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.
In late March, the court declared Patov and Levitchuk guilty as charged, but both received terms substantially lower than the fifteen-year maximum for a single count of embezzlement of state property. Levitchuk got five years in a corrective labor colony, and Patov seven years. In both cases the time served in preventive detention counts toward their sentence. In an unusual twist, for five additional years after doing their time, both are prohibited from taking jobs in bookkeeping or inventory, positions in which they might be tempted to repeat their offense. Levitchuk was acquitted on one minor charge—aiding Patov’s crime as an accessory after the fact—that probably should not have been in the indictment in the first place.
In this case as well as others, the procuracy’s decision to bring the case to trial verges on an official finding that the defendant is guilty. After all, an official of the government has concluded that he or she is guilty; otherwise the defendant would not be in court. And the Soviet procuracy, the agency making this finding, has strong powers; it is charged with responsibility not only for investigating and prosecuting crime but for overseeing the legality of the entire administrative and judicial system. The local soviets, the courts, and the bar are all to some degree decentralized and subject to local control, but Lenin set up the procuracy—like the Party—as a single hierarchical body executing Moscow’s latest official policy throughout the country.
The prestige of the procuracy exceeds that of the courts themselves. A prosecutor, not a judge, decided to keep Patov in pretrial confinement for a year. When the Atel’ey was searched and its books inspected, a prosecutor, not a judge, signed the search warrant. As a result of the prosecutor’s standing in the legal system, Soviet trials have taken the form, characteristically, not of a contest to establish the facts about guilt or innocence, but of an attempt to mitigate the force of the prosecutor’s accusation.
For nearly forty years, liberal reformers, primarily in Moscow’s Institute of State and Law, have tried in cryptically phrased articles and private conversation to argue for a new form of trial that would be a genuine adversarial proceeding, a trial in which each side has an equal right to present its perception of the truth. The phrase used as a code by those who advocated this conception was “presumption of innocence.” If the defendant was presumed innocent at the beginning of the trial—a hypothesis incompatible with the reliance on the procuracy’s judgment—the trial might actually give the defendant a reasonable chance in court. When Gorbachev was a law student in Moscow, the reform-minded professors at the university tried to get the concept and the words “presumption of innocence” into the new criminal codes Khrushchev proclaimed in 1960. Though they failed, they won some concessions that strengthened the courts with respect to the procuracy. Carrying forward the reform, the 1977 constitution stresses that only courts—and the procuracy—can declare a defendant guilty and impose punishment.
The battle over the words “presumption of innocence” has been so fierce that when a renowned liberal professor, M.S. Strogovich, published the words in his 1968 textbook, the militia intervened, seized the book at the presses, and ordered the offending page removed and replaced.6 Strogovich lost that round, but he recently had a posthumous triumph thanks to the intervention of the most successful graduate of his department. In his speech at last summer’s Nineteenth Party Conference, Gorbachev expressly endorsed the “presumption of innocence” as a central principle of Soviet criminal justice.
Merely adopting the words “presumption of innocence,” however, is not likely to have an impact on the balance of power in criminal trials. The problem lies with the bar. The Soviets lack a tradition of combative defense lawyers. When I asked them whether they interviewed witnesses to prepare for trial, Soviet lawyers said they did not. Their preparation is limited to studying the prosecutor’s dossier and perhaps visiting the scene of the crime. There is nothing in the Code of Criminal Procedure that prohibits lawyers from seeking out witnesses and talking to them independently of the procuracy. Professor Changuli of the Kiev University Law School argues persuasively that the power to investigate and interview witnesses is implicitly acknowledged in the code; the lawyer has the right to “present” evidence, so why shouldn’t he be able to go out and get it?
When I asked high-ranking officials of the procuracy about this implied right of Soviet lawyers to conduct their own inquiry prior to trial, they replied that privately interviewing witnesses would be a breach of professional ethics. The procuracy is charged with “objectively”, investigating both sides of the case. If a lawyer talks to a witness privately, he is likely to distort the witness’s testimony. The prosecutors cannot grasp the basic Western idea that both sides are likely to be biased and that only an adversarial trial can secure the defendant his right to a fair inquiry. The academic reformers in Moscow now seek to introduce the “principle of adversarialness” into the new codes to be adopted in the next year or two. If they win, as it seems they might, will it make a difference?
