Russia 5 Years After Stalin-6

...Similarly, it is difficult to explain the withholding from publication of the decrees which abolished the prosecution in court of members of collective farms who failed to attain the mandatory minimum credit for participation in collective work...

...The whole situation is most confusing, because confinement in correctional-labor camps is also a regular penalty under the Criminal Code and may be imposed by ordinary courts...

...It became law only in Uzbekistan in May, Turkmenistan in June and Latvia in October 1957, Tadjikistan in January 1958, and Armenia in February 1958...

...It seems that the Government does not want the population to know of the new, more benevolent treatment of an offense...

...In previous weeks, David J. DalLin discussed foreign policy, Boris I. Nic-olaevsky the Parly, Gleb Struve literature, Richard Pipes nationalities, and Simon Wolin secret police...

...True, legality means observance of law as contrasted with arbitrariness, but what is the meaning of the addition of the word "socialist...

...The powers given to them earlier but not used are stressed...

...Several times it has been claimed that these powers had been abolished or restricted, but they were resurrected again by an ex post facto ann ouncement...

...The August 1957 issue of the organ of the USSR Attorney General summarized the numerous discussions of investigation in the Soviet press...

...It introduces two new concepts: petty theft punished by confinement for not more than three months, and repeated petty theft punished by confinement for not more than two years...

...In Riga, Latvia, an artisan who used to buy broken musical instruments, repair them and sell them at a profit was deported under the law for two years (Soviets kaya Latvia, December 15, 1957...

...The whole body of Government attorneys appears as the main instrument intended by the Government to protect law enforcement, socialist legality...

...The fate of the others is shrouded in mystery...

...These are some of his mottoes: "No court was ever above class interests, and if there were such a court, we would not care for it...

...For the exercise of this power a Special Board was established within the Ministry...

...Unfortunately," continued Izvestia, "this is impossible because some resolutions and regulations of the Government, not confidential in nature, are sent to Government agencies and enterprises but remain unknown not only to the broad category of citizens but also to persons who must know them, for example, to the legal counsels of Government enterprises, the jurists working in the legal aid offices, and to practicing lawyers...

...The deportation is decided by a "public judgment" passed by a meeting of neighbors—without a court trial...

...There are signs of changes in policies but these have not sufficiently materialized in law...

...In cases involving political crimes (in a broad sense), the investigation was conducted by members of the security police...

...A general meeting of a majority of such residents passes judgment by a simple majority of votes in an open ballot...

...The November 1957 issue of Soviet Justice carried a portrait of Krylenko and a lengthy article calling him "the greatest theoretician and practitioner of Soviet justice...

...A recent statute on Government attorneys (public prosecutors), enacted on May 24, 1955, sets into sharp relief the complete absence of independence on the part of investigators...

...For a time it looked as if the Russian Republic was prepared to pass the law, but then, in October 1957, the Chairman of the RSFSR Supreme Soviet characterized it as a "distortion of socialist legality...

...The results of the investigation and of the police examination both may be introduced in evidence...

...Some of them are working but actually are not living on the income from their employment...

...Since 1940, the Council of Ministers had been authorized to draft youth for railroad and trade training courses to prepare labor for industry...

...The law makes it clear that the deportation shall apply only in cases where 110 crime punishable under criminal law and entailing a more severe penalty was committed...

...Two other features of the Soviet judicial system are striking and make the Soviet judiciary akin to administrative agencies...

...The Soviet legal order in the post-Stalin period is beset with contradictions, confusion and practices which are hard to understand...

...The edict in question is very short, merely stating that "petty theft of Government or public property committed for the first time shall be punished by correctional labor without confinement for from six months to one year or by confinement for up to three months...

...Beria was reportedly tried by a "special session" of the Supreme Court, but no law provides for such a session...

...The only legal justification for a secret trial, without the presence of the parties and with immediate execution of the death penalty without appeal, was the accusation that Beria, among other things, was responsible for acts of terrorism against Soviet officials...

...The new Statute on the Supreme Court of 1957 leaves the situation unchanged...

...Beria was tried by a bench of seven, of whom only one was a member of the Supreme Court...

