions being defended that bear on the defence of all or some of the defendants. That concerns applications and petitions as well as speeches for the defence. The petition of one counsel, for example, may be very important for the whole case, and then it is to some extent or another the concern of all the parties to the action. In that case several counsel may support a petition although it does not bear directly on each of their clients.The Criminal Procedure Codes of the RSFSR (Art. 298) and Azerbaijan SSR (Art. 318) provide for the right of the parties in pleadings to present their propositions on the substance of the indictment to the court in writing.^^1^^ This document does not have any binding force on the court but it is discussed in the consultation chamber and may be employed by the judges when preparing their judgment in the case.
In a number of cases it is necessary for a barrister to prepare petitions and written proposals. Sometimes the pleadings and the defendant's last words take many days. Breaks before the court withdraws to the consultation chamber are also frequent. All that makes it difficult for judges to remember the substance of several speeches for the defence. When they have a document in which propositions on the matters under decision in the verdict are formulated, it may prove to help both the court and defence of the defendant.
Written propositions on the substance of the charge can be presented by counsel at any moment between completion of the pleadings and withdrawal of the court to the consultation chamber.
The defendant often asks counsel for help in preparing his final statement. This may differ from his statements during the hearing; at the same time it forms part of the defence, and is a _-_-_
~^^1^^ According to the CPC Estonian SSR the parties in pleadings have the right to present the text of their speeches to court before its withdrawal to the consultation chamber for attachment to the record of the session (Art. 257).
166 continuation of it. Counsel therefore advises the defendant what to say in his last word, and how to say it.The record of the session. The procedure for compiling records established by law is meant to guarantee the rights of the citizens involved in criminal proceedings. The content of the record of a court session has no little significance for appealing against a judgment, so that it is not fortuitous that counsel pays close attention to it.
Since counsel has an interest in a proper reflection in the record of all the circumstances of a hearing that serve defence of the defendant, he must watch that the court secretary is making a proper record, and not hurry with the posing of his next question. When necessary counsel may put a clarifying question and draw the attention of the person questioned to the fact that the secretary has not managed to write down his words. It is also legitimate for counsel to ask for a certain statement, expression, etc., to be included in the record, since the record of a session reflects the applications and petitions of the persons involved in the case, and indications of facts they ask to be certified in the record (CPC RSFSR, Art. 264, 243).
The notes that the secretary makes during a hearing are not in themselves the record of the session. They become such after they have been signed by the presiding judge and the secretary. A judgment is liable to unconditional repeal if there is no record of the session in the file. By absence of a record is meant both its actual absence and failure of the secretary or presiding judge to sign the recorded notes.^^1^^ It must be remembered, moreover, that the record of a session has no force as evidence if written by the presiding judge of the case, even though signed by the secretary.^^2^^
The court secretary's objectivity is a sine qua non of a correct reflection of the course of a hearing, and the rules on challenging apply to him (CPC RSFSR, Art. 62, 272).
All amendments, additions, deletions, and corrections are _-_-_
~^^1^^ Paragraph 8 of Article 370 CPC Ukrainian SSR; S. V. Borodin (Ed.). Op. cit., p 415.
^^2^^ L. N. Smirnov (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po voprosam ugolovnogo protsessa 1946--1962 gg., pp 150--151.
167 specified in the record and certified by the signatures of the presiding judge and court secretary, and all blank lines and pages ruled out. According to the conclusion of the USSR Supreme Court,negligent compilation of the record of a court session depriving a superior court of the possibility of using it as a source of evidence and of checking the correctness and validity of a judgment entails repeal of the verdict.^^1^^
The record of a session must not be a free rendering of the sense of the testimony of the defendant, witness, and victim, but notes reproducing as exactly and fully as possible the testimony of persons examined and the substance of the course of the session. Inclusion in the record (for re-examination of the case) of the testimony of witnesses examined not at that session but during the first hearing of the case, entails quashing of the judgment because it is a breach of directness and other procedural principles.^^2^^ The record, like a judgment, is written in the language in which the session is conducted.^^3^^
The correctness of a court's acts and the conformity of the judgment with the facts of the hearing are checked according to the record of the session. At the same time other materials of the case can also be employed for this in individual instances. In one case, for example, the accused admitted in his final word that he had given false testimony about another defendant. Since this circumstance was not reflected in the court record but had been written into a dissenting view by a people's assessor, the barrister referred to this view in his appeal for supervisory review.^^4^^
The presiding judge is bound, under the law, to grant the parties in an action the opportunity to acquaint themselves with _-_-_
~^^1^^ S. V. Borodin (Ed.). Op. cit., p 415.
^^2^^ Ibid., p 349.
~^^3^^ Ibid.
^^4^^ G. Z. Anashkin (Ed.). Sbornik postanovleniy Plenuma i opredeleniy Kollegiy Verkhovnogo Suda SSSR po ugolovnym delam 1959--1971 ,?,?. (Digest of Decisions of the Plenum of the USSR Supreme Court and Rulings of Its Criminal Benches 1959--1971), Yuridicheskaya literatura, Moscow, 1973, pp 376--377.
168 the court session's record. Refusal is recognised as a gross procedural breach. An appeal court, on discovering that counsel was not able to acquaint himself with the record, or that counsel's observations on the record were left unexamined, remits the case to the court of first instance for the requirements of the law to be met.^^1^^In order to employ the facts of the hearing and to draw conclusions about the correctness of the record, counsel himself keeps notes of the course of the session. Usually he makes ordinary notes, but sometimes a stenographic record. And counsel, the prosecutor, and other parties to an action may also employ a tape recorder or dictophone when acquainting themselves with a case and during its hearing in open court.^^2^^
Under Article 264 CPG RSFSR, the record must be prepared and signed not later than three days after the end of the session.^^3^^ For cases whose hearing has lasted several days the record can be signed in parts at the end of each day of the session, which helps improve its quality. This is done not only in Azerbaijan, where the Criminal Procedure Code specially stresses the possibility of signing the record in parts (Art. 281), but also in the administration of justice in other Union republics. Tardy preparation of the records of court sessions is not permitted.^^4^^
If an inaccuracy slips into the record or it proves to be incomplete, the sides can file in their observations, which are considered by the presiding judge who, if he agrees with them, certifies their correctness and attaches them to the record of the session. If he disagrees with the comments they are submitted to a procedural session of the court. Comments and observations _-_-_
~^^1^^ BVS RSFSR, 1962, 3:13; 1963, 10:14; 1972, 4:8; S. V. Borodin (Ed.). Op. cit., pp 349--350.
^^2^^ A. A. Levi. Zvukozapis' v ugolovnom protsesse (Tape Recording in a Criminal Trial), Yuridicheskaya literatura, Moscow, 1974, p 22.
~^^3^^ Other periods for the preparation and signing of the record of a court session are provided for in the CPC Uzbek SSR (Art. 241), CPC Byelorussian SSR (Art. 264). and CPC Latvian SSR (Art. 87).
~^^4^^ V. V. Shubin et al. (Eds.). Sbornik postanovleniy Plenuma Vefkhovnogo Suda RSFSR 1961--1977 gg. (Digest of Decisions of the Plenum of the RSFSR Supreme Court 1961--1977), Yuridicheskaya literatura, Moscow, 1978, p 10.
169 on the record are important procedurally and should therefore be considered carefully and objectively.^^1^^Comments whose correctness has been certified become part of the record, and all parties to the action, and not just those who filed them, have the right to refer to them as evidence. Comments can only be rejected by a reasoned ruling of a procedural session of the court. A private appeal or protest cannot be filed against such a ruling, but a criticism of it can be included in other appeals or protests addressed to the appeal court.
Under the criminal procedure codes of some Union republics the parties to a hearing have the right to be present at a procedural session to substantiate the comments made by them on the record of judicial session.^^2^^ Under the codes of other republics the court summons persons who have filed comments on the record to a procedural session only when necessary. Counsel has the right to employ these norms and to press to be granted the opportunity to substantiate his comments on the record.
Comments on the record are sometimes filed after the deadline. In that case the judge has no right by himself to refuse to accept them and the question of extending ,the deadline is decided by the court on an application giving valid reasons for having missed the deadline (CPC RSFSR, Art. 104).^^3^^ A private appeal can be lodged against a court's refusal to extend a deadline.
Comments on the record of a court session are attached to the file of the case (CPC RSFSR, Art. 266).
__ALPHA_LVL3__ §8. Counsel's Appeals against the Acts and DecisionsThe right to criticise shortcomings and deficiencies in the work of the authorities and officials, and the right to appeal against their actions and decisions are among the basic rights of Soviet _-_-_
~^^1^^ See the decision of the Plenum of the USSR Supreme Court of 16 June 1978 on courts' practice of applying laws securing the accused's right to defence (BVS SSSR, 1978, 4:11).
^^2^^ Article 91 CPC Armenian SSR; Article 110 CPC Turkmen SSR; Article 110 CPC Moldavian SSR; Article 101 CPC Georgian SSR.
~^^3^^ S. V. Borodin (Ed.). Op. cit., p 320.
170 citizens consolidated in the Constitution of the USSR (Art. 49, 57, and 58).By appealing against decisions taken in criminal proceedings citizens can actively promote disclosure of the truth. An appeal against a mistaken judgment is a useful and necessary matter not only for the interested party but also for society, because it furthers protection of legality and elimination of breaches of legality.
The right to criticise and complain is a legal right of citizens, and there are corresponding duties of the authorities and officials, who are obliged to consider complaints and appeals in the manner and within the time established by law, to reply to them, and to take the necessary steps and measures (Art. 49 and 58 of the Constitution of the USSR).
It is also important that exercise of these rights should not do harm to citizens of the socialist state. The Constitution reads (Art. 49): 'Persecution for criticism is prohibited. Persons guilty of such persecution shall be called to account.' The matter is treated similarly in Articles 47 and 52 of the Fundamentals and other norms of socialist criminal procedural law.
Counsel's right to appeal against the investigator's actions and decisions. This right is guaranteed by the investigator's being obliged to send the complaint or appeal to the procurator within 24 hours with the explanations, and the procurator's being bound to examine it within three days and to inform counsel of the results of his examination, with a statement of his reasons if the complaint or appeal is held to be unfounded (CPC RSFSR, Art. 218, 219).
An appeal against an investigator's actions and decisions and the procurator's examination of the complaint have a procedural character, and the complaint and the procurator's decision on it, and all other documents connected with it, must be put into the file of the case. Inclusion in the file of everything done on a complaint plays a substantial role as regards defence of the accused's rights, and there must be no exception to it.
A complaint is handed direct to the procurator or passed to him through the investigator against whose actions it is made. Counsel has the right to report his complaint to the procurator at a personal interview. Examination of the complaint includes 171 not only study of the complaint itself but also of the materials of the case, the procurator's demanding and obtaining of supplementary explanations from the investigator, and so on.
When a complaint is met, the procurator's decision indicates the breaches of the law made by officials during the investigation. Depending on their character the procurator cancels the investigator's mistaken decisions, gives written instructions on the conducting of investigative acts, etc. (Art. 29 of the Law on the Procurator's Office of the USSR of 30 November 1979).
The requirement of Article 219 CPC RSFSR for the reasons for refusing to satisfy a complaint to be set out in the decision is aimed at securing the rights of the complainant and the persons in whose interests the complaint is laid, and helps the procurator to take lawful, well-grounded, just decisions.
Counsel has the right to appeal to the procurator against any acts and decisions of an investigator, including his formal rejection of an application. The complaint may be laid before the application is made to the procurator, or instead of it.
According to the law 'a filed application is subject to immediate decision'. And although this rule comes in that part of the criminal procedure codes concerned with the court hearing,^^1^^ that is no obstacle to its implementation as well at the stage of the preliminary investigation.
At the end of the preliminary investigation the accused and his counsel must be presented with 'all the materials in the case', and not just some of them (CPC RSFSR, Art. 201--203, 46, and 51). These include all formal decisions taken during the preliminary examination, including those on the applications filed.
The sending and serving of summonses, records, decisions, and other acts of the preliminary investigation are counted as procedural actions. In accordance with Article 207 CPC RSFSR the investigator has no right, after a case has been passed to the procurator, to perform any procedural acts, and in particular to send formal decisions on applications filed.
The sending of such a decision after the case has been passed _-_-_
~^^1^^ CPC Uzbek SSR (Art. 258); CPC Moldavian SSR (Art. 246); CPC Armenian SSR (Art. 266); CPC Georgian SSR (Art. 279); CPC Turkmen SSR (Art. 285).
172 to the procurator (and even more so after it has been brought to court) would be a breach of the right to defence, because it excludes the opportunity to lodge a new application or to challenge, or appeal against, the decision to the procurator. The RSFSR Supreme Court concludes that depriving counsel of the opportunity to appeal against a decision of the investigator is evidence of restraint of the rights of the parties in the action and is one of those material breaches that entail quashing of the judgment.^^1^^Only after an investigator has provided the opportunity to lodge a complaint with the procurator, and to exercise the other rights indicated in Articles 201 and 202 CPC RSFSR, can he propose signing of the minute on 'presentation of all the materials in the case to the accused and his counsel' (CPC RSFSR, Art. 203). And only after counsel has acquainted himself with the decision on the application filed, does he sign the minute.
The preliminary investigation agencies cannot drop a case on grounds of the statute of limitations or an amnesty, if the accused, not considering himself guilty, opposes it. That being so the case is continued in the normal manner and may end, when brought to court, in rehabilitation of the accused or, if a a verdict of guilty is found, in release of the defendant from punishment. Thus the accused, when appealing with the help of counsel against a decision to drop a case, and getting it heard by a court, is protected against the danger of worsening his position and from the risk of being sentenced.
Counsel's complaint against actions and decisions of the procurator. Under Articles 51 and 220 CPC RSFSR a complaint of this kind is lodged with the superior procurator.
If a district procurator, for instance, has supervised an investigation, a complaint against his actions and decisions is sent to the procurator of the administrative region.
Complaints to the Procurator's Office are examined by procurators and their deputies and assistants.
The Procurator-General of the USSR obliges procurators to give concrete answers to complaints, naming the date of fulfilment, and informing the complainant of the measures taken. It _-_-_
~^^1^^ BVS RSFSR, 1973, 7: 13. 173
173 is categorically prohibited for complaints to be passed for decision to procurators whose actions are complained about.Under Article 22 of the Fundamentals counsel has the right to begin his activity, by a writ of the procurator, from the moment the charge is laid in any criminal case.^^1^^
The accused usually does not know of the possibility to get the help of defence counsel before completion of the preliminary investigation. Because of that the duty of the persons conducting the action to explain his rights to the accused and to provide him with the chance to exercise them is very important (Art. 27 of the Fundamentals). In particular the agency conducting the action
on the basis of Article 149 CPC RSFSR and corresponding articles of the criminal procedure codes of other Union republics must explain to the accused his right to apply to the procurator to permit a defender to take part in the case from the moment of the laying of the charge.^^2^^
The procurator has the right to admit defence counsel on his own initiative, or on that of the investigator or other persons, or on the application of the defendant, his relatives, or the barrister retained by them. The grounds for his decision may be linked with the character of the case, its complexity, or the personality of the accused. A case, for example, in which the period of detention in custody is protracted (CPC RSFSR, Art. 97), or one remitted for additional investigation, is intricate. Counsel's appearance from the moment the charge is laid against an adult may be determined by the fact that counsel for a minor is assisting in the case from that moment, and the interests of the accused are contradictory. A special need for the help of counsel arises when the accused is not sufficiently literate, or is of advanced age, and in other instances. An appeal _-_-_
~^^1^^ In the cases of minors or persons whose physical or mental handicaps prevent their exercising their right to defence, the assistance of counsel is mandatory from the moment the charge is laid, and no order of the procurator's is needed for it (CPC RSFSR, Art. 49).
^^2^^ See the decision of the Plenum of the USSR Supreme Court of 16 June 1978 on courts' practice of applying laws securing the accused's right to defence already cited (BVS SSSR, 1978, 4: 9).
174 against a procurator's unwarranted refusal to admit counsel can further securing of the accused's rights.After a case has been brought to court all applications, petitions, and complaints are made directly to the court. These documents must be in the file of the case and the court finds its verdict on them (CPC RSFSR, Art. 22, 217). Only when the court is unable to decide on a complaint, is a copy of it sent to the appropriate organisation.
Counsel's involvement in an appeal. Appeals take up a good part of counsel's time. For that reason we must dwell on certain of the most important problems of an appeal made by counsel.
Freedom of appeal is a basic principle of Soviet cassation. The defendant, victim, and certain other parties to an action are free to decide whether to appeal, and their decision not to do so cannot be considered as agreement with the judgment.
While the right to appeal is dispositive, however, for the accused and certain other parties to an action, it is far from so for defence counsel. A barrister must appeal against a judgment every time he considers it incorrect and his client shares his view. If that is not done, then, judging by the many years' practice, for example, of the praesidium of the Moscow City College of Barristers, disciplinary action will be taken against the barrister, irrespective of official instructions for him to appear before the appeal court.
Furthermore, a barrister is obliged, irrespective of his view of the judgment, to draw up an appeal if his client requests it. Any other attitude to this request would be an unlawful refusal by the barrister to continue the defence (Art. 23 of the Fundamentals).
A barrister has no right to appeal against a judgment against the will of his client.^^1^^ The accused has the right to have defence counsel, but counsel's help cannot be forced onto him; so a barrister must agree the matter of an appeal with his client.
_-_-_~^^1^^ An appeal without the client's consent is possible, by way of exception, in the cases of minors and persons who cannot exercise their right to defence themselves because of physical or mental handicaps, and also of persons sentenced to death (CPC RSFSR, Art. 50, part 2).
175The law states quite unambiguously that 'the accused has the right at any moment in a case to repudiate counsel' (CPG RSFSR, Art. 50). 'Any moment' means also the moment of discussing whether to appeal. Therefore, when a client informs his counsel orally or in writing that he does not wish to appeal, counsel has no right to do so. If, in spite of that, he lodges an appeal, he fails in his duty, and the defendant has the right to recall it. In this case the recall of the appeal will be the defendant's repudiation both of the appeal and of counsel (CPC RSFSR, Art. 50; CPC Ukrainian SSR, Art. 353). The court of appeal (second instance) has no right to hear a recalled appeal or protest.
Part 6 of Article 338 CPC RSFSR speaks of the right of a person appealing against a judgment to recall his appeal. Application of this norm to defence counsel is permissible, taking into account the requirements of part 5 of Article 51 CPC RSFSR, by which a barrister has the right to recall his appeal only when his client concurs.
Freedom to appeal is also guaranteed by the fact that the law does not fix a definite form of appeal. If an appeal is lodged in time by a person having the right to do so that is sufficient procedural grounds for checking the case, irrespective of the substantiation of the appeal or the form in which it is set out.^^1^^
Matters are otherwise when the appeal is lodged by a barrister. A barrister is obliged to draw up an appeal from which it is clear who is lodging it, what judgment is appealed against, in what court the appeal is lodged, and (the main point) to substantiate what precisely constitutes the illegality and groundlessness of the judgment. He must draw it up on the available evidence (giving the number of the item in the file), point out the breaches of the law and their effect on the judgment, and to clearly formulate the appellant's plea. The appeal must be signed by the barrister and lodged within the time allowed. Similar requirements apply to a private appeal drawn up by a barrister.
Under Article 328 CPC RSFSR appeals and protests may be _-_-_
~^^1^^ 'An appeal court is obliged to hear the appeal of a convicted person lodged in time even if it is not motivated' (BVS RSFSR, 1972, 10: 15).
176 lodged within seven days of the pronouncement of judgment; for a convicted person held in custody the same period is appointed from the day on which he was served with a copy of the sentence. Counsel cannot lodge an appeal before his client decides to appeal against the judgment. They need to discuss whether to appeal; therefore the period for lodging an appeal, for the counsel of a convicted person held in custody, is counted from the day the copy of the judgment was served on his client.Freedom to appeal is also guaranteed by the banning of reformatio in pejus. This is not based simply on the interests of the defendant. If a defendant were to refrain from appealing because he was afraid that the lodging of an appeal would entail unfavourable consequences, there would be a clanger of illegal, groundless judgments being left to stand, and that would contradict the interests of justice. A possibility of appeal is therefore established in which the defendant's position must not be worsened (Art. 46 and 52 of the Fundamentals), and infringement of the prohibition of reformatio in pejus entails quashing or alteration of judgments that do so.^^1^^
A side may only appeal against a decision that infringes its rights. This limitation does not extend to the procurator, who is obliged, as the agent supervising legality, to protest, by way of appeal for annulment, against any unlawful or groundless judgment.
Every defendant has the right to appeal against only that part of a judgment that affects him himself. The appeal of a defendant lodged to his own detriment does not entail consequences unfavourable for him. An acquitted person is permitted to appeal to change the motives and grounds of the acquittal, but a court has no right to quash an acquittal and to bring in a verdict of guilty at a new hearing of the case.
Counsel has the right to refer in his appeal only to those breaches made in relation to his client. His appeal cannot serve as a pretext for quashing the acquittal of his client or another acquitted person. It may also not serve as grounds for annulling a verdict of guilty and subsequently imposing a heavier sentence _-_-_
~^^1^^ S. V. Borodin (Ed.). Op. cit., pp 388--391.
__PRINTERS_P_177_COMMENT__ 12---665 177 or invoking the law on a graver crime either in relation to the client or another defendant.There are certain limits to the right of the victim and his representative to appeal; in particular their appeals do not provide grounds for quashing a judgment in that part which does not relate to the actions of the person convicted that harmed the victim. Only persons named in the law have the right to appeal. Someone who considers himself a victim but is not recognised as such by either the investigator or the court of first instance, therefore does not have the right to appeal.
A sine qua non of the conduct of a criminal case is attention to the arguments of the defence counsel and other parties to the action, which are stated in the appeal. For an appeal to be convincing the appellant must know the court's motives for reaching its decision. The adducing of these reasons in the judgment is a guarantee of the opportunity to appeal against it. The decision of the Plenum of the USSR Supreme Court on court judgments stated the need to comply carefully with the requirements of Article 314 GPG RSFSR on giving the reasons for a judgment.^^1^^
As for the significance of appellants' arguments, the law on the substance of the ruling on an appeal states:
In quashing the ruling on the appeal in the case of Krasavtsev, for example, the Praesidium of the RSFSR Supreme Court ruled in particular that 'the arguments set out in the barrister's appeal should have been more carefully verified'.^^2^^ Such instructions are based on the point that close examination of appeals corresponds to the interest of justice. The thoroughness and substantiated character of the verification of a case on appeal are displayed in the reasons for the ruling. The reasons for a ruling and the _-_-_When an appeal or protest is not granted the grounds on which its arguments are held to be incorrect or immaterial must be stated in the ruling (CPC RSFSR, Art. 351).
