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Law: Soviet Justice: Still on Trial

6 minute read

When politics enters in, legality goes out the window

The wheels of Soviet justice ground on grimly last week. Three just-convicted dissidents, Anatoli Shcharansky, Vik-toras Petkus and Alexander Ginzburg, began prison terms of 13, ten and eight years. At the same time, in a clumsy effort at press intimidation, a Moscow court ordered two American newsmen and their papers to pay fines and print retractions for having libeled state television employees. Meanwhile, other trials were in prospect, as Moscow continued its crackdown on domestic opposition.

Among other things, the trials focused new attention on how—and how fairly —justice is administered in the Soviet Union today. The answer seems to be: much better than in the days of Stalin, when enemies of the state would be shot or sent off to labor camps with or without summary trials. But while the forms of legality are more closely observed today, political repression persists.

On its face, the Soviet legal system has many similarities with those of Continental European countries. A written constitution provides for freedom of speech, press and religion, and trials are to be fair and open. Yet just what the constitution means in a Soviet context can be illustrated by a pre-arrest chat a few years ago between a KGB officer and a dissident: the constitution, insisted the dissident, protects free speech. “Please,” the KGB man is said to have responded, “we’re having a serious conversation.”

Speech is free in the U.S.S.R. as long as it serves the Communist system, as interpreted by the party leadership. When the state perceives a threat to its welfare, Western ideas about civil rights go out the window. The forms remain—courts, judges, defense lawyers—but in political trials the result is predetermined and the proceedings are often secret and usually travesties.

Technically, crimes are never classified as political. In rare cases, like Shcharansky’s, a full-scale treason charge is trumped up in addition to “anti-Soviet agitation,” the charge used against Ginzburg, Petkus and Yuri Orlov. Jewish dissidents whose crime is to apply for an exitvisa are sometimes caught in a Catch-22. Fired from their jobs, these “refuseniks” become liable to parasitism laws if they refuse to accept menial work. “Malicious hooliganism” laws round up other dissidents. In one hooliganism case, Refusenik Vladimir Slepak was convicted after hanging outside his apartment a banner demanding the right to leave the country.

Still, secret political trials are an unlawful aberration in Soviet justice, possibly one that is questioned within the party itself. Says Harvard Law Professor Harold Berman, a 30-year observer of Soviet procedures: “My guess is that there is a conflict between the leaders, perhaps within the KGB itself. Some say they have to be careful with trials. Others say it is too dangerous to let dissent continue.”

As in Western countries, the accused has the right to be defended by a lawyer. However, he can legally be held incommunicado for a total of nine months before trial, and in reality even longer if the Supreme Soviet so decrees (Shcharansky was isolated for more than a year). And before a mentally competent adult defendant can see his lawyer, he is subjected to a pretrial investigation that amounts to what Columbia Law Professor John Hazard calls a “rehearsal” of his actual trial. Extensive pretrial inquiry is not unique to the Soviet Union: many countries in Europe have a similar procedure, though in France, for instance, the proceedings are conducted by a judicial magistrate independent of the prosecutor. In the Soviet Union, the inquiry is run by the procuracy, a watchdog agency that both supervises the legal system and acts as prosecutor—with obvious potential for conflict of interest.

Unless politics is involved, the trials themselves are generally open, but there is no jury. The two quasi jurors —called “lay assessors”—who sit with the judge are picked with party approval, not at random, as are U.S. jurors. “They’re sort of like a blue-ribbon grand jury,” says Hazard, “only red-ribbon.”

Judges are usually law-school graduates, but they are “chosen” by the party for five-year terms, and thus beholden to the state. They do not sit back and impartially listen to defense and prosecutor spar, as in American courts; rather, they are given a full dossier on the defendant and often lead the questioning, with the prosecution chiming in. Says Leon Lipson, a professor of law at Yale: “I wouldn’t say the judges do nothing but carry out orders for party bosses to convict Comrade Petrov and pardon Comrade Sidorov, but most judges are at some level subject to party discipline and they know where the accent has to be.” Still, Lipson cautions, “there are many cases where judges perform a real function, and the result is not preordained.”

Under Anglo-American justice, a defendant is tried only for the crime in question. In the Soviet Union, however, the defendant’s morality and usefulness to Soviet society are on trial. During Stalin’s time, the defense lawyer could argue mitigating circumstances, but he seldom claimed that his client was innocent. Today, defense lawyers can enter a plea of not guilty—though in political cases, there are sure to be repercussions. “Lawyers know they can’t do much in those cases,” says Berman, paraphrasing a former Soviet lawyer. “The accused are like patients with terminal illnesses who go to doctors.” A lawyer must be cleared by the KGB to defend dissidents; several years ago, one who had the gall to claim his client’s innocence was promptly disbarred. (Although Soviet lawyers rate less money and esteem than scientists, economists and engineers, they are generally well trained. Many supplement their official incomes by a practice known as mikst, meaning “maximum exploitation of the client above the fee schedule.”)

A convicted defendant can usually appeal. But appeals are not frequent, and successful ones are rare. So are accurate statistics on the extent of Soviet crime, political or otherwise. Dissident Andrei Sakharov has estimated that 1.5 million to 2 million Soviet citizens are in prison or forced-labor camps. There are no official figures, of course: crime in an ideal Communist society, like the law itself, is supposed to just wither away. ∙

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