CHAPTER VIII
THE PROSECUTION

The functioning of the prosecution in the Soviet judicature is of especial interest to a student of criminal procedure. Its development from the time of the total abolition of the institution as it had existed in the Tzarist régime, by Decree #1 of 1917, to the establishment of the office of the Attorney General in 1933, has been experimental and not without dissension among the ranks of the Central Executive Committee itself. In the early years following the Revolution when everything Tzarist was swept away, there prevailed a spirit of liberalism so far as the rights of the people were concerned. In the sudden accession of power by the proletariat, lack of restraint was the predominating note, and this philosophy—if such irrational conclusions could be called one—of the epoch was reflected also in the procedure of the criminal courts. A more conservative opinion had wished merely to place the defense on an equal footing with the prosecution to correct the dominance of the state over the people in such a manner as it had been practiced for all the years of the reign of Tzars. But this was not enough to satisfy those who were clamoring for everything to be placed in the hands of the proletariat, the administering of justice as well as other branches of government.

In this moment of judicial liberalism prosecution through official channels was done away with, and in its place the persons in attendance at the trial were vested with the right of accusal as well as defense. It must have distressed many a hardy judge, even though he sat as a representative of the toiling masses himself, to try to figure out a decision in the face of untrained and conflicting contentions. At any time during the trial any citizen might rise and address the court either in behalf of the accused or as the state’s prosecutor. The idea took hold rapidly, and up to the beginning of its control in 1918, it was so widely used that it became customary for the judge to call on some one in his audience to act as defender or accuser of the person on trial.

It was bound to lead to difficulties. Civil war was at hand, the class struggle was at its height, and the court was an organ of the state in its struggle against its enemies. Even the most liberal saw that it would not do. Some system must be used whereby the prosecution of cases would be strengthened.

There is an interesting point involved in the restoration of the prosecution, as it now began, even though it was of revolutionary expediency. It was a swinging back to the western criminal law administration which they had annihilated at the beginning of their rule. A legal man said to me in this regard, “We acknowledge that there are many good points in the capitalist system, and we do not hesitate to borrow what are useful to us.” In court procedure, even while they do preserve the proletarian administration, one can recognize many things about their orderly procedure that has its foundation in familiar bourgeois practices. There is no denial of this on their part. Certain well established ideas of justice have proved over long years to be adequate and proper and these have been incorporated into their own judicial structure. The early disorganized practices of the proletarian administration of justice gave way when necessities and panic of the Civil War had been dissipated to a deliberative plan resulting in the many codes of 1922.

Before this a resurrection of the public prosecutor was on its way. Revolutionary tribunals, in their post as out-sentinels in the struggle of the government, were the first in the demand for sterner equipment of prosecution, and political expediency put an end to judicial liberalism in their practice. Characterizing this period was the attitude that placed in the hands of the Cheka the power to impose even the death penalty on those persons charged with political offenses such as the participation in counter-revolutionary activities, deliberate destruction of property or espionage, and other such crimes against the state. It was felt that if the proletariat was to continue to rule it was no time for softness, either in the judicial system or in the non-judicial tribunals which continued to exist through the bloody days of the Civil War period.

As just pointed out, it was in the Revolutionary Tribunals, created by Decree of November 24, 1917, and differing very little from the People’s Courts except in the requirement as to the number of co-judges,¹ that the first change came in regard to the prosecution. Let it be understood that although these tribunals were organs of the revolution and continued in force for five years, they were proper judicial institutions, with a definite prescribed procedure and jurisdiction. There had been too much mildness in their administration, so much so that the present Commissar of Justice, N. V. Krylenko, stated in his Soviet law,² that “Their softness with regard to sentences discredited them completely.”

There were too many of them in the first place and by Act of May, 1918, their number was reduced so that they remained in existence only in the capitals of the provinces and other important places. But that reform would not necessarily make them deal out sterner justice, and by this same Act there was created at each of the existing tribunals a collegium of prosecutors. To make the check-up more complete there was also established a Central Collegium of State Prosecutors in connection with the All-Russian Central Executive Committee created by an act of June, 1918.

The character of the Revolutionary Tribunals was undergoing a change. Sternness and determination now marked their attitude. Mildness was fading away as class struggle advanced. They were created to spike the activities directed against the achievements of the Revolution or designed to weaken Soviet authority. It was not enough that some citizen give voice to a plea for conviction; it was neither sufficient that local tribunals be left to carry on their own unaided and unsupervised prosecution. There must be central supervision. This very distrust of local competency led later to a dissension in which Lenin had to take a hand, but for the time being, it served its purpose.