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, pp 326--331.
^^2^^ BVS RSFSR, 1969, 2:12. Similarly, Sotsialisticheskaya zakonnost', 1970, 5: 92; BVS RSFSR, 1974, 3: 13.
It was a matter of the appeal court's checking of the appellants' arguments.
178 critique of the arguments, appeals, and protests are not only important for the appellants but also for the lower courts.An appeal court has to ascertain not only counsel's attitude to the judgment but also that of the other parties. Counsel's lodging of an appeal therefore does not release the court of second instance from the duty to verify whether the defendant had the opportunity to appeal.^^1^^
The importance of the arguments of defence counsel and the other parties to an action is also stressed in Article 327 CPC RSFSR. This norm obliges the court to notify the sides affected by a protest or appeal about the filing of same. Objections to a protest or appeal must be attached to the file of the case. Failure to notify the defendant and his counsel of the filing of a protest or appeal affecting the former's interests is considered a breach of the right to defence and an obstacle to checking the case by way of appeal. In such instances the case is remitted to the court of first instance to comply with the requirements of Article 327 CPC RSFSR. If that has not been done, then the appeal ruling is quashed by supervisory procedure.
The notice of the filing of a protest or appeal must not be formal. For instance, one Chernyshev and his counsel were made acquainted with a protest and handed in their objections to it. The appeal court, however, heard the case without waiting to receive the objections. The USSR Supreme Court stressed that
The inference of the RSFSR Supreme Court is that a court is obliged, when receiving an appeal, not only to inform the defendant but also to explain to him that he has the right to present written objections to it.^^3^^ _-_-_the court of second instance, by not ensuring hearing of the objections to the protest together with the latter, did not comply with the requirements of Articles 46 and 327 CPG RSFSR guaranteeing a convicted person the right to defence.^^2^^
~^^1^^ On the procedure for hearing an appeal lodged after a court of second instance has heard a case, and the consequences of a breach of this procedure, see E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 351, and also BVS SSSR, 1971, 3: 21 and BVS RSFSR, 1962, 11: 11; 1965, 12:6; and 1975, 11:9.
^^2^^ BVS SSSR, 1966, 3:29.
~^^3^^ S. V. Borodin (Ed.). Op. cit., p 357.
__PRINTERS_P_179_COMMENT__ 12* 179The Plenum of the USSR Supreme Court pointed out to courts in Paragraphs 21 to 23 of its guiding instruction of 16 June 1978 the need to secure the right to defence in cases of appeal.^^1^^
Supervisory procedure. Like all other procedural stages, it goes without saying, supervisory procedure has its own special features. These include the following:
the possibility to review a judgment that has come into legal force; the opportunity to correct a judgment in favour of the convicted person without any statute of limitations; the opportunity to remove errors in judgments that are not liable to appeal.
Appeal proceedings can be instituted by an appeal (protest) of the sides, and a supervisory review by the protest of certain procurators, judges, and their deputies, named in Article 48 of the Fundamentals. A judgment cannot always be annulled on appeal owing to the need to increase the convicted person's responsibility. It is also impossible to quash an acquittal in appeal proceedings. The procedure of supervisory review of judgments itself has certain features that appeal procedure does not have. At the same time both procedures have this in common that they are different forms of superior courts' supervision of the judicial activity of lower courts.^^2^^
The features of supervisory proceedings do not mean that judgments are reviewed at this stage only in certain special, rare cases. In Article 49 of the Fundamentals one and the same grounds are established for the quashing or alteration of a judgment both in appeal and supervisory proceedings. The law also makes the same demands in regard to the substance of the judgments of appeal courts and courts of supervisory instances (CPC RSFSR, Art. 351, 381). A breach of the law, therefore, whose consequence is the quashing or alteration of a judgment on appeal, entails the same consequences at the stage of supervisory proceedings.
_-_-_~^^1^^ BVS SSSR, 1978,4: 11--12.
~^^2^^ M. S. Strogovich. Kurs sovetskogo ugolovnogo protsessa (Textbook of Soviet Criminal Procedure), Vol. 2 (Nauka, Moscow, 1970), pp 437-- 438.
180Under Article 376 CPC RSFSR the relevant official is obliged to protest against every unlawful or unsubstantiated judgment, and the special features of supervisory proceedings should promote realisation of the objectives of criminal proceedings and secure civil rights. The Soviet state has an interest in the stability of lawful, substantiated, just court judgments since only such can have a proper educative effect on convicted persons and others; and if a judicial error has not been corrected by way of appeal, it is necessary to correct it through supervision. The possibility of correcting errors even after a judgment's entry into legal force creates confidence in citizens in proper defence of their rights and their interests protected by law.
A barrister, for instance, appealed to the Chairman of the RSFSR Supreme Court during his reception hours in the case of a woman convicted of the murder of her husband. It followed from the judgment that the murder had been committed during a fight between them that had started as a family quarrel. From the evidence presented, however, it was clear simply that the drunken husband had beaten his wife badly with a metal file, and that she, in defending herself, had picked up the fallen file and struck her husband with it on the temple. The Chairman sent for the materials of the case, which were produced, and entered a protest against the judgment.
The praesidium of the Kalinin Regional Court nevertheless did not concur with the protest of the Chairman of the RSFSR Supreme Court, in whose view the convicted woman's actions were not a corpus delicti. The praesidium, while rejecting the accusation of murder in a mutual fight, came to the conclusion that the killing was committed in excess of justified defence. A second protest was entered against that judgment to the Criminal Bench of the RSFSR Supreme Court, which agreed with the need to rehabilitate the convicted woman. It ruled in its judgment that there had been justified defence with no excess.^^1^^
An appeal by supervisory procedure obliges persons who have the right to lodge a protest to call for the file of the case in appropriate instances (CPC RSFSR, Art. 375).^^2^^ Appeals may _-_-_
~^^1^^ See the article 'The Court Decided' in Literaturnaya gazeta, 22 August 1979.
^^2^^ Supervisory protests come within the competence of the following __NOTE__ Footnote cont. on page 182. 181 be made during personal interview and serve as grounds for lodging a protest and suspending execution of the sentence. Because of their importance the Plenum of the USSR Supreme Court rules that a judgment is erroneous if 'it curtails convicted persons' right to lodge an appeal by supervisory procedure'.^^1^^ The adoption of a decision by a court of supervisory instance in relation to any one of the convicted persons in a case must not prevent the other convicted persons from exercising their right to appeal, and when
grounds for quashing or altering the verdict, or subsequent judgments, have not been established, the decision (ruling) must not state that the case in respect of these persons has been verified and the judgments made have been left unaltered.^^2^^
The law obliges reasons to be given for refusing an appeal, and makes it mandatory for them to be communicated to the person on whose complaint the file of the case had been called for and produced for supervisory verification (CPC RSFSR, Art. 376, and Art. 34 of the Law on the Procurator's Office of the USSR of 30 November 1979). The Plenum of the USSR Supreme Court has recognised it as necessary for a conclusion ( decision) to be drawn up for any case called for in connection with a refusal to grant an appeal, setting out the concrete evidence and conclusions that refute the arguments of the appeal and confirm the legality and validity of the judgment.^^3^^
The main grounds for lodging protests by way of supervision are appeals or complaints drawn up by barristers.
A barrister acquaints his client with his appeal. The accused _-_-_ __NOTE__ Footnote cont. from page 181. persons: the Procurator-General of the USSR, the Chairman of the USSR Supreme Court, the chairmen of the Supreme Courts of Union republics (and their deputies), the procurators and chairmen of the courts of Autonomous republics, administrative territories and regions, cities, autonomous regions, autonomous areas, the Chief Military Procurator and his deputy, the Chairman of the Military Bench of the USSR Supreme Court, military procurators, and the chairmen of the military tribunals of the arms of the Armed Forces, military areas, army groups, and fleets.
~^^1^^ BVS SSSR, 1968, 5: 21.
~^^2^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 362.
~^^3^^ Ibid., p 361.
182 has the right at any moment in an action to reject a defender, which excludes not only the lodging of an appeal without his client's consent but also the filing of a supervisory complaint. An appeal can only be lodged without the client's consent in those cases in which his rejection of defence counsel is not binding on the court (CPC RSFSR, Art. 50, part 2).A barrister can only refuse to lodge an appeal for supervisory review after he has studied the case and become convinced of the absence of grounds for an appeal for annulment.
An appeal for annulment is sent to the court of second instance together with the case. It is otherwise with an appeal for supervisory review. In the latter the person reviewing the case must be convinced of the need to call for and verify the case. In this type of appeal a barrister sets out the circumstances of the case briefly and includes a critique of all the errors infringing the accused's rights that were made in the case, the appeal procedure included, and sometimes too in the supervisory review of it made by an inferior court.
The barrister sometimes attaches a positive assessment of the character of his client, and various certificates, attestations, etc., to an appeal for supervisory review. He may also present the conclusions of specialists who have refuted the expert evidence. It is permissible to quash a verdict on grounds of such a conclusion, with subsequent carrying out of a second expert examination.^^1^^
A court reviewing a case by way of supervision has the right to summon the convicted or acquitted person, or his defence counsel, and to hear him in court session (Art. 48 of the Fundamentals; CPC RSFSR, Art. 377; CPC Georgian SSR, Art. 388).^^2^^ The matter of the calling of these persons may be raised by them themselves, by the author of the protest, by a member _-_-_
~^^1^^ Ibid., p 342.
~^^2^^ Under the Law on the USSR Supreme Court of 30 November 1979 the convicted person, acquitted person, and their counsel, legal representatives of a minor, and the victim and his representative, may be summoned when necessary to sessions of the Plenum of the USSR Supreme Court and its Benches to give explanations. Notice of these sessions and copies of the protest are sent to these persons not later than ten days before the session (Art. 19, 29).
183 of the supervisory instance, by a rapporteur who is not a member of that instance, and by the procurator who is taking part in its session.^^1^^ The calling of defence counsel does not exclude the possibility of the convicted or acquitted person's taking part in the hearing, while the latter's participation does not exclude the calling of counsel to the session of the supervisory instance. Convicted or acquitted persons and their counsel are called before the opening of the session and take part in the hearing of the case by the supervisory instance. They have the right to lodge petitions and challenges during the session, to question the rapporteur, to present supplementary evidence, and to give an explanation on the protest and any matters in the case.A judgment may be quashed or altered in favour of the accused by the supervisory procedure, irrespective of when it was pronounced. At the same time the law states:
The Plenum of the USSR Supreme Court has explained to courts that the sense of this clause is that such judgments cannot be reviewed by supervisory procedure after a year of coming into legal force on any grounds that worsen the position of a convicted person, even when, for example, it concerns the application of an amnesty, conditional release before the expiry of the sentence, and so on.A verdict of guilty and a ruling or order of a court may be reviewed by supervisory procedure within a year of their coming into force, in connection with the need to invoke the law on a more heinous crime, because of the leniency of the sentence, or in connection with other grounds entailing aggravation of the accused's position, and also an acquittal or ruling or order of a court abandoning a case.
In court practice the rule of part 3 of Article 48 of the Fundamentals favouring the accused is interpreted broadly. On the expiry of a year from the day a judgment came into legal force, a convicted person cannot be sent to serve his sentence in a corrective labour colony of stricter regime nor a ruling quashed _-_-_
~^^1^^ Paragraph 24 of the decision of the USSR Supreme Court on courts' practice of applying the laws securing the accused's right to defence (BVS SSSR, 1978, 4: 12).
184 releasing a person before completion of sentence for reasons of illness or substituting a more lenient sentence for the unserved part of the punishment. The RSFSR Supreme Court has drawn the inference that after expiry of a year a judgment cannot be reviewed for reasons of incorrect calculation of the period of serving a sentence, or a court ruling reviewed that awards a sentence in accordance with a new, more lenient law, or expunges previous convictions, or includes time served on corrective labour in the convict's length of labour service,^^1^^ and so on. The law thus protects an acquitted person (i.e. a person whose case has been dropped or stopped) and a convicted person from the constant threat of a review of the judgment on grounds worsening their position.The position of an accused person may not be aggravated in a number of other instances as well, which serves as an essential guarantee of the right to defence at the stage of supervisory proceedings.
When a case is being reviewed by supervisory procedure, the court may, for instance, lighten the convicted person's sentence, or apply the provisions of the law on a less grave crime, but it has no right to increase the sentence, or equally to invoke the law on a graver crime (part 5 of Art. 48 of the Fundamentals).
It is also important that the court of supervisory instance has no right, when quashing a judgment and remitting a case for a new investigation or hearing, to give instructions deciding in advance the conclusions of the investigatory agencies or the court about the proof or disproof of the charge, the reliability or unreliability of any piece of evidence, or the preponderance of some evidence over other, or the qualification of the crime and the punishment (part 2 of Art. 51 of the Fundamentals; part iv of Art. 380 CPC RSFSR).
The decision (ruling) of a court of supervisory instance must indicate what the groundlessness of the judgment or other judicial decision consists in, what were the breaches of the law made entailing quashing or amendment of the judgment, and also what is to be done in the new investigation or hearing of the case. A regional court, for example, did not find grounds for _-_-_
^^1^^ i.e. the convict's length of service to qualify for pension, etc.---Ed.
185 qualifying the action of one Muiintsev as murder with aggravating circumstances, and awarded him a suspended sentence for manslaughter exceeding the limits of justified defence. The Praesidium of the RSFSR Supreme Court, however, quashed the judgment. The Plenum of the USSR Supreme Court ruled on this case as follows:The Plenum quashed the decision of the Praesidium of the RSFSR Supreme Court and let the judgment of the regional court stand.^^1^^In quashing the judgment and instructing that a new hearing of the case must be held to decide the matter of the qualification of Mulintsev's actions, the Praesidium of the RSFSR Supreme Court, however, did not adduce any arguments in its decision that would call the correctness of this part of the court's judgment in question. In accordance with Articles 351 and 381 CPC RSFSR, however, it should have been pointed out in this case what constituted the groundlessness of the judgment.
A court of supervisory instance has the right to make an order (ruling) that aggravates the position of a convicted person, acquitted person, or person whose case has been dropped, solely on the grounds indicated in the protest.
When a court is hearing a protest by supervisory procedure it is not tied to the arguments of the protest and is obliged to verify the whole conduct of the case from start to finish. If several persons have been convicted in a case, but the protest relates only to one or some of them, the court is obliged to check the case in regard to them all (CPC RSFSR, Art. 380, part 1). The court does not have the right, however, to quash a judgment, ruling, or decision in regard to any of the convicted persons in respect of whom no protest was lodged, if quashing the judgment, ruling, or decision would aggravate their position (CPC RSFSR, Art. 380, part 5).
The significance of a cassation appeal for the accused is taken into account in supervisory proceedings. In that connection, the supervisory court may only, when it does not concur with the appeal court that found judgment favourable to the accused, _-_-_
~^^1^^ BVS SSSR, 1968, 2: 20.
186 quash the appeal ruling and remit the case for a new appeal hearing, but has no right to give force to an annulled or altered judgment (CPC RSFSR, Art. 378, para. 3).When a case is heard by supervisory procedure the court has no right to establish facts, or consider them proven, that were not established or refuted in the judgment (part 2 of Art. 51 of the Fundamentals; CPC RSFSR, Art. 380, part 7). This prohibition is connected with the accused's right to know what he is charged with and to give an explanation with respect to the charge preferred. When, however, the supervisory court finds a final judgment, i.e. quashes a verdict of guilty and stops the case, or alters the judgment, it has the right to decide in its judgment (ruling) the matter of the proof of the accusation, the correctness of the qualification of the deed committed, and the sentence, and to base itself on circumstances discharging or mitigating the convicted person's responsibility, if they have been investigated by the court of first instance.^^1^^ One Khomyakov, for instance, was convicted of murder. The USSR Supreme Court found his guilt not proven and stopped the case. It is not permitted to aggravate the accused's position, however, even when stopping a case, and the RSFSR Supreme Court justifiably found the action of a lower supervisory instance mistaken when it, for example, altered a verdict of not guilty in the case of one Soldatov and suppressed the case on the grounds of an amnesty decree.^^2^^
As we see, the accused has a right to defence at all stages of Soviet criminal proceedings, including that of supervisory review. Defence counsel's appeal against the actions and decisions of the investigator, procurator, and court is meant to secure the right to defence and so promote consolidation of socialist rule of law.
_-_-_~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 364.
^^2^^ BVS RSFSR, 1969, 9: 8.
[187] __NUMERIC_LVL2__ 7 __ALPHA_LVL2__ Special Points on the Defence of Minors^^1^^ __ALPHA_LVL3__ [introduction.]In Soviet criminal law persons may be held liable who were 16 years old before committing a crime. But for murder, rape, robbery, and certain other crimes, an exhaustive list of which is given in the law, criminal responsibility begins at 14.
The sentence imposed by a court on a person who committed a crime when under 18 years of age cannot be heavier than deprivation of liberty for ten years. Minors serve their sentences in a corrective labour colony of either general or strict regime. After not less than one-third of the sentence has in fact been served, release on probation is possible, or the sentence may be commuted.
The instability of a teenager's character, his suggestibility and immaturity of thought, tendency to copy and imitate, and inability to defend his rights fully, require the application of special rules in actions against minors. The CPG RSFSR has a special chapter (No. 32) on the cases of minors. Its provisions apply to the cases of persons who have not reached 18 at the time of commission of the act they are charged with. The rules of Chapter 32, operating together with the general norms of criminal proceedings, establish broader procedural guarantees for accused minors and define additional matters liable to clarification and decision.
The special feature of the investigation and hearing of cases of juvenile offenders is the broader scope of their right to _-_-_
~^^1^^ A person is considered to have come of age in the USSR at eighteen.
188 defence. The procedure in their cases is subject to more detailed legal regulation. Not only is the assistance of a defender provided for in such cases, but also participation of the minor's legal representative, an educationalist, and representatives of the place where he studied or worked.A summons for a minor to appear before an investigator or court is served through his parents or other legal representatives, unless the circumstances of the case require a different procedure.
When there are adult accomplices in a minor's case, they should, as far as possible, be tried separately. In that way the educational significance of the trial is enhanced, the bad influence of the adult accomplices eliminated, and a quick trial assured. If, however, separation of the actions impedes establishment of the truth, the rules of Chapter 32 CPC RSFSR must mandatorily be enforced in regard to a minor being tried in the same case with adults.
When it is established by the preliminary investigation that the act a minor is accused of does not present great social danger and he can be corrected or reformed without serving a sentence, the procurator, and also the investigator with the procurator's consent, has the right to drop the case and to transfer it to a juvenile affairs commission for consideration.^^1^^ A similar decision is also possible at the stage of arraignment.
__ALPHA_LVL3__ §1. Circumstances Subject to Establishment in a CaseIn proceedings against minors special attention must be paid to establishing the following circumstances.
First of all the juvenile's correct age must be established.
A person is considered to have reached 14, 16, and 18 not on his birthday but at 00.00 hours of the next day.
One Pichugin, for example, celebrated his 18th birthday on September 30th, and on that day committed a serious crime. _-_-_
~^^1^^ Juvenile affairs commissions operate under the executive committees of local Soviets of People's Deputies. Experience has shown that courts and Procurator's Offices annually pass up to 50 per cent of all juvenile cases to them.
189 Under the law, he would have been considered of age on October 1st. The Territorial Court of the Maritime Territory did not take the circumstance into consideration and sentenced him to 15 years' imprisonment. Since a minor cannot be deprived of liberty for more than ten years, the RSFSR Supreme Court reduced the sentence.^^1^^In the absence of documents age is determined by forensic medical examination. In that case the date of birth is taken as the last day of the year named by the medical experts; when they estimate a minimum and a maximum age, the accused's age must be taken as the minimum one.^^2^^
The assistance of a defender from the moment the charge is laid and in the court hearing is mandatory irrespective of whether the person has come of age by the beginning of the proceedings.^^3^^ If the law on the mandatory assistance of defence counsel from the moment the charge is laid is not observed the judgment is quashed and the case remitted for additional investigation.
As will be seen, correct determination of age does not just decide the special procedure of court proceedings; it is particularly important because the possibility of holding a minor criminally liable itself hangs on his having reached a certain age, and so does the bringing of the case to court or its passing to a juvenile affairs commission, and the application of lawful, just measures of influence.
In that connection, the charge against a person and other accusatory documents must indicate the date, month, and year of the accused's birth. It is very important that a minor's age corresponds to the possibility of laying a charge against him.
In the Sverdlov District of Moscow, for example, criminal proceedings were instituted against a 15-year-old Korovin for driving away a motor car without intention to steal, although responsibility for this act lies only at 16 under Article 10 of the RSFSR Criminal Code. The investigator dropped proceedings on the application of a barrister.
_-_-_^^1^^ BVS RSFSR, 1965, 7:7. Similarly, BVS RSFSR, 1974, 12:4.
~^^2^^ E. A. Smolentsev et al. (Eds.). Sbornik postanovleniy Plenuma Verkhovnogo Suda SSSR 1924--1977 gg. (Digest of Decisions of the Plenum of the USSR Supreme Court 1924--1977), Part 2 (Izvestia, Moscow, 1978), p 300.
^^3^^ Ibid., pp 298--299.
190During proceedings with the assistance of defence counsel, the minor's home conditions and upbringing, his parents' attitude to him, the way his education and leisure are organised, and so on are ascertained. The importance of careful study of a juvenile's personality for deciding the proper approach to him, for appraisal of his testimony, and for deciding many other matters can hardly be overstated.
In a case against a minor it has to be established whether he was conscious of the illegality of his behaviour. This is important because, under Soviet criminal law,
when a person is not conscious of the illegality of the act committed, but in the circumstances of the case should have been so conscious, he can only be held liable, criminally, for committing the act from carelessness. When, however, a person did not know, and patently could not know, the socially dangerous character of the actions committed, the matter of releasing him from criminal responsibility must always be decided in the affirmative.^^1^^
It is not only important to establish whether a minor was conscious of the illegality of his behaviour but it is also vital to ascertain whether he had any idea of the qualifying circumstances of the acts.
One Fomin, for example, was accused of unpremeditated concealment of a named type of crime (repeated theft). His barrister came to a conclusion of simple concealment because his client did not know about the repetition of the thefts and thought his mates were stealing for the first time. That was a very material circumstance since the sentence laid down for concealment of repeated thefts is up to five years' deprivation of freedom but for simple concealment it is up to two years.^^2^^ The court agreed with the qualification of the crime proposed by the barrister.
_-_-_~^^1^^ A. A. Piontkovsky et al. (Eds.). Kurs sovetskogo ugolovnogo prava (Manual of Soviet Criminal Law), in six volumes, Vol. 2 (Nauka, Moscow, 1970), pp 302--303.