There is no doubt that Soviet lawyers are trying to raise their status and heighten their influence in court. For example, notwithstanding opposition from the bureaucracy, several hundred Soviet lawyers successfully held a conference in Moscow last February to organize a new all-Union association of Soviet advocates. As things now stand, however, Soviet defense lawyers do not have much in common with their American and European counterparts. They can do little more for their clients than petition for mitigation of the sentence; very rarely can they argue that the prosecution has made a mistake. They act, one might say, as the loyal opposition to an official investigation dominated by the prosecutor.
Under the current code, a Soviet lawyer is permitted to see his or her client only at the end of the preliminary investigation. After reading the dossier prepared by the investigator, defense counsel can try to persuade the investigator to reduce the charges or dismiss the case for want of proof. Soviet lawyers have told me that this is the moment—before the case comes to trial—when they can intervene most effectively for their client.
During the year that Patov was in preventive detention, subject to regular interrogations by the procuracy’s investigator, he had no way of getting legal advice. Soviet officials have been saying for years that they favor permitting the lawyer earlier access to his client and the new glasnost codes will doubtless allow suspects to be represented by lawyers as soon as the official interrogations begin. The Soviets will adopt their own version of the Escobedo rule in the United States, which guarantees any suspect in custody access to his lawyer. 7
Letting lawyers observe interrogations by the procuracy’s investigators would at least minimize the use of the third-degree techniques that are reportedly wide-spread.8 Yet it is unlikely that lawyers will advise their clients to sit tight and refuse to answer questions. Whether Levitchuk would cooperate with the investigator in order to gain release after four months depends in large part on the investigator’s power to keep him in detention. He knew that unless he cooperated the investigator would keep him locked up whether a lawyer was there or not. The only way to change the balance of power would be to grant suspects a right to be released pending trial (there is no way to escape in the USSR anyway), to give defense lawyers explicit authority to conduct their own investigations, and to encourage them to do so. This is not likely to happen soon.
In trials like that of Levitchuk and Patov, the prosecution gets additional power to put pressure on defendants from the ever-present shadow of the firing squad—the favored form of Soviet capital punishment. Embezzling state property in large quantities is still subject to the death penalty, as are sixteen other offenses, including serious cases of bribery, violating the currency laws, and counterfeiting. The numbers of people executed remain strictly secret. Some members of the commission drafting the new criminal code have seen these figures, but the most they were willing to tell me is that in recent years, the death penalty was imposed almost exclusively (96 percent of the executions) for homicide.
The basic principles of the criminal code, to be adopted this spring, limit capital punishment to six offenses: treason, espionage, terrorism, sabotage, intentional and aggravated homicide, and the rape of a minor. The last category will likely be dropped, which means that capital punishment will be confined to what appears to be egregious offenses against the state and the most serious versions of homicide. 9
The reformers who are drawing up the new code—mainly high-ranking academics at Moscow’s Institute of State and Law—speak with pride about the new limits on capital punishment. In addition to removing the death penalty from numerous offenses, the proposed code exempts three categories of offenders: minors under the age of eighteen, all women, and men who at the time of sentencing have reached the age of sixty. The exemption for the crimes of teen-agers makes the most obvious sense; they belong in the less punitive juvenile courts in any event. But why did the reformers exempt all women and men over sixty? When I asked this question of Sofya Gregorovna Kelina, a researcher at the institute and vice-chair of the drafting commission in the Supreme Soviet, she said of the women’s exemption: (1) they never receive the death penalty anyway; (2) they have a special role in Soviet society; and (3) it is important to cut back capital punishment any way we can, and this way is politically acceptable.