By the decree already referred to (of May, 1918), the central Collegium was given wide powers. It might demand of local prosecutors or tribunals that certain cases be transferred to Moscow or in the event the case remained in its original territory, it might send prosecutors there to see that it took the direction desired. It might also demand an accounting from the local collegiums so that by supervision they could be sure that the functions of these organs to look after all facts of criminal action committed by any person anywhere and the institution of criminal procedure might be faithfully and zealously fulfilled.

By the Revolutionary Tribunal Acts of 1920, all previous acts pertaining to tribunals were repealed and sweeping changes again occurred. Counter-revolutionary activity was on the decline, the Civil War was receding, and non-judicial methods of suppression not so much needed. Orderly government was growing stronger. The Cheka suffered the abolition of its special tribunal, the military judicial powers even were required to comply with the provisions of this Act. As a result of these curtailments the powers of the Revolutionary Tribunals were widened and jurisdiction extended to include any case involving counter-revolutionary charges as well as any other that was of a nature dangerous to the Soviet Republic. Not only was the jurisdiction of these tribunals enlarged but their power of punishment was likewise increased and was now practically unrestricted. With such authority they could assess any measure of repression which they thought necessary to the occasion and could thereby cover any ground lately held by extra-judicial bodies. These tribunals were established in the capitals of the various provinces and by permission of the Commissar of Justice might also be instituted in the larger cities.

What happened in regard to the prosecution? The collegiums of prosecutors set up by the previous acts were abolished and in their stead there now appeared state collegiums of defense and prosecution, both for the people’s court and for the Revolutionary Tribunals. From this time on more attention was given to the perfecting of a system and technique of prosecution. The qualifications for the person filling this office became of a more adequate nature. He must be a man competent to make an appearance before an assemblage, to speak or otherwise conduct public affairs, and he must also know the Soviet system of government thoroughly as well as be acquainted with the workings of trade unions. There was still no centralized system such as exists today since the prosecutors were at this time provided merely to represent the people in trial, much as a defense lawyer might be appointed in a particular case. But the era of floundering, of experimentation, of entertaining thought of complete proletarian administration of law, had made its contribution, and the evolution moved on with the rapidity with which other things have moved in Soviet Russia. In 1922 there was another Act containing other innovations.

By this Act there was a general revision of the whole system of judicial legislation, and there emerged such results as the Criminal Code, the Law on Basic Property rights, the Code of Criminal Procedure, and the year of 1923 furnished additional legislation. The matter of some centralization of a state prosecution seems to have been taken for granted, but the form that the organization was to have, the basic principles, brought forth differences of opinion as we shall see later.

The New Economic Policy had been introduced and the economic and political situation in the country was in a confused and complex state. Civil war had died down but the class struggle, already well on its feet, took encouragement from the feeling among the property owners that capitalism, at least in a modified form, might with timely effort be brought back. The form of conflict now encountered was hardly less threatening to Soviet rule than had been the more open warfare. The government, dependent on its courts, now effectively augmented by the judicial powers of the terrifying GPU, needed a strengthened prosecution.

In May of 1922 the People’s Commissariat of Justice presented its proposal of organization to the All-Russian Central Executive Committee and found itself immediately on the defensive against attack by opposition within the Communist faction. This had not been expected, and there was some dismay when the main points were rejected altogether. Once before, a central collegium of prosecutors—even though for the Revolutionary Tribunals—had cast reflection on local organs by demanding transferal of cases to their jurisdiction or by sending one of their own number to prosecute locally. Now, as the Commissariat of Justice proposed: (1) the direct subordination of the local prosecutors to the Prosecuting Attorney of the Republic who appoints and dismisses them, and (2) the right of local prosecutors to protest before the central authorities against unconstitutional decisions by local executive committees, it was held by the majority of the Central Executive Committee that there was in such suggestions an element of distrust of local authorities too strong to be accepted. A commission appointed by the session, in rejecting such proposals, made one of its own. It was suggested that there be set up a “dual” subordination of prosecutors, making them responsible both to the central authority and to the local executive committee.

Such a state of affairs brought intervention from the captain of the ship of state. Lenin wrote a special letter to Stalin that brought the opposition to terms when it was read before the Central Executive Committee. He enumerated therein some of the causes of the difficulties of establishing revolutionary legality and a lack of uniformity of the application and administration of the laws were chief among these. Likewise, there was always the alibi of local peculiarities and conditions. For us of the United States who have struggled with forty-eight different types of provisions, of applications, and administration, there is understanding of his argument. A suggestion of anything possible to prevent it seems unanswerable. “The basic evil in the whole of our life and in the whole of our lack of culture,” wrote Lenin, “is in the ancient Russian attitude of laissez-faire and in the custom of semi-savages who want to retain the local justice of Kaluga as distinguished from that of Kazan.”