^^2^^ G. Z. Anashkin, I. I. Karpets, B. S. Nikiforov (Eds.). Kommentariy k ugolovnomu kodeksu RSFSR (Commentary on the Criminal Code of the RSFSR), Yuridicheskaya literatura, Moscow, 1971, p 400.
191The circumstances fostering commission of a crime are ascertained and clarified in any case, but in the cases of minors it is especially important to do so both for a correct verdict and to forestall the juvenile's commission of offences in the future.
The existence of adult instigators and other accomplices is ascertained in the cases of minors, this being necessary for allround, full investigation of the circumstances of the case, and for appraising the degree of the minor's social danger, and imposing a just sentence.
A minor Slepnev, for instance, declared in his testimony that he had suggested taking part in a theft to an adult Kuznetsov. Slepnev's counsel doubted this, and ascertained in an interview with his client that Kuznetsov had been the instigator of the theft. Counsel was present at a confrontation between Slepnev and Kuznetsov at which the latter confessed of organising the crime.
A need often arises to bring out the real role of a juvenile accused compared with accomplices, since the overwhelming majority of juvenile crimes are committed in groups (70 to 75 per cent).
When there are facts on a juvenile's mental backwardness not connected with mental illness, it has to be discovered whether he was fully conscious of the significance of his actions. To do that his parents, teachers, and educators are questioned, and other procedural acts are carried out. When necessary expert examination is called for, which is made by specialists in the field of child and juvenile psychology and psychiatrists.
Taking the accused's mental backwardness and the character of the social danger of the crime into consideration, the court can limit itself to ordering measures of an educational character.^^1^^
__ALPHA_LVL3__ §2. Special Features of the Relationship between aThe defenders of minors have greater procedural independence than those of many other accused persons. This position is due to the incapacity of accused minors to exercise their right to defence completely by themselves.
_-_-_^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 301.
192Lack of understanding, a false sense of `comradeship', and fear of certain persons can compel a minor to object to counsel's intention to perform some procedural action or another, so that a very complicated situation can build up when counsel suggests that it is necessary to petition for evidence to be produced that will mitigate or even eliminate criminal responsibility, and the accused opposes such a petition. Similar difficulties arise when a juvenile does not agree with counsel's intention to petition for supplementary examination of the case, or opposes an appeal.
The accused may, of course, know the real circumstances of the case better than anyone else. It is also true that defence counsel has no right to put his client at risk. But a penetrating analysis of the evidence assembled and of the reasons why the minor opposes counsel's intention to perform some procedural act, sometimes leads a barrister to the conviction that there is no serious danger of aggravating his client's position. That, together with explanation of the motives guiding counsel, and a reminder that the client can retain another defender, give counsel sufficient grounds to take the necessary procedural action. Counsel has the right, in particular, to decide the matter of an appeal by himself. He may do so because a minor is not able to exercise such an essential part of the right to defence as the right to appeal.
We must, at the same time, stress that a barrister's opportunity to decide whether to lodge an appeal by himself has nothing in common with his obligation to appeal against the judgment if his under-age client deems it necessary.
An accused minor also has the right, under the law, to refuse a defender. And although his refusal is not binding on the investigator and court, that does not mean that such a refusal can be ignored.
An accused person has the right to reject a defence counsel retained by himself, or by his legal representative, or by another person under power of attorney or with his consent. An accused minor also has the right to reject a counsel assigned to him by the investigator or court. When counsel is refused, irrespective of whether he was retained or assigned, the investigator or court is obliged to ensure a change of defender.
__PRINTERS_P_193_COMMENT__ 13---665 193Refusal of a defender altogether is a more complicated business. A minor's refusal of counsel may be the consequence of a delusion or of his mistaken appraisal of his possibilities, lack of experience, or of some outside influence, etc. It is particularly important then to explain the rights and role of counsel in a trial to him. A minor's refusal of a defender can therefore only be accepted by the investigator or court in limited cases and after the accused's rejection of a change of defender, as for example when the teenager's interests are guarded by a legal representative who has legal training, or with the participation in the hearing of a social defender who is a lawyer.
__ALPHA_LVL3__ §3. The Beginning of the Preliminary Investigation.A preliminary investigation is mandatory in the cases of juvenile offenders.
In these cases the inquiry consists simply in the opening of a criminal case and the carrying out of the immediate investigative actions to establish and record the signs of a crime. An inquiry is only made, however, when the agency concerned is the first to learn of the crime; it has no right to lay a charge against a minor and to take measures of restraint in relation to him. When the immediate investigative acts have been completed the agency must pass the case to an investigator, without waiting for expiry of the ten-day period allowed for making inquiries.
Whenever the agency making the inquiries carries out a full investigation and only then passes the case to an investigator, the minor is deprived of his rights as an accused person, and his defender comes into the case late. Therefore the results of illegitimate investigative acts are considered invalid, and the court remits such cases for further investigation.^^1^^
The following measures of restraint may be employed in relation to juveniles: a written undertaking not to go away; _-_-_
~^^1^^ Review of Court Practice in Cases of Juvenile Offences. BVS RSFSR, 1963, 11:11; A. K. Orlov (Ed.). Kommentariy k ugolovno-- protsessual'nomu kodeksu RSFSR (Commentary on the RSFSR Criminal Procedure Code), Yuridicheskaya literatura, Moscow, 1976, pp 577--578.
194 personal recognisance or that of a social organisation; placing under the supervision of his parents, guardians, or trustees; in the case of minors being brought up in special children's institutions, placing under the supervision of the administration of the institutions; and finally detention in custody.Even a short period of custody has a traumatic effect, as a rule, on the psyche of a juvenile. Although he is held apart from adults and convicted minors, the conditions of detention upon remand make it difficult to carry out effective educative measures, and do not exclude the negative influence of juveniles on one another and their rapid demoralisation. Taking those circumstances into account, and the fact that their guilt has not yet been established,
detention in custody and upon remand may only be employed as a measure of restraint in respect of juveniles in exceptional cases when it is called for by the gravity of the crime committed, or given the conditions named in Articles 91, 96, and 122 of the present Code (CPC RSFSR, Art. 393).
In accordance with Article 122 CPC RSFSR, an adolescent suspected of having committed a crime may only be detained for a period not exceeding 72 hours. He is interrogated immediately, or not later than 24 hours from the time of detention. It is justly stressed in the legal literature that
That convincingly confirms both the humanity of a law that permits the detention of a juvenile in custody only in exceptional cases, and the need for a critical attitude toward, and careful checking of, his statements. _-_-_at the first questioning of a juvenile by an investigating agency without the presence of a barrister (since the adolescent is being questioned as a suspect) and often in a state of ' psychological shock' caused by detention, there is a danger, in certain circumstances, of his giving evidence that does not correspond with reality.^^1^^
~^^1^^ N. I. Gukovskaya, A. I. Dolgova, G. M. Minkovsky. Rassledovanie i sudebnoe rassmotrenie del o prestupleniyakh nesovershennoletnikh (The Investigation and Hearing of Cases of Juvenile Crime), Yuridicheskaya literatura, Moscow, 1974, p 59.
__PRINTERS_P_195_COMMENT__ 13* 195Measures of restraint are taken in relation to an accused person, but in exceptional cases (see CPC RSFSR, Art. 90), they may be applied to persons suspected of having committed a crime, even before they are charged. In that event the charge must be laid not later than ten days from the time constraint is exercised. If a charge has not been laid within that time, the measure of restraint is cancelled.^^1^^ As for the detention in custody and detention upon remand of an accused minor, special norms apply, viz. Article 393 CPC RSFSR. This article does not mention Article 90 CPC RSFSR, consequently the matter of employing measures of restraint against a suspected juvenile does not apply.
While an accused adult can be held upon remand as a preventive measure on the grounds simply of the dangerousness of the crime, a combination of conditions is required in respect of an accused minor relating both to the dangerousness of the crime and his personailty. A minor can be held on remand only when no other measures of restraint will ensure his proper behaviour.
Full rehabilitation of a minor and his mistaken detention upon remand as a measure of restraint are both rare; still, such a measure may prove mistaken (a) when the charge is altered and the accused's action subsequently qualified under the law on a less serious crime, (b) when the court has imposed a sentence without deprivation of liberty, (c) when execution of the sentence has been postponed,^^2^^ or (d) when an amnesty applies. The guiding instructions of the Plenums of the USSR and RSFSR Supreme Courts invariably stress courts' duty
to check the motivation of the measure of restraint chosen particularly carefully, bearing in mind that by virtue of _-_-_
~^^1^^ Article 52 CPC RSFSR draws a line between detention ( shortterm arrest) of a suspect for a period up to 72 hours and his detention upon remand for a period up to ten days as a measure of restraint. Although the former pursues the same ends as the latter, it nevertheless differs from it and the two should not be confused.
~^^2^^ When a minor is sentenced to deprivation of liberty for a period under three years, execution of the sentence may be postponed for a period between six months and two years (VVS SSSR, 1977, 8: Item 137).
196 Article 393 CPC RSFSR a juvenile accused may only be held in custody in exceptional cases.^^1^^
Restraint may only be applied to an accused minor by a motivated order of an investigator sanctioned by a procurator, or by the motivated ruling (decision) of a court. When the authorities conducting the action decide on a measure of restraint they must be guided by the evidence of the case and not by the CID's convenience, and to indicate in the order or ruling the circumstances serving as grounds for the application of this particular measure, and not some other.
The detention in custody or upon remand of a juvenile in the expectation that this will lead him to confess and so facilitate the subsequent investigation is not permitted. The law forbids the soliciting of evidence from an accused person by means of illegal measures. Such measures include a promise not to imprison a juvenile, or to release him from custody, if he confesses. The use of such methods could lead to grave consequences associated with perjury and slander of other persons.
When deciding on detention upon remand as a measure of restraint (taking the exceptional character of this measure into account), a procurator carefully checks the case, interrogates the juvenile accused, and subsequently keeps an eye on the case so that the investigation is completed as soon as possible.
When a juvenile is held in custody, the investigator must make maximum efforts to complete his investigation as soon as possible. It is also very important that the period of preliminary detention of a minor on remand should not be dragged out during the trial and that the time between the pronouncing of judgment and the hearing of an appeal should be reduced.
_-_-_~^^1^^ V. V. Shubin et al. (Eds.). Sbornik postanovleniy Plenuma Verkhovnogo Suda RSFSR 1961--1977 gg. (Digest of Decisions of the Plenum of the RSFSR Supreme Court 1961--1977), Yuridicheskaya literatura, Moscow, 1978, p 260; E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, pp 78, 298.
197 __ALPHA_LVL3__ §4. Defence Counsel's Involvement in the PreliminaryThe rights of a juvenile offender's counsel are special. His participation in the preliminary investigation is as mandatory as it is in the court hearing. He comes into an action not when the preliminary investigation has been completed but from the moment the charge is laid. During the preliminary investigation he enjoys greater rights than his client and the defence counsel of most other accused persons.^^1^^
Under criminal procedure the charging of a person consists in the following: (a) in the serving of an order by the investigator formally accusing the person (from which moment he becomes the accused); (b) in the presentation of the charge (i.e. acquainting the accused with the order, and the investigator's explaining the substance of the charge to him, and his rights during the preliminary investigation); (c) in his interrogation as an accused person.
Counsel is present at the laying of the charge. After that, but before interrogation of a minor as an accused person, counsel has the right to acquaint himself with all the evidence in the case, and to copy out needed information from the file, to interview the juvenile, and to take part in investigative acts.
At the laying of the charge, counsel first of all gets its substance clear and checks whether the conclusions set out in the order accusing the minor conform with the requirements of the law.
A minor, Krotov, was accused, for example, of three thefts which caused considerable damage. In the order accusing him the investigator did not indicate what amount of property was stolen in each instance. Counsel applied for the scale of each misappropriation to be established and recorded in the order. The application was granted. It turned out that Krotov had committed petty pilfering of public property; his actions were requalified under the law on a less serious crime. Since criminal responsibility under that law lay only at 16 years of age, and _-_-_
~^^1^^ The rights of a juvenile's defender apply equally to those of mute, blind, deaf, and other accused persons who, because of physical or mental handicaps, cannot defend themselves.
198 Krotov had not yet reached that age, the case was dropped on a new application by defence counsel.In the preliminary investigation defence is a continuous activity from the moment the charge is laid. Then, and during the whole investigation, counsel has the right to acquaint himself with the evidence in the case (as far as it is available) and to exercise his other procedural rights. If, for any reason, counsel has not been present at investigative acts, that cannot be employed as grounds for depriving him of his right to acquaint himself with the new evidence.
The scope of counsel's rights in the preliminary investigation and that of the accused minor do not coincide. Counsel acquaints himself with the file after the laying of the charge but the minor only at the end of the preliminary investigation. In that connection the question arises whether a barrister has the right to communicate the substance of the evidence to his client.
The confidential character of a barrister's relations with his client excludes the possibility of withholding information from the accused that has a bearing on his defence. Otherwise an interview with the accused, and defence in the preliminary investigation in general after the charge has been laid, would have no sense.
The interview with the client before his first interrogation as an accused person is very important. It is necessary, in particular, to explain to the adolescent what his procedural rights and the rights of the defence counsel are. A barrister must explain all his client's rights to him and to do it clearly and understandably, pointing out the consequences of neglect of them.
During the interview counsel ascertains whether the minor understands the sense of the accusation against him. Sometimes, for example, because of bona fide misapprehension or improper questioning, a juvenile suspect confesses to `rape' without understanding the term, not seeing the difference between rape and the voluntary sex act.
Participation in investigative acts, especially at the first interrogation of the accused, is a responsible and complicated aspect of a barrister's practice. During his preparation for the interrogation, and throughout it, he endeavours to see that his efforts further securing of the accused's rights and interests protected by 199 Emacs-File-stamp: "/home/ysverdlov/leninist.biz/en/1982/RADU283/20070619/283.tx" __EMAIL__ webmaster@leninist.biz __OCR__ ABBYY 6 Professional (2007.06.14) __WHERE_PAGE_NUMBERS__ bottom __FOOTNOTE_MARKER_STYLE__ [0-9]+ __ENDNOTE_MARKER_STYLE__ [0-9]+ law, and lead to the bringing out of all circumstances favouring his client.
Any interrogation, but especially that of a minor, demands strict observance of the procedural and ethical norms.
Compliance with the law that obliges an investigator to write down the accused's statements in the record is very important. The rule on the mandatory keeping of a record is an essential procedural guarantee.
An investigator has no right to include only statements in the record that confirm the version of the accusation; he is also obliged to include points that are evidence in favour of the accused. Statements must be put down in the record in full and as far as possible verbatim.
Whenever necessary counsel may remind the accused that he has the right to write down his statements in his own handwriting. Sometimes counsel exercises his own right to make written comments on the correctness and fullness of the notes in the record of the investigative act in which he took part.
An investigator is obliged to hear an accused person's statements out and only then, whenever necessary, to ask him questions. This procedure is due to the fact that comments and questions may break the thread of a free account.
In connection with a counsel's petition or application, or at the discretion of the investigator, an educationalist may take part in the interrogation of an accused minor.^^1^^ Because he has specialist knowledge of the psychology of adolescents and educational experience, a teacher can help establish the circumstances of a case. For that purpose he has the right, with the investigator's permission, to question the accused, to familiarise himself with the record of the interrogation, and to make comments on the correctness of the notes in it.
After the charge has been laid a minor's counsel has the right to take part in any investigative act.^^2^^
_-_-_~^^1^^ Under the CPC Ukrainian SSR not only an educationalist but also a doctor may be present at the interrogation of an accused minor.
~^^2^^ The counsel of most other accused have the right to take part, with the investigator's permission, in only those investigative acts that are conducted in connection with an application by the accused or counsel (CPC RSFSR, Art. 51, part 2).
200Counsel's right to take part in the interrogation, confrontations, and other investigative acts does not depend on the investigator's discretion. If counsel considers it necessary to be present at any act after presentation of the charge and before the end of the preliminary investigation, the investigator must provide him with the opportunity.
The investigator can reject a question of counsel's, but must write the rejected question into the record. The investigator has no right to forbid counsel to put questions to the accused, a witness, the victim, or an expert. No account is taken, as we have already said, of evidence obtained in violation of the accused's right to defence.
After defence counsel has come into a case the investigator is bound to inform him of the time and place of all further investigative actions. It is possible that such an act may not bear directly on his client's rights. In a case with several accused, for example, episodes are investigated that the minor is not being blamed for participation in; the barrister too may not take part in such actions. Counsel has no right, however, to declare that he will not take part in an investigation carried out after the first interrogation of an accused minor. Such a declaration would be an unlawful refusal to continue the accused's defence.
A barrister's presence in investigatory sessions held after laying of the charge can be an effective means of defence.
Koltsov and Sobakin, for example, were accused of beating up a fellow villager, one Kondyurin. Defence counsel, assisting at the investigatory sessions, established that the adolescents had themselves been badly beaten by Kondyurin, and that their actions had been of a defensive character. The criminal prosecution against the minors was dropped on the counsel's petitions.
When cases of minors are being investigated the procurator's careful, daily supervision is most important. The law obliges him to ensure strict observance of the rights of an accused minor and not to permit any breaches of them whatsoever, and to eliminate any breaches immediately. The opportunity to appeal to the procurator against the investigator's actions and decisions helps secure the rights of a minor, his counsel, and his legal representative.
201 __ALPHA_LVL3__ §5. Arraignment and the Court HearingA court is bound to carefully verify the validity of a procurator's proposal to arraign an accused minor. The matter of bringing him to court is decided at a procedural session, irrespective of whether the accused has come of age at the time of arraignment. Non-compliance with this requirement is considered a material breach of criminal procedure.^^1^^
Because a court has the right to summon petitioning persons to a procedural session, including defence counsel, and because the assistance of counsel is mandatory in the case of a minor during both the preliminary investigation and the court hearing, counsel is summoned to the procedural session so that the court can hear his opinions on the matter of arraignment.^^2^^
In the trial of a minor the defendant is a party, and the assistance of a defender does not deprive him of his opportunity to exercise his rights personally. At the same time the court, having heard the views of the parties to the action, sometimes rules that the defendant minor shall be removed from the courtroom when circumstances that could have a negative effect on an adolescent are being examined. Removal of the defendant at sole discretion of the presiding judge is not permitted. The results of the examination of the case in the absence of the defendant are communicated to him by the presiding judge to the extent that they do not prejudice his proper education and enable the court to cross-examine the person questioned in his absence.
The law provides certain means of ensuring a preventive outcome of the trial of a minor.
In order to intensify the educative effect of the court hearing of the case of a minor, for instance, the court informs the school or other educational institution attended by him of the time and place of the hearing, and also informs the social organisations at his place of work or study. Whenever necessary the court has the right to summon representatives of these organisations to _-_-_
~^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 298.
~^^2^^ M. S. Strogovich. Kurs sovetskogo ugolovnogo protsessa (Textbook of Soviet Criminal Procedure), Vol. 2 (Nauka, Moscow, 1970), pp 479-- 480.
202 __NOTE__ "203" at bottom of page 202 in original!!! the hearing, and also representatives of the social organisations at the place of work of his parents, guardian, or trustee.The law does not permit hearing of the cases of minors in the presence of persons who have not yet reached 16.
When the court comes to the conclusion, after hearing a case, that it is possible to correct a person who committed a crime under the age of 18 that did not represent great social danger without sentencing him to penal punishment, it stops the case and takes measures of an educational character in respect of the minor. Superior courts also have this right at appeal or supervisory proceedings.
__ALPHA_LVL3__ §6. The Accused's Legal RepresentativeThe mandatory assistance of a defender and the opportunity for the accused's legal representative to take part in the case have one and the same reason: a minor's limited capacity to defend himself personally.
Counsel and the legal representatives of accused minors exercise functions of defence. Their efforts make for protection of the adolescent's rights, a full, objective hearing of the case, study of the accused's personality and home conditions, education, and other material circumstances.
Legal representatives are parents, foster parents, guardians, trustees, and representatives of institutions and organisations in whose care and charge the accused may be. A juvenile defendant also enjoys the help of his legal representative when he has no parents and lives alone or with persons who have not been formally and legally made his guardians or trustees. In these cases the court (and also the investigator) summons a representative of the guardianship and trusteeship authorities.^^1^^
Legal representatives appear in defence of a minor's rights and interests before all institutions; they therefore have not only the right but also the duty to take part in criminal proceedings to the extent necessary to defend the minor's interests. The assistance of defence counsel, moreover, does not absolve a legal representative from performing his obligations.
_-_-_^^1^^ E. A. Smolentsev et al. (Eds.). Op. cit., Part 2, p 299.
203Only when there are definite facts in a case that the presence of the legal representative would damage the interests of the accused, has an investigator the right to debar him from participation. The decision to do so must be set out with reasons in a formal order containing definite grounds for the refusal to admit the legal representative. A court of first instance deals with this matter in the same way; in exceptional cases, Article 399 CPC RSFSR states, when the presence of the legal representative at the hearing could damage the interests of an accused minor, a court has the right, by a ruling with reasons given, either to exclude him completely from the hearing or to limit his participation to some one part of it. If the legal representative is excluded from the courtroom for a certain time, he must be informed on his return of what has happened during his absence.
In accordance with Article 27 of the Fundamentals, the investigator, procurator, and court must explain a legal representative's rights to him and provide him with the opportunity to exercise them.
At the end of the preliminary investigation, for example, the investigator explains to the legal representative his right to apply to be acquainted with the evidence in the case. The presiding judge also explains the legal representative's rights in court.
Failure to summon the legal representative, or an unjustified refusal to admit him, is a material breach of the procedural law and entails remitting of the case for further investigation, and quashing of the judgment or appeal ruling.^^1^^
Minors' legal representatives are endowed with broad rights at the various stages of Soviet court proceedings.
A legal representative has the right to retain defence counsel and sometimes to take part himself in the case as the defendant's defender.
The legal representative has the following rights: to be informed of the summoning of the minor by the militia, or an investigator, procurator, or court; to be informed of arrest of the minor and his detention in custody as a measure of restraint; to be present in certain cases at the interrogation of the minor; to be _-_-_
~^^1^^ E. V. Boldyrev and A. I. Pergament (Eds.). Kommentariy sudebnoi praktiki za 1975 god (Commentary on Court Practice for 1975), Yuridicheskaya literatura, Moscow, 1976, pp 139, 141.
204 present at the announcement to the accused of the end of the preliminary investigation, and to acquaint himself with the evidence in the case.The legal representative has the right to file applications and petitions at the stage of arraignment, to acquaint himself with the case in court, and to receive a copy of the indictment.
At the hearing of the case the legal representative has the right to present evidence, to take part in the examination of it, and to petition, challenge, etc. He also has the right to acquaint himself with the record of the session and to make his comments on it.
In appeal proceedings the legal representative has the same rights as defence counsel. If he misses the deadline for appealing, because of ignorance of the law, the deadline is liable to extension.