But if it is really true that women are never likely to be executed, I asked, why write the exemption into the statute? This rhetorical question did not impress Kelina, for clearly the reformers want to use the new statute to make it clear that capital punishment is on its way out. Exempting entire classes of offenders is a step in the right direction. Suppose that particular minorities in the USSR, say, the Uzbeks, had never been subject to the firing squad. Should they be exempt too? Kelina laughed. The categorical exemption applies to women, she said, because of the special place of women in Soviet society as housewives and mothers. In fact, she said, they are already specially protected under other provisions of the law. The new forms of confinement introduced in the new law as substitutes for banishment from one’s own town and domestic exile—isolation in a particular place and a limitation on freedom of movement that amounts to house arrest—cannot be imposed either against pregnant women or against women with children under the age of eight.
These specific exceptions for women have obvious merit, particularly insofar as they are based on the needs of children; but I still questioned why the law should treat every female murderer differently from every male murderer. I briefly thought that Alexander Maxsimovich Yakovlev, the head of the criminal law section in the institute, had similar views when he said on a Moscow television talk show that the exemption for women reflected discrimination against men. Alas, when I talked to him, he said he meant this ironically.
Perhaps discrimination against women is so deep-rooted in Soviet thinking that the possibility of reverse discrimination cannot be taken seriously. In professional meetings, men usually make a point of commenting on how intelligent the women’s questions are, even if the questions are commonplace; when the meeting is over the male hosts present female visitors with flowers. Yet working women typically carry the entire burden of housework and, worse, of household shopping, which can take many hours each day. The most chilling statistic of all is that for want of effective birth control, the average woman in the USSR has an abortion every two years.10 The exemption for women in the capital punishment statute seems to reflect a convergence of contrary sentiments: chivalrous condescension toward women as a protected class—like children—and recognition that the lot of Soviet women is so bad that no one would dare deny them this symbolic, humanitarian gesture.
Soviet scholars justify their version of affirmative action for women as an expression of Gumanizm—a Russian term deriving from “humanism” that means something like “compassionate concern for the needs of people.” Gumanizm has become a standard part of Soviet legal rhetoric. The notion of justice will not do, Ms. Kelina insisted; it is too abstract, too far removed from real human interests.
Gumanizm justifies the exemption for men who have reached the age of sixty at the time of sentencing. A man who has devoted so many years of his life working under the Soviet regime does not deserve the firing squad—no matter what he has done. (The proposal has run into trouble lately, for some deputies in the Supreme Soviet pointed out that a war criminal over sixty still might be brought to justice.) All the Soviet experts I talked to said they shared the Western idea that courts should judge suspects on the basis of their acts; but they still justify the sentencing exemptions as a way of awarding classes of people for their presumptive merit as citizens.
Behind this gerrymandering of the criminal law lies a deep sense, or so it seemed to me after many conversations with reform-minded Soviet jurists, that the entire system of criminal justice is an irrational and repressive machine; it is for them a plague on the land, and lawyers, they imply, should try to quarantine it for the sake of deserving classes of people. Capital punishment symbolizes abuses of the past, but reformers like Kelina and Yakovlev admit that the people on the whole would prefer to retain capital punishment, even for offenses like corruption and embezzlement. Though they profess a belief in democratic principles and in equal treatment for all citizens, the reformers were much more concerned, it seemed to me, about first realizing elementary international standards of decency. The more they can emulate Western systems of justice, where they perceive that capital punishment is generally in disfavor, the more civilized they think they will be, and appear before the world.
For the visitor one of the greatest puzzles about law reform is to distinguish between the issues on which there is and is not a consensus. In the press and on television, one hears many different arguments for and against capital punishment. But on many matters concerning which legal officials used to defend repressive practices, there now seems to be an almost obligatory consensus in favor of liberal principles.
