CHAPTER IX
THE DEFENSE AND THE DEFENDANT

The Bar has had a precarious existence under Soviet rule, but it seems now to have come on to firm ground. Going back to that First Decree of 1917, when the prosecution was swept away, we find the institution of private attorneys suffering a like fate and an idea substituted that anybody might be an attorney and defend. However, a limitation was soon put on the “anybody” by the Second Decree on Courts which created the collegium, the duties of whose members were both to prosecute and to defend. While any citizen might become a member of this collegium on the proper recommendation of the Soviets of workers’, soldiers’, and peasants’ deputies, he was supposed to give his time and attention to being an attorney, which somewhat narrowed down the first broad inclusion. There must have been some slight ability, too, on the part of the persons appointed, over the ordinary run of citizen, in order that they be recommended to membership.

This method of providing for defense and prosecution existed until 1920. The People’s Court Act of 1918 changed the status of these defenders and prosecutors in that they were made officials of the Republic and were accorded a salary equal to that of a people’s judge. These members of the college in their capacity

as defenders were augmented at times by relatives of the defendant and at times replaced by the legal adviser of an institution, appointed by the director to serve in some particular case.

By 1920 this system of one body affording now a prosecutor, now a defender, was found to be not adequate, not in keeping with the rights of the defendant which orderly legality must establish, nor, on the other hand, providing a sustained attitude of prosecution such as the state needed. The People’s Court Act of that year created separate institutions for the two purposes. There was now evidence of a selected membership. Not just “any citizen,” even though he might devote himself to the duties of the collegium, could serve, but there was to be a list prepared by the local Soviets, of persons who were qualified to act in this capacity. From this list defending advocates were to be selected for temporary duty, not to exceed six days in a six month period, and were to be paid a sum in proportion to the remuneration received by a co-judge.

It was something in the nature of our own jury service, and was regarded as a solemn duty of a citizen qualified for the function. In the Collected Laws of 1920 we find a circular from the Commissar of Justice issuing instructions and admonishing that the defense in court, in criminal cases, is a social duty of all citizens, who, because of profession, education, or party affiliation, are qualified to appear as defenders at the trial.¹ Doubtful defense it may have been to one whose life hung in balance, but the institution was progressing toward a time when persons on trial might be ably represented in the judicial inquiry.

The institution of the New Economic Policy, bringing a new complexity and confusion into the economic and political life of the Union, created new necessities of various kinds, one of which, as we have already seen, was a development in the administration of Criminal Law. With the remarkable rapidity of the development of institutions in other lines, the Soviet judicial system began to take firmer shape and to assume a character of responsibility for orderly legality. If the court was to provide equality of opportunity and privileges to all, thus fulfilling the slogan of the Socialist State of which it was an organ, then the rights of the defendant must be protected, not only by legislative safeguards but by means of adequate representation at the bar of justice. If prosecution was to be stiffened in this era of fighting the opponents in a new way, then a balanced procedure called also for more adequate aid to the man accused.

The Advocacy Act of 1922, with its sweeping reforms for the judiciary, restored to the Union the possibility of adequate defense for the person who stands accused in court. It created the collegium of lawyers, and made its members responsible for the legal aid of a party held for trial. The number of members of the college were, however, to be restricted by authority of the provincial departments of justice.

This limitation was removed by the Judiciary Act of 1926 which elaborated the provisions of the earlier Act and dealt fully with the organization, function, and duties of the collegium. While the number is not restricted, the member, when accepted by the presidium of the collegium, may be rejected by the provincial executive committee within a month from the time it is informed of his admission.

The qualifications required of the members provides for at least two years’ service in some judiciary position within the Soviet Union not lower than the People’s Court which insures an acquaintance with the law. To be admitted one must also either have a higher juridical education or have passed a prescribed examination. Admission is refused to those who have been expelled from public organizations for misconduct (for a period of three years), condemned for crimes, or under trial or investigation the member is suspended in certain cases. No lawyer may defend in court unless he is a member of the collegium, or bar.