The legal representative also has the right to take part in a case when the court is deciding matters connected with execution of the judgment.^^1^^ He has the right to receive a copy of court decisions, and to petition for them to be appealed against by supervisory procedure.
In civil proceedings the legal representative acting in the name of the plaintiff or defendant may, for example, take his place. In criminal proceedings the legal representative is an independent party to the proceedings, acting in the interests of the accused, not in place of him but in addition to him.
The legal representative must be told his rights in criminal proceedings and understand the sense of his involvement in the case. His exercise of the functions of defence compels a barrister to give him the legal aid he needs in order to defend the accused's interests. It does not follow, however, that he is bound by counsel's position, or conversely, that counsel is bound by the position of the accused's legal representative.
As we see, Soviet legislation provides a developed system of guarantees of the rights of an accused minor. The professional and other parties in criminal proceedings endeavour not only to avoid mistaken and unjust conduct and decision of a minor's case, but also to make the trial educative and to prevent antisocial activity by juveniles.
_-_-_~^^1^^ BVS SSSR, 1975, 1:36.
[205] __NUMERIC_LVL1__ PART III __ALPHA_LVL1__ The Organisation of the Soviet Bar and Securing of theSoviet colleges of barristers are special social organisations operating in the USSR for many-sided defence of citizens' rights by legal means. Defence of the individual's rights against encroachments of any kind, the struggle for legality, and the furthering of justice lend a barrister's activity great social and public importance.
The role of barrister's activity is growing with the adoption of the new Constitution of the USSR, under which the development of socialist democracy, enhancement of the activity of social organisations, consolidation of the legal bases of public and social affairs, extension of openness and publicity and of the rights and freedoms of citizens are the principal line of development of the political system of Soviet society.
_-_-_~^^1^^ By `organisation of the Bar' we have in mind both the organisational and legal position of colleges of barristers (their juridical nature, structure, and relationships with public authorities), and the rights and duties stemming from membership of a college of barristers.
[206] __NUMERIC_LVL2__ 8 __ALPHA_LVL2__ The Organisational and Legal PositionIn denning the juridical nature of a college of barristers we must start primarily from the functions and procedural position of its members.
Defence of an accused person's rights and law-protected interests and of the rights of plaintiffs and defendants is the function of defence counsel in criminal proceedings and of an attorney in civil proceedings.
A barrister does not occupy the procedural position of representative just in civil cases; he also represents the interests of the accused in criminal cases, and encourages exercise of his rights. The relations between counsel and client differ essentially from the relations of an attorney and the party represented by him in a civil case, but there is also a juridical link in criminal proceedings, relations of representation between counsel and defendantclient, as between counsel and the victim, civil plaintiff, or civil defendant represented by him.
The functions of barristers, and the representation performed by them, and the personal, confidential character of the relations between barristers and those who need their aid, are precisely the reasons for the existence of college of barristers as self-- regulating social organisations.
Like other social organisations, colleges of barristers are built on the principles of self-regulation or self-management, and are characterised by a number of attributes, as follows.
207(1) Membership of and resignation from a college of barristers is a voluntary act.
(2) A college is built on the principles of self-management, which means its right to decide its internal affairs independently. This right is exercised by its elected bodies. They are formed by the members of the college, who take part in them and control them.
(3) Barristers are obliged to comply with the decisions of the college's elected bodies. In taking part in achieving the objectives of their organisation barristers must employ all the ways and means indicated in the law to defend the rights and lawprotected interests of the persons who have turned to them for legal aid.
(4) Colleges of barristers are not financed from public funds and exist on their own finances. In order to give a college a financial basis, its members pay into it a percentage of the fees they receive from rendering legal aid.
State supervision of the activity of colleges of barristers does not alter their juridical nature. The aim of state supervision is
only general observation of whether the main content of the activity of any society or artistic organisation does not contradict the objectives of building communism and the requirements of legality, and whether they observe the rights and interests both of the citizens who belong to them and of all other citizens in the course of their work.^^1^^
Every social organisation decides its own concrete tasks, proper only to it. And in all cases these tasks correspond either to the specific views and interests or to individual abilities and character of the organisation's members. That is understandable, since a person quite voluntarily decides himself what organisation to join, and is free not to join an organisation that does not correspond to his wishes.
Social organisations deal with matters of great importance. The social interest, moreover, is very closely linked with the direct self-interest of a member in the functioning of just that _-_-_
~^^1^^ Politicheskaya organizatsiya sovetskogo obshchestva (The Political Organisation of Soviet Society), Nauka, Moscow, 1967, p 237.
208 organisation which he has joined in accordance with his aspirations and needs. These individual needs and requirements are linked with members' exercise of initiative, with satisfaction of their spiritual aspirations and material interests. This is a matter, moreover, of the satisfaction of interests that will be of use to society as a whole and to the state, and not of narrow, selfish interests.A college of barristers deals with the matters proper to it, and only such matters. Only the members of this organisation undertake defence at a preliminary investigation and in court, represent a party to civil actions in court and before an arbitration tribunal, and render other legal assistance both to citizens and organisations. Participation in the decision of these matters corresponds to the views and aspirations and character and capacities of the lawyers who join a college of barristers.
Take, for example, the work of a barrister in a criminal case. In one case it leads to rehabilitation of his client, in another to the imposition of a sentence that does not exceed the degree of his client's guilt. Such work fully corresponds to the interests of citizens, society, and the state, in accordance with which it is necessary that every person committing a crime be subjected to just punishment and that no innocent person be held criminally responsible and convicted (Art. 2 of the Fundamentals). A barrister has an interest in resolving these tasks since his moral and material interests are thereby met.
The combination of the personal, public, and social in the tasks facing the Bar is consolidated in law. The legislation on the Bar not only lists the purposes of colleges of barristers but also speaks of improving the qualifications of their members, of the existence of opportunities for them to display initiative, and so on.
At the same time the law also reflects the specific features of colleges of barristers.
The activity of social organisations is always linked with the public authorities. In the Bar, however, this link is particularly noticeable. The members of colleges carry out their professional duties in the main in the courts, with the agencies of preliminary investigation and at Procurator's Offices, and that feature of the Bar must be taken into account. Without well-organised barrister's activity such important aspects of state activity as __PRINTERS_P_210_COMMENT__ 14---665 209 legal proceedings and the administration of justice in criminal and civil cases is put in jeopardy.
The professional side of their association distinguishes colleges of barristers from trade unions, artistic unions, and other social organisations.
The members of Soviet trade unions are united on industrial rather than on craft, professional lines. Members of any one union are therefore people of various professions and trades who work, however, in the same industry. A college of barristers, however, consists of barristers, and barristers only.
The artistic unions also unite people of one or related professions. A composer or an artist, for example, even though not a member of the Union of Composers or the Union of Artists, has the right to engage in his profession, whereas only persons who are members of a college of barristers can practise at the Bar.
Colleges of barristers also differ from such social organisations as voluntary societies (sports, stamp collectors', and friendship societies, etc.) whose members join together to satisfy interests that are not, as a rule, professional.
For members of a college of barristers, their practice is their main profession and chief source of livelihood.
Another feature of colleges of barristers is that particularly high demands are put on their members.
A college of barristers is thus a social organisation of independent type that occupies a special place in the political organisation of Soviet society. Their juridical nature can be expressed in the following definition: colleges of barristers in the USSR are self-governing social organisations of professional lawyers voluntarily joined together for the purpose of rendering multifarious legal aid and protecting the rights of citizens (and organisations), and furthering observance and consolidation of socialist legality and the administration of justice.
__ALPHA_LVL3__ §2. The Democratic Foundation of the OrganisationBeing a democratic institution as regards its activity, the Bar is also democratic in its organisational forms. The legal position of colleges of barristers as self-governing social organisations is 210 intended to create the optimum conditions for exercise of their members' public law functions and to secure their independence when appearing in courts and before other public agencies and authorities.
Colleges are built on the basis of the organisational principles common to all Soviet social organisations, taking into account the features peculiar to them and their purposes.
The principle of self-management operating in the Bar means that all the affairs of a college must be built on active involvement of each of its members in the organisation's business.
The democratic principles of the internal affairs of a college of barristers consist in the following:~
__NOTE__ The following ";" paragraphs have a hanging indent.the exclusive right of its bodies themselves to decide matters of the admission, expulsion, and disciplinary liability of barristers;~
free, professional discussion by the barristers of all matters of the college's work;~
collegiality of the leadership;~
the right of barristers themselves to decide the composition of the praesidium and auditing commission;~
the responsibility of the praesidium and auditing commission to the regularly convened supreme body of the college;~
the breadth of the powers of the college's bodies and their periodic re-election;~
the careful attention paid by the college's bodies to the members' requirements;~
broad involvement of the barristers in carrying out social commissions;~
strict observance of professional discipline by all the barristers and their obligation to carry out a decision of the college's body while it stands.
All these points ensure the independence of barristers in their practical activity from administrative bodies, the courts, the Procurator's Office, and the agencies of preliminary investigation. In considering the organisational structure of colleges of barristers it is necessary to clarify what the following represent:~
(1) the Bar as a legal institution (the sources of legal regulation of the organisation and order of business of colleges, and their position in civil law);
__PRINTERS_P_211_COMMENT__ 14* 211(2) the bodies (committees) of colleges;~
(3) legal consultation bureaux.
The Bar as a legal institution. When we speak of a college of barristers we have in mind an organisation uniting primarily all the barristers of a Union or Autonomous Republic, territory, region, or city.^^1^^
The absence of a social organisation uniting the barristers of the whole Soviet Union does not mean the absence of a Bar in the USSR. This legal institute exists; by it is meant the aggregate of the legal norms that regulate the organisation and functioning of colleges of barristers and of the work of their members.
The main juridical institutes are consolidated in the Constitution, of course, which is the juridical basis for all others. The Constitution of the USSR does not only provide for the right of citizens to join social organisations (Art. 51) and their other rights and freedoms; the legislator, recognising the high role of Soviet barristers in rendering legal aid to the public and organisations, included a special article on the Bar in the 1977 Constitution (Art. 161).
The organisation and way of working of colleges of barristers is not only defined by the Constitution but is also laid down by the Law on the Bar of the USSR^^2^^ and the regulations on the Bar of Union republics issued in accordance with it and by other legislation of the Soviet Union and its constituent republics.
The operative law recognises the various social organisations, colleges of barristers included, as legal persons (Art. 11 of the Fundamentals of Civil Legislation of the USSR and _-_-_
~^^1^^ A college of barristers is formed on the application of foundation members, consisting of persons with higher legal education, or on the initiative of the executive or administrative body of the respective Soviet of People's Deputies. The proposal to form a college of barristers is forwarded to the Ministry of Justice of the Union Republic, which presents it with its consent to the Council of Ministers of a Union Republic without administrative division into regions, or of the Autonomous Republic concerned, or to the executive committee of the territorial, regional, or city Soviet of People's Deputies, for confirmation and registration.
~^^2^^ This law was passed by the USSR Supreme Soviet on 30 November 1979 (VVS SSSR, 1979, 49: Item 846).
212 Union Republics; Art. 3 of the Law on the Bar of the USSR).Social organisations need property in order to carry on their work; this point is allowed for in the USSR Constitution (Art. 10). The property of a college of barristers is the material basis of its functioning. Its funds are spent on paying the barristers, on providing their social insurance, on upkeep of the praesidium and legal consultation bureaux, on training personnel and improving the qualifications of the barristers, on their cultural needs and amenities, on bonuses and awards and paying for barrister's holidays, and on various business and organisational matters. A college of barristers is exempt from paying national and local taxes and dues.
In order to carry on its work a college of barristers opens legal consultation bureaux and other institutions.
The governing bodies of a college are the general meeting, the praesidium, and the auditing commission.^^1^^
The general meeting is the highest organ of a college of barristers. It decides the most important matters of the college's work and defines the main direction of the activity of the praesidium and auditing commission.
A general meeting is convened at least once a year; a quorum consists of not less than two-thirds of the membership. It takes decisions on matters of the college's functioning, elects the praesidium and auditing commission for a term of three years, hears reports on their work, and fixes the numbers of the college and the standing orders and rules.
Union republics' regulations on the Bar contain only an approximate list of the matters that can be considered and decided at a general meeting. The point in the law that a general meeting 'may consider other matters connected with the work of the college of barristers'^^2^^ is very material. Limitation of the rights of the general meeting would hamper establishment of the best conditions for professional practice and for raising each barrister's responsibility for maintaining the college's prestige and standing.
_-_-_~^^1^^ In colleges that have more than 300 members, a conference may be convened instead of a general meeting.
~^^2^^ See Article 6 of the Regulations on the Bar of the RSFSR passed by the Supreme Soviet of the RSFSR on 20 November 1980.
213The praesidium is the executive body of a college and runs it between general meetings. It admits members and probationers, expels members and probationers, examines cases of members' disciplinary offences, convenes general meetings of the college, sets up legal consultation bureaux, and deals with a number of other matters.
The importance of the praesidium in the affairs of a college is very high not simply because the law makes a wide range of matters incumbent upon it, but also because the `climate' of the college, and barristers' opportunities for fruitful practice largely depend on it. The praesidium is bound to concern itself with the maintenance of professional discipline and the reputation and independence of the college. In doing so, however, it remains simply the executive committee of the college.
The praesidium has to represent and defend the professional rights and interests of the college and its members. This relates to those rights and interests whose realisation is predetermined by the purposes of the Bar. It is not obliged to come to the defence of a barrister, for example, when his rights of inheritance have been infringed, but it must not ignore any breach of the professional rights and interests of its members.
The auditing commission is the executive committee of a college of barristers that checks the financial and business activity of the praesidium and the legal consultation bureaux.
Its comments, proposals, and conclusions are presented either to the praesidium or to the general meeting, which takes steps to eliminate the shortcomings brought out.
Barristers' right to elect the members of the praesidium and auditing commission includes a number of more definite powers, viz. to nominate candidates for election to these committees, to campaign for or against their election, to take part in discussion and evaluation of the committees' work, and to move mandates for them. A guarantee of free elections is the obligation of the elected committee to report back to the members on its work, and their right to recall a member of either committee if he goes against the will of the membership and does not justify their confidence. Another guarantee of the electoral rights of the members is that a meeting of the college's highest body can be convened on the demand of a third of the membership.
214Under Article 4 of the Law on the Bar of the USSR, the praesidium and auditing commission of a college are elected by secret ballot, which is also a guarantee of free expression of the members' will.
Each member of a college works in a legal consultation bureau. The size of a bureau and its location are decided by the praesidium of the college in collaboration with the executive committee of the relevant district or city Soviet of People's Deputies.
A consultation bureau makes agreements with citizens, institutions, enterprises, and organisations on rendering them legal aid, and negotiates other civil compacts and agreements concerned with its running.
A legal consultation bureau has no property of its own; its manager acts under the authority of the praesidium of the college, that is to say, a bureau acquires rights and bears obligations in the name of the praesidium and not in its own name.
The. manager of a bureau has the right to hire and fire technical workers of the bureau, to deal with them summarily for misdeeds, and to spend the funds of the bureau within the limits of the confirmed budget and accounts.
The manager of a bureau and the chairman and deputy chairmen of the praesidium are paid for their duties from the funds of the college. They also have the right to practise law, which not only improves their financial status but enables them to avoid getting out of touch with practice, and to be aware of the working conditions of members in the courts and at preliminary investigations; in other words they are not only the members' leaders but themselves continue to practise law.
__ALPHA_LVL3__ §3. State Supervision of Colleges of BarristersThe profession of the Bar can be regarded as a free profession only with certain reservations. It is a liberal profession because it is open to any lawyer desiring to'take it up and having the necessary training, and also because a barrister enjoys maximum independence in the performance of his professional duties. But in taking part in a civil or criminal action and helping the plaintiff, defendant, accused, or victim, and in rendering other legal aid, a barrister exercises a public law function. Hence the 215 need arises for public, state guidance of the activity of the Bar.
The 3rd Session of the All-Russia Central Executive Committee issued a decree on 26 May 1922 by which the Bar was given distinct organisational forms and its relationship with the public authorities was defined. By this decree, as the USSR Minister of Justice has stressed, the supreme Soviet authority ' legislatively instituted the Bar and introduced the main principles of its work'.^^1^^
Under the Regulations on the College of Defenders of 1922 the public authorities controlling a college were given copies of the minutes of a general meeting and of sessions of the praesidium, for information, and also copies of the praesidium's report on the college's work and its reports on the decision of disciplinary cases. They were also informed of the adoption of new members, whose admission could be set aside by the executive committee of the provincial Soviet within one month of receiving the communication on his admission. Refusal of an application for membership of a college and the praesidium's decisions on disciplinary matters could be appealed against to the provincial executive committee which, when it recognised the complaint as justified, suggested that the praesidium re-open the matter of the complainant's admission.
In the years following there was a quest for optimum forms of supervision of the Bar and a process of democratising the internal affairs of colleges, viz. the voluntary character of their formation, their independence in deciding the fundamental issues arising within a college, and development of members' initiative. The Regulations on the Bar of the USSR of 1939 contained a point of principle on the self-government of colleges:
All matters connected with the organisation and running of a college of barristers are decided by a general meeting of the members of the college and by the praesidium of said college (Art. 14).
In accordance with Article 146 of the 1977 Constitution of _-_-_
~^^1^^ V. I. Terebilov. Soviet Barrister---an Honoured Calling. Izvestia, 18 May 1972.
216 the USSR, local Soviets of People's Deputies ensure compliance with the law and protection of civil rights. A college of barristers helps Soviets in their exercise of this function. Representatives of colleges of barristers inform sessions of the Soviets and meetings of their executive committees and standing commissions of the state of legality in their area. The praesidium of a college, and sometimes the managers of legal consultation bureaux, on the basis of study and generalisation of the data available to them on the reasons for infringements of legality, introduce proposals for local Soviets' consideration with the aim of eradicating and preventing such infringements.Colleges of barristers have a significant role in improving the legal knowledge of deputies and of the staffs of executive committees, on whose standard of legal information legality in the work of Soviets and their agencies largely depends. For all these purposes colleges of barristers organise consultation points for explaining legislation to the staffs of local Soviets.
Questions of the work of colleges are discussed by local Soviets, but they may not themselves decide any matter calling for professional experience and knowledge. A Soviet and its executive committee are limited to posing general objectives to colleges of barristers arising from the situation in the Soviet's area, without indicating how these tasks should be dealt with. Issues of a special character are decided independently by a college itself.
When considering state guidance of the work of social ( public) organisations we must start from the point that 'the state encourages . .. public organisations to provide all types of services for the population' (Art. 24 of the USSR Constitution), 'public organisations are guaranteed conditions for successfully performing the functions defined in their rules' (Art. 51), and 'the organisation and procedure of the bar are determined by legislation of the USSR and Union Republics' (Art. 161).
According to the Law on the Bar of the USSR, agencies of the USSR Ministry of Justice exercise 'general supervision over colleges of barristers' and do not act otherwise than 'within the limits of their jurisdiction' as laid down by the legislation of the USSR and Union republics (Art. 2, 16).
In accordance with Article 161 of the Constitution and 217 Articles~2 and 16 of the Law on the Bar general state guidance of colleges of barristers consists in the following.
(a) The Supreme Soviet of the USSR and the Supreme Soviets of the Union republics determine the legal status and objectives of colleges of barristers, the conditions that persons taking up the profession of the Bar must meet, and their rights and duties. The form of state guidance here is the passing of legislative acts on the Bar by the supreme public authorities of the USSR and Union republics.
(b) The USSR Ministry of Justice controls colleges' observance of Acts of the USSR and Union republics governing the activity of the Bar, lays down the procedure for paying for legal aid and, in agreement with the appropriate departments and bodies, the conditions for paying barristers for their work, issues methodological recommendations on matters of the activity of the Bar, and exercises other powers connected with general guidance of the Bar (Art. 16, Law on the Bar of the USSR of 30 November 1979).
(c) Whenever a decision of the general meeting of a college of barristers, or of its praesidium, does not comply with the operative legislation, the USSR Ministry of Justice suspends its operation. The matter must then be brought up again for a new discussion by the general meeting or praesidium concerned.
General guidance of the Bar should ensure strict observance of the democratic principles of the organisation and running of colleges of barristers, and help colleges to provide conditions fostering the fullest performance of the tasks facing them. The public authorities are not able to control the day-by-day work of a college, and there is no need for them to do so. The legislation on the Bar, with good reason, makes concrete running of a college incumbent on its praesidium, which directly controls the organisation and quality of all the legal aid rendered by its barristers.
[218] __NUMERIC_LVL2__ 9 __ALPHA_LVL2__ Rights Stemming from Membership of a College ofA member of a social organisation and an employee of state institution have a different legal status and different legal conditions.
The staff of a state institution is appointed by the heads of public authorities or is elected directly by the people. It consists either of employees appointed to their posts or of persons elected to them. The members of a college of barristers are neither appointed nor elected. They are accepted into the college and are neither employees nor representatives of the people. The basis of admission to a college is a citizen's desire to join and his conformity with the conditions laid down by law.
The relations linking the members of social organisations, and those linking the employees of state institutions, it must be noted, are also different. In a social organisation there are relations of equality between members, but relations within a state institution are based on hierarchy and subordination.
The relations of membership of the Bar arise when a person is admitted to a college of barristers. Legally able citizens of the USSR may be members of a college of barristers if they have higher legal education and at least two years' experience of work in the legal profession. The admission to a college may be subject to a trial period of up to three months. Persons who have graduated from a higher law school but have no working 219 experience as a lawyer, or who have worked as such for less than two years, may be admitted to a college of barristers only after successfully completing a probation period in it of six months to one year.
Persons who are on the staff of state institutions and social organisations may not be accepted into a college of barristers, because the law forbids barristers to be staff employees. An exception is made to this rule for persons who are engaged in teaching or research. This exception promotes employment of the advances of theory in barristers' practice, on the one hand, and helps the results and needs of practice to be taken into account in teaching and research, on the other hand.
The legislator, in laying down the moral conditions for admission to a college of barristers, does not limit himself to this point of education and experience. A barrister must have moral grounds for his involvement in settling a person's fate, and for statements about people's actions. It is therefore necessary that a barrister 'be a model of moral purity and irreproachable behaviour' (Art. 16, Regulations on the Bar of the RSFSR). If a candidate does not meet these high requirements, the praesidium of a college must refuse him membership.
Confidence in barristers depends on the conduct of each of them. Barristers not only bear moral responsibility for themselves but also for their colleagues and the work of the Bar as a whole. It is incumbent on the praesidium of a college to take special care to raise the standard of the college's joint work and good repute.
