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STALIN'S death in 1953 started his heirs on a hurried effort to modify the severity of Soviet codes of criminal law and procedure. In March of that year Beria promised that new codes would be ready in six months. Yet, as the year 1957 came to a close, the task was still in the hands of the law professors. No new codes have yet become law. Only a patchwork has been carried out to eliminate a few of the major points of complaint against the criminal code.
The silence of the Soviet legislators stands out the more strongly in contrast to the extensive debate currently proceeding in Soviet law institutes and the press. This debate is symbolic of widespread dissatisfaction within the U.S.S.R. over conditions in the courts as they had developed during Stalin's tenure. Even the most dogmatic of the present Communist leaders seem to appreciate that they and their predecessors have pressed too hard, and that the public will no longer conceal its repugnance at the practice of convicting the innocent on a grand scale under the excuse that a dragnet policy was necessary to terrorize political enemies and preserve the state. Long gone are the days when Soviet agitators could argue with some plausibility before Soviet audiences that the vague and sweeping provisions of the criminal code and the extremely meager defense opportunities offered by the code of criminal procedure were designed only to trap the sly "bourgeois" foe and need not strike panic in the hearts of citizens loyal to Party and country. Nikita Khrushchev's denunciation of Stalin in February 1956 told even of loyal Communists convicted for things they never did.
With Khrushchev's example of plain speaking before them, technicians of the law institutes have been emboldened to suggest a housecleaning, involving many changes in the present law, so as to establish what they call "legality." A committee of experts was created in 1956 in the Council of Ministers of the U.S.S.R. to prepare drafts for submission to the Supreme Soviet for enactment. Whether the committee can hasten legislation will depend upon the politics of the moment when the drafts are ready. Under Soviet conditions it is the Communist Party, as always, and its First Secretary in particular, that will decide the question. There are Soviet specialists placed to know the inside story of the past who confide that it was Stalin himself who stopped the formal enactment of earlier drafts. It is not impossible that the committee of experts may again complete its work and again find its drafts buried on a desk higher up in the Party hierarchy. Still, some citizens think that pressure from the public is now so great that long delay in enacting the drafts, once they are ready, would be exceedingly difficult. The year 1958 will indicate the speed with which action is to come, for evidence is accumulating that the drafts are nearing completion.
In discussing their new drafts Soviet experts criticize above all else imprecision in the definitions of the present criminal codes of the various Soviet republics. Since 1922 judges have been permitted by law to inflict punishment for what they will, regardless of whether the act complained of was defined as a crime in the code. Authority for such a decision lies in the "analogy" article, by which a court is permitted to find any act "socially dangerous" and to punish the offender appropriately, using as legal basis for the sentence any article of the code which the judges believe to define analogous action as a crime.
In the 1930s the Supreme Court sought to limit widespread application of the analogy article, but it was restored to vigor during the war, and the late Andrei Vyshinsky used his great authority as supreme arbiter over the "legal front" to prevent its elimination in postwar years, despite a strong movement among law professors to discard it. Now that Vyshinsky is dead and his era of dictatorship in legal matters is widely denounced, the majority of Soviet law professors have declared themselves in favor of eradicating this unpopular principle from the new code.
In the words of a rapporteur before a meeting of 115 legal specialists held in early 1957 in the All-Union Institute of Juridical Sciences in Moscow, "the principle of further strengthening of socialistic legality in the sphere of criminal law must be reflected in the codification by the republics of criminal legislation. This task will be served by the rejection of analogy and by straightforward declaration in law that punishment may be applied only for a crime provided for in the law." In July 1957, an Izvestia author demanded that "penalties be applied only through the courts and that the only basis for criminal liability be the existence in a person's act of the elements of a crime as stipulated by law." This required, in his view, the exclusion from the code of the principle of analogy and inclusion in the codes of an exhaustive list of crimes.