...Some writers and courts seem to establish the difference on the basis of the cost of the goods stolen, embezzled, etc...

...In recent interviews with foreigners, including American law professors, Soviet jurists claimed that these powers had been abolished, yet failed to produce a proper document to this effect...

...Gradually, the investigators were completely detached from the court and subordinated to the public prosecutor...

...On February 11, 1957 the Federal Constitution was amended to restore the rules of the 1924 Constitution that the Federal authorities shall be confined to the issuance of only general principles of criminal law, while the enactment of the criminal codes was again reserved to the individual Soviet constituent republics...

...But this new climate is confined to articles in the press, to pure theory...

...Before its enactment, uniform drafts were printed in individual republics and discussed in the local and Federal press...

...The same is true of the abolition of prosecution in court for failure to respond to a draft for agricultural work...

...The law was applied to collective farmers who worked hard on their privately enjoyed house-and-garden plots and failed to obtain the required minimum credit for participation in the collective work of the farm (Pravda Vostoka, July 13 and 16, 1957...

...No official explanation is available...

...As far as could be ascertained, the draft appeared ' in April 1957 in Azarbaijan, Uzbekistan, Latvia, Lithuania, Kirguizia and Estonia, in May in Tadjikstan and Kazakhstan and in August in the Russian Republic...

...Thus, larceny, misappropriation and embezzlement of Government property was made punishable, regardless of the value of goods involved, by from 7 to 10 years and under some circumstances up to 25 years of confinement in a camp of correctional labor with confiscation of property...

...Most important among them was the confinement of persons deemed socially dangerous in a camp of correctional labor for a period up to five years—a sentence tantamount to hard labor with unlimited possibility of prolongation...

...Here are several examples of such secret laws, which officially have not yet been promulgated: • A 1947 edict on theft of public and private property provided for much harsher punishment for this crime than that previously established by the Criminal Codes...

...It may be that the powers still belong to the Ministry or have been transferred to the Committee on State Security, whose powers have never been defined...

...Acts committed repeatedly shall be punished by confinement for from one to two years...

...According to the statute, the investigators "shall be appointed and discharged" in a manner "to be established by the Attorney General...

...Likewise, a discussion of the revision of the Code of Criminal Procedure has also been going on in the Soviet legal press, but no essential changes have been enacted and no draft is in sight...

...Perhaps the edict has not been ratified yet for the same reason...

...A definite threat to the normal administration of justice is also presented by the laws against "antisocial parasitic elements" enacted in some Soviet republics...

...In any event, such non-promulgated laws do not give rise to any firm rights of which an individual may avail himself...

...The period opened with the case of Lavrenti Beria, who was characterized as the main violator of Soviet law...

...The judge conducting the investigation impartially collects all data exonerating as well as incriminating the suspect...

...The court is, and still remains, the only thing it can be by its nature as an organ of the government power —a weapon for the safeguarding of the interests of a given ruling class...

...Moreover, recent discussion of the forthcoming reform has not been too promising...

...The judge-investigator is independent of the public prosecutor and, in case of disagreement with him, can submit the controversy to the court even if this involves the custody of the suspect during the pre-trial proceedings...

...Thus, summary proceedings were used without any indication by the court as to the victims of the acts of terrorism, or where and when they were committed...

...Likewise, a theft committed by a gang, by a person taking advantage of an official position, or a theft intended to be on a large scale but actually carried out on a small one would be defined as theft under the edict of 1947 and not as petty theft under the edict of 1955, regardless of the value of the goods stolen...

...to promise such a thing would mean to cheat either ourselves or other people...

...The cases reported thus far, without exception, involve persons "living on unearned income...

...In 1938, the power to reopen finally decided cases was restricted to the supreme courts only—i.e., the Federal Supreme Court and those of individual republics...

...It appears that Soviet jurists, as soon as the pressure of Communist party policy relaxed slightly, attempted to write a more humane and liberal attitude into Soviet laws...

...Several early Soviet practitioners and writers on legal questions who disappeared after 1936 and were anathemized when Vishinsky was the principal spokesman on legal problems have now been "rehabilitated" —notably Nikolai Krylenko, his rival who disappeared in February 1938...