Other personal qualities are also needed for admission to a college. A lawyer desiring to join must have a bent for practice at the Bar and be capable of it. In one of his early works Karl Marx wrote:
A mistake in a barrister's or advocate's choice of profession not only takes its revenge on him himself but also on the people whose cases fall into his incompetent or indifferent hands. Even though such a barrister has mastered the tricks of the trade that does not convert his profession into creative work and an art. That calls for interest, love of the job, and spiritual warmth.An illusion about our talents for a profession ... is a fault which takes its revenge on us ourselves, and even if it does not meet with the censure of the outside world it gives rise to more terrible pain in our hearts than such censure could inflict.^^1^^
_-_-_~^^1^^ Karl Marx. Reflections of a Young Man on the Choice of a Profession. In Karl Marx, Frederick Engels. Collected Works, Vol. 1 ( Progress Publishers, Moscow, 1975), p~7.
220. . .If we have chosen a profession for which we do not possess the talent, we can never exercise it worthily, we shall soon realise with shame our own incapacity and tell ourselves that we are useless created beings. . . .^^1^^
The word `advocate' itself indicates the substance of a barrister's duties---to respond to a call for help,^^2^^ to be sympathetic and benevolent. It is typical that under the Polish Law on the Bar passed on 19 December 1963 only a person who has an even (mild) temper and character can be listed as an advocate.
In fact, `advocate' is not simply the designation of a profession but is primarily a mental and moral turn of character. A barrister must be able to find the right approach to people, to understand them, and to establish working relations with them, so as to influence them in the appropriate way and achieve or prevent certain results. Without that it is difficult to conduct a defence with great professional skill and civic courage.
A barrister needs independent, broad thought, conscientiousness, briskness and alacrity, an ability to control himself even in a complicated, tense situation, industry and perseverance, persistence, and efficiency. He has to have a lively imagination capable of finding circumstances in a case that exonerate his client or rule out or mitigate his responsibility, and to remember that 'an individual is not merely characterised by what he does, but by how he does it'.^^3^^
_-_-_~^^1^^ Ibid.
^^2^^ The Romans originally called `advocates' the kinsmen or friends of a litigant whom he asked to accompany him to court. Only during the Empire did this term come to designate judicial defenders. See E. V. Vaskovsky. Organizatsiya advokatury (Organisation of the Bar), Part 1 (St. Petersburg, 1893), p 1.
^^3^^ Engels to Ferdinand Lassalle, Manchester, 18 May 1859. In Marx, Engels. On Literature and Art (Progress Publishers, Moscow, 1978), p 104.
221Admission to a college is decided by its praesidium, in accordance with the size of the college established by the general meeting. Applications for membership are considered within a month of being submitted and as a rule in the presence of the applicant.
A barrister is released from a college by the praesidium on his application.^^1^^ In addition the praesidium may release a barrister either when he fails the test imposed for reception into the college or proves incapable of fulfilling his duties through lack of qualifications or poor health.
A barrister may be expelled from a college by the praesidium for systematic breach of its rules and standing order or negligent performance of his duties when measures of a disciplinary or social nature have previously been taken against him, or when he has committed offences incompatible with membership.
Barristers may appeal against discharge or expulsion from a college through the courts within a month of being served with a copy of the praesidium's decision.
__ALPHA_LVL3__ §2. Regulation of the Work of Members of a CollegeSoviet labour legislation governs the working relations of employees. The latter are the subjects of labour law and realise their right to work through the conclusion of a labour contract (Art. 1 and 2 of the Fundamentals of Labour Legislation of the USSR and Union Republics). As for members of a college of barristers, they do not sign a labour contract, and their work is governed by the legislation on the Bar, which provides for separate rules similar to the norms of labour law. According to the Law on the Bar of the USSR, for example, expulsion or discharge from a college can be appealed against in the courts (Art. 14). It does not follow from that, in general, however, that the work of the members of colleges of barristers is governed by the norms of labour legislation.
_-_-_~^^1^^ Barristers leaving a college for an elected post have to be re-- admitted to the same college on their request after expiration of their duties in these posts.
222The special features of the labour rights of employees are indicated in Article 2 of the Fundamentals of Labour Legislation. They receive pay, for example, guaranteed by the state. The pay of barristers is; not guaranteed by the state, and their work is recompensed from the fees received from clients by legal consultation bureaux for the legal aid given to them.
Legislation limiting the length of working time operates, in respect to employees, but the length of barristers' working time is not limited by law.
Under the labour legislation all employees are entitled to annual leave paid at their average earnings, and no deductions are made from their pay for holidays. Barristers, however, have to make a monthly contributions from their pay in order to enjoy paid holidays.
Barristers enjoy the right to sickness benefits and pensions. The period of work of members of a college is counted in the period of service to qualify for benefits and pensions, but the funds for) social insurance for a barrister are deducted from the fees paid by clients for his work. As for employees, their complete exemption from contributions and deductions is a principle of Soviet social insurance.
Barristers also do not enjoy the other rights of employees. The latter, for example, are given priority in promotion, a rise in rank, etc., for successful, conscientious fulfilment of their labour obligations.^^1^^ Membership of a college excludes such promotion. A barrister may rise in stature, of course, depending on his capabilities, knowledge, honesty, and conscientiousness. This consists in raising his reputation and the respect of his colleagues and the officials with whom he comes into contact, and in an increase in the number of persons wishing to get his legal help. A barrister's growth of stature, however, does not mean a rise in his position and a granting of wider powers, which is usually associated with promotion.
Labour legislation, we see, relates to employees. As for _-_-_
~^^1^^ See, for example, Article 55 of the Fundamentals of Labour Legislation, Article 6 of the Regulations on Awards and Disciplinary Responsibility of Procurators and Investigators of the Agencies of the Procurator's Office of the USSR (VVS SSSR, 1964, 10:Item 123; 1970, 29: Item 265).
223 barristers their work is governed by the legislation on the Bar and other laws relating to colleges of barristers.The pay of barristers. Free legal aid and the independence of barristers from clients appear very attractive, and the idea of the remuneration of barristers itself has far from always seemed acceptable. The idea of taking payment from clients for legal aid was also criticised in the early years of Soviet power. But only those who practise law professionally, and consequently for payment, can render aid in a qualified way.
At the 4th All-Russia Congress of Soviet Justice Workers in January 1922, the Chairman of the Supreme Tribunal under the All-Russia Central Executive Committee, N. V. Krylenko, said that
It was stressed at the Congress thatwe cannot change people, we cannot force a defendant not to pay his counsel to defend him to the best of his ability. It is being asked why we put the Bar in better financial conditions than judges and procurators, but I would like to see an accused person who would pay me for accusing him. We have to allow for the situation in which we live.^^1^^
That opinion was upheld by the legislator; the decision of the 3rd Session of the All-Russia Central Executive Committee of 26 May 1922 on the Bar consolidated the principle of clients' paying for the legal aid given them by Soviet barristers.in the Bar a good defender is a specialist, is an artist who is able to work well in his profession; it therefore seems strange to ask why he may earn more.^^2^^
According to Article 19 of the Regulations on the College of Barristers of 5 June 1922, the remuneration for handling a case was determined, as a rule, by agreement of the interested party and the member of the college. In addition, employees of state institutions had the right to determine the honorarium in accordance with a fixed scale. In civil cases they paid a fee of 5 per cent (a plaintiff of the amount aw?rded him, and a defendant of the amount awarded to the plaintiff). As for criminal _-_-_
^^1^^ Ezhenedel'nik sovetskoi yustitsii, 1922, 6:10.
^^2^^ Ibid., p 11.
224 cases, the scale laid down only the limits of the honorarium, and it was fixed by the praesidium of the college in accordance with the complexity of the case. Persons recognised as needy by a special decision of the people's court were released altogether from remunerating members of a college, and the necessary expenses of the case (journeys, the making of copies, etc.) were reimbursed from its funds. For that reason members of a college paid a deduction of 3 per cent into its funds from every fee received for handling a civil or criminal case. Legal aid still continues to be paid for by clients. The Law on the Bar of the USSR of 30 November 1979 directly states that the work of barristers is recompensed from the fees received by the legal consultation bureau from citizens and organisations for the legal help given to them (Art. 11).As in other spheres of human work, the intensity of barristers' work and their qualifications vary, and so their earnings vary. The praesidium of a college has constantly to watch that barristers' striving to increase their earnings does not affect the quality of their work. It is also very important to determine the number of members of a college and probationers that corresponds to the applications for aid. But all that in no way signifies the possibility of departing from the principle of payment by the quantity and quality of work.
According to the Model Regulations on the Payment of Barristers confirmed on 25 April 1975, the percentage deducted for paying barristers and for the college's fund from the honorarium received, and the aims and scale of expenditure from this fund, are decided by its governing body. That is a legitimate solution, since the spending of the college's funds is a matter coming within the competence of the college itself.^^1^^ The instructions confirmed by the USSR Ministry of Justice on 4 August 1977 provided for a certain raising of the scale of fees payable for barristers' legal aid to citizens.
In addition certain forms of legal aid are provided free. The manager of a legal consultation bureau, for example, the praesidium of a college of barristers, and also the agency conducting _-_-_
~^^1^^ Law on the Bar of the USSR (Art. 15); Regulations on the Bar of the RSFSR (Art. 16); Civil Code of the RSFSR (Art. 102).
__PRINTERS_P_225_COMMENT__ 15---665 225 the preliminary investigation, the procurator, and the court within whose competence a case comes, have the right, allowing for a citizen's financial position, to release him either wholly or in part from paying legal fees. When the payment of fees is waved by the manager of a legal consultation bureau or the praesidium of a college of barristers, the barrister's work is recompensed from the funds of the college, but when a citizen is relieved of legal fees by the investigation agency, procurator, or court, the barrister's work is recompensed in the established manner by the state (Art. 11 of the Law on the Bar of the USSR of 30 November 1979). __ALPHA_LVL3__ §3. Rights Stemming from Membership of a CollegeBarristers, like all other Soviet citizens, are endowed with sociopolitical and personal rights. In addition, however, they have certain special rights given them by membership of a college.
One part of the rights barristers get from membership of a college concerns their relations with state institutions, citizens, etc., outside the college, and they can demand state protection of these subjective rights. Thus, since a member of a college has the right to practise at the Bar, a judgment is liable to annulment if 'a person enjoying the right under the law to perform the functions of a defender is debarred without grounds from appearing as a defender'.^^1^^
Another part of the rights of a barrister stemming from membership of a college relates to the college itself, to its separate elements and bodies, and to other barristers, for example the right to vote for and be elected to the college's committees. These, however, are not rights in the juridical sense of the word, because the state does not normally intervene in their direct exercise and defence, leaving that to the college itself.
The following main rights of barristers are consolidated in the law or stem from it.
_-_-_~^^1^^ S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Criminal Law and Procedure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, p 408.
226Only members of a college have the right to practise at the Bar. This right is due to the fact that only persons who meet high demands may be entrusted with such practice (it was for that reason that colleges of barristers were organised).
Other persons may be permitted to conduct separate civil or criminal cases only, but not systematically and professionally to fulfil the duties of a defender or other representative. Furthermore, before a person is permitted to perform these duties even in one isolated case, the judge or court has to make sure that he can do so.
Barristers have the right to conduct cases and give legal aid in courts, before the preliminary investigative agencies, and in other institutions over the whole area of the USSR (Art. 6, Law on the Bar of the USSR). This right is also necessary so as not to limit the public to being able to turn only to the legal consultation bureau of the venue of the case, and to enable a citizen to obtain legal aid from another barrister who enjoys his confidence.
In order to perform his professional duties a barrister has to be independent of the authorities within whose jurisdiction the case he has been given falls, and of other officials.
The problem of a barrister's independence, like the right to defence, is connected with the decision of broader matters, viz. the character and degree of development of democracy, the prestige of the law, and the standing of the individual in a state. In a country where a person is rightless, and where the individual is humiliated, there is either no Bar or it drags out a pitiable existence.
Canon law and the inquisitorial trial, for example, could not provide favourable soil for the development of the Bar. Secret trial reduced, and sometimes excluded, the role of the barrister altogether in criminal proceedings.
Napoleon, with his tyrannical ways, was a rabid opponent of the Bar and barristers' freedom. He described barristers as rebels and fomenters of trouble. His decree of 1810 on the organisation of the Bar contained several material limitations of barristers' rights.
In serf-based Russia there was no organisation whose purpose was to render the public legal aid, which was a natural __PRINTERS_P_227_COMMENT__ 15* 227 symptorn of the rightless position of the majority of the population. Only the court reform of 1864 instituted a Bar in Russia in place of the old system of solicitors, pettifogging officials, and petitioners. Not everyone, however, who needed qualified legal aid was able to get it after this reform.
The founding of the Soviet Bar as a special organisation rendering legal aid to the public is a sign of the attention paid by the socialist state to the rights of the individual.
The problem of the barrister's independence arose at the same time as the founding of the Soviet Bar. The point was then raised that 'only an independent Bar can be an influential factor in gradually raising the administration of justice in the country to the proper height'.^^1^^ In order to achieve that objective the barrister became a member of a self-managing social organisation endowed with definite procedural independence.
Barristers decide their procedural position, and ways and means of handling briefs, independently of the opinion of the court, investigator, or procurator. A barrister taking part in a trial expresses his opinion on various matters of the case and his view helps decide procedural points. The right to free expression of his view and the right to criticise shortcomings in the work of public authorities and social organisations are extremely important. The Constitution of the USSR, in consolidating these rights, prohibits persecution for criticism (Art. 49, 50).
A barrister performs public law functions and it is therefore necessary in the interests of the Soviet all-people's state and society to secure him the opportunity to perform them independently. And for all the difference in procedural functions of court and barrister, the latter needs the same respect as the judge in order to perform his duties. That is allowed for in socialist law. The Decree of the State Council of the People's Republic of Bulgaria on the Bar, which came into force on 1 January 1977, for example, established that during performance of his professional duties, a barrister must be shown the same respect as is given to a judge (Art. 31). The Law on the Bar of the Polish People's Republic of 19 December 1963 established _-_-_
~^^1^^ Izvestia VTsIK, 10 May 1922. 228
228 that a barrister 'enjoys the protection of the law on equal terms with the judge and procurator' (Art. 8) during performance of his professional duties in court.The Plenum of the USSR Supreme Court instructs that tactless treatment of the parties to an action and an unequal attitude to them are incompatible with the requirements of the law, and that judges must pay the same attention to all the parties in a hearing, including the prosecutor and defence counsel.
The traditional ban on advocates' being in the service of state and social organisations is due to the fact that this can lead to a lowering of the quality of legal aid not only because of their employment on other work but also because of their loss of independence. A barrister who has become an employee will be bound to carry out all the instructions of superiors, including those that might contradict his convictions. Such subordination is extremely undesirable since the profession of the barrister calls for independence from any outside influences and can only be practised successfully in accordance with his duty.
But, while enjoying independence, a barrister must remember that
the end cannot justify the means, and the lofty ends of just, legal protection of society together with defence of the individual against unjust accusation must be achieved solely by moral means and methods.^^1^^
Thus a barrister, when rendering legal aid, must only be guided by the indications of the law and his moral duty, and not by the views and evaluations of any official body or person, including the committees and officials of his college of barristers.
Barristers have the right to elect and be elected to the committees of their college. That right is ensured by democratic election by the barristers of those among them who, in their opinion, are most capable and worthy of running the college's affairs.
_-_-_~^^1^^ A. F. Koni. Moral Principles in Criminal Proceedings. Sobranie sochineniy (Collected Works), Vol. 4 Yuridicheskaya literatura, Moscow, 1967), p 66; see also Vol. 5 (Yuridicheskaya literatura, Moscow, 1968), pp 114--115, 124, 134, 149.
229The elected committees of a college are responsible and accountable to its members. Barristers have the right to freely discuss and control the work of the Bar at sessions of a college's bodies and at meetings in the consultation bureaux.
This right cultivates a reasoned attitude to affairs in barristers, develops their initiative, and fosters a feeling of independence and responsibility. When taking part in discussions barristers have the right, it goes without saying, to criticise the work of the elected committees and of individual members of the college.
Barristers have the right to take part personally in all discussion of their conduct by the college's committees and at meetings in the consultation bureaux.
A member of a college has the right to know what precisely is to be discussed and to give his explanations, which ensures thorough, objective examination of the matter.
A barrister can put proposals and complaints to the appropriate body of the college on any matter of the running of the college. Complaints against decisions of the praesidium on matters connected with the running of the college are considered by a general meeting of the members.
The organisation of the Bar is itself a guarantee of the rights of the members of colleges of barristers, viz. the elected character of all of college's committees, openness in the running of the college, freedom to criticise, the responsibility and accountability of the elected committees to the membership, and collegiality in the activity of these committees.
[230] __NUMERIC_LVL2__ 10 __ALPHA_LVL2__ Duties Stemming from Membership of a College ofA number of a barrister's duties are formulated in the law. He is bound, for instance, to guard the secrecy of information that has become known to him in the course of rendering legal aid. The law prohibits a barrister from refusing to continue the defence of an accused person, and so on.
In many other cases the factor governing a barrister's conduct, in addition to the law, is custom and ethical norms developed in the decisions of the college's committees.^^1^^ The praesidium of a college indicates, in carefully reasoned resolutions, what means and methods of handling cases are not permissible, and defines the character of offences that debar persons who do not meet its aims and ethical requirements from membership. These resolutions indicate the working norms of the Bar and analyse many of the complex matters of practice at the Bar, and some can provide guidance for those who devote themselves to legal practice.
_-_-_~^^1^^ The rules (norms) drawn up by socialist social organisations are corporative norms. Those of a college govern not only barristers' relations with one another and with the college's committees, but sometimes also their relations with outside persons and bodies (the relations of the barristers and committees of a college with citizens, institutions, enterprises, and organisations). Quite obviously these norms cannot introduce any limitations of the rights of the barristers and the persons they come into contact with. An example of a corporative norm is the internal working rules of a college of barristers.
231The body that examines breaches of the rules of the profession of the Bar is the praesidium of a college of barristers. This committee has a character of its own. (1) It is at once the executive committee and disciplinary court of a college of barristers; (2) it not only applies the professional rules but also makes them, playing the role of `legislator'.
The moral norms applied to offenders against barrister's ethics exist in consciousness, without mandatory setting down in any act, and breaches of them are blameworthy irrespective of whether the norms have been proclaimed or promulgated. In that connection the decision of a college's disciplinary court is not restricted by the limits within which a state court operates.
The USSR Law on the Bar speaks of disciplinary liability for breaches of legislation. The legislator, moreover, refrained from imposing any moral formulas whatsoever, leaving it to the independent competence of the social organisation to work out the rules of professional activity by itself.
The norms of morality enable people's conduct to be judged from the standpoint of honour, good and evil, justice, etc. But moral norms and the individual's convictions and actions do not always coincide, and when his deeds diverge from accepted ethical norms, they meet with moral censure and compulsion, which often prove more effective than the censure and compulsion of constitutional law.^^1^^ The eminent prerevolutionary barrister, N. P. Karabchevsky, wrote:
Having myself experienced the significance of a comrades' disciplinary court, I understood that morally it may be the most benevolent and at the same time the most severe form of court. Before one's fellows as judges nothing must be vague and nothing held back; unconditional sincerity is required from the accused, and such a full exposure of all his hidden motives in regard to some wild complaint of a client's or unsubstantiated statement of an official is a very difficult psychological moment for many.^^2^^
The praesidium of a college requires barristers to unswervingly comply with the demands of the law and morality. At the _-_-_
~^^1^^ M. S. Strogovich. General Problems of Legal Ethics. In Problemy sudebnoi etiki (Nauka, Moscow, 1974), pp 7-12.
~^^2^^ N. P. Karabchevsky. How I Became a Barrister. In Okolo pravosudiya (About the System of Justice), St. Petersburg, 1902, p xxxvii.
232 same time it has no right to impose its opinion on a barrister as regards the factual or juridical aspect of a concrete case or group of cases.A barrister weighs up evidence in accordance with his procedural position, conscience, and convictions, expresses his opinion on the application of the law and other points in a case. Judgments that contradict morality and gross legal mistakes that are the result of a barrister's negligent and careless attitude to his duties entail disciplinary responsibility. A barrister is justifiably brought to book, for example, if he neglected to prepare a case and did not study it, or if he saw his client only for a moment in the detention room of the court and not in the remand prison,^^1^^ or if he ignored the fact that the accused is being called to account before he has reached the age specified in the law, and so on.
The impermissibility of influencing a barrister's personal convictions in no way means that the praesidium does not have the right to control the means and methods he resorts to in dealing with the matters before him. Here, as in no other profession, every deed and action of a barrister is weighed up, but the praesidium controls them only from the angle of their legality and ethical nature and not from the standpoint of their expediency.
The All-Russia Central Executive Committee, when instituting the Soviet Bar on 26 May 1922, made it incumbent on the praesidium of a college of barristers to observe and control defenders' performance of their duties and to impose disciplinary penalties in appropriate cases. A similar provision was included in the federal statute: 'Colleges of barristers,' Article 17 of the Fundamentals of the Judicial System of the USSR and Union Republics of 1924 stated, 'have the right of disciplinary supervision over the actions of their members.' The praesidium of a college also has this same right under the operative law for a number of considerations of principle.
The granting to the praesidium of the right to encourage barristers and to supervise their actions is aimed at maintaining the authority of the college. Its granting to persons who are not _-_-_
^^1^^ The place where the accused is held in confinement during examination of the case.
233 members of the college would be a sign of undeserved distrust of the Soviet Bar. It is precisely the members of the elected body of barristers' self-governing social organisation that are most competent to judge whether there has been a breach of professional rules.The members of the praesidium must institute and decide disciplinary cases without waiting on any official or authority. The guidelines are the law, concepts of morality, and the strict dictates of conscience. While exercising general supervision of the Bar, the justice agencies are not able to carry out day-- byday supervision of barristers' observance of the professional rules and have no right to instruct the praesidium of a college how to decide any particular disciplinary case.
The praesidium is a court of honour acting for a limited circle of persons associated by the community of interests of a freely chosen profession.
The occasion for raising the question of disciplining a barrister may be signed written complaints by citizens, communications from institutions, enterprises, or organisations, statements by other barristers, and offences entailing disciplinary liability discovered by the praesidium or the manager of the legal consultation bureau. These do not, however, predetermine a barrister's disciplinary liability but are only the grounds for examining the matter.
The chairman of the praesidium arranges for complaints and other materials about the actions of barristers to be carefully and objectively checked.^^1^^ He presents the findings of the check for the praesidium's consideration, and when the offence is a minor one the matter is remitted for collective consideration by the barristers of the consultation bureau.
The chairman of the praesidium entrusts the checking of the materials to one of the members of the praesidium or to another member of the college. The checker is obliged to assemble the documents needed to decide the case, to question the complainant and witnesses in the case, to acquaint the barrister with all _-_-_
~^^1^^ Wherever there has been a breach of professional duties, a barrister is answerable to the praesidium of the college of which he is a member. In other words the principle of territorial jurisdiction does not operate in disciplinary proceedings.