The collegium is self-governing along the lines of other Soviet institutions. It elects its own presidium which works out the general problems of the organization. It decides on disciplinary questions, on general plans of work, and on the fees to be paid by its members. It has no authority over the fees to be paid by clients. That lies in the hands of the Commissariat of Justice which sets up a regular schedule, according to the ability of the person to pay and the complexity of the case. There are four groups according to these provisions. At the bottom are the poor, so designated by the people’s court, who pay no fees; in the next group are those workers, clerks and peasants who are permitted a small rate; the third group consists of any not included in the first two, who may also pay a rate set by the Commissariat; and there is the final group who, not needing the intervention of the Commissar, may make its own terms with the collegium.²

The duties of the members of this organization do not consist alone in defending in court. The members of the collegium attached to the courts, provincial, regional, or organized as county bureaus, deliver lectures on law, acquaint the masses with their legal rights and duties through visits to large factories and other centers, and must defend without pay any case referred to them. The first duty of the legal profession is concerned with the observance of revolutionary legality, but within the bounds set by this legality, he must defend his client. The protection of this same individual is, however, the acknowledged duty of both judge and prosecutor, so why the necessity of defense counsel at all in such a system, one wonders.

As already pointed out the simpler cases tried in the People’s Court rarely do have attorneys on either side, but in the more complicated cases the story may not be so easily got at. It may be necessary to the honest defense of the accused or in the determination of his sentence that certain orders or decrees about which he knows nothing be applied to his case. In such an event he needs some one who is acquainted with various enactments. In the next place he may not be of a nature so cool and composed when his life or liberty is at stake that he can interrogate witnesses himself, cross question, and otherwise exercise his legal rights. Likewise, if it is a serious case, when he gets his last word before the court he will want it to be an effective one. The speech of a good lawyer, analyzing and weighing the evidence, may be a deciding factor. Straightforward and interested in the protection of the state as a lawyer may be, he is likely to think of some points in favor of his client that neither judge nor prosecutor would find unaided. And that leads to the third and last acknowledged reason for the use of private attorneys. It is likely that the prosecutor may be prejudiced in favor of the guilt which he has already seen indicated by the evidence he had in hand when he remanded the accused for trial. It is likely also that the judge, having found that evidence sufficient to sustain the indictment, may not be able to see some things on the other side that a legal adviser hired for the purpose would be able to find. The authorities on criminal law believe that, too, and therefore, on the theory that innocence is presumed until guilt is proved, they provide for an advocate who is more likely to be conscious of the innocence. A question occurs here as to whether an advocate would risk defending a client whom he knew to be guilty through a confession or otherwise. Theoretically, he would only in this case attempt to interpret or explain the act so as to get freedom or a lesser sentence.

The defense often has a lawyer when there is no prosecuting attorney present. In the People’s Court the state representative may not appear, and yet the counsel for the defense is always admitted. The reverse cannot be true. There can be no prosecutor present without the defense counsel. One of the specific provisions of the law is that on all occasions when a prosecutor appears for the state there must also be a counsel for the defendant. In case the latter has not been able to get one or is not able to pay, the court looks after the matter for him by having the collegium of lawyers appoint a counsel. It may be a case a lawyer would not want; it may be the worst of the so-called “class enemies,” but some one must serve. Not only that, but if the complexity of the case warrants it, one of the best must be appointed. The collegium pays the member serving on such an unremunerated errand out of its own funds, according to the fees he is accustomed to receive and according to the complexity of the case.

There is one other condition in which the court must see that the defense is represented by counsel. If the defendant is deaf or dumb or suffering from any physical handicap that will prevent his understanding correctly the procedure of the case counsel is obligatory. Likewise, in the case of juveniles of 16-18 years of age (the court does not handle the cases of those under 16), the instructions of the Commissariat of Justice is that there be counsel provided.