Throughout the Seventies and early Eighties, for example, dissenters were routinely prosecuted under the infamous Article 70 for possessing anti-Soviet literature, which could have been anything containing views disapproved by the regime. To have a Hebrew grammar at home or the book Exodus in one’s pocket was enough to land one in prison. Three years ago Gorbachev stopped the prosecutions under Article 70 as well as under a milder version of the same offense, Article 190–1. True, there are still sporadic acts of political repression. In December 1988 the Leningrad procuracy authorized the KGB to search the apartments of political activists; they seized samizdat journals and various books published abroad, including those by Solzhenitsyn, and since then have been interrogating dozens of people about the political activities of the Democratic Union, an organization that seeks radical, nonviolent democratization. There appears to be no risk of prosecution; as one of the highest ranking Leningrad prosecutors told me, the purpose of the interrogations is to harass those questioned and chill the political activities of unrecognized political associations. The most serious crackdown against spontaneous political activity has been the arrest and detention in January of twelve Armenian activists on the Karabakh Committee; they face the risk of prosecution for illegal demonstrations and fomenting ethnic hatred.11
However, the spirit of liberalization seems to prevail. Officials in Moscow, Leningrad, and Kiev all agree that Article 190–1 should be abolished and that illegal anti-Soviet literature under Article 70 should be defined by standards that, it turns out, closely resemble the West German definition of treason and the language of the American Smith Act. According to a typewritten draft that has been circulating since last summer, the only punishable act would be “calling for the overthrow or a violent change of the constitutional order.”12
Lev Timofeyev and Alexander Podrabinek, who both publish radical newspapers without official approval, told me that they found little in this proposed language to prevent repressive measures against the press. The words “calling for” and “overthrow” in fact offer much less protection for free expression than the Smith Act as interpreted by the Supreme Court.13 And the draft language conceals a contradiction that its proponents have yet to resolve: in view of the constitution’s guaranteeing the Communist party “a leading role” in the development of Soviet society, advocating a multiparty system appears to “call for an overthrow…of the constitutional order.” Though my colleagues in the Helsinki Watch delegation and I asked many high-ranking lawyers, no one could give us an adequate account of why advocating a multiparty system would qualify as legally protected speech under the proposed new law.
No one I talked to had a kind word for the old law that the lawyers enforced for a generation. Under the beautiful czarist chandeliers in the restored Leningrad courthouse, I asked a senior judge whether she remembered the first Leningrad trial of Jewish dissidents. In December 1970, nine Jews and two non-Jews were convicted under Article 70 for possessing Zionist literature and all but one were convicted of treason for plotting to hijack an airplane to flee the country. Dymshitz and Kuznetsov were sentenced to death; after international protests on their behalf the sentence was reduced on appeal.14 Would they be convicted today? Well, she explained, our notions of anti-Soviet intent have changed. They would probably not be convicted now either of possessing anti-Soviet literature or of treason.
Another popular legal weapon against dissidents and Jewish activists was the crime of parasitism. Joseph Brodsky was convicted of parasitism when he was devoting his time to writing poetry and to work on translations. Yosef Begun was convicted for teaching Hebrew after being refused an exit permit and losing his job. Now everyone seems to agree that the crime of parasitism should simply be abolished.
There is something uncanny about this shift in views, especially when one hears that only a few years ago some of the people espousing them were vigorously prosecuting and convicting people under the same, now-despised laws. Whether the issue is allowing lawyers to see suspects right after they are taken into custody, or freedom of speech, or the rights of anti-Communist dissidents, everyone seems to take a line that the ACLU would applaud.
My sense that there was something artificial about this consensus seemed confirmed by the views I heard expressed about a multiparty system. Despite the constitutional status of the Communist party, a number of high-ranking officials told me that one day, perhaps not too far off, they expect competition among other distinct parties. Something like a multi-party system might emerge. But even if these new parties are spinoff Communist factions, such as Boris Yeltsin’s perestroika enthusiasts, I suspect that, as these officials see it, the dissenting parties should have the limited role of a loyal opposition. They will criticize the established and secure Party, much as defense counsel serves to challenge and correct the mistakes of the procuracy.
Have these prosecutors, judges, and leaders of the bar been closet liberals all along? I doubt it. Whether the issue is criminal trials, the workings of a market economy, or the political system, many Soviets are still suspicious of the idea that spontaneous competition among independent forces can produce better results than guidance from above. It would after all be unlikely that Russian authoritarian traditions would disappear in two or three years.