234 the assembled evidence, to take written statements from him and when necessary to check them as well, to draw up a written conclusion at the end of the check, and to acquaint the barrister being called to account with it.The aim of disciplinary liability is to ensure barristers' fulfilment of their duties and to uphold the prestige of the Bar. Withdrawal of a complaint lodged, or the complainant's reconciliation with the barrister, therefore does not eliminate the latter's disciplinary liability.
A barrister whose conduct is being checked has the right to challenge the person making the check.
Under the Law on the Bar of the USSR a barrister may not be disciplined later than one month from the day of discovery of the offence and later than six months of its commission.^^1^^
When the accusation against a barrister concerns an offence for which he could be expelled from the college, the praesidium has the right to suspend him during the period of the check, until the matter has been finally settled.
The matter of a barrister's disciplinary offence is considered with his participation. If he fails to appear at the session of the praesidium without valid excuse a second time, the matter can be heard in absentia. A summons for a barrister to appear before the praesidium to take part in the hearing of disciplinary evidence is an important event in his career and it is hardly likely that he will avoid appearing. Evasion would indicate his attitude to the disciplinary court of his colleagues, who have expected to clarify all the circumstances with him and to hear what his attitude to the assembled evidence is. The same applies to a barrister's refusal to present written explanations to the praesidium.
The praesidium's examination of a disciplinary matter begins with hearing the report of the person who carried out the check. Then the barrister himself is heard, and other persons whose explanations have a bearing on proper decision of the matter.
Disciplinary cases are heard by the praesidium at sessions open to all members of the college. Any of the members present has the right, in addition to the praesidium, to ask questions _-_-_
^^1^^ The checking of the evidence about a barrister's offence must also be done within a month.
235 and express an opinion on the substance of the case being heard. A praesidium's decisions are sent to the consultation bureaux to acquaint all the members of the college with the substance and results of the review of disciplinary cases. Disciplinary liability may not only arise on complaints from outside but also on the initiative of members of the college itself, which is evidence that the Bar itself will not suffer actions that discredit the profession.The disciplinary measures to which a barrister may be subjected include reproof, reprimand, and strict reprimand. In extreme cases, when the praesidium considers these penalties too mild, it may expel the offending member. In choosing its disciplinary measure the praesidium takes into consideration the degree of blame and gravity of the offence, the circumstances in which it was committed, and the barrister's previous work.
When there are no indications of a disciplinary offence in the evidence checked, or the fault of the barrister is unproved, and also when the period for disciplinary liability has expired, the praesidium refuses to institute disciplinary proceedings.
A member of a college of barristers should only be subjected to disciplinary penalties when other measures have been exhausted or cannot be employed because of the gravity of the offence. These measures are primarily means of bringing the opinion of the Bar to bear on offending members, and instructions of the praesidium. When the praesidium considers the offence committed by a barrister to be insignificant, and sees no need to impose a penalty, it can limit itself to explaining the impropriety of his actions to him, and sending the evidence about it to his consultation bureau for collective discussion.
As already remarked, expulsion from a college is only resorted to in extreme cases.
The praesidium's decision on a disciplinary case must contain a detailed exposition of the circumstances involved and of the evidence assembled, an exposition of the substance of the offending barrister's explanation, and the reasons for the decision to impose a disciplinary penalty or not to do so. The persons on whose initiative the matter was raised against the barrister are informed of the decision taken.
A copy of the praesidium's motivated decision is given to the 236 barrister against whom disciplinary proceedings were instituted, who may appeal against a disciplinary penalty to a general meeting (or conference) of the members of the college, the Soviet of People's Deputies or its executive committee, and against expulsion from the college to the courts. It stands to reason that when a barrister appeals against the decision in a disciplinary case concerning him, a worse outcome must be excluded if no new circumstances are established during further checking that indicate the commission of a graver disciplinary offence.
A disciplinary case may also be re-opened when new circumstances come to light; otherwise it would prove incompatible with the interests of truth and justice.
__ALPHA_LVL3__ §2. Barristers' Civil and Criminal LiabilityA barrister's civil liability. A barrister performs procedural acts in civil, criminal, and administrative cases on the basis of an agreement retaining him. The parties to this agreement are not the barrister and the client applying for legal aid, but the client and the college of barristers.
A client's commission is accepted by the manager of a legal consultation bureau acting as the accredited agent of the praesidium of the college. The conclusion of the agreement is recorded on a registration card signed by the manager and the client. The card gives the name of the barrister who is retained for the case, the character of the case, and the body in whose charge it is, and the fee if the commission is a remunerable one. The barrister signs the card and notes on it what actions he took in fulfilment of the brief, and when.
Chapter 35 of the Civil Code of the RSFSR ('Contracts and Commissions'), and the terms of the retainer agreement do not indicate the college's financial liability to the client. The legislation on the Bar does not provide for a barrister's financial liability for non-fulfilment, default, or other improper performance of the duties incumbent on him. In these cases he may only be held to disciplinary liability.
Barristers' criminal liability. Special criminal responsibility of barristers is not envisaged, and they are on an equal footing in 237 this respect with other citizens.^^1^^ If, for example, a barrister induces someone by his advice to commit perjury or forgery, or himself commits offences, he may be held criminally liable on general grounds.
A barrister or procurator has the right, when performing his procedural functions, to say anything he deems necessary in court. In many cases he is forced to give a characterisation of certain persons or to declare their evidence unworthy of confidence, and so on. But he cannot be held criminally responsible for his statements, however deeply wounding they are to the dignity of the person, if they are made in the proper form.
A member of a college of barristers is debarred from practising apart from a consultation bureau and taking fees above a certain scale for rendering legal aid. But practice at the Bar is not the performance of official duties. The very mode of remuneration of a barrister is different from the form of payment of the work of an office employee. The member of a college of barristers has no definite salary; he is remunerated for giving a client legal aid under an agreement between the latter and the consultation bureau according to an established scale.
As a member of a social organisation and taking part in criminal and civil proceedings, a barrister is not subject to any rights and duties of an organisational-procedural character. His activity in rendering citizens legal aid is the performance of professional functions rather than official ones. Therefore he cannot be treated as the subject of dereliction of official duties.^^2^^
The conclusion that a barrister is not the subject of dereliction of official duties is confirmed by judicial practice.^^3^^ The Plenum _-_-_
~^^1^^ Only the Criminal Code of the Armenian SSR specially establishes that 'the misconduct of a barrister or other person performing the duties of defender in a criminal case, expressed in instigation of a witness to perjury, or in damage to forgery, or destruction of evidence or other documents relating to a case, or in other such actions, is punishable by deprivation of liberty for up to five years' (Art. 194).
~^^2^^ See B. D. Zdravomyslov. Dolzhnostniye prestupleniya (Dereliction of Official Duties), Yuridicheskaya literatura, Moscow, 1975, p 42; Kurs sovetskogo ugolovnogo prava (Textbook of Soviet Criminal Law), Vol. 4 (Leningrad University Press, Leningrad, 1978), p 292.
^^3^^ S. V. Borodin (Ed.). Voprosy ugolovnogo prava i protsessa v praktike Verkhovnykh Sudov SSSR i RSFSR 1938--1978 (Problems of Crim-- __NOTE__ Footnote cont. on page 239. 238 of the USSR Supreme Court, for instance, recognised the absence of dereliction of official duties in the actions of barrister Varshavsky who, while a member of a college, received an honorarium from sources other than the budget of the consultation bureau. N. N. Polyansky, studying the legal nature of the Bar and drawing attention to this case, wrote apropos of it:
__ALPHA_LVL3__ §3. A Barrister's Obligation to Observe ProfessionalIf fulfilment of the obligations of a member of a college is equated with officials' performance of their duties, then Varshavsky's actions cannot help being seen as dereliction of official duties the consequences of which would be equation of a college of barristers with a public, state organisation. But the Plenum of the USSR Supreme Court not only did not treat Varshavsky's actions as dereliction of official duties but did not in general find them a corpus delicti, recognising that they were only disciplinary offences subject to review by disciplinary procedure.^^1^^
A barrister's duty to maintain professional secrecy is formulated in a number of norms of Soviet law.^^2^^ It relates to all the forms of legal aid rendered by the members of colleges of barristers.
The existence of the institute of barristers' professional secrecy is due not only to the need to protect the interests of citizens applying for legal aid, but is also explained by the state's interest in the proper rendering of such aid, which is inconceivable without the public's confidence in barristers. An accused person, for instance, has the right to give evidence in his case, but is not obliged to do so; this guarantee would be unreal, however, if the investigator or court could get the necessary information by interrogating defence counsel. In such a situation the accused _-_-_ __NOTE__ Footnote cont. from page 238. inal Law and Procedure in the Practice of the Supreme Courts of the USSR and RSFSR 1938--1978), Yuridicheskaya literatura, Moscow, 1980, pp 193, 210.
~^^1^^ N. N. Polyansky. The Juridical Nature of the Soviet Bar. SZ, 1945, 3: 14.
^^2^^ Article 7 of the Law on the Bar of the USSR; Criminal Procedure Code of the RSFSR, Article 72; Civil Procedure Code of the RSFSR, Article 61.
239 would be forced to decide whether to tell his counsel only what could not harm him or tell him everything and then risk worsening his position compared with that of an accused who has refused the assistance of counsel.Under the Constitution of the USSR the private life of citizens, the secrecy of their correspondence, telephone conversations, and telegraphic communications, and other personal secrets are protected by law (Art. 56). The duty to preserve professional secrecy is not only incumbent on barristers. According to the Fundamentals of Health Legislation of the USSR and Union Republics, doctors and other medical workers, and pharmacists have no right to divulge information, known to them through their professional duties, about the illnesses, and intimate and family affairs of citizens (Art. 16). The Law of the USSR on Public Notary's Offices establishes the secrecy of notarial acts (Art. 7). The Fundamentals of USSR and Union Republican legislation on marriage and the family provide for the secrecy of adoption (Art. 24), for disclosure of which criminal liability is established (RSFSR Criminal Code, Art. 124).
It is necessary for persons applying for legal aid to see the barrister as a person who will give them that help and not harm them by disclosure of information made known to him. The legislation protecting professional secrecy is imbued with great moral sense. Breach of confidence and treachery have always evoked a feeling of indignation; and if disclosure of a secret entrusted 'on word of honour' is impermissible, how much the more so it is for a person confidence in whom is a condition of his profession.
The prestige of the administration of justice, moreover, also depends on the means it is allowed to employ in criminal and civil proceedings. This prestige suffers if the objectives of criminal or civil proceedings are achieved by employing such means as a barrister's evidence against the person who turned to him for help, obtained by breach of secrecy and confidence.
A barrister cannot be interrogated either about circumstances communicated to him by the accused or any other person he represents, or about circumstances the barrister has learned about from relatives of the accused or other sources in the performance of his professional duties. The law, moreover, stipulates a wide range of matters on which a barrister cannot be interrogated as 240 a witness. These include circumstances of the case that have become known to him 'in connection with performance of the duties of representative or counsel' (RSFSR Civil Procedure Code, Art. 61; RSFSR Criminal Procedure Code, Art. 72). These may, consequently, be circumstances relating not only to his client and principal but also to another accused, the victim, a witness, expert, or even a person not interrogated in the case.^^1^^
A barrister cannot break his obligation to maintain secrecy on the grounds that it will not harm either the accused or the principal. As for the judicial and investigation agencies, they have no right to interrogate a barrister about information communicated to him in connection with performance of his professional duties, irrespective of whether he himself wishes to give evidence or not. The law on this point is so worded ('may not be summoned or interrogated. ..') as to leave no doubt that it is prohibited both to interrogate a barrister and to use his testimony as evidence. The judicial and investigation agencies, moreover, have no right to demand correspondence, files, etc., from a barrister, or information obtained by him orally from the accused or other persons.
The institute of a barrister's professional secrecy is thus a public law one whereby the interests both of justice and the accused and other persons are guaranteed. It follows from its significance that a barrister's duty to observe it is incumbent on him from the moment he is turned to for legal aid. It is then, and not from the moment when he undertakes the defence of an accused.person or representation of the interests of other persons, that the information obtained by him is not subject to disclosure. The obligation to preserve professional secrecy also remains after the ending of the relations that gave rise to it.
__*_*_*__ _-_-_~^^1^^ If important, material facts become known to a barrister before rendering legal aid, there are no grounds for prohibiting his being questioned. In this instance the barrister has no right to perform professional duties in the case.
__PRINTERS_P_241_COMMENT__ 16---665 241Not all aspects of the accused's right to defence in the USSR have been examined in the foregoing chapters. Many matters of Soviet criminal procedure need deeper presentation. In spite of that, I hope that my book will help the reader to become familiar with the constitutional principle of securing the accused's right to defence, which is one of the fundamental problems of Soviet jurisprudence and legal practice.
[242] __ALPHA_LVL1__ APPENDIX __ALPHA_LVL2__ FUNDAMENTALS OF CRIMINAL PROCEDURE OFArticle 1. Legislation on criminal procedure
The procedure for conducting criminal actions is defined by the present Fundamentals and other statutes of the USSR and the criminal procedure codes of Union republics issued in accordance with them.
Article 2. The purposes of criminal procedure
The purposes of Soviet criminal procedure are the rapid, full disclosure of crimes, conviction of the guilty, and securing of proper application of the law so that everyone who has committed a crime will be subjected to just punishment and no one innocent will be held criminally liable and convicted.
Criminal procedure should help consolidate socialist legality and law and order, prevent and eradicate crime, protect the interests of society and the rights and freedoms of citizens, educate citizens in the spirit of undeviating observance of the Constitution of the USSR and Soviet laws and respect for the rules of the socialist way of life.
Article 3. The duty to institute criminal proceedings and detect crime
The court, procurator, investigator, and investigation department are obliged within their competence to institute proceedings 245 in every case of the discovery of signs of a crime, and to take all the steps provided for by law to establish the events of the offence and detect the persons guilty of committing it, and to punish them.
Article 4. The impermissibility of accusing anyone other than
on grounds and in the manner established by law No one may have a charge laid against him other than on grounds and in the manner established by law.
Article 5. Circumstances debarring criminal prosecution
Criminal proceedings may not be instituted and a case instituted is liable to be stopped:
(1) in the absence of the occurrence of a crime;
(2) in the absence of elements of a crime in the deed;
(3) after expiry of the statute of limitations;
(4) subsequent to an amnesty, if it removes sentencing for commission of the deed, and also in view of the pardoning of individual persons;
(5) in respect of a person who has not reached the age, at the time of the commission of a socially dangerous act, at which criminal responsibility is possible under the law;
(6) after reconciliation of the victim and the accused, in cases provided for by the legislation of Union republics;
(7) in the absence of a complaint by the victim, if proceedings cannot be instituted otherwise than on such, except when the procurator is given the right by the legislation of Union republics to institute proceedings in the absence of a complaint by the victim;
(8) in respect of a deceased person; with the exception of cases when an action is needed to rehabilitate the deceased or to re-open the case in respect of other persons because of newly discovered circumstances;
(9) in respect of a person against whom a judgment on the same accusation or ruling or order of a court abandoning proceedings on the said grounds has come into legal force;
(10) in respect of a person against whom there is an unrescinded order of an inquiry agency, investigator, or 246 procurator dropping proceedings on the said grounds, except when the court within whose jurisdiction the criminal case falls deems it necessary to re-open the case.
When circumstances indicated in points 1, 2, 3, and 4 of this Article are discovered at the stage of the judicial hearing, the court shall bring examination of the case to a close and render a verdict of not guilty, or a verdict of guilty with release of the accused from sentencing.
The stopping of a case on grounds indicated in points 3 and 4 of this Article is prohibited if the accused opposes it. In that case the action shall be continued in the ordinary manner.
Article 51. The stopping of a case and holding of the person administratively liable, transfer of the case to a comrades' court or commission for juvenile affairs, or release of the person on surety
A criminal action may be stopped in cases and the manner provided for in the legislation of the USSR and Union republics in connection with:
(1) the holding of a person administratively liable;
(2) transfer of the case for hearing by a comrades' court;
(3) transfer of the case for examination by a commission for juvenile affairs;
(4) transfer of the person to the surety of a social organisation or a work collective.
A criminal case may not be abandoned on the grounds indicated in the article if the person who committed the deed constituting the corpus delicti objects. In that case proceedings shall be continued in the normal way.
Article 6. Inviolability of the person
No one may be arrested other than on the basis of a court order or with the sanction of a procurator.
A procurator shall immediately liberate any person illegally arrested or held in custody longer than the period stipulated by the law or a court judgment.
Article 7. The administration of justice only by a court Justice is administered in criminal cases only by a court.
247No one may be held guilty of committing a crime and sentenced except by the judgment of a court and in accordance with the law.
Article 8. Administration of justice on the basis of citizens'
equality before the law and court
Justice is administered incriminal cases on the basis of the equality before the law and court of all citizens, inrespective of their origin, social and property status, race and nationality, sex, education, language, attitude to religion, type and character of occupation, domicile, and other circumstances.
Article 9. Participation of people's assessors and collegiality in the hearing of cases
Criminal cases shall be heard in all courts by judges and people's assesors elected in the manner established by law.
Criminal cases shall be heard in all courts of first instance by a judge and two people's assessors.
People's assessors enjoy all the rights of a judge in legal proceedings. People's assessors enjoy equal rights with the judge presiding at a court session in the decision of matters arising during the hearing of the case and the reaching of a verdit.
Cases are heard on appeal by courts consisting of three members, and by judicial supervision by courts consisting of at least three members.
Article 10. The independence of judges and their subordination only to the law
When administering justice in criminal cases judges and people's assessors are independent and subject only to the law. Judges and people's assessors shall decide criminal cases on the basis of the law, in accordance with socialist legal consciousness, and in conditions excluding outside influence of them.
Article 11. The language in which legal proceedings are conducted Legal proceedings are conducted in the language of the 248 Union or Autonomous Republic, autonomous region, autonomous area, or in the language of the majority of the population of the place concerned.
Persons involved in a case who do not speak the language in which the proceedings are conducted shall be secured the right to make statements, give evidence, lodge petitions or make applications, acquaint themselves with all the materials in the case, speak in court in their mother tongue, and avail themselves of the services of an interpreter in the manner established by law.
Investigative and judicial documents shall be handed to the accused in accordance with the procedure established by law in a translation into his mother tongue or another language that he speaks.
Article 12. The openness of a court hearing
The hearing of cases in all courts shall be open, except when this contradicts the guarding of state secrets.
The hearing of cases in camera shall observe all the rules of court proceedings.
Hearing in camera is permissible, in addition, by a motivated ruling of the court in cases of the offences of persons who are under 16 years of age, in cases of sexual crimes, and in other cases in order to prevent disclosure of information on intimate aspects of the affairs of persons involved in the case.
The judgment of the court is pronounced publicly in all cases.
Article 13. Securing the accused's right to defence
The accused shall be guaranteed the right to defence. The court, procurator, investigator, and person conducting the inquiry shall provide the accused with the chance to defend himself by the legally established ways and means against the accusation brought against him and to guarantee him protection of his personal and property rights.
Article 14. All-round, full, objective investigation of the circumstances of a case
The court, procurator, investigator, and person conducting an 249 inquiry shall take all steps stipulated by the law for all-round, full, objective investigation of the circumstances of a case, and bring out circumstances both incriminating and exonerating the accused, and also mitigating or aggravating his responsibility.
The court, procurator, investigator, and person conducting an inquiry have no right to put the onus of proof onto the accused.
It is prohibited to solicit testimony from the accused and other persons involved in a case by force, threats, or other unlawful measures.
Article 15. Circumstances liable to proof in a criminal case
During the preliminary investigation and the hearing of a criminal case in court the following are liable to proof:
(1) the event of the crime (time, place, mode, and other circumstances of the commission of the crime) ;
(2) the guilt of the accused for commission of the crime;
(3) circumstances affecting the degree and character of the accused's responsibility;
(4) the character and scale of the damage caused by the crme.
Article 16. Proof and evidence
Proof and evidence in a criminal case is any fact on the basis of which the inquiry agencies, investigator, and court establish, in the manner prescribed by law, the existence or absence of socially dangerous acts, the guilt of the person committing these acts, and other circumstances bearing on a proper decision of the case.
These facts are established as follows: by the testimony of a witness, of the victim, of a suspect, and of the accused, by the findings of an expert, by material evidence, by the records of investigative and judicial acts, and by other documents.
Article 17. The evaluation of evidence
The court, procurator, investigator, and person conducting an inquiry weigh up the evidence on the basis of their inner 250 convictions based on all-round, full, objective examination of all the circumstances of the case in the aggregate, guided by the law and a socialist sense of justice.
No evidence shall have a priori force for a court, procurator, investigator, and person conducting an inquiry.
Article 18. Challenge to a judge, procurator, and other parties to an action
A judge, people's assessor, procurator, investigator, person conducting an inquiry, court secretary, expert, specialist, and interpreter may not take part in the proceedings of a criminal case and are liable to challenge if they are personally interested, directly or indirectly, in that case.
Article 19. Supervision by the USSR Supreme Court and the Supreme Courts of Union and Autonomous republics over judicial activity
The USSR Supreme Court exercises supervision over the judicial activity of the courts of the USSR and of the courts of Union republics within the limits prescribed by law.
The Supreme Courts of Union and Autonomous republics supervise the judicial activity of the courts of the respective republics. Aricle 20. Procurator's supervision of criminal proceedings
The Procurator-General of the USSR and procurators subordinate to him shall supervise exact and uniform observance of the laws of the USSR and Union and Autonomous republics in criminal proceedings.
The procurator shall take prompt measures, as provided for in the law, at all stages of criminal proceedings to eliminate any breach of the law, whoever it originates with.
A procurator exercises his legal powers in criminal proceedings irrespective of any authorities and officials whatsoever, being governed only by the law and guided by the instructions of the Procurator-General of the USSR.
Orders of a procurator issued in accordance with the law are liable to fulfilment by all institutions, enterprises, organisations, officials, and citizens.
251 __NUMERIC_LVL3__ SECTION II __ALPHA_LVL3__ THE PARTIES TO AN ACTION AND THEIR RIGHTSArticle 21. The rights of the accused
An accused person has the following rights: to know what he is accused of and to give explanations of the accusation brought against him; to present evidence; to file applications; to be acquainted at the conclusion of the preliminary investigation with all the materials of the case; to have a defender; to take part in the hearing of the case in the court of first instance; to challenge; to lodge appeals against the decision of the person conducting the inquiry, the investigator, procurator, and court.
The defendant has the right of last word.
Article 22. The participation of a defender in criminal proceedings
A defender is permitted to take part in a case from the moment the accused is informed of the conclusion of the preliminary investigation and the whole file of the case is presented to him for his information. A defender may be admitted to a case by order of the procurator from the moment the charge is laid.