The analogy principle bears the brunt of the law professors' attack, but none of them has so far criticized the imprecision of articles of the criminal code punishing as "counter-revolution" a wide variety of activities including such matters as "the undermining of state industry, transport, trade, currency or system of credit, or of the coöperative system, with counter-revolutionary intent, by utilizing the state institutions or enterprises concerned or by working against their normal activities." This was the article under which large numbers of industrial managers were convicted during the purges of the late 1930s. The recent denunciations of the excesses of the purges have not yet been reflected in any published attack on the articles under which much of the blood-bath was conducted. The most that has been said on this score is in the vague criticism of the Izvestia author who urges the deletion of unspecified articles "that provide for the possibility of punishing persons who have not committed a specific crime but who are dangerous because of their connections with the criminal world or because of their past activities."
While the definition of "counter-revolution" in the codes remains uncriticized, the whole concept of the lesser type of "state crimes" (called in the code "other crimes against the administration") is being reconsidered. It is suggested that smuggling, evasion of military service and violation of labor discipline, which rank now second only to the "counter-revolutionary" category of crime, should be reduced to lower categories bearing a lesser stigma and lower penalties. It is also recommended that obsolete crimes, such as having belonged to the Tsarist secret police or to governments which sought to supplant the Soviet government during the Civil War, be declared outdated and eliminated.
The cry has also gone out against the notorious provision authorizing exile to remote places in Siberia for periods up to five years for members of the family of a soldier who flees the country, even if the family knew nothing of the planned escape. The reformers seem to have no objection to existing provisions punishing family members who knew of the plan and failed to report it.
Proposals for defining specific new crimes as a means of replacing the analogy article have not been numerous. Those of major note call for implementing the constitutional guarantees of inviolability of home and correspondence. Officials who now enter a home or read correspondence without a prosecutor's approval are punishable under the code provision authorizing prosecution of an official for exceeding his authority. Apparently, this threat has not been sufficiently frightening to overly zealous or oppressive officials, and the law professors want to be able to point to precise language in the code.
Moderation of existing forms of punishment is currently a major demand. Current codes provide for penalties ranging up to ten years for non-political crimes and up to 25 years for those committed with intention to injure the state. Execution by shooting is permitted for traitors, spies, subversives and saboteurs as well as for sadistic murderers. Reformers of today are of two minds. Some think the provisions excellent and without need of change. Some would reduce the maximum to 15 years, while still others point out that in Lenin's time the maximum prison term was ten years and that sentences less severe than imprisonment were more often handed down than is now customary.
Return to the ten-year maximum prison term seems to have the support of the majority of legal experts; a draft, as yet unpublished but apparently circulating in Soviet legal circles, is reported to incorporate this change. Capital punishment, for those presently subject to it, seems also to have been retained in the draft. Nothing is said in the debate about the apparent tendency of the Supreme Court to extend the death penalty to murder which is less than sadistic, even though the circumstances of the crime, as reported in the judicial decisions, are admittedly outrageous. The evidence in the debate suggests that severe penalties will be retained for the active enemy of the régime and for the brutal enemy of society generally, but that elsewhere there will be an attempt to return to policies of reform and rehabilitation which were widely and favorably publicized during Lenin's time.
The effect upon a man's reputation of having served a prison term is now being discussed. It is suggested that prison should be reserved only for offenders who have committed acts sufficiently serious to require elimination of the offender from society for a period of at least one year. The pressure from some quarters to apply penalties of three months in prison for minor offenses is being resisted as ruinous to a man's reputation. It is thought sufficient for a light offense to punish with less opprobrium, presumably by application of the long-established practice of assigning the criminal to a job outside of prison for a fixed term, with deduction of a portion of his wages as a fine and loss of accumulation of seniority rights during the period of the penalty.