The more plausible explanation for the sudden consensus among legal officials is that a subtle process of guidance has been taking place in legal circles as it has elsewhere. From Party meetings, organized discussions, and occasional speeches by Gorbachev emerge cues about which policies are in and which are out. A decade ago, the line favored repression. Today, it favors leniency, although the recently orchestrated attacks in print on samizdat journalists such as Timofeyev and Grigorants remind us that glasnost has many well-placed enemies.15
What is worth emphasizing here, however, is that I neither heard nor read of lawyers attacking the legal reforms. Nor did the lawyers advocating reform adopt the fashionable argument that an outpouring of criticism will somehow stimulate people to work harder and eventually take part in reorganizing the economy. There may be some truth in this, but such a goal hardly accounts for the kinds of changes in the legal codes now being proposed. The head of the institute in Moscow, Vladimir Kudravtsev, labels the supposed connection between legal reform and economic progress as “vulgar Marxism.”
What has happened in my view is that the reform movement has taken on a life of its own, particularly among the relatively free-thinking research scholars and professors of law. They have brought to the discussions of the legal system an element of daring and imagination that has added momentum to the proposals. Encouraged from above, the reformers are pushing their ideas as far as they can. The influential Alexander Yakovlev, for example, has openly advocated introducing the jury system in Soviet criminal trials. The leading Soviet lawyers—as well as their lawyer colleagues in the Kremlin—know what a civilized legal system should look like, and they are trying to bring one forth from the agony of the past.
—April 20, 1989
May 18, 1989
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. ↩
Helsinki Watch will publish our report on these issues in the summer of 1989. ↩
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. ↩
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. ↩
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. ↩
This extraordinary intervention was revealed publicly in a recent article by one of presumption’s chief proponents, Valery Mikhaelvich Savitsky, in Novoe Vremya (New Times) (December 1988), p. 16. The phrase appeared in volume one at page 351. The Columbia Law School has one of the original unexpurgated versions. ↩
Escobedo v. Illinois, 378 U.S. 478 (1963). ↩
See the article by Professor Alexander Miklin, “The Prohibition Against Torture,” in the issue of New Times cited in note 6, at page 88. ↩
This picture is slightly misleading, however, for under the RSFSR Criminal Code, Article 64, treason is still defined broadly to include a variety of innocuous acts such as illegally leaving the country with the intent to weaken Soviet power. This broad definition seems likely to remain in the new criminal code. ↩
The Washington Post (January 20, 1989), p. A31 (relying on Soviet sources, according to which the rate of abortion for women between the ages of fifteen and forty-four is 0.6 per year). See also the report by Ann Cooper, “Women Fault Soviet System for Abortion,” The New York Times (February 28, 1989), which gives somewhat different statistics. ↩
Additional ominous signs of a crackdown on nationalist and possibly other political activities can be discerned in the decree of April 10 by the Presidium of the Supreme Soviet, which, according to early reports, reaffirms penalties for “kindling” ethnic or racial hostility and for discrediting public officials. ↩
Yuri A. Reshetov, a high-ranking official in the foreign ministry who regularly receives delegations from abroad, showed the Helsinki Watch group a memorandum that stressed the similarities between this language and the Smith Act. Yet the Smith Act, 15 U.S.C. 2385, concentrates on “knowing or wilfully advocat[ing] overthrowing or destroying” not the “constitutional order” but the “government of the United States.” The phrase “constitutional order” comes directly from the West German definition of treason, Strafgesetzbuch Article 81 (wer es unternimnt, mit Gewalt [die] verfassungsmässige Ordnung zu ändern). The reliance of the drafters on the West German source was confirmed by scholars in the Institute of State and Law. The concept of a “constitutional order” is new for Soviet law and the existing draft covering basic principles does not yet acknowledge that the “constitutional order” is an interest protected by the criminal law. ↩
In Brandenberg v. Ohio, 395 U.S. 444 (1969), the Supreme Court invalidated a state statute punishing speech that was (1) “directed to inciting or producing imminent lawless action,” and (2) “likely to incite or produce such action.” ↩
For a record of the trial and American intervention on behalf of the defendants, see Courts of Terror by Telford Taylor with A. Dershowitz, G. Fletcher, and others (Vintage Books, 1976). ↩
The most vehement attack on them appeared in Socialist Industry in February 1989. ↩