The defense counsel, once in charge of the case, has rights and privileges as great as the prosecution. He may see his client as often as he wants to, for as long as is necessary, without the presence of any attendant or official. He has the right to advise the defendant all during the trial. He has the right to records in the case so that he may study it thoroughly and introduce any evidence he finds necessary in the interest of justice for his client. And he has a right to the last word. He not only makes the final speech but he questions witnesses after the prosecution.

The lawyers of Russia, with the exception of a few independent ones, are organized into “collective corporations.” This, of course, is right in line with the socialist theory of government. While lawyers have a right to engage in private practice there are a number of reasons why one would prefer to be a member of one of these collective bodies. Let us look at some of the characteristics of these organizations. The following list was given by Professor Brusilovsky, who is himself a member of the collegium.

“(1) The individual lawyer has no direct financial transaction with the client. The fee is fixed by a special consultant and paid to the treasurer of the ‘collective.’

(2) The lawyer may go on his vacation knowing his client will be served by colleagues. While on vacation he draws a salary equal to his normal monthly income.

(3) here is value in consulting a number of lawyers on a case to clear up difficult points. This is especially valuable for the young members.

(4) Fees are differentiated according to the qualification of the individual lawyer, his service record, experience and ability. He is insured against sickness and incapacity.

(5) Membership—It is open to all citizens who: (a) possess electoral rights, (b) have a certain record of service in the organs of Soviet justice, and (c) have either passed the prescribed examination or have received a superior juridical education.”

We have been considering up to now in this chapter the organization of the defense provided for in the law. This is the machinery through which the rights of an individual may be protected in criminal procedure. Now, let us turn to the defendant himself as he appears in the case and see what safeguards are given him.

There is, first, the matter of the preliminary trial. While that phase of the case as a whole has already been discussed the rights accorded to the suspected person were purposely not emphasized since that angle of the proceedings properly belongs here.

To begin with, let us suppose the suspect is held in custody by the arresting organs, the militia or the former agents of the OGPU. They can keep him just twenty-four hours, and no more, until they must get permission from the people’s judge or from the prosecuting attorney for his detention. If they cannot get enough evidence in that time to support the arrest there is nothing to do but release him. That does not mean, however, that the case must be dropped. If they are convinced of his guilt, but have not been able by that time to establish it, the authorities may permit the man to be held a longer time so that the case can be built up, or in case the suspicion has not enough grounds even for that, they may go on working quietly until they do uncover what they want. However, for the sake of our case, suppose the prosecutor gives permission for the man to be held. In fourteen days there must be either release or sufficient evidence to hold him. While there are no habeas corpus proceedings in the administration of Soviet law, there is the assurance that a man must be either released at the end of two weeks or some testimony produced that will justify his being held.

Nor may he languish in jail while his trial is put off from day to day. The maximum time permitted for the preliminary work and the bringing of a case to trial is one month. Obviously there may be cases when it will be absolutely necessary to extend this limit and by permission it may be extended. But the law provides that there must be reasons shown as to why extra time is asked. The fact that this limit is adhered to in practice is shown by records that in the city court trials of Moscow 75 per cent. of the cases are tried in ten days and the majority of the others in fifteen or twenty. It is quite likely that there are cases in which an arresting organ holds a man more than the twenty-four hours or an investigator permits more than the maximum time to elapse before trial, but members of the Commissariat of Justice insist that if detected in such acts the agents are swiftly and surely punished. Those in authority do not hold in high esteem those officials who do not cooperate in the establishment of revolutionary legality. While there would, of course, be no statistics of such illegal practices, those in prison of whom the writer asked the question about the time of pre-trial detention gave answers of periods which were all within the limit except two. One man indicated that his rights had been violated, the other gave causes for his detention beyond the period.