Mounting distrust of the criminal repeater is evident in articles disclosing some soul-searching as to why crime should persist in Soviet society. Doctrine in revolutionary days laid crime to poverty and social protest. Doctrine since 1936 has announced full employment and achievement of a socialist society which is by Soviet definition beneficial to all. Yet, crime persists. In the words of two authors in June 1957: "No doubt we have liquidated the social and economic conditions that lead to mass impoverishment of the capitalist countries and force thousands into crime. But along with the objective conditions existing at a given stage in the building of Communism, there exist conditions of a subjective order. One cannot overlook such a factor as the lag in individuals' psychology, which is where survivals from the past most often roost." For such retarded individuals Soviet authors demand "reëducation strengthened with effective means of compulsion." In other words, hard labor is proposed for the professional criminal who has become a social parasite, and the new codes will not be lenient with him.
Juvenile delinquents have been worrying Soviet law officers as they have officials in other lands. To cope with the problem, law reformers in 1935 reduced the age of responsibility to 12 years if the offense was larceny, mayhem, murder, attempted murder or violence causing bodily injury. The culprits were to be tried before regular courts and not a special court for youthful offenders, and penalties were to be the same as for adults. For other offenses responsibility at 16 years of age was continued.
Raising the age of responsibility from 12 to 14 for serious crimes is now recommended, and it is urged that under the new code sentences for offenders in these categories from the ages of 14 to 16 should be less severe than those for adults. Some specialists propose to recreate special juvenile courts, although this was not a part of the rapporteur's suggestions at the 1957 meeting of legal specialists, and it seems unlikely that the wheel will turn completely back to the policy of the early days.
Procedural protection of the accused has also been placed high on the agenda of reform. Soviet law professors have long been at odds on this subject with Stalin and his principal henchmen. While Stalin was still alive one professor kept arguing that a presumption of innocence existed in Soviet law, but he could point to no provision of constitution or code to support his assertion. He could say only that since counsel was permitted, it was logical to suppose that he had a function to perform, and this would not be the case if there were a presumption of guilt. Now, all reformers want to see the principle of presumption of innocence established in print, probably because they know, as Soviet authors have admitted in the past, that Soviet pre-trial proceedings often lead a judge to assume in advance that the prisoner before him is guilty.
The state of mind which accepts a presumption of guilt is encouraged by the fact that no individual comes to court in any but the most minor case without having been subjected to a preliminary investigation by an official charged with exploring the case in every detail. This official is not supposed to content himself with establishing a prima facie case as would be done before a grand jury at common law in the United States, but the present code requires him to hear the defendant and his witnesses and examine the defendant's evidence. The investigator's duty, if honestly performed, causes him to conclude when he prepares the indictment and turns over the case to the prosecutor for trial that the prisoner has already been given a chance to defend himself and has been found wanting.
The judges at the trial know what has preceded preparation of the indictment, and by their own admission they often assume that the accused is guilty unless he can prove himself innocent. The present reformers feel that their task is to protect the defendant against this presumption of guilt, and they propose to do it in two ways. One is to declare specifically in the new code that the accused is to be presumed innocent when the trial begins, and the second is to give him counsel not only at the trial but during the preliminary investigation.
Present procedural codes in the various republics make no provision for the right of counsel in all cases, even though the 1936 Constitution created such a right. Ever since 1936 Soviet legal authors have written that the right must be held to exist even though the codes have not been amended to incorporate it. Now the reformers would specify the constitutional right in the codes, and they would go further. They would have the codes state all of counsel's rights including the right to communicate privately with a defendant, to familiarize himself with the materials of a case, to request the court to summon witnesses and require the production of evidence, to participate at every stage of the trial, to plead in court and to appeal and participate in the appeal. Some of the reformers want also to have counsel admitted at the preliminary investigation so that no person will have to rely on his own resources at this crucial point in the proceedings.
