Russian Justice

Mary Stevenson Callcott


Let us start with the beginning. The Criminal Code of 1927 specifies how proceedings may be begun. We should expect that there would be an arrest, but this may not be the case. In fact it is unlikely except in the more serious cases. In the lesser ones there will almost surely be none at all. What happens then? There are two main possibilities.

First of all, the prosecutor, the investigators, the militia or the agency of Administration of State Safety of the People’s Commissariat of the Interior (formerly the OGPU) may start proceedings when they know or are informed of a criminal act. Since these organs are by their nature in a position to know of criminal law violations, it is usual for a case to start with them. The course they take will be discussed in a moment.

The second manner in which criminal procedure is usually instituted is on complaint made to a competent authority by a person, an organization, an official, or by a confession on the part of the criminal, in which the officials proceed as mentioned above, if there is evidence of a criminal act. Otherwise they take no action, and so notify the complaining person or agent, in which case he may appeal to a proper court if he so wishes. Thus, if a citizen comes to a proper authority and complains, either orally or by writing, of some act, but does not present sufficient evidence that a crime has taken place, the authority refuses to start initial proceedings. Often, not even a confession on the part of the supposed guilty party will be accepted as prima facie evidence. This decision on the part of the authority not to proceed may, however, be appealed to the competent court within seven days.

When once this evidence is accepted as indicating that a crime has been committed there may or may not be an arrest. Quite naturally, if a serious crime has been committed such as murder, and the criminal is making an effort to escape, there is arrest and detention. The law, however, states1 that “No person shall be deprived of his liberty and taken into custody otherwise than in the instances and in the manner provided by law.”

Later, in the same edition of the Code,2 there is an enumeration of the cases in which an arrest may be legally made. They are “(1) When a criminal is apprehended while making direct preparations, or while actually engaged in commission of the crime, or immediately afterwards; (2) When the victim or eye witnesses point to a given person as the one who committed the crime; (3) When articles of evidence are found on the person of a suspect or in his dwelling; (4) When a suspect attempted to flee or is apprehended while in flight; (5) When a suspect has no domicile or a permanent occupation; (6) When a suspect cannot identify himself.” These are the six instances in which an arrest may be made. The police, however, may use their judgment as to the necessity of such action, and in the event of detaining the supposed criminal they must report within twenty-four hours either to the prosecutor or to a judge of the People’s Court, in whose jurisdiction the case may be, giving information as to who made the arrest, when, where, and at what hour, information obtained in regard to the person held, the crime with which he is charged, reason for the arrest, and the name of the official signing the order for arrest.3 If the evidence obtained is sufficient to warrant holding the person for investigation the authority to whom the report is made gives his assent. Otherwise he reverses the decision and the man is released.

In the absence of these conditions an arrest may not be made and in that event the method of securing attendance is to have the suspected person sign a declaration that he will appear when summoned.4 However, there is a way provided to meet necessity. If the act committed appears to be of a nature so serious that it would carry a penalty of more than a year’s sentence to imprisonment, one of the above measures may be selected so that he may be held.

While it is usually the police organs acting as investigators who take a person into custody at the beginning of a trial, the investigator may also order an arrest. The Code in Section 145 provides: “Means of cutting off the possibility of escape shall be selected only after the suspected person has been formally accused and can be altered or abolished after the first questioning. In exceptional cases these means may also be applied to mere suspects who have not yet been declared accused.”

Who makes arrests in the USSR? The police force is the militia. This organ not only makes the elementary inquiry on cases which come under the jurisdiction of the investigator—to be discussed more fully in later paragraphs of this chapter—but they may themselves also conduct such preliminary investigation in all other cases. Besides carrying out the official open investigation they also carry on detective activity in order to establish grounds for future criminal trial.

But there is another agent of arrest. Wherever Russia is known, the “Gay-Pay-Oo” is a familiar institution. The Cheka of early revolutionary days gave way in 1922, in the days of NEP, to an organ a little less frightening. But the OGPU had an ability on its own account to send shivers down the backs of people and caused would-be lawbreakers of the less hardy type to check their actions. If those critics, who feared that NEP ushered in an era that would in its mildness take power from the direct hands of the proletariat and turn it over to well-established revolutionary law, had waited for this organ to be in action they would have been reassured. Whether all the deeds attributed to this secret police be truly theirs or not, it is certain that it has been an effective means of protecting Soviet authority. It has been a court unto itself as well. It was, until July 10, 1934, empowered to punish even by shooting “all persons apprehended while participating in a banditry raid or armed robbery,” and the purpose for which it was avowedly organized was to “unite all the revolutionary powers of the republics for the purpose of combatting political and economic counter-revolution, espionage and banditry.” It is in this enumeration of crimes that it has jurisdiction as an organ of preliminary investigation.