The assistance of a defender in the preliminary investigation and at the court hearing is mandatory in the following cases: of minors, mute, deaf, blind, and other persons who by virtue of their physical or mental handicaps cannot themselves exercise their right to defence. In these cases a defender is admitted to the case from the moment the charge is laid.
In the cases of persons not speaking the language in which the proceedings are being conducted, and of persons accused of committing crimes for which the death penalty may be imposed, the assistance of a defender is mandatory from the moment the accused is informed of the conclusion of the preliminary investigation and the whole file of the case is presented to him for his information.
The assistance of a defender may also be mandatory in other cases defined by the legislation of Union republics.
252The following may be admitted as a defender: a barrister, representatives of trade unions and other social organisations, and other persons who are accorded this right by the legislation of Union republics.
The agency of preliminary investigation, procurator, and court within whose competence a case comes, and also the manager of a legal consultation bureau and praesidium of a college of barristers have the right, in the manner provided for by the legislation of the USSR and Union republics, to waive payment for legal aid by an accused person wholly or in part.
Article 23. The duties and rights of a defender
A defender is bound to employ all the means and procedures of defence indicated in the law to elucidate the circumstances exonerating the accused or mitigating his responsibility, and to render the accused the necessary legal aid.
A defender has the following rights from the moment he comes into a case: to interview the accused; to familiarise himself with all the evidence of the case and to copy out needed information from it; to present evidence; to file applications and petitions: to take part in the court hearing; to challenge; to appeal against the actions and decisions of the investigator, procurator, and court. In addition, a defender may, with the sanction of the investigator, be present at interrogations of the accused and at other investigative acts carried out on the application of the accused or his defender.
A defender has no right to decline the defence of an accused person if he has taken it on himself.
Article 24. The victim
A person who has suffered moral, physical, or material harm from a crime is recognised as the victim.
A citizen recognised to have suffered from a crime has the right to give evidence in a case. The victim and his representative have the right: to present evidence; to make applications and lodge petitions; to acquaint themselves with all the materials of the case from the moment the preliminary investigation is completed; to take part in the court hearing; to challenge; to 253 lodge appeals against the actions of the person conducting the inquiry, the investigator, procurator, and court, and also to appeal against the judgmet or rulings of the court, ana decisions of the people's judge.
In cases provided for by the legislation of Union republics, the victim has the right to second the accusation at the hearing either in person or through his representative.
Article 25. The civil plaintiff
A person suffering material damage from a crime has the right to present a civil suit during a criminal action against the accused or the persons bearing material liability for the accused's action, which suit shall be heard by the court together with the criminal case.
The civil plaintiff or his representative has the right to present evidence; to file applications and petitions; to take part in the hearing; to request the inquiry agency, investigator, and court to take steps to further the suit presented by him; to press the civil suit; to acquaint himself with the file of the case from the time the preliminary investigation is concluded; to challenge; to appeal against actions of the person conducting the inquiry, the investigator, procurator, and court, and also to appeal against the part of the judgment or rulings of the court that relates to the civil suit.
Article 26. The civil defendant
Parents, guardians, trustees, or other persons may be proceeded against as civil defendants, and also institutions, enterprises, and organisations that bear material liability by virtue of the law for the damage caused by the criminal actions of the accused.
A civil defendant or his representative has the right to object to the suit raised; to give explanations by the substance of the preferred suit; to present evidence; to file applications and petitions; to acquaint himself with the evidence of the case within the limits established by law; to take part in the hearing; to challenge; to lodge appeals against the actions of the person conducting the inquiry, the investigator, procurator, and court, and also 254 to appeal against the part of the judgment and rulings of the court that relates to the civil suit.
Article 27. The duty to explain and secure the rights of the persons involved in a case
The court, procurator, investigator, and person conducting the inquiry are obliged to explain their rights to the persons involved in a case and to provide them with the opportunity to exercise these rights.
__NUMERIC_LVL3__ SECTION III __ALPHA_LVL3__ THE INQUIRYArticle 28. The preliminary investigation agencies
The preliminary investigation of criminal cases is carried out by investigators of the Procurator's Office and also by investigators of the agencies of the interior in cases of crimes specified by the legislation of the USSR and Union republics, and by investigators of the security services in cases of crimes stipulated by the following articles of the Law on Criminal Liability for State Crimes: 1 (high treason), 2 (espionage), 3 (terrorist acts), 4 (a terrorist act against a representative of a foreign country), 5 (sabotage), 6 (wrecking), 7 (anti-Soviet agitation and propaganda), 9 (organisational activity aimed at committing specially dangerous state crimes, and equally involvement in an anti-Soviet organisation), 10 (specially dangerous state crimes committed against another working people's state), 12 (disclosure of an official secret), 12 (loss of documents containing an official secret), 15 (smuggling), 16 (mass disorder), 20 (unlawful departure from the USSR and entry into the USSR), 21 (breach of the regulations of international flights), 25 (breach of the currency regulations), 26 (that part relating to misprision in regard of state crimes stipulated in Articles 1 to 6), 27 (that part relating to concealment of state crimes stipulated in Articles 1 to 6, 9, 15, and 25); and also by Points a, b, and c of Article 23 (disclosure of a military secret or loss of documents 255 containing a military secret) of the Law on Criminal Liability for Military Offences.
A preliminary investigation is mandatory in cases of state and military crimes, and of other offences listed in the legislation of the USSR and Union republics.
Article 29. The inquiry (criminal investigation)
The inquiry (criminal investigation) agencies are the militia and other institutions and organisations empowered by law, and also the officers commanding military units and formations, and the commandants of military institutions.
It is incumbent on inquiry agencies to take the necessary prompt measures to discover evidence of a crime and the persons committing it.
Given the existence of signs of a crime for which a preliminary investigation is mandatory, the inquiry agency institutes criminal proceedings and, guided by the rules of criminal procedural law, carries out urgent investigations to establish and fix the traces of the crime, viz. inspection and examination of the place of the crime, a hunt for clues, searches, seizures, official examinations, detention arm interrogation of suspects, interrogation of victims and witnesses.
The inquiry agency shall immediately notify the procurator of the discovery of a crime and the beginning of inquiries.
In cases in which it is not mandatory to conduct a preliminary investigation, the findings of the inquiry are grounds for hearing the case in court. In these instances the inquiry agency presents the findings of the inquiry to the procurator, with whose sanction the case is sent to court for hearing.
Article 30. Powers of the investigator
The investigator takes all decisions during the preliminary investigation on its direction and on the investigative actions to be taken, except when the law requires him to obtain the procurator's sanction, and bears full responsibility for their lawful and prompt performance.
Whenever an investigator disagrees with the instructions of the procurator on the charging of an accused person, the qualification of the crime and scope of the accusation, on arraigning 256 the accused, or on dropping the case, he has the right to refer the case to a superior procurator with a written statement of his objections. In that case the procurator shall either annul the instructions of the lower procurator or entrust investigation of the case to another investigator.
The investigator in charge of a case has the right to order and instruct the investigation agency to carry out searches and inquiries and to require it to help carry out separate inquiries. His orders and instructions are binding on the inquiry agencies.
An investigator's order made in conformity with the law on a criminal case under his jurisdiction must be carried out by all institutions, enterprises, organisations, officials, and citizens. Article: 31. Supervision of the observance of the law by the inquiry and preliminary investigation agencies
Supervision over observance of the law by the inquiry and preliminary investigation agencies is exercised by the procurator in accordance with the Law on the Procurator's Office of the USSR.
A procurator's instructions are given in writing and are binding on the investigator and the person conducting the inquiry.
Article 32. Detention of a person suspected of a crime
The inquiry agency or investigator has the right to detain a person suspected of having committed a crime for which a sentence of imprisonment may be imposed only when there are the following grounds:
(1) when this person has been caught red-handed or immediately after commission of the crime;
(2) when eye-witnesses, including the victim, directly point the person out as the perpetrator of the crime;
(3) when clear traces of a crime are discovered on a suspect or his clothing, or with him, or in his dwelling.
When there are other facts giving grounds for suspecting a person of having committed an offence, he may only be detained if he has attempted to escape or when he has no permanent domicile, or when the identity of the suspect has not been established.
__PRINTERS_P_258_COMMENT__ 17---665 257A person detained on suspicion of having committed an offence has the right to appeal against the actions of the person conducting the inquiry, the investigator, or procurator, to submit explanations, and to file applications.
In any case of the detention of a person suspected of having committed an offence, the inquiry agency or investigator shall draw up a report giving the grounds and reasons for detaining him, and communicate this to the procurator within 24 hours. The procurator must sanction the detention of the detainee within 48 hours of receipt of this report, or release him.
Article 33. Adoption of measures of restraint
When there are adequate grounds for supposing that an accused person, if left at liberty, will abscond from the investigator or court, or will hinder establishment of the truth in a criminal case, or will engage in criminal activity, and also in order to secure execution of the judgment, the person conducting the inquiry, investigator, procurator, and court have the right to employ one of the following restrictive measures in respect of the accused: a written undertaking not to go away; personal recognisance; the surety of a social organisation; detention in custody; and such other restrictive measures as may be laid down by the legislation of Union republics.
Restrictive measures may be employed in exceptional cases in respect of a person suspected of having committed an offence even before he is charged. In that case the charge must be laid not later than ten days from the time the measure is employed. If a charge is not laid within that period, the restrictive measure shall be annulled.
A person detained in custody before being charged has the following rights: to appeal against the actions of the person conducting the inquiry, investigator, or procurator, to submit explanations, and to file applications.
Article 34. Detention in custody
Detention in custody may only be employed as a restrictive measure in cases of offences for which the law provides for a sentence of deprivation of liberty for longer than one year. In exceptional cases this measure may be employed in cases of crimes 258 for which the law stipulates a sentence of deprivation of liberty for no more than one year.
Persons accused of committing heinous crimes that are enumerated in the law may be detained in custody solely on the grounds of the dangerousness of the offence.
Detention in custody during the investigation of a case may not exceed a period of two months. It may be extended to three months in the light of the special intricacy of the case only by the procurator of an Autonomous Republic, territory, region, autonomous region, autonomous area, or by the military procurator of an arm of the Armed Forces of the USSR, area, arrny group or fleet, and to six months from the day of detention by the procurator of the Union Republic or the Chief Military Procurator. Further extension of the period of detention in custody may be ordered for an additional period up to three months only in exceptional cases by the Procurator-General of the USSR.
When a case is remanded by a court for re-examination, in which the period of detention of the accused in custody expires, and preventive restriction in the form of detention in custody may not be lifted in view of the circumstances of the case, the period of detention may be prolonged by the procurator supervising the investigation for a period not exceeding one month from the moment of his receiving the case. Said period may be further prolonged in the manner and within the limits established by part 3 of this Article, allowing for the time the accused has been under detention pending his arraignment.
Article 35. Searching and the procedure for the seizure of correspondence
A search may be carried out by written order of the inquiry agency or investigator and only with the sanction of a procurator.
In cases not admitting of delay a search may be carried out by the inquiry agency or investigator without the sanction of a procurator, but the latter must be informed of it within 24 hours of the search.
Correspondence may only be attached and seized at the post office with the sanction of a procurator or by a court order.
__PRINTERS_P_261_COMMENT__ 17* 259A search and seizure shall be carried out in the presence of witnesses.
__NUMERIC_LVL3__ SECTION IV __ALPHA_LVL3__ THE PROCEDURE OF CASES IN A COURTArticle 36. Arraignment
When there are sufficient grounds for hearing a case in court, a judge issues an order to arraign the accused, without predetermining the matter of guilt.
In cases of juvenile offences and crimes for which the death penalty may be imposed, and also in cases when the judge disagrees with the conclusions of the indictment, or when it is necessary to alter the restrictive measures employed against the accused, a procedural session of the court shall be held.
At a procedural session the court orders the arraignment of the accused, remits the case for supplementary investigation, or stops the proceedings in the case, and also decides the matter of restrictive measures. When the accused is arraigned, the court may delete separate points of the charge at the procedural session or invoke the criminal law on a less grave crime without altering the wording of the charge.
Article 37. The directness, oral character, and continuity of a court hearing
A court of first instance, when hearing a case, shall investigate the evidence in the case directly by interrogating the defendants, victims, and witnesses, hearing the conclusions of experts, by examining the real evidence, by reading out the records and other documents.
In each case the court session shall continue without interruption, except for time allotted for rest. The hearing of other cases by the same judges before completion of the hearing of a case already begun is not permitted.
Article 38. The equality of the rights of the parties to an action The prosecutor, defendant, defender, victim, and also the civil 260 plaintiff and civil defendant and their representatives, enjoy equal rights in a court hearing in the presentation of evidence, participation in examination of the evidence, and the filing of applications and petitions.
Article 39. The defendant's participation in a hearing
A case is heard in a court of first instance with the participation of the defendant, whose presence in court is mandatory. The hearing of a case in the absence of the defendant is only permitted in exceptional cases specially provided for by law.
Article 40. The procurator's participation in a hearing
The procurator supports the official accusation before the court, takes part in examination of the evidence, provides opinions on matters arising during the hearing, gives the court his view on the application of the criminal law and penalties in relation to the defendant.
In supporting the charge the procurator shall be guided by the requirements of the law and his inner convictions, based on examination of all the circumstances of the case.
If the procurator comes to the conclusion, as a result of the court hearing, that the facts of the judicial investigation do not support the charge brought against the defendant, he shall withdraw the charge and give the court his motives for so doing.
The procurator has the right to bring a civil suit, or support the civil suit brought by the victim, if defence of public or social interests or the rights of citizens so requires.
Article 41. Participation of representatives of social organisations and work collectives in a hearing
Representatives of social organisations and work collectives may be permitted to take part in criminal proceedings.
The representatives of social organisations and work collectives may be permitted by a ruling of the court to take part in the hearing of criminal cases as social prosecutors or social defenders.
In the cases of minors the court has the right to admit representatives of the enterprises, institutions, and organisations in 261 which the minor studied or worked, of commissions and inspectorates for juvenile affairs, and where necessary of other organisations as well, to take part in the court hearing.
Article 42. The limits of a hearing
A case shall be heard in court only in relation to the accused persons and solely on the charge on which they are arraigned.
A change in the charge is permitted in court if it does not aggravate the defendant's position and does not infringe his right to defence. If the change in the charge entails a breach of the defendant's right to defence, the court shall remit the case for a new preliminary investigation.
Article 43. The court's judgment
The judgment of a court must be lawful and validated.
The court shall found its judgment only on the evidence that has been examined in court session.
The verdict of the court may be one of guilty or not guilty. It must give reasons for a conviction and an acquittal.
A verdict of guilty may not be based on suppositions or assumptions and shall be brought in only on condition that the defendant's guilt for ithe crime committed has been proved during the hearing. The court brings in a verdict of guilty without pronouncing sentence if the deed has lost its social danger at the time of the hearing of the case or if the person who committed it has ceased to be socially dangerous.
A verdict of not guilty shall be brought in when the fact of a crime has not been established, when there are no elements of crime in the defendant's action, and also if his participation in the commission of the crime has not been proved.
The USSR Supreme Court and military tribunals pronounce judgment in the name of the Union of Soviet Socialist Republics, and the courts of Union republics in the name of the Union Republic.
[262] __NUMERIC_LVL3__ SECTION V __ALPHA_LVL3__ THE PROCEDURE OF CASES IN COURTSArticle 44. The right to appeal or protest against a judgment
The defendant, his defender and legal representative, and the victim and his representative have the right to appeal for the annulment of a court's judgment.
The procurator shall appeal for the annulment of any unlawful or unsubstantiated judgment.
The civil plaintiff, civil defendant, and their representatives have the right to appeal against that part of a judgment that relates to the civil suit.
A person acquitted by a court has the right to appeal against that part of the judgment that gives the reasons and grounds for the acquittal.
The period for lodging and the procedure for hearing an appeal or protest, and the procedure for appealing or protesting against the rulings and orders of courts are defined by the legislation of the USSR and Union republics.
Judgments of the USSR Supreme Court and of the Supreme Courts of Union republics are not subject to appeal or protest.
Article 45. The hearing of appeals and protests
When a case is heard on an appeal for annulment the court shall check the legality and validity of the judgment according to the evidence available in the case and additionally presented. A court is not bound by the arguments of the appeal or protest and shall check the case fully in relation to all the convicted persons, including those who have not lodged an appeal and in respect of whom no appeal for annulment has been lodged.
After hearing the appeal the court takes one of the following decisions in respect of the case: leaves the judgment unaltered and the appeal or protest ungranted; quashes the judgment and remits the case for a new investigation or hearing; quashes the judgment and stops the case; alters or modifies the judgment.
When a case is heard on appeal the procurator gives opinions on the legality and validity of the judgment.
263The issue of the convicted person's participation in the court sessions hearing an appeal for annulment shall be decided by the court. A convicted person who is present at the session shall be permitted in all cases to give explanations.
The defender may take part in the session hearing an appeal.
Article 46. The impermissibility of increasing the sentence on the convicted person or applying the law on a graver crime in the court of appeal
A court hearing an appeal may lighten the sentence of the court of first instance or apply the law on a less grave offence, but has no right to increase the sentence, and equally has no right to invoke the law on a graver crime.
A judgment may be quashed in connection with the need to invoke the law on a graver crime, or because the sentence was too lenient only when the procurator's protest or the victim's appeal is lodged on those grounds.
Article 47. The quashing of an acquittal
An acquittal may not be quashed on appeal other than on a procurator's protest, or on the appeal of the victim or the acquitted person.
Article 48. Supervisory review of court judgments, rulings, and orders that have entered into legal force
The supervisory review of court judgments, rulings, and orders that have come into legal force is permitted only on the protest of the procurator and chairman of the court, and their deputies, who are granted this right by legislation of the USSR and Union republics.
The Procurator-General of the USSR, the Chairman of the USSR Supreme Court, and their deputies have the right, within their jurisdictions, to suspend execution of the judgments, rulings, and orders of any court of the USSR, Union or Autonomous republics that have been appealed against, pending decision of the case by supervisory review. The same right is enjoyed by the Chief Military Procurator and Chairman of the Military Bench of the USSR Supreme Court in relation to any military tribunal, and the Deputy Chief Military Procurator in relation to a military 264 tribunal of an army, flotilla, formation, and garrison. The procurator and Chairman of the Supreme Court of Union republics and their deputies shall enjoy the same right in respect of an appealed verdict, ruling, and order of any court of the Union Republic and its constituent autonomous republics. When there are facts indicating a prima facie breach of the law, the persons named above have the right, at the same time as sending for the criminal case, to suspend execution of the judgment, ruling, or order pending the appeal for a period not exceeding three months.
A verdict of guilty and a ruling or order of a court may be reviewed by supervisory procedure within a year of their coming into force, in connection with the need to invoke the law on a more heinous crime, because of the leniency of the sentence, or in connection with other grounds entailing aggravation of the accused's position, and also an acquittal or ruling or order of a court abandoning a case.
After hearing a case by supervisory procedure a court may leave the appeal ungranted; quash the judgment and all subsequent court rulings and orders and stop proceedings in the case, or remit it for a new investigation or hearing; quash an appeal ruling and subsequent court rulings and orders if such have been made, and remit the case for a new appeal hearing; quash rulings and orders made during supervisory review and leave the court's judgment and appeal ruling to stand with or without amendment; to introduce amendments to the court's judgment, ruling, or order.
When reviewing a case by supervisory procedure a court may reduce the convicted person's sentence or invoke the law on a less grave offence, but has no right to increase the sentence and equally to invoke the law on a graver crime.
When criminal cases are heard by supervisory procedure the procurator who supports the protest lodged by him, or is giving opinions on a case being heard on the protest of the chairman or deputy chairman of the court, shall take part.
In cases of necessity the convicted person, acquitted person, their defenders, the legal representatives of minors, the victim and his representative, and the civil plaintiff, civil defendant and their representatives may be invited to the session of a court 265 examining a case by supervisory procedure in order to give explanations.
Article 49. Grounds for quashing or altering a judgment on appeal or by supervisory procedure
The grounds for quashing or altering a judgment after the hearing of an appeal or by supervisory procedure are the following: the one-sidedness or incompleteness of the preliminary investigation or hearing; the inconsistency of the court's conclusions set out in the judgment with the actual circumstances of the case; a material breach of the law on criminal procedure; incorrect enforcement of the criminal law; a discrepancy between the sentence pronounced by the court and the gravity of the crime and personality of the convicted person.
Article 50. The re-opening of a case because of newly discovered circumstances
A judgment that has entered into legal force may be quashed because of newly discovered circumstances.
Review of a verdict of not guilty is only permitted during the period of limitations established by law for criminal liability and not later than one year from the date of the discovery of new circumstances.
Article 51. The binding character of the instructions of superior courts
The instructions of a court hearing an appeal or reviewing a case by supervisory procedure are mandatory for a supplementary investigation and a court's second hearing of a case.
A court hearing a case on appeal or by supervisory review has no right to establish facts or consider them proven that were not fixed in the judgment or rejected by it, and equally has no right to predetermine matters of the proof of the accusation or failure to prove it, the reliability or unreliability of any piece of evidence, and the superiority of some evidence over other, of the court of first instance's application of such and such a criminal law, and of the sentence.
A court equally has no right when quashing an appeal ruling after hearing a case by supervisory review to prejudge the 266 conclusions that may be drawn by the appeal court on the second hearing of the case.
Article 52. The hearing of a case by a court of first instance after quashing of the original judgment
After the quashing of the original judgment a case is subject to hearing by the normal procedure.
The court of first instance may increase the sentence or invoke the law on a graver crime during the new hearing only if the original judgment was quashed because of the lightness of the sentence or because of the need to invoke the law on a graver crime on the procurator's protest or the appeal of the victim, or because of a supervisory review and also when circumstances are established in a new investigation of the case after the quashing of the judgment that witness to the accused's commission of a graver crime.
__NUMERIC_LVL3__ SECTION VI __ALPHA_LVL3__ THE EXECUTION OF A JUDGMENTArticle 53. The entry of a judgment into legal force and its execution
A sentence comes into legal force on the expiry of the period for appeal, if it has not been appealed against. When an appeal has been lodged the judgment comes into legal force, if it has not been quashed, on hearing of the case by the superior court.
A judgment not subject to appeal comes into force the moment it is pronounced.
A verdict that has come into legal force shall be executed by the court finding it not later than three days of its entry into legal force or return from an appeal instance.
A verdict of guilty shall be executed when it comes into legal force.
An acquittal and a sentence releasing the defendant from punishment are executed immediately after the pronouncement of judgment. Whenever the defendant is being held in custody the court shall release him in the courtroom.
The procurator shall supervise the legality of the execution of judgments.