Opposition to the proposal to permit counsel at the preliminary investigation still seems strong, and it may even be that dominant opinion still suffers from the old fear that a lawyer's presence at proceedings before trial will lay bare the prosecution's case before it is complete, thus giving the defense an opportunity to frighten witnesses or conceal evidence which might otherwise become available. Those who favor the presence of defense lawyers are strengthening their hand with an argument unfamiliar in Soviet circles; they are saying that such a right of counsel at the stage of preliminary investigation already exists in Czechoslovakia, Poland, Rumania and East Germany, and this is sufficient reason to consider the adoption of the principle in the U.S.S.R. itself. If the argument prevails, it will be the first time that Soviet law has been known to copy procedural practice in another state of the Soviet bloc.
A form of jury trial for very serious offenses may reappear in the Soviet Union, if reformers have their way. For some time after the Revolution major crimes were heard by a jury, and it was in 1922 that one professional judge and two lay assessors became the standard trial bench. Since that time no suggestion has been made for a larger number of laymen to serve as a form of jury. Soviet law professors seem to have been content with the three-man bench, on which the lay assessors shared with the professional judge the decision of both guilt and penalty. Now the proposal has been made to increase the number of lay assessors for serious crime, sometimes described as crime for which capital punishment may be prescribed. Some authors ask for four assessors and others for six, and some suggest that the laymen should constitute a "jury." Some would permit this jury to decide only matters relating to the guilt or innocence of the accused, leaving to the professional judge the determination of the appropriate penalty. Others feel that a division of functions would provide a contrast between judge and lay assessors which does not now exist, and that it is desirable to have laymen share in determining the penalty, perhaps as a restraining hand upon an overly severe judge.
Soviet legal scholars sometimes refer to the revocation, in September 1953, of the authorization of the Ministry of Internal Affairs to conduct hearings before special boards constituted by the Ministry to determine "social danger" in individuals and to exile them or imprison them in hard labor camps for periods up to five years. It was this administrative institution which constituted the chief mechanism of Stalin's terror apparatus. Curiously enough, the 1953 law of revocation of which the reformers are proud has never been published. It is said to have been exhibited to a group of French socialists in 1956, but it has not even been printed in a recent volume purporting to contain all laws enacted between 1938 and 1956 except those concerning the budget and those awarding medals. In spite of the secrecy still surrounding the text, the revocation seems to be a reality, for the foreign correspondents stationed in Moscow hear of no mass arrests which would suggest that the police are acting outside the courts as they did during Stalin's time. It is probably in hopes that this state of affairs will not be permitted to return that the reformers demand that the courts alone be entitled to apply penalties.
A new element is creeping into the Soviet system of law enforcement, however, and it conceivably could create some of the danger which law professors thought had been eliminated through the abolition of the special boards of the Ministry of Internal Affairs and generally through the current effort to revise the codes. This new element is the "social assembly." In a series of draft laws published in the various republics for discussion during the spring and summer of 1957, there began a campaign against "anti-social parasitic elements." To cope with this menace it was proposed to vest authority in a "social assembly" to vote a "social sentence" under which any adult refusing to participate in "socially useful work" and also living on "unearned income" might be exiled to remote regions for a term of from two to five years with the obligation to work at the place of exile.
The "social assembly" was to be summoned by a street committee or a housing administration and was to include all adults living in the given street or multiple dwelling. The provincial or city soviet's executive committee was to review any such sentences to assure adherence to common rules of justice and to ascertain that the sentence was grounded on firm evidence. Such a review was presumably to make certain that angry neighbors did not punish an unpopular person who was really doing no wrong.
Commentaries have been published, most of them accepting the general principle of the law; but many criticize its details, especially the vagueness of its definitions, the long terms permitted as penalties, the inadequacy of the quorum requirement for the assembly passing the sentence, the failure to establish procedural rules to govern the hearing and the absence of a right to appeal. Some have suggested that the assembly be replaced by a "comradely court" similar to that now operating to enforce discipline in industry or the court of the same name which functioned before the war in multiple dwellings as a device for disciplining disorderly tenants. Such a court would be small, composed of highly responsible citizens chosen especially for the function, and it might be subject to review by the professional courts, as it was in the 1930s.