This organization has directed most of its attention to counter-revolutionary activities and uses its judicial powers mostly against the enemy class. Ordinary criminals arrested by it are usually turned over to the courts for trial. As for the actual number shot during recent years, there seems no way to judge, but indications are that they have been sparing in executions.5 There are other phases of their work such as the maintaining of places of deprivation of liberty which will be discussed later.

The OGPU has recently been incorporated into the newly formed All-Union People’s Commissariat of Home Affairs as the Administration of State Safety, and its judicial collegium has been abolished. The significance of this is apparent. It ends a chapter in the history of Soviet Russia. Cases once disposed of by this organization now will pass through the courts, and the pictures the world held of midnight secret trials will have to be put away. While the activities of the OGPU were duly authorized by law, the possibilities of excesses under such a system seem apparent, and the establishment of a more definite order of legality is bound to produce a quieter confidence. Because of the widespread interest in the transferring of this authority, the entire decree is given here.

The Central Executive Committee of the USSR decrees:

(1) To form an All-Union People’s Commissariat of Home Affairs, including in its composition the United State Political Department (OGPU).

(2) The People’s Commissariat of Home Affairs is to be entrusted with:

(a) The guaranteeing of revolutionary order and state security.

(b) The protection of public (socialist) property.

(c) Registration of civil acts (registration of births, deaths, marriages and divorces).

(d) Protection of the frontiers.

(3) The following departments are to be formed in the People’s Commissariat of Home Affairs:

(a)Chief Department of State Security.

(b) Chief Department of the Workers’ and Peasants’ Militia.

(c) Chief Department of Frontier and Internal Protection.

(d) Chief Department of Fire Protection.

(e) Chief Department of Corrective Labor Camps and Labor Settlements.

(f) Department of Civil Acts.

(g) Administrative and Business Department.

(4) To organize in the Union Republics People’s Commissariats of Home Affairs, acting on the basis of the law on the All-Union People’s Commissariat of Home Affairs, and in the RSFSR to establish instead of a People’s Commissariat of Home Affairs for the Republic an Institute Plenipotentiary for Home Affairs of the RSFSR.

Departments of the People’s Commissariat of Home Affairs of the Union Republics are to be organized in the autonomous republics, regions and provinces.

(5) To abolish the judicial collegium of the OGPU.

(6) The People’s Commissariat of Home Affairs of the USSR and its local organs are to send all cases of crimes on the completion of their investigation to the competent judicial organs in accordance with the legal requirements.

(7) Cases under the Department of State Security of the People’s Commissariat of Home Affairs are to be directed to the Supreme Court of the USSR, while cases of such crimes as high treason, espionage and similar crimes are to be handed over to the military collegium of the Supreme Court of the USSR or to the competent military tribunals.

(8) A special conference is to be organized under the People’s Commissar of Home Affairs of the USSR which, on the basis of the regulations, is to be entrusted with the right of applying, by administrative order, banishment, exile, imprisonment in corrective labor camps for a period not exceeding five years and banishment beyond the frontiers of the USSR.

(9) To instruct the People’s Commissariat of Home Affairs of the USSR to present to the Council of People’s Commissars of the USSR regulations for the All-Union People’s Commissariat of Home Affairs.

M. Kalinin

Chairman of the Central Executive Committee of the USSR

A. Yenukidze

Secretary of the Central Executive Committee of the USSR

Moscow, Kremlin

July 10, 1934.

What judicial authority is to handle the cases previously in the jurisdiction of the collegium of the OGPU? Here is the decree:

In connection with the organization of the People’s Commissariat of Home Affairs of the USSR and with the object of insuring the proper consideration of cases handed over to the judicial organs and investigated by the People’s Commissariat of Home Affairs of the USSR and its local organs, the Central Executive Committee of the USSR decrees:


(1) The Cases of state crimes (counter-revolutionary and against administrative order), with the exception of those indicated in the subsequent points of this section, investigated by the People’s Commissariat of Home Affairs of the USSR and its local organs, are subject to the jurisdiction of the Supreme Court of the USSR, the Supreme Courts of the Union Republics, the regional and provincial courts and also. the principal courts of the autonomous republics.

Special collegiums composed of a chairman and two members of the Court, are to be formed in the judicial institutions of the USSR and Union republics, named for the consideration of these cases.