He then puts a question. Can it be tolerated in a country of proletarian dictatorship, in a country building up a socialist economy? Here is his answer. “There can be no Kaluga justice different from that of Kazan, but there must be a uniform All-Russian justice, and even a uniform justice for the whole Federation of Soviet Republics.”

That started the effort toward uniformity. The most recent chapter in the development was in 1933 (June 23) when the office of the Attorney General was created to centralize the prosecution of the whole Soviet Union. There have been steps between the two enactments but they have moved steadily toward the recent accomplishment. In the earlier organization the position as head of the public prosecution of the USSR, now held by the Attorney General, was occupied by the Commissar of Justice.

The duty of the prosecution, now headed by the Attorney General of the USSR, is not merely to prosecute. His functions are far beyond that limit. If he were confined to that there would not be great importance to his office.

In the Soviet judicial trial the prosecutor is robbed of his glamorous role as he appears in our own courts. He, as well as the defending attorney, is a mere assistant to the court, there to aid it in getting at the truth of the affair before them. It is apparent that he has been appointed in such a manner that he is nearer to the judge than the defense lawyer. He is likely of the same party affiliation, he comes from the same social class, he is in sympathy with the order of government. It is certainly more likely that he exerts a greater influence on the court than the other side’s attorney who may hold an opposite viewpoint. One notices that often the defense attorney is of a different appearance in manner of dress, in terminology, and in speech, from the court and prosecutor. It may be supposed that this occasionally causes the court to decide against him, even though the bias is unconscious, since it is very likely that he is defending a person who is a “class enemy,” and with whose point of view he may be in sympathy.

That would probably have been truer a few years ago than it is now. With the prevailing attitude of “winning over” wherever possible, and the “crushing” of only those who are distinctly to be feared as socially dangerous, there seems to be no great prejudice shown. It must exist to a degree, but antagonism does not seem a part of the present policy of state. If a person before the court can be made into a useful citizen then the object is to do it. Those who deliberately continue to struggle against the laws of the class in power will certainly be dealt with in an uncompromising manner, and if it is fairly clear the crime is of this nature then a defending lawyer would hardly be listened to with very much thought. It would be the day of the prosecutor. Likewise in establishing the class nature of the crime, the word of the prosecutor would be worth more to the court because of his sympathy with the existing order. But since it is to the interest of the state to protect an individual, to retain the aid and sympathy of all possible and to win and keep the confidence of its masses, it is not likely that there will be many who are innocent in this respect convicted in the regular judicial trials where open sessions prevail and the people in large numbers attend. One of the impressive characteristics of the court room in the Soviet Union is the attendance and interest of the citizens. They discuss the verdict with animation and it is to be noted that they usually agree with the court’s decision. If those in attendance disagreed too often it would hardly be a good thing for the judge. It will be remembered that power of impeachment is exercised in this country.

The lack of importance of the prosecutor in trial is exemplified by his absence from trial frequently, in the People’s Court. It is not usual in this lower tribunal for either prosecutor or defense lawyer to be in attendance. At times, however, they do appear. But there is no place in the system for the ingenious display of a game of wits between attorneys as there is no jury such as ours nor anyone on whom an emotional impression could be made. There is really no great need in the ordinary case for attorneys either for the state or the defense. The court has both the power and responsibility to see that all evidence is placed before it. There can be no such objections to its introduction as we are accustomed to hear, resulting in the escape of criminals from the law because of the lack of admission of evidence. The story comes out, the witness tells the tale without any instruction to answer “yes” or “no” to the questions put to him. As already illustrated by actual cases, it is an informal narrative, interrupted by pertinent questions by judge or jurors or other parties to the case.

To see, then, what the prosecutor’s functions are, let us look at the following list as given in 1922 at the establishment of the centralized prosecution.

(1) To supervise on behalf of the State the legality of the actions of all administrative organs, economic institutions, public and private organizations, and private persons, by instituting criminal proceedings against guilty persons and by protesting against decisions infringing upon the laws.

(2) To observe directly the activities of investigation organs, criminal inquiry organs, and also the activity of organs of OGPU.

(3) To prosecute in court. [Note that this is third in order of importance.]

(4) To see to the proper treatment of inmates in homes of correction.