Some Soviet law professors have indicated that the "social assembly" could negate much of the current move toward restoring legality to the process of maintaining order and could expose individuals to the emotional action of neighbors having no training in the evaluation of evidence or the determination of appropriate penalties. The foreigner cannot but wonder why this new element has been permitted to creep into a system undergoing a reform which seems to lead in the opposite direction. Possibly the absence since 1953 of the special boards of the Ministry of Internal Affairs is regretted by the administrators and their high Party superiors.
It may be that senior administrators, long accustomed to exiling without public trial individuals who had committed no overt act prosecutable as crime, find the prospective reforms a hindrance--especially the abolition of the former special boards. By appearing to be an instrument of the general public, though one that can be manipulated by skilled agitators, the proposed "social assembly" may seem to them to be a useful device for bypassing the newly sanctified rules of the criminal courts. Time alone will tell whether the drafts become law in all 15 republics and whether administrators can resist the temptation to bend the assemblies to their special needs. Already several republics have enacted the draft law as it is presently written, but resistance to enactment has developed within the largest and most influential of them all--the Russian Republic.
To students of Soviet law, and especially to skeptics both within and without the Soviet Union, the post-Stalin campaign has a familiar ring. At intervals in Soviet history there have been much-publicized efforts to restore "legality" to the activities of Soviet officials. Following the excesses of collectivization of agriculture in the early 1930s the law professors demanded close adherence to the provisions of the codes and even some revisions in them. Stalin declared that "life has become better, life has become gayer," and the law professors took this as presaging a relaxation of severity. However, the era of good feeling which reached its zenith in 1934 and 1935 was short-lived.
By 1936 the purge trials had begun, and the wheel had turned full circle. The country was subjected to a reign of terror which reached into the highest levels of the Communist Party itself. The Constitution of 1936 now seems to have been but a delayed response to the era it brought to a close, for its promise of a rule of law is now declared by the Soviet press to have been an empty one, as outsiders knew at the time. Eminent Communists executed during the purges are now being restored posthumously to honorable standing with announcements that they had been convicted through falsified evidence and forced confessions to untrue charges.
The soul-searching of the mid-1930s was repeated by Soviet professors after the Second World War, only to be silenced in 1949. The very voices that are raised today said some of the same things just after the war; yet then they fell silent under what must have been the weight of Stalin's displeasure.
The ebb and flow of liberalizing proposals have established an historical perspective which cannot but make foreigners and even some Soviet intellectuals skeptical of the success of present efforts. The skepticism is heightened by the delay with which the process of codification has been progressing. Legal draftsmen of all countries know that codification takes time, yet the sand in the Soviet codifiers' hourglass has been running for years. The process began in 1937 when the professors started to implement the Constitution of the preceding year; Stalin's death in 1953 only gave impetus to a task which has been in progress for 20 years without concrete results.
There is a final reason for skepticism, one which is inherent in modern Communist doctrine. Soviet Party leaders conduct themselves on the assumption that their Marxist philosophy and their 40 years of experience have provided them with absolute truth. There are astute individuals, even within the U.S.S.R. itself, as the foreign traveller can discover, who wonder whether this attitude of mind does not militate against the adoption of legal reforms which are designed as a means of arriving at the truth through a strengthened adversary procedure. What many of the law professors are probably hoping is that in 1958 they can convince the Party leaders that their absolute monopoly on the truth in broad matters of policy is not being challenged, but that the aim is only to make certain that the guilty are punished. The lawyers will argue, as they have in the past, that they are not asking for a return to "liberalism," but that their proposals will enhance the security of the state by assuring that dangerous criminals are not left to roam the streets while courts relax their vigilance in the belief that they have already convicted the guilty man. They may also argue that the people will tend to feel a stronger loyalty to a state which strives to render justice, and that such an attitude among citizens will permit the administration to economize on the cost of maintaining power.