(2) Cases of high treason, espionage, terrorism, causing explosions, incendiarism and other forms of crime (Art. 6, 8 and 9 of the law on state crimes), investigated by the People’s Commissariat of Home Affairs of the USSR and its local organs, are subject to the jurisdiction of the military collegium of the Supreme Court of the USSR and competent military tribunals of the districts.

(3) Cases of crimes on the railway and water transport, investigated by the same organs are subject to the jurisdiction of the railway and water transport collegiums of the Supreme Court of the USSR and the courts of the railways and water transport to which they belong.

(4) All other cases, investigated by the same organs, are subject to the jurisdiction of the People’s Courts in the usual order.


For the consideration of appeals against the resolutions of the Plenums and Presidiums of the Supreme Courts of the Union Republics, and also appeals against the sentences, decisions and definitions of the collegiums of the Supreme Court of the USSR, a judicial-supervisory collegium of the Supreme Court of the USSR is to be established which is to be composed of the Chairman of the Supreme Court of the USSR and two of his deputies, who are to have the right of directly rescinding or changing the resolutions, definitions, decisions and sentences of the Supreme Courts of the Union Republics and Collegiums of the Supreme Court of the USSR.

Considerations of cases in the judicial-supervisory collegium of the Supreme Court of the USSR are to take place with the obligatory participation of the State Prosecutor of the USSR or his deputy.

Resolutions of the judicial-supervisory collegium of the Supreme Court of the USSR may be appealed against by the Chairman of the Supreme Court of the USSR and the State Prosecutor of the USSR in the plenum of the Supreme Court of the USSR and in the presidium of the Central Executive Committee of the USSR.


In conformity with sections I and II of this decree, to recognize the necessity of strengthening the staffs of the Supreme Courts of the Union Republics, the regional and provincial courts and military tribunals.

To instruct the Central Executive Committees of the Union Republics to oblige the People’s Commissariats of Justice and Chairmen of the Supreme Courts of the Union Republics to work out and carry through in the fixed order, within a period of five days, appropriate additions to the staffs of the Supreme Courts of the Union Republics, the regional and provincial courts.

To instruct the Chairman of the Supreme Court of the USSR to work out and carry through in fixed order, within the same period, addition to the staffs of the Supreme Court of the USSR and the military tribunals of the districts.

M. Kalinin

Chairman of the Central Executive Committee of the USSR

A. Yenukidze

Secretary of the Central Executive Committee of the USSR

Moscow, Kremlin

July 10, 1934.

Thus does Russia make another advance in the administration of her criminal law.

With proceedings begun, the next step is to determine by preliminary investigation if the suspect is to be definitely accused and held for trial. The purpose of this is to keep the court calendar from being crowded with cases which ought never to come to trial because the accusation is unfounded. It likewise guarantees the investigation and consideration of the substantial facts and saves much of the court’s time. The organs involved here are the prosecutor, the investigators appointed by him, and attached to his office, the police (militia) and the body formerly known as the OGPU.

There is a great deal of informality and flexibility in the matter of this preliminary investigation. The investigator may take the whole matter into the atmosphere where the crime was committed. He may conduct it among the workers of the factory, if the act occurred there, in order that the workers themselves may aid in furnishing proofs, and in checking up the various facts. He also benefits in this way from the public opinion in regard to the case. This method of investigation in regard to labor crimes, both in factories and more recently in agricultural spheres, has been growing more and more common.

In the more complex cases this investigation is carried on by the prosecutor himself after the initial evidence is turned over to him by the militia, organs of criminal detection, or other competent authority making the first inquiry. In lesser cases the investigating organ will usually prepare the case although the prosecutor may at any time examine the evidence and otherwise supervise the conduct of the case. Now that (since 1933) there is an Attorney General of the USSR, centralizing the prosecuting forces of the entire federated republics, the most important cases such as the famous Metropolitan-Vickers would be turned over to his personal supervision.

In this preliminary investigation it is the duty of the prosecuting attorney under whom it is carried on to see that evidence both for and against the suspect is gathered. If he neglects to see that the rights of the person under suspicion are protected and permits a case to come to trial when the evidence, if properly gathered, would indicate innocence, then he is laying up trouble for himself and will probably have to answer to a higher authority.