The person under suspicion (it will be recalled that he is not the “accused” until such time as a definite accusal is made) may make a complaint at any time against the actions of those conducting the preliminary inquiry or investigation, and such a complaint may be appealed within seven days, not only to the prosecutor but to the judge under whose jurisdiction the case may be. If it is a serious case, he may from the beginning have employed counsel to do that for him, but in the event of the simpler case, or of his having no counsel, there is sure to be some interested person among family or friends who will attend to this for him, if he should be detained in such a manner that he could not reach the proper authority and the one against whom he complained would not take care of the matter for him. The law provides that such an official must receive and transmit a complaint directed against him, but there might conceivably be instances when meeting this duty would be unpleasant—especially if the official was guilty.

During the preliminary trial the defendant is protected in every possible way. If he has not been in custody the initial steps may have been taken without his cognizance. This may have been necessary in order to prevent his escape while ground was being prepared for holding him. But, if there is sufficient evidence to warrant an investigation he is now apprized of it. He may be summoned to appear in almost any manner—by telephone, telegraph or otherwise, or if the circumstances are such that his escape must be prevented, he may be then arrested. In any case he now participates in the investigation which, it is remembered, is carried on by the investigator or, in the event of a serious case, by the prosecutor.

He is now told what the charges against him are, and it is made very clear to him. He may at this moment offer an explanation of the substantial facts which will put an entirely new interpretation on the case, and cause its dismissal, if he substantiates what he tells. It is to be remembered that there are no sides taken in this stage of the procedure. It is usual that no counsel has yet appeared for the person under inquiry, the prosecutor is acting in his rôle of collector of information and there is, theoretically, at least, no effort to pin either guilt or innocence on to the party. The accused (he becomes “accused” from the moment the charge is officially explained to him) may suggest witnesses, may request experts, as we have previously seen, and attach any proofs to the documents, and such requests must be granted unless the investigator is convinced that they have no real importance in the case. If he does the latter, he is likely to be rather sure of his ground, as otherwise his judgment would face reversal when his decision was appealed to a higher authority.

We have already referred to the use of experts and the accused person’s rights as to selection. With all the information collected and the decision made, his chance to submit evidence to prevent the trial is still not exhausted. On the decision of the investigator to present the accusation, the person against whom it is directed may go over all the materials collected. Now, in the light of what he finds, he may offer further elucidation himself or he may request further witnesses who will be able to shed additional light. He is given every opportunity here, by law at least, to get in a stroke that will indicate his innocence. And in the event it goes to the court, in spite of his efforts, the judge may be convinced of the weight of his argument or evidence and direct the investigator to either build up his case better or dismiss it.

We will suppose it stands. The administrative session of court places the case on its calendar. It comes to trial after not longer than a month from the time the accusation is handed over by the investigator, and the accused becomes the defendant. In the meantime the accused will have secured his counsel. Little was said about the part a counsel for the defense might play in the preliminary stages, for the reason that except in serious cases there would almost surely be none at that time. The normal time for the appointment of one by the court, in cases requiring this, would be immediately after it was decided to hold the person for trial. On the presentation of the accusation to the accused he is informed of his legal right to counsel. In case he is unable to provide for an attorney he petitions the court for aid. Likewise, if he chooses one at this time, he submits the name for approval. Then the court, in its administrative session, when deciding whether to hold the accused for trial, likewise settles the question of counsel, if the accused has petitioned, by approving his choice or appointing one. Approval of his choice is necessary only if he has selected some person outside of such authorized lists as members of the collegium or some representative provided by government institutions. Otherwise he may select whomever he will among the authorized persons and be assured that that person must act for him and for a fee that will be set for him within his ability to pay. The element of contest which is one of the basic principles in the Soviet judicature is now found for the first time. Two parties are aligned one against the other, each to prove its rightness. From this time on, the accused is the defendant and there are two sides to the case. Let us see the trial.