As can be seen from this enumeration the functions of the organs of Soviet prosecution extend far beyond the limits of mere judicial supervision.

Accordingly, the Attorney of the Republic (originally in RSFSR, the People’s Commissar of Justice) was entrusted:

(1) To look after the legal activity of all the People’s Commissariats and other central institutions and organizations and to make proposals for the repeal or amendment of orders and regulations issued by them that are not consistent with the law.

(2) To protest against such orders and regulations before the Council of People’s Commissars and the Presidium of the All-Russian Central Executive Committee with a view to their abolition [the protest by the Attorney General does not stop, however, the carrying out of an order against which a protest was made].

(3) To guide and control the activities of local prosecuting organs. The functions of local prosecutors were:

(a) To propose to local executive committees the repeal or amendment of regulations and decisions that do not conform to the law, and

(b) To protest against such regulations and decisions, through the Attorney General of the republic, to the Council of People’s Commissars or to the Presidium of the All-Russian Central Executive Committee.

In the realm of combatting criminality, the Public Prosecutor was commissioned:

(a) To institute local proceedings against officials and private persons either on his own initiative or on complaints and statements received by him.

(b) To look after the conducting of inquiries and preliminary investigations, to advise organs of inquiry and preliminary investigation on the question of restrictive measures and other questions connected with preliminary investigation, and to conform the indictment drawn up by investigators.

(c) To decide the question of prosecution or cancelling of cases coming up to him from investigating organs, to take part in preliminary sittings of the court on the question of trying or dismissing a given case.

(d) To prosecute in court.

(e) To protest in the order of cassation against verdicts and findings of the court, and also protest by way of supervision against verdicts of the first instance and cassation decisions of regional and provincial courts that have already come into force.

(f) To look after the proper treatment of inmates in all places of detention without exception, and to liberate persons improperly held.

From this enumeration it can be seen that his duty as prosecutor is third on the list. But it is in this function that we think of him and it is this part of his work that we shall go into in some detail because of its connection with what we are studying.

In relation to the prosecutor’s occupation with criminal procedure there is first the preliminary investigation. When the militia or the former organs of the OGPU or any other agent turn over to the investigator certain material evidence of crime the prosecution starts to function. The office of the prosecution is to institute criminal proceedings on the first definite suspicion that a crime has been committed.

While the proceedings are in the preliminary stage the position of the prosecution is very different from what it will be later. He is now concerned with finding out the truth of the situation and not of “fastening” upon some one an act of which he is not guilty but for which there must be a conviction. If he goes into court for trial too many times with cases that are not supported by the testimony as brought out by the court the inference is that he either is not honest or not capable in his preliminary investigation. While a prosecutor often makes a mistake, as further court testimony may show, and is in honor bound to withdraw prosecution when he discovers it, this would probably be because of circumstances which he could not control such as the absence of a witness or the testimony of one not revealed at that time.

So, in the preliminary examination he is not an accuser. He is the chief of all that takes place, and he is in full charge. His investigator carries out the work of this stage in less complex cases but the prosecutor is responsible for direction and policy. He does not seek evidence of guilt at this time any more than he tries to establish innocence. He gathers every available bit of data and then makes his decision as to whether the case is to go on. But once he has come to the conclusion that the indictment is sufficiently well founded and the accused becomes the defendant in the judicial trial, his position is changed.

In the trial he is the prosecutor. He now believes the defendant guilty or he would not have remanded him for court action. He now takes part in weighing the evidence produced in court and urges some measure of punishment in his speech. But so intent is he still on getting justice that he may cease his prosecution if he decides that he has been wrong in his preliminary examination. It is his duty to do so and to convince the court he is correct in his action. One prosecutor told the writer of four occasions in his own practice when he had done this. One has an incredulous feeling in hearing a prosecuting attorney make a plea for the reduction of a sentence or for a verdict of not guilty, but such a case is recorded in the following paragraphs.

In the Supreme Court a case was on appeal from a Regional Court. A group of seven men had been found guilty of stealing vegetables and fruit from a co-operative store in which one was manager. They had resold the articles and had thereby made some 20,000 rubles. The two leaders had received the death penalty, the others lesser ones. The death penalties had been appealed and the prosecutor and the defense attorneys were present with their arguments.

The defense lawyer spoke quite at length, arguing that the amount had been really smaller than was stated, that the character of the men had always been good, and then he went to points of law. He contended that it had been a mistake to apply the Law of August 7, 1932, providing the death penalty for larceny of state property, to this act as no theft of state property had actually taken place. The men had paid the regulation amount to the state, but had simply sold the fruit and vegetables at an advanced price over state prices, for a sufficient period to bring in the money in that manner. He contended that instead the men were guilty of using official position for personal benefit and that Article 109 of the Criminal Code, providing punishment for such a crime, should have been applied.