To the end that all information and evidence may be secured, the investigator is given wide powers as to search and seizure of anything having a relation to the case. But if one thinks of rough-shod entry and abuse, he may be consoled by certain restrictions which the law places around such activities. In conducting searches and seizures the investigator calls in official witnesses. Persons participating in the case as parties to it, and relatives of the parties, cannot be official witnesses. And Sec. 177 of the Code of Criminal Procedure states that “the searches and seizures are to be made in daytime, except in cases which cannot be postponed.” The searcher is further ordered to announce his decision to make the search and to use all possible care to avoid damage (Section 179 of the same Code), and the additional protection is given to the accused in that the investigator is to see “that the facts of the private life of the person searched which have no relation with the case shall not be made public.”6

All articles seized in such a search must be listed, remarks made, and a copy deposited with the person or his family, and the articles themselves must be sealed at the place before being taken away.7

Mail may also be seized by the investigator if permission has been given by the prosecutor, as may also any telegraphic or other communications, but the safeguard is provided that a representative of the postal-telegraphic institution must be present.8

In the first stage of the preliminary investigation there is no “accused.”9 The aim at this time is to find if a criminal act has really been committed and if so who committed it. After the deed is decided to be of a criminal nature and is definitely attributed to a particular person or persons then the second stage is undertaken. At this time the “decision” is framed, and the accused is notified that he is to appear before the authority. This “decision” is written after the evidence has been carefully weighed and guilt indicated. This document must contain all the information and circumstances gathered up to that time.

When the person has been finally accused he is summoned to appear before the investigator who is handling the case. He is not yet definitely held for trial. When he appears he is made acquainted with the accusation. “And that does not mean,” a prosecutor told the writer, “that he is given a chair and table and told to read the papers before him. The whole thing is explained to him by the authority in charge.” Thereafter he is questioned and given a chance to tell his side of the matter. His statements are checked and any new evidence is gathered.

Steps must now be taken to insure his appearance during the completion of the investigation. The Code of Criminal Procedure provides for five measures, as follows:10 (1) He will not leave the place specified in the statement he signs without the permission of the proper authority which is the investigator or the court. (2) Personal or property parole. In the arrangement for property parole, the organization signing the bond must produce the accused when wanted or forfeit the sum of money agreed upon, but in the personal parole the persons (not less than two) who have agreed to produce the accused when wanted may, on failure to do so, be fined or sentenced to compulsory labor for a period up to three months. (3) Cash bail. Either he or other persons may deposit with the court a cash bail to insure his presence, the amount to be determined as in our courts, by the seriousness of the crime. (4) Detention in the home. The person may be restricted to his own home, as in the case of illness, or if a woman, because of pregnancy or of the care of her children. (5) Holding in custody. To be used in more serious cases. This latter is permissible only in certain prescribed cases. One of the conditions is that the case be of such a nature that the penalty, if conviction is secured, will be for a year or more of imprisonment. In addition one may be held in custody in cases covered by a definite enumeration in the Code of Criminal Procedure, in which the sentence is not to exceed one year. The third possibility is in case of such serious crimes as banditry, or those of a socially dangerous nature.

In the use of these measures the class nature of the criminal trial is strikingly portrayed. If the personality of the accused, or the crime he has committed, represents a high degree of social danger then one of the more severe measures is chosen. This would be the case for one appraised as a class enemy.

The preliminary investigation may not yet be completed. If the evidence seems conclusive the prosecutor may end the preliminaries by simply drawing up the accusatory decision and conveying such information to the accused, but there may also be much more to this stage of procedure.

With the appearance of the accused for questioning a whole new set of resources may be opened up. He mentions witnesses of his own, he gives his own testimony. His relatives must testify if needed. Apparently no one is omitted but the defendant’s counsel. And any falsifying or hiding of evidence on the part of any witness makes him liable to more severe punishment. Even though there is no oath administered due to the official attitude toward religion, there are still effective means of impressing a witness with the importance of telling the truth, one of which is to let him know what will happen to him if he is caught deviating from it!

But to go back to the investigation. The accused may make certain requests or demands, and as indicated before, it is not only the duty of the investigating authority to see that they are met if reasonable, but if he neglects to take cognizance of any fact in favor of the defendant he is placing his own position in jeopardy. Not only must the investigator inquire into circumstances and facts that determine guilt or innocence, but he must also find out anything he can that will help in determining the measure of social defense to be given. What, for example, would be some of the things that he would want to know?

First and foremost at this time is the question as to whether or not the act was committed in an attempt to restore the bourgeoisie to power; after that the motive and circumstances of the act. In Soviet jurisprudence circumstances play an important part in disposing of the case. The history of the accused himself will be of help if there is a consideration of insanity, the whole circumstances of the crime will establish whether there was coercion, or threat, or whether the offender was at the moment of committing the crime in a state of destitution, hunger, or strong excitement, or influenced by any extremity of personal or family conditions. All of these circumstances are considered extenuating and influence the penalty assessed.

