• Email
  • Single Page
  • Print

In Gorbachev’s Courts

I recently visited the Soviet Union as a member of a Helsinki Watch mission investigating the current state of human rights there.1 In our official meetings we concentrated on the questions of emigration, psychiatric abuse, informal political activity, free speech,2 but I also wanted to find out how ordinary criminals are tried in the courts. Does the pervasive talk in the capital about glasnost and human rights make a difference in daily life, particularly in the provinces, where neither Sakharov nor the foreign press can observe what happens?

The Kiev regional courthouse, a modest, salmon-colored office building, houses the courts that hear the most serious charges brought under the Ukrainian criminal code. The electric signs above Courtrooms One and Two say sud idyot—“court in session.” I knock at the first door and as a militiaman opens it a few inches, I catch a glimpse of a trial in progress. I try to negotiate with him in Russian whispers, but the door closes without a “nyet.” Whatever the constitution says about open and public trials, this particular courtroom is not for strangers. I try again at Courtroom Two. This time my hallway arguments get me past the guard and I try to blend into the second row, behind a well-dressed young man.

The courtroom is not all that different from one in New York. The judge, wearing a business suit, sits on a raised bench; on the wall behind him hangs the conventional symbol of Soviet authority—the hammer and sickle, and next to it the words: “Workers of the World Unite.” Two lawyers and a prosecutor, a representative of the all-powerful “procuracy”—the state agency responsible not only for criminal prosecution but for administering criminal justice generally—sit at a long table attached at a right angle to the judge’s bench. The man in his late twenties who sits in front of me is Boris Levitchuk, one of the defendants in the case. His codefendant, Igor Patov, sits behind a low partition to the left, under the watchful eye of the court guards. From their seats in the courtroom, it is obvious that Levitchuk is still (or once again) at liberty, and Patov is in the custody of the procuracy.

On each side of the judge sit the “people’s assessors”—the Soviet counterpart of American lay jurors. These matronly women in their fifties will officially decide the case with him and, unofficially, defer to his views, much as members of an American grand jury usually defer to a district attorney’s views. Whether the judge will defer to anyone, particularly to the local Party officials, has become a central question of criminal justice under Gorbachev.

The Soviet press has published stories acknowledging that in about 10 percent of the cases, Party officials intervene by talking to the presiding judge. What do they say when they do so? The chief judge of the Leningrad court concedes that the figure is accurate, but insists that in Leningrad the Party officials who made calls to the judges did so merely out of curiosity. Professor Gleb Changuli, a leading expert on Ukrainian criminal justice, tells me that in his region Party officials intervene in about 12 percent of the criminal cases by telephoning advice that the judges are expected to take. Will the judge in Kiev Courtroom Two take part in what the Soviets now routinely call “telephone justice”?

The mood turns serious as the judge begins reading the indictment. Levitchuk stands up, holding a magazine in his hand. He is charged with numerous counts of embezzling state property (i.e., money) in “large quantities” and an equally long list of charges that he bribed officials in order to carry out and cover up his scheme. When the amount of property misappropriated meets the vague criterion of a “large quantity,” Khrushchev’s criminal codes, which are still in force, make embezzlement of state property a capital offense, punishable by the firing squad.

The judge asks the younger man, Levitchuk, whether he confesses his guilt to these charges. Levitchuk’s lawyer, sitting at a table in front of him, says nothing. But Levitchuk is well-prepared. He confesses to all the charges, but to each statement of guilt, he adds a qualification. The whole scheme, he claims, was Patov’s doing.

Now the judge turns to Patov, a more serious-looking man in his early forties, who stands and begins to tell his story in response to questions from the judge. He is not under oath, and no witnesses have been heard against him. But the judge has the results of the prosecutor’s preliminary investigation in front of him, and he says he wants to hear Patov’s explanation of the charges. Levitchuk’s lawyer tells him to take notes. Patov may say something that will either be helpful or harmful to their defense. Everyone starts writing furiously as Patov begins to talk. There is no court reporter; a clerk will summarize the statement and add it to the dossier on the case.

Levitchuk takes notes on a magazine that turns out to be Ogonyok, the most radical of the official publications that have sought recently to expose the injustices of the Soviet courts. Every issue contains muckraking articles on the pervasive failings of the Soviet legal system. Levitchuk’s use of it as a writing pad strikes me as daring. Is he not afraid of appearing too much like a dissident?

As Patov speaks, the outlines of the financial scheme become clear. Patov and Levitchuk worked in “Atel’ey Mode” (both words borrowed from the French), a clothing shop in the neighboring city of Kharkov that specializes in making coats for men and women. The central planning agency in Moscow prescribed a production quota for raincoats, but the shop could not meet the demands of the plan, largely because the raincoat cloth and synthetic fleece for the lining were not available. At the same time Patov, a manager of the shop, received a “decentralization order,” one of the results of perestroika, that enabled him to make financial decisions without supervision. He conceived a plan to take money from the budget of the Atel’ey shop, buy raincoat cloth and synthetic lining outside official channels, and thereby meet the shop’s quota. In order to get the supplies, he and Levitchuk had to offer bribes to officials in other firms that had the materials they needed. They made the raincoats and sold them as part of the inventory of Atel’ey Mode.3 This sounds like good business judgment, particularly at a time when the Soviet economy is beginning to shift, however slowly and painfully, to decentralized production decisions independent of Moscow’s orders.4

The judge asks Patov, “Who else was involved in this plot to go outside the plan?” “I don’t know,” Patov shrugs. “It’s all right,” the judge says. “It is your right not to answer.”