...Thus, both penalties are far below those provided by the Edict of 1947, where the lowest penalty is 7 years...

...Later, the law providing for such summary proceedings was abolished but there are features still in evidence which contradict any legality...

...While under the Imperial law appeals from the acts of the investigator could be brought to court, now such appeals must be made to the public prosecutor...

...First, the Supreme Court of the Soviet Union is closed to aggrieved private parties...

...Vishin-sky is openly criticized, particularly for his vague stand on the presumption of innocence...

...The possibility of returning the investigation to the control of the court is not even mentioned...

...Special benches were established within these courts for the reopening of cases on the motion of regional and provisional Government attorneys...

...There is no time limit for such a motion...

...But what is to distinguish petty theft from ordinary theft...

...It was Lenin who stated bluntly: "The court should not do away with the terror...

...the rest were appointed from various walks of life for this case alone...

...The editorial notes that the conference of Soviet jurists, as well as the bulk of letters received by the editor, are in favor of leaving the investigators where they are now —that is, under the public prosecutors...

...For us there is no difference between a court of law and summary justice...

...To summarize: Soviet laws are at present in a confusing state...

...Both the inmates sent by the Ministry of the Interior and those convicted by the courts served the penalty together...

...Persons of either category may be deported for a period of from two to five years with the duty to work at the place of deportation...

...In some instances, the newly enacted law is referred to orally by persons of authority, but its full text is not printed in any publication...

...Although it is customary to submit such edicts for ratification by the Supreme Soviet, and this edict is dated January 10, 1955 while the Supreme Soviet convened February 3-4, 1955, the edict was not submitted for ratification at either this or any subsequent session of the Supreme Soviet...

...As soon as the discussion narrows dpwn to definite new legislation, the affirmation of the existing situation is proposed...

...Among these is the law against anti-social parasitic elements...

...furthermore, the conviction was rendered in violation of Soviet law...

...It was finally located in the official pocket edition of the RSFSR Criminal Code of 1956 and in the Collection of Laws of the USSR and the Edicts of the Presidium, 1938-July 1956, published in 1956...

...Restoration of Krylenko's authority does not promise, however, any liberalization of Soviet law...

...The public prosecutor has the right to set aside any resolution of the investigator as well as the right to transfer the conduct of the investigation from one investigator to another...

...Others think that the theft for a small amount may not be petty theft if for some reason the theft appears to be significant—for example, "the theft of several sacks of grain or flour or of cheap but important building material...

...But in March 1957 an article appeared in the organ of the USSR Attorney General which discussed at length the application by courts of a new Presidium edict of January 10, 1955 on petty theft of public property supplementary to the edict of 1947...

...The edict of 1955 is silent on this point, thus leaving it to the discretion of the courts...

...He considered this statement to be "fundamental, a politically true (and not a legalistically narrow-minded) statement...

...Nevertheless, the only act of terrorism stated in the bill of charges (the case of Kedrov) was omitted from the judgment...

...Surprisingly, the editorial reduced the whole matter to a choice as to whether the investigators should be under the public prosecutors, as they are now, or under the Ministry of the Interior...

...Yet, when one asks, "What has been done to remedy the unjust treatment of suspects and prevent such injustices in the future...

...It means, as the late Andrei Vishinsky once put it, "subordination of the formal commands of law to those of the Communist party policy...

...In any event, in the five above-mentioned republics the law has been enacted and cases decided under this law have been reported...

...Its name changed—Cheka, Ve Cheka, GPU, OGPU, People's Commissariat and finally Ministry of the Interior (MVD) and Committee for State Security (KGB) — but its powers remained undefined by law...

...one can say only that a few of the most unjust laws have clearly been repealed...

...Thus, the protection of "socialist legality" in the post-Stalin period goes on side by side with practices incompatible with any legality...

...The statute on the Supreme Courts requires that a case be tried by a bench of three Supreme Court justices or one justice and two permanent assessors of the court...

...In many instances, the regular police conducted the investigation...

...Under the Soviet regime, "very soon the boundary line between the police inquiry and the pre-trial judicial investigation began to disappear,'" according to the Soviet law professors...

...The latest legal formulation of the agency's powers was a series of laws in 1934...