In the establishment of all relevant facts pertaining to the case the investigator may summon any experts deemed necessary. These must appear and give their conclusions no matter whether they aid or harm the accused, and a refusal to do so carries a fine of fifty rubles. The use of experts by the criminal courts in Russia will be discussed later but for the time being it may be said that such a custom is in wide use.

The calling of experts or other witnesses may also be at the request of the accused. The law provides11 that “The investigator shall not have the right to refuse the request of the accused or of the complainant to summon additional witnesses or examine experts if the facts or circumstances sought to be established may have any bearing on the case.” Not only that, but the investigator is likewise limited in interpreting some line of inquiry sought by the accused as not having relevant bearing on the case. Not only must he furnish some adequate grounds for such a refusal, but he must also state in writing his reason for taking such a stand.

The number and kind of experts to be used are determined by the investigator if it is on his initiative that they are called. But if the defendant requests others he must call them, unless it is impossible to get the desired expert or unless the granting of this request would delay the preliminary hearing beyond the time legally set. It might be that the defendant would purposely request some one whom it was impossible to produce in order to secure delay, and in such an event, the investigator is naturally not forced to comply.

The question of sanity may arise during the preliminary investigation and the proceedings may be dismissed on the grounds of insanity at the time of the commission of the act. If it is judged that the insanity has set in since the act then the trial is postponed until a cure is effected. There is a Judicial Psychiatric Institute where persons awaiting trial are observed for this purpose; but in order to facilitate the work of the medical staff the investigators gather all pertinent data as to the mental history of the accused.

With all the information finally assembled the investigator is in a position to make his decision. The police organs, in their initial investigation, may discontinue the case if they find the evidence does not warrant going on. The investigator, if the case has been in his hands, may likewise discontinue for lack of sufficient evidence. And the prosecutor, with the collected data in his hands, may decide that there is no case. But if the person or organization first initiating proceedings is convinced that this is a mistake, the decisions in each of these cases may be appealed to the next higher authority and finally to the court of proper jurisdiction, within a month.

But the investigator may decide to hold the accused for trial. In this event as soon as the investigation is completed the accused is notified of the decision and all the facts laid before him. He must be informed of his right to examine the entire records in the case, and the investigator must be sure that he is acquainted with the entire contents. If he is able to suggest anything to be added, the investigator must see that it is included before it finally leaves his hands. Any basic error in this stage of the proceedings may be the cause of a reversal by a higher court, so that great care must be taken to fulfill all points of law.

A time limit is set by law as to the completion of this investigation. One used to American delays gasps at the speed with which these people dispense justice. One month from the time the defendant is formally accused the preliminary inquiry must be completed. However, this is not always possible, as appeals may be taken all along on the acts of investigator or prosecutor, and other delays may occur. But certainly all speed possible is used and there is no question of postponement of trial to the extent that we are accustomed to in our country.

With the preliminary investigation completed the accused is formally held for trial. This may, in the simpler instances, be by the judge of the People’s Court in cases when there is no necessity for investigation or in those cases when the police officers make all investigations and forward the information to the People’s judge. This would be true in cases involving sentences of less than one year.

In cases punishable by not less than one year sentence, yet not of so serious a nature as to require a preliminary inquiry, the investigator holds the accused for trial, on the basis of the information submitted to him by the police or OGPU. In such cases, all the evidence gathered together with the decision of the organs making the investigation is forwarded to the investigator, who, if he agrees submits the records to the competent court. There it is put on the trial list. If he feels that the conclusion to hold for trial is not warranted, then he may refer it to the court of proper jurisdiction for approval or rejection. In cases where the investigator himself is in charge of the preliminary inquiry he forwards his findings to the prosecutor, and he holds for trial in precisely the same way as was indicated above.


1.  Code of Criminal Procedure, 1923, section 5.

2.  Section 100.

3.  P. 107, Commentaries.

4.  Criminal Code of 1927, Section 103.

5.  See Chamberlin, Soviet Russia, p. 390.

6.  Sec. 181.

7.  Sections 183, 184, 185.

8.  Sections 186-188.

9.  Except in such obvious cases that no investigation would be necessary. An example of this would be a man actually caught murdering another.

10.  Sections 144 and 150-154.

11.  Code of Criminal Procedure, sec. 112.

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