During a recess Levitchuk’s lawyer, an elegant-looking woman in her seventies, asks me what connection I have to the case. I tell her that I am an American lawyer interested in what happens in the local courts. She seems flattered and replies with a compliment for George Bush. “It’s wonderful,” she says, “that he took the oath of office on the family Bible.” Pro-American remarks of this sort are now commonplace in encounters with Soviet citizens.

As we go into the hallway, I find Patov’s lawyer and ask him how long his client has spent in preventive confinement. “One year,” he tells me. I am surprised. The Soviet Code of Criminal Procedure explicitly limits pretrial confinement without bail to nine months, and that term is possible only with special approval of the chief procurator of the USSR. I knew that in 1978 Natan Sharansky spent fifteen months in jail before going on trial, and American lawyers considered this outrageous at the time. The official apology for that breach of the code was that the Supreme Soviet had enacted a special decree extending the permissible period of confinement. Now it seems that these ad hoc extensions have become routine. In their trial for corruption, Brezhnev’s son-in-law Churbanov and his codefendants spent over two years in preventive confinement. Now I have come upon the same practice in a minor case unknown outside the Kiev courthouse.

Patov’s lawyer seems hardly concerned. “There is no breach of legality here,” he says. “The Supreme Soviet extended the period of confinement by a special decree.” Others in the Soviet Union are more troubled by this kind of “personalized” justice. In an article that appeared in the February 1989 issue of Banner, the journal of the USSR writers’ union, one of the leading glasnost journalists, Yuri Feofanov, attacked such casual circumventions of the code:

[The nine-month limit] is inconvenient for the powers that be. It’s handy to keep suspects in isolation, without legal assistance, in order to wear them down and get a confession out of them. It’s clear that precise legal limits embarrass the regime.

Levitchuk tells me that he spent only four months in preventive confinement. What, I ask his lawyer, is the difference between his case and Patov’s? She smiles and says she cannot tell me precisely what the difference is. “There are so many variables in each case.”

Levitchuk and Patov seem to have a good defense. They embezzled very little money for their own use; they were using company funds for company purposes. I ask Levitchuk whether his lawyer is going to argue for acquittal. He laughs: “There isn’t anything like that here.” The most he can hope for is a reduced penalty for the lesser crime of “using state property for private purposes.”5 Levitchuk starts talking to me freely now. Together he and Patov took 20,000 rubles from the till—$30,000 at the official rate, $3,000 on the black market. “And did you keep any for yourself?” “Yes, each of us kept 1500 rubles”—$250 at the unofficial rate.

Are you afraid that this might be treated as a capital case?”

In the beginning yes, but not now.” Levitchuk shrugs.

And how did you get out after four months?”

I cooperated with the investigator.” Levitchuk made it clear that he and Patov were hardly on speaking terms.

Could these two victims of state planning have hoped for an acquittal if they had not pocketed part of the funds? I doubt it. The official line, repeated throughout the Soviet Union, is that a defendant on trial should have a better chance to be acquitted and that this is one reason why reforms are needed. According to estimates by Western legal experts, the rate has hovered around 1 percent. The recent Moscow trial of Brezhnev’s son-in-law Churbanov and his friends for taking bribes is said to reveal a new openness toward the defense. One of the seven defendants was acquitted, and the defense lawyers argued successfully that the amount involved in the scheme was a fraction of the sum alleged in the indictment. The penalty of twelve years for Churbanov is less than the widespread anti-Brezhnev sentiment led many observers to expect. Yet changing an entrenched pattern of deference to the prosecution will require more than a few prominent cases.

  1. 1

    The other members of the mission were Louise Shelley, James Busuttil, and Theodore Meron. Some of the conversations I report later in this article occurred in their presence. I am grateful to all three for their insights in the course of ten days of intensive interviewing. After our mission, I stayed in Moscow for two and a half weeks as a guest of the Institute of State and Law.

  2. 2

    Helsinki Watch will publish our report on these issues in the summer of 1989.

  3. 3

    Many of these details emerged in Patov’s testimony. Others come from the judgment in the case, which was rendered on March 21, 1989. I am grateful to Jonathan Pavluk, a graduate student from Columbia who is spending this year in Moscow at the Institute of State and Law, for going to Kiev, seeing the chief judge of the court, and getting permission to inspect the judgment of the case.

  4. 4

    Once they embarked on this course, other dishonest acts became necessary to make the scheme work. According to the judgment in the case (see note 3 above) they bribed an investigator in order to prevent detection. And they had to cover up the income by doctoring the books; apparently, they recorded the sales of raincoats as the sale of children’s coats at a much lower price.

  5. 5

    The argument, it appears, was that this was not embezzlement under Article 86–1 of the Ukrainian Criminal Code, but rather an abuse of confidence falling short of embezzlement under Article 87. The former carries a penalty of up to fifteen years or the firing squad, and the latter a maximum of two years in jail.

  • Email
  • Single Page
  • Print