...The liberalizing tendencies of some legal writers are in conflict with the recently enacted laws...

...The prospective deportees were in fact hard-working people actually earning their livelihood but in a manner not in tune with current Soviet economic policy...

...A return to Lenin's practice is in itself not a promise of liberalization...

...The law is directed not only against "adult citizens who are able to work, and cany on a parasitic way of life [or] maliciously evade socially useful work" but also—perhaps primarily—against "those who live on unearned income...

...A separate collection of the resolutions of the Council of Ministers, which are no less important, was discontinued in 1949...

...Thus, the continued existence of such camps does not prove or disprove the abolition of confinement by administrative order...

...He was not only a most merciless prosecutor in several trials, but also preached most brutal ideas on courts and justice...

...The most confusing situation involves the crucial problem of whether confinement without a court trial may still be imposed by an administrative order...

...The decision of the executive committee is final and subject to immediate execution...

...The Soviet regime, in discussing this question, does not call for the outright protection of law and human rights but rather for the protection of "socialist legality"—a term which is as obscure in Russian as it is in English...

...Directives from the public prosecutor regarding the conduct of investigations are mandatory for the investigator...

...However, under the Statute of August 14, 1954, this authority was extended to regional and provincial courts in regard to cases decided by them...

...It may be also that the discretionary powers of the police are not being used now but are being kept in reserve on the statute books...

...Policies and many laws of the Stalin period were openly criticized not only in Nikita Khrushchev's speech at the 20th Communist Party Congress but also in articles in Soviet legal periodicals and letters to their editors...

...It shows that some of the principles of the traditional administration of justice formerly looked at with contempt by Soviet jurists—such as presumption of innocence, prohibition of application of penal statutes by analogy, admission of defense counsel throughout the proceedings—are now appreciated by Soviet legal writers...

...Only a few of them amount to real changes...

...On June 9, 1947 an edict established new, harsher penalties for any violation of state secrets...

...Since 1924, Soviet law has expressly provided for the possibility of withholding a law from publication, but such practices have become especially striking in recent years and involve law of both utmost and general importance...

...In other instances, an act is not printed in Vedomosti, in the Government daily Izvestia or in Pravda, the Communist party organ, but its text appears later either in an annotated edition of the Civil or Criminal Code or in some special collection of laws and decrees...

...Discussion of the term by Soviet legal theorists leaves no doubt that it means observance of the law with strings attached...

...However, in the non-Soviet jurisdictions a sharp distinction is drawn between the police inquiry, the findings of which could not be used as evidence in court, and a judicial pre-trial investigation conducted by a judge under the supervision of the court...

...A striking feature is that such non-promulgated laws for the most part contain more lenient provision than those in force previously...

...The repeal of harsh laws, if any, lacks definitiveness...

...No complete criminal code has been enacted by any of these republics thus far, only separate penal statutes...

...It is, however, characteristic that all these statements claim the abolition of the Special Board but refrain from saying what happened to the powers of the Ministry itself...

...What was the reason for keeping secret the list of information considered to be state secrets...

...The judgment is then submitted for approval to the executive committee of the district or city, i.e., to local administrative agencies...

...None of the laws establishing these powers has ever been officially repealed...

...The change introduced by the new edict is substantial...

...Khrushchev himself, condemning Stalin's terrorism against those whom Khrushchev held to be good Communists, did not hesitate to approve "the most extreme methods" used by Stalin and Lenin against "true enemies" of the regime—Socialist Revolutionaries, "Trotskyiles, rightists and bourgeois nationalists...

...But the highly centralized bureaucratic machinery of Government attorneys is no substitute for an independent court which alone efficiently protects individual rights in a free society...

...Since the inception of the Soviet regime the political police assumed as much power as was deemed necessary for the protection of the regime...

...There is no difference in principle between the police examination and pre-trial investigation in the Soviet criminal procedure...

...Although a special periodical, Vedomosti, is supposed to contain the laws of the Supreme Soviet and the equally important edicts of its Presidium, not all edicts are to be found there...

...The discussion of this proposal flares up and subsides...

...Vladimir Gsovski, chief of the European Law Division of the Library of Congress, is the author of Soviet Civil Law, « definitive work, and Elements of Soviet Labor Law...