His points had not been well made and when the prosecutor arose to speak one was quite prepared for his demolition of the previous argument. He was an able, well-trained man. No one consults any precedents or books of law in the Soviet court. The observer is struck by the absence of such volumes from the room. The court judges each case on its merits in the light of certain established policy. It seemed only a matter of formality for the judges to retire and bring back the decision that the verdict should stand. But the peculiarity of the prosecution in this judicial system now showed. The attorney paused, started again. He reminded the court that the men were young, that this was the only offense with which they had been charged and that one of these in particular had been a good citizen until he had begun to drink too heavily. He thought the sentence too severe and that it should be commuted to the maximum ten-year term. He likewise recommended that some of the sentences of the lesser members of the group needed revision. The court acted on his recommendation and the two wives present were able to go into frenzied joy over the giving back of life to their respective husbands.

The case brings out the attitude of the prosecution toward their tasks as accusers. The basic function of the prosecutor is to establish all the testimony he can to support an indictment before the court. That is what he comes into court for. The defense has its lawyer to see that its interests are protected. The prosecutor thinks of the side of society and the state. But at the same time, theoretically, he must not do anything to prevent the real truth of the case from being revealed. It is not in keeping with the role and dignity of his office to keep back evidence, to shuffle facts, or in any manner to defeat the carriage of justice. And in attempting to carry out the higher requirements of his office he cannot insist on the charges of the indictment if the testimony brought out at the trial has modified them.

It is interesting to note that there are deviations from the general principle that the prosecutor conducts the prosecution at the trial. Throughout the land there is a system in practice of giving training to the more able among the peasants and workers to act in the capacity of public accuser in the simpler cases. This special prosecutor is usually unaided unless the case is of a more serious nature, when he will probably serve in conjunction with some member of the prosecutor’s office. This service is of a wholly voluntary nature with no pay attached, but there is compensation for the individual in the position of importance he occupies in his community.

There are also cases where the plaintiff hires his own lawyer to prosecute the case and a public prosecutor appears only if the case is of such a nature or takes such a turn that there is a public interest which needs protecting, or in case there must be intervention to secure fair play. An example of this type of case would be one in which there was bodily injury that while causing pain still had no serious consequences. Cases involving insults, libels and slander likewise are often prosecuted by private attorneys without the aid of the public official. In all of such cases action is not brought by the state, of course, but is begun by the oral or written complaint of the injured party and may be settled by the plaintiff and defendant between themselves at any time while the trial is in progress.

In cases involving such charges as the violation of patent or copyright laws, forced sexual intercourse, and a few others of a private nature, the procedure is still different. Prosecution is by the public prosecutor but even though he knows of the existence of such violations he cannot institute proceedings. The injured party must make the complaint and give co-operation but while he may have his own lawyer also the state takes charge of the prosecution.

For a more complete picture of the prosecution as it exists in the Soviet Union today, its organization is briefly given. It follows:

(1) The Attorney General of the USSR who is the head of the prosecution in the Soviet Union. He has, of course, a staff of assistants. He is appointed by the Central Executive Committee, and is also responsible to the Council of People’s Commissars.

(2) The Assistant Attorney General of the USSR, appointed by the Presidium of the Central Executive Committee.

(3) The attorneys of the various federal republics who are appointed by the Attorney General of the USSR on approval by the Central Executive Committees of the respective republics.

(4) The prosecutors of the regional and provincial courts are appointed and may be dismissed for cause by the attorneys of the federal republics with the consent of the Attorney General of the USSR.

(5) The attorneys for military and transport tribunals are appointed and may be dismissed by the Attorney General of the USSR.

(6) District attorneys and people’s investigators are appointed and dismissed by regional and provincial attorneys.

(7) Senior investigators and investigators on most important cases are appointed and dismissed by those attorneys to whom they are attached.

The duties with which they are charged are:

(a) To supervise the consistence of decisions and regulations of separate departments of the USSR and federal republics and of local authorities with the constitution of the USSR and the decisions and regulations of the government of the USSR.

(b) To look after the correct and uniform application of the laws by the judicial institutions.

(c) To institute criminal proceedings and to prosecute in all legal instances throughout the territory of the USSR.

(d) To look after the legality and correctness of the actions of OGPU, militia, and correctional labor institutions on the basis of a special order.

(e) General guidance of the activities of the prosecution in the federal republics.

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