267Article 54. The binding character of a court's judgment, ruling, and order
A court judgment, ruling, and order that have entered into legal force are binding on all state and social institutions, enterprises, and organisations, officials and citizens, and are subject to execution over the whole territory of the USSR.
__NUMERIC_LVL3__ SECTION VII __ALPHA_LVL3__ MEASURES TO PREVENT CRIMEArticle 55. Elucidation of the causes and conditions encouraging commission of a crime
During conduct of an inquiry, preliminary investigation, and the hearing of a criminal case, the inquiry agency, investigator, procurator, and court are bound to elucidate the reasons and conditions conducive to commission of the crime.
Article 56. Submission by the inquiry agency, investigator, and procurator in a criminal case
The inquiry agency, investigator, and procurator, having established the causes and conditions conducive to commission of the crime, shall make a submission to the appropriate government body, social organisation, or official, on the adoption of measures to eliminate said causes and conditions.
The necessary steps must be taken not later than one month of the submission and the results communicated to the person who made it.
Article 57. Special ruling (order) of a court
When there are grounds for it a court shall make a special ruling (order) to draw the attention of government bodies, social organisations, or officials to the facts of a breach of the law established in the case, and to the causes and conditions conducive to commission of the crime and calling for the adoption of appropriate measures.
A special ruling (order) may also be made upon the court's discovery of violations of the rights of citizens and other breaches of the law made during the conduct of the inquiry or preliminary 268 investigation, or during a lower court's hearing of a case. The court has the right to make a special ruling (order) from the record of the hearing and in other cases where it deems it necessary.
The necessary measures must be taken not later than one month from the moment the special ruling (order) was issued, and the results coinmunicated to the court making said ruling (order).
Vedomosti Verkhovnogo Soveta SSSR, 1959, l:Item 15; 1960, 18:Item 149 1961, 26: Item 270; 1963, 16: Item 181; 1970, 36: Item 362; 1972, 6: Item 51; 1977, 7: Item 120; 1981, 33: Item 966
[269] __ALPHA_LVL2__ LAW OF THE UNION OF SOVIET SOCIALISTArticle 1. The tasks of the Bar
In conformity with the Constitution of the USSR, the rendering of legal assistance to citizens and organisations shall be the main task of the Soviet Bar.
The Bar in the USSR shall promote the protection of the rights and lawful interests of citizens and of organisations, the administration of justice, the observance and strengthening of socialist legality, the education of citizens in a spirit of scrupulous and undeviating observance of the Soviet laws, a thrifty attitude to the people's wealth, observance of the discipline of labour, and respect for the rights, honour and dignity of other persons, and for the rules of socialist community-living.
Article 2. Legislation of the USSR and the Union republics on the Bar
The legislation of the USSR and the Union republics on the Bar shall consist of the present Law, which determines the organisation and order of activity of the Bar in the USSR, and the Regulations on the Bar issued in conformity with it and approved by the Supreme Soviets of the Union republics, and other acts of the legislation of the USSR and the Union republics.
_-_-_~^^1^^ Translated from the Russian by Yuri Sdobnikov.
270The rights and duties of advocates in the performance of assignments in civil and criminal cases, and in cases of administrative offences shall be regulated by the corresponding legislation of the USSR and the Union republics.
Article 3. Colleges of advocates
Colleges of advocates shall be voluntary associations of persons practising as advocates.
Colleges of advocates shall be set up on application by a group of constituents consisting of persons with a higher law education, or on the initiative of the executive and administrative organ of the corresponding Soviet of People's Deputies. The proposal to form a college of advocates shall be addressed to the Ministry of Justice of a Union Republic, which shall, given its consent, present it to the Council of Ministers of a Union Republic without regional division, and of an Autonomous Republic, and to the executive committee of the territorial, regional, or city Soviet of People's Deputies for approval and registration.
Republican colleges of advocates shall be formed in Union republics without regional division and in Autonomous republics, territorial and regional colleges of advocates in territories and regions, and city colleges of advocates in the instances provided for by the Regulations on the Bar of the Union Republic.
Inter-territorial and other colleges of advocates may be formed with the consent of the Ministry of Justice of the USSR, whenever this is necessary for rendering legal assistance to citizens and organisations.
Colleges of advocates shall be juridical persons.
Article 4. The organs of the colleges of advocates
A general meeting (conference) of the members of a college shall be its highest organ, a praesidium, its executive organ, and an auditing commission, its control and auditing organ.
The praesidium and the auditing commission of a college of advocates shall be elected by the general meeting (conference) of the members of the college of advocates by secret ballot for a term of three years.
The powers of the general meeting (conference), the 271 praesidium and the auditing commission, and the rights and duties of the chairman of the praesidium of the college of advocates shall be determined by the Regulations on the Bar of the Union Republic.
Article 5. Membership in the colleges of advocates
Citizens of the USSR with a higher law education and a length of service in the speciality of jurist of at least two years shall be admitted as members of colleges of advocates. The admittance to college membership of said persons may be made contingent on a trial period of up to three months.
Persons who have graduated from higher law institutions, who have no length of service in the speciality of jurist or who have a length of service of under two years may be admitted to a college of advocates after serving a probation period in the college for a period of from six months to one year.
The procedure governing admittance to the college of advocates shall be determined by the Regulations on the Bar of the Union Republic and other legislative acts of the USSR and the Union republics.
Members of the college of advocates and probationers may not hold office in state or public organisations. Exceptions may be made by the praesidium of the college of advocates for persons engaged in scientific or pedagogical activity, and also in other cases provided for by the Regulations on the Bar of the Union Republic.
Article 6. The rights of the members of the college of advocates
A member of a college of advocates shall have the right:~
to elect and be elected to the organs of the college of advocates;~
to put before the organs of the college of advocates questions relating to the activity of the college, to bring in proposals for improving its work, and to take part in their discussion;~
personally to take part in every case of discussion by the organs of the college of his activity or behaviour;~
to resign from the college of advocates.
An advocate acting as a representative or counsel for the defence shall be legally competent:~
272to represent the rights and lawful interests of persons applying for legal assistance in all state and public organisations, within whose competence the resolution of the relevant matters falls;~
to require and obtain, through the legal advice office, information, references and other documents required in connection with the extension of legal assistance, from state and public organisations, which shall have the duty to issue these documents or their copies in the established manner.
An advocate may not be interrogated as a witness concerning the circumstances which have become known to him in connection with the performance of his duties of counsel for the defence or representative.
Article 7. The duties of the members of the college of advocates
An advocate shall, in his activity, have the duty scrupulously and undeviatingly to observe the requirements of effective legislation, and to use all the ways and means provided for by the law in protecting the rights and lawful interests of citizens and organisations who have applied to him for legal assistance.
An advocate shall not have the right to accept an assignment on rendering legal assistance whenever, in a given case, he is rendering or has earlier rendered legal assistance to persons whose interests conflict with the interests of the person who has filed a request on the conduct of a case, or in which he has acted as a judge, procurator, investigator, person who has conducted the inquiry, expert, specialist, interpreter, witness or witness in a search, and also where a person in office to whom the advocate is allied by blood is taking part in the investigation or examination of the case.
An advocate shall not have the right to divulge information communicated to him by the principal in connection with the rendering of legal assistance.
Article 8. Legal advice offices
Legal advice offices shall be set up in cities and other populated centres by the praesidiums of the colleges of advocates for the purpose of organising the work of advocates in rendering legal assistance.
__PRINTERS_P_273_COMMENT__ 18---665 273The organisation and order of activity of the legal advice offices, and the rights and duties of the head of the legal advice office shall be determined by the Regulations on the Bar of the Union Republic.
Article 9. Types of legal assistance rendered by advocates
Advocates rendering legal assistance shall:~
give consultations and explanations on juridical matters, and oral and written information on legislation;~
draw up petitions, complaints and other legal documents;~
act as representatives in court, arbitration and other state organs for civil affairs and cases of administrative offences;~
participate in the preliminary investigation and in court in criminal cases as counsel for the defence, representatives of victims, civil plaintiffs and civil defendants.
Advocates shall also render other legal assistance to citizens and organisations.
Article 10. Remuneration of the work of advocates
The work of advocates shall be remunerated from the receipts paid to the legal advice office by citizens and organisations for the legal assistance rendered to them.
Article 11. The rendering of legal assistance to citizens free of charge
The colleges of advocates shall render legal assistance free of charge:~
to plaintiffs in courts of first instance in the conduct of cases for the recovery of alimony and labour cases; in action brought by collective farmers against collective farms on the remuneration of labour; compensation for injuries caused by mutilation or other injury to health connected with work; compensation for damage caused by the death of a breadwinner which has occurred in connection with his work, and also to citizens in the drawing up of petitions for the award of pensions and allowances;~
to citizens filing complaints concerning incorrect entries on electoral rolls;~
274to the deputies of Soviets of People's Deputies when giving consultations on legislative matters connected with the exercise of their deputy powers;~
to the members of comrades' courts and volunteer people's squads for the maintenance of public order in giving consultations on legislation in connection with their social activity.
Legal assistance shall also be rendered free of charge in the other instances provided for by legislation.
In addition, the head of a legal advice office, the praesidium of a college of advocates, and also the organ of preliminary investigation, the procurator and the court handling the case shall have the right, depending on the property status of the citizen, to release him fully or partially from payment for legal assistance.
When a citizen is released from payment for legal assistance by the head of the legal advice office or the praesidium of the college, the advocate shall be remunerated for his work from the funds of the college.
When a citizen is released from payment for legal assistance by an organ of preliminary investigation, the procurator or the court, the cost of remuneration of the advocate's work shall be referred in the established manner to the account of the state.
Article 12. Incentive measures for advocates
For exemplary fulfilment of their duties, for long and faultles service, and vigorous social activity, incentives shall be offered to advocates by a decision of the praesidium of the college.
Incentive measures and the manner in which these are to be applied shall be determined by the Regulations on the Bar of the Union Republic and by other legislative acts of the USSR and the Union Republic.
Article 13. Disciplinary responsibility of advocates
Advocates may be brought to disciplinary responsibility for breaches of the requirements of the present Law, the Regulations on the Bar of the Union Republic and other acts of legislation of the USSR and the Union republics regulating the activity of the Bar.
Disciplinary penalties shall be applied by the praesidium of the __PRINTERS_P_275_COMMENT__ 18* 275 college of advocates immediately upon the discovery of an offence, but not later than one month from the day of its discovery, not counting the time of an advocate's illness or absence on leave. No penalty may be imposed later than six months from the day the offence has been committed.
The penalty measures, and the order in which disciplinary penalties are imposed, removed and appealed against shall be determined by the Regulations on the Bar of the Union Republic.
Article 14. Cessation of Membership of a College of Advocates
The removal of an advocate from a college shall be effected by the praesidium of the college of advocates:~
on application by the advocate;~
in the event of unsatisfactory results of the trial specified for admission to the college of advocates;~
in the event of a discovery that the advocate is incapable of fulfilling his duties in consequence of inadequate training or state of health.
The dismissal of an advocate from the college shall be effected by the praesidium of the college of advocates in the following instances:~
repeated breaches by the advocate of the internal work regulations or careless fulfilment of his duties, provided measures of disciplinary or social influence have earlier been applied to the advocate;~
commission of other offences not compatible with membership of the college.
Removal or dismissal from the college of advocates may be appealed against through the courts within the period of a month from the service of a copy of the removal or dismissal decision by the praesidium of the college.
Article 15. Funds of the colleges of advocates
The funds of the colleges of advocates shall consist of the amounts deducted by the legal advice offices from payments for the rendering of legal assistance.
The amount of the deductions to the fund of the college shall be established by a general meeting (conference) of the 276 members of the college of advocates, but may not be in excess of thirty per cent of the amounts received by the legal advice office. The staffs, salary scales, pay-roll funds and office-- management expenditures of the colleges of advocates shall not be subject to registration with financial agencies. The colleges of advocates shall not be subject to state and local taxes and levies.
Article 16. Relations between the Bar and state organs and public organisations
Overall guidance of the colleges of advocates shall be exercised by the Soviets of People's Deputies and their executive and administrative organs in accordance with the legislation determining their competence, both directly and through the Ministries of Justice, the departments of justice of the executive committees of territorial, regional and city Soviets of People's Deputies.
The rights and duties of the Ministry of Justice of the USSR, the Ministries of Justice of the Union and Autonomous republics, departments of justice of the executive committees of the territorial, regional and city Soviets of People's Deputies with respect to the colleges of advocates shall be determined by the present Law, the Regulations on the Bar of the Union republics and other legislation of the USSR and the Union republics.
The Ministry of Justice of the USSR shall, within the limits of its competence:~
control the observance by the colleges of advocates of the requirements of the present Law, the Regulations on the Bar of the Union republics, and other acts of legislation of the USSR and the Union republics regulating the activity of the Bar;~
establish the manner of payment for legal assistance and, by agreement with the corresponding departments, the terms for the remuneration of the work of advocates;~
issue instructions and methodical recommendations on the activity of the Bar;~
establish the specific features of the order of organisation and activity of inter-territorial and other colleges of advocates;~
exercise other powers connected with the general guidance of the Bar.
In the event of a disparity between effective legislation and a decision of the general meeting (conference) or a decision of 277 the praesidium of a college of advocates, the Ministry of Justice of the USSR sihall stay their operation. In that instance, the matter may be brought in for fresh discussion, respectively, to the general meeting (conference) or the praesidium of the college of advocates.
The colleges of advocates shall, in fulfilling the tasks of the Bar, maintain ties with state organs and public organisations, render legal assistance to work collectives, people's deputies, voluntary people's squads, comrades' courts and other organs of public initiative engaged in combating offences, and shall participate in the propaganda of law and explanation of legislation to the population.
Vedomosti Verkhovnogo Soveta SSSR, 1979, 49: Item 846
[278] __ALPHA_LVL1__ SUBJECT INDEXAccusation
---subjects of---49
---change of---32
---denial of---147
---rejection from---163
Accused---7
---concept of---7
---as a party in the proceedings
---49 ---guaranteeing accused's right to defence is a constitutional principle---9, 12 ---formal charge against---7-8 27
------content (substance) of---30
---formal charge against juvenile
---198
---duties of---23 ---rights of
------to have defender---100--01
------to know what he is accused of---26--27, 187
------to prove innocence---40
------to give evidence---114
Acquitted---38
Appeal---8
---court of---8
---procedure of hearing---8-9
---against rejection of challenges
---160 ---against acts and decisions of investigator, procurator, and court---170--80 ---cassation---175--80
---supervisory procedure---180--87
---counsel's involvement in
---175--80
---freedom of---175
---content of---176
---limits of---177--78
Arraignment---7
---of minors---202
Arrest---1. See Detention in custody
2. attachment of correspondence of citizens----89
B
Bar---see College of barristers Barrister---96
---independence from authorities ---227, 229--30
Challenge
---procedural guarantee of the independence of judges---44--45
---counsel's right to file a challenge---122, 154--60
Circumstances exonerating the accused or mitigating his responsibility---142
Citizenship---13
Citizens' rights---13--14
Civil plaintiff---49
College of barristers---10
---principles of organisation of ---207--10
279---tasks of---208--09
---self-management as guarantee of independence of---210--11 ---governing bodies of---213--15 ----state supervision of---215--18 ---procedure of organising---211-
12, 219, 221--22
---membership, granting of---219 ---persons that can be admitted to---219--22 ---termination of membership of
---219--22
---regulation of work in---222--24 ---pay of barristers---224--26 ---providing free legal aid by---
225--26
Collision of defendants' interests ---position of defender (counsel)
in---164--66 Complaint ---counsel's right to appeal against the investigator's actions---171-
72 ------the actions of the court
---122
---cassation appeal, appeal by supervisory procedure---see Appeal; Supervisory procedure Contentious nature of trial ---concept of---48--49, 121, 123 Counsel's meeting with accused
---129--30, 132--34, 199 Court
---of first instance---42 ---organisational guidance of---47 see also: Complaint; Supervisory
procedure Court hearing ---stage of process---8, 160 Court practice---10 Court secretary---167 Criminal proceedings---see Legal
proceedings
Criminal procedural functions ---division of, subjects of---49,
128--29 ---function of defence---127, 162,
207Criminal procedural relations
---24 ---their link with criminal law relations---25
D
Defence
---fullness of---151--53
---rules favouring---51--53
---subjects exercising function of
---49
Defendant---see Accused Defender
---persons who may be---96--98 ---circumstances debarring person from a case as---98--99 ---right to have---22 ---mandatory involvement of---67,
93--96
---retention of---100 03, 126 ---appointment is possible when defender is not retained by accused---104 ----conditions of replacement of
---104--05 ---replacement of defender is guarantee of right to defence
---105--06 ---refusal of---118--20, 175--76
------by accused minor---193--94
---acceptance of duties of---108-
11------grounds for refusal---108--09
---entry into case---174 ---participation of several defenders---107, 164--66 ---as part in criminal process---
113, 123 ---independence of court of---
120, 145 ---may not be questioned as a witness about circumstances that became known to him in connection with performance of duties of---98 ---procedural independence of--- 115--18
280---procedural position of---145-- 46, 153--54
------when defending accused minor---192--94
---acquaintance with file of case ---135--39
---rights in court hearing---160-- 70
---duties of
------in relation to accused---113
------in relation to court---122
------to co-ordinate making of applications with accused--- 140
---must prove innocence or reduced guilt of accused---149
---special points on defence of minors---188--205
see also: Appeal; College of barristers; Complaint; Minors
Detention in custody---38, 89
---of juveniles---196--97
Detention of juveniles---195--96
Directions of superior court---45-- 46
Directness of court proceedings--- 53--60
---principle of---53--54
---guarantees of---54--60
Disciplinary liability of barristers
---conditions for taking disciplinary measures---235
---grounds for---232--33
---organs for raising the question of---231--32, 234
---procedure of---235--37
---must be obtained from sources indicated in law---88--92
---presentation of---143
---subject-matter of proof---142-- 43, 145
Examination of material evidence, the locality and premises ---57
Execution of judgement
---stage of criminal process---9
---execution of acquittal---see Judgment
Lxpert---8
---challenge of---153--54, 157
Explanation to accused his rights ---12, 100--01, 116--17
---to legal representative of accused his rights---204
File of a case
---right of counsel to familiarise himself with---135--39, 172
Full age---188--90
Functions---see Criminal procedural functions
Guarantees of the right to defence---12--13, see also: Right to defence; Defender
H
Human rights---17 Independence of barristers---
227--30 Independence of judges and their
subordination only to law---
42--43
I
Indictment---7, 27
Inner conviction
---weighing up of evidence ac-
Educationalist---200
Electivity of people's judges and
people's assessors---47 Evidence
---explanation to accused---133 ---in the defence of minors
---188--92 ---limits (onus) of proof---143,
163 281cording to inner conviction is guarantee of independence of judges and their subordination only to law---45
---of defender (counsel)---147--48
Institution of a criminal case
---grounds for---6,7
Interpretation of law---149--51
Interpreter---34, 67--73
Interrogation
---participation of counsel in the court interrogation---161--62
---rights of counsel when interrogating juvenile at the preliminary investigation---199--201 Investigation, preliminary---7
---is mandatory in actions against minors---194
Lawful interest of the accused--- 146--47
Legal aid
---providing free legal aid---225-- 26
see also: Defender; College of barristers
Legal consultation bureau
---correspondence with accused held in custody---134
---access to documents on inquiry of---143--44
Legal proceedings
---concept and tasks of---5
---stages of---6
---openness of---60
Legal representative of juvenile defendant---203--05
---concept of---203
---right of investigator and court to debar legal representative from participation in a case--- 204
---rights of---204--05
M
Material evidence---57
Measures of (preventive) restriction----38
---application to juveniles---194-- 97
Minors
---special points in actions against ---188--89
---establishment of age of---189-- 90
---subject-matter of proof in actions against---190--92
---restraints---194--97
---preliminary investigation is mandatory---194
---defence counsel's involvement in the preliminary investigation ---198--201
---procedure for interrogation at the preliminary investigation--- 200--01
282O
Onus of proof
---of accusation---39, 51--52, 127
Openness of court proceedings---
60--64 ---possibility of limitations on---
61--64 Oral nature of legal proceedings
---57--58
Prosecutor
---relations with defender---123-- 24, 131
Public
---social prosecutors and defenders---73--78
---difference between social detender and defence counsel---77
---rights and obligations of social defender---77--78
Punishment, penal
---difference of measures of procedural coercion from---37
R
Reading in court of testimony of the defendant, the victim, or a witness---54--57
Record of court session---167--70 ---acquaintance with---168--69 ---parties' comments on---169--70 Refusal to take part---155 Rehabilitation of accused---39 Relations
---if barrister is related to official taking part in the investigation or hearing he cannot be a defender---98--99 Removal of minors from the
courtroom---202 Representation ---defender is representative of accused---113--15
Right to complain---86; see also: Appeal; Complaint; Supervisory procedure Right to defence---15--16, 21 ---guarantees of---18--19, 79--88 ---and presumption of innocence ---40
S
Search
---findings of an unlawful search are not evidence---89 Secret, barrister's----134, 239--41 Secret, of adoption, correspon-
Parties in criminal proceedings ---equal rights of; accused as a party---49--51, 202 ---defender is a party---113, 123 ---cassation appeals of---177 ---right of court to disallow a question of---122 Pay of barrister---see College of
barristers Petitions
---counsel's---139 ---purpose and form of---140 ---consideration of---141--42 Pleadings ---participation of defender in---
162--63
---procedure of---164--65 Plenum of the USSR Supreme
Court---17
Presumption of innocence---34--35 ---period of action of---42 ---refutation of---40 Principles of criminal proceedings
---15
Procedural coercion ---use of measures of---37 Procedural equality---49--51 Procedural position of counsel---
145--46, 164 ---change of---153 Procurator ---procedural independence of---
44Propositions of defender on the substance of the indictment--- 166
Judge
---independence of judges and their subordination only to law---42--43
---impermissibility of interference with actions of---44--48
---electivity of judges and people's assessors, procedure for recall and for bringing to criminal responsibility---47--48
Language of court proceedings--- 65--73
---right to employ mother tongue 65
---mandatory involvement of defence counsel if accused does not speak the language in which hearing is being conducted---67
---participation of interpreter--- 67--73
---fullness of interpretation---70-- 71
283dence; medical, notarial---63-
64 Secret of judges' deliberations---
46--47 Self-management of colleges of barristers---210--11; see also
Colleges of barristers Supervisory procedure---180--87 ---difference between supervisory and appeal procedures---180-
81---appeal by---181--82 ---persons who have the right to lodge a protest by---181--82 ---limits of---186--87 Suspect---17
u
Uninterrupted nature of court examination---58
Venue---8, 67
Verdict---38
---review of verdict of not guilty ---53, 184
---truthfulness---42
Verdict of not guilty---see Verdict
Victim---8
w
Witness---28--29
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