...Perhaps the edict is being applied by the court as a kind of experiment and its ratification is, so to speak, postponed until the result of its application satisfies the Government...

...Under the non-Soviet laws, the pre-trial judicial proceedings were designed to serve, and have in fact served, as a method of saving an obviously innocent person (or a person not triable for a legal reason) from indictment and to secure for him the data for his defense at the trial...

...In other words, investigators are to be appointed and dismissed not as prescribed by law but as directed by the Attorney General...

...simultaneously, a list of information considered secret was promulgated by the Council of Ministers...

...But he and his lieutenants were sentenced to death in a secret trial which (as reported officially) was conducted by an illegally composed court...

...Izvestia observed recently (December 2, 1956) that knowledge of Soviet laws "is the main guarantee for the strengthening of socialist legality...

...What is the significance of the non-promulgation of the 1955 edict and of the fact that the Supreme Soviet has failed to ratify it for three years...

...A complete revision of the Criminal Code was ordered to be ready one month after Stalin's death, but up to the present time no draft has been made public...

...A court is merely a better organized form which warrants a minimum of possible mistakes and better evidence of the fact of the crime...

...In this respect, the post-Stalin era has not brought about any change...

...This passage refers to the recent practice of withholding laws and decrees from promulgation in periodical publications printed especially for this purpose—in other words, to the existence of secret laws in the USSR...

...Police examination and pre-trial investigation have equal judicial significance,' conclude the Soviet law professors...

...The new list was not located in any contemporaneous publication...

...a case which has once been reopened in this manner may be reopened again and again...

...On March 18, 1955, this power of the Council of Ministers was withdrawn without being duly made public...

...The latter may furnish redress to the aggrieved party...

...For example, the most objectionable feature of Soviet trials is the fact that the accused appears in open court after he has gone through a secret pre-trial investigation during which he is deprived of the benefit of legal counsel...

...The situation of these laws on a union-wide scale is most confusing...

...Judgment is made under the law by an assembly of "adult citizens residing in the area of a house management, a street committee, or a precinct committee" and in the rural localities by the "residents of the village...

...Secondly, a civil or criminal case decided by a final court decision may be ex officio reopened on the motion of Government attorneys or the presidents of the court...

...The law also provides that true parasites—viz., "persons engaged in vagrancy and begging"—are not subject to deportation by public judgment but only bv a judgment of the People's Court...

...But a new list of much wider scope is printed in the annotated edition of the RSFSR Criminal Code for 1957 and is dated April 28, 1956...

...Was the Government afraid that, if the discontinuance of the labor draft is widely known, it may affect voluntary enrollment...

...Taken as a whole, the situation suggests the picture of traditional Soviet arbitrariness and not of a firm rule of law...

...Thus, the law of the post-Stalin era has expressly retained the most objectionable features of Soviet procedure...

...Likewise, there were a few lines in the Soviet legal periodicals and a brief statement in the Supreme Soviet by Yasnov, chairman of the committee on legislative bills, claiming that the Special Board was no longer in existence (Izvestia, February 13, 1957...

...The text of the new edict was not given, and a search of Vedomosti, Izvestia and Pravda was in vain...

...There is no recourse possible to any court...

...It may, in general, be stated that an attempt to elevate the importance of the Attorney General and the Government attorneys subordinate to him has been made in the post-Stalin period...

...The discussion of the contemplated reforms is illuminating...

...Pre-trial investigation in important criminal cases is a common feature of Continental European procedure, including the Imperial Russian...

...Perhaps the Government realized that the penalties under the 194.7 edict were too harsh and wished to give the courts a chance to apply milder punishment without unduly publicizing such leniency...

...Then, the People's Commissariat for the Interior (NKVD), superseded in 1946 by the Ministry of the Interior, was given various discretionary powers...

...A club is a primitive weapon, a rifle is a more efficient one, the most efficient is the court...

...The appalling facts brought to light by this criticism exceed the imagination of critics of the Soviet legal system...

...Only certain judicial officers—the USSR Attorney General, and presidents of the supreme courts and their deputies—may bring a case before the Supreme Court...