The defendant has the right to a public trial. This, too, is one of the principles of criminal procedure of the Soviet courts and by its observation there is insured fairness through public opinion. Through publicity there is brought about both the education of the people and the control of the court by them. There are only two conditions under which the trial may be behind closed doors—when a state secret must be kept, and in sexual crimes where intimate details must be revealed.

The defendant has a right to be present at his own trial, unless he voluntarily stays away. A case may be tried without him, if he has given his consent or when he has failed to respond to the summons. In the latter case, however, it must be clearly shown that an effort was made to reach him and that he directly evaded it, or there will probably be a reversal of the verdict in the higher court. An attempt to use his lack of response as an excuse for trial without his presence would have to be supported sufficiently to avoid abuse. In simpler cases when there is no possibility of imposing a prison sentence, his presence may not be required by the court, but in offenses punishable by a prison sentence he must be there if he can be found.

As the case opens, the presiding judge explains to the defendant his rights, as a party to the court, to make use of all material, to examine and cross-examine witnesses, and to make any statements he will at any stage of the trial. These things he may do even though he is represented by counsel, and if he has decided to defend himself or entrust it to some relative he is sure to find plenty of opportunity to exercise this right. The writer witnessed one case in which a simple-looking workman took care of his interests so well that one could understand his going to trial without legal aid. Before his vehement and rapid-fire interrogation, witnesses quailed and became confused. The informality of the proceedings permits of participation without timidity in most cases. There is no fear of set rules of the game, because they do not exist. The accused defends himself as he would before his neighbors.

The next assurance is that the defendant may cause the removal of judge or juror if there is likely to be bias in his attitude. Perhaps one of them is relative or friend to the injured party, or to some other person who would be interested in the conviction of the defendant. In that case he may challenge, giving his grounds therefor, and the question will be decided by the rest of the court sitting without the member so indicated. If he is overruled he has that fact as grounds for complaint to the cassation instance.

And now as the case goes to trial, with the defendant a party to the court so that he may spar as he wishes with prosecutor or clash with witnesses, either with counsel or without, he has also the right of presumption of innocence until proven guilty. It would seem that the preliminary trial had already established guilt sufficiently so that the actual trial would merely bring to light what had gone before, and establish the degree of guilt. But such is not the theory incorporated in Soviet criminal law. It may be that evidence will take a different turn, that the very atmosphere of the public trial will provide a new viewpoint. The object of the preliminary investigation is not to constitute a determination of guilt but to give guarantee that there are some grounds for trial. Authorities on the administration of criminal law point to the relatively low percentage of convictions, there being, according to one authority, almost one-third of those remanded to the People’s Court dismissed, and a lack of conviction of at least a quarter of those actually reaching court. From that one would judge that the holding for trial by the investigation organs of the courts does not mean in actual practice that one’s guilt has been established. During the trial the defendant has every right which he has already been accorded in the preliminary procedure, but they are now rendered broader and of more value because he is familiar with all the data that have been produced, and all the witnesses who have been gathered by the investigation are now before him for questioning. Through his cross-examination of the state’s witnesses he may develop lines of proof that he can substantiate by calling further witnesses of his own, or he may refute the state’s contention. Some expert, whom the investigation used for some specific interpretation, may change his own opinion in the light of some explanation which the defendant himself or his witness can give. He has here three distinct privileges—he may request certain witnesses, other experts, or fresh proofs from the state if the case is to be sustained; he may give explanations to the court of the circumstances surrounding the commission of the act at any time and as often during the trial as he wishes or thinks necessary; and he has the invaluable right to take part in the examination of all witnesses, experts, or others who take part in the trial. And now, if he has been directing his own defense he may also make the final speech and thus leave the last word with the court as it goes forth to deliberate on the verdict.

There is some difference in the privileges and rights accorded one tried in the People’s Courts and in the higher courts. The reason is not far to seek. In the People’s Court there are no cases of a class nature of the serious sort. There could not be, since the jurisdiction of the People’s Court does not extend to crimes punishable by the death sentence. Here come the people from among the masses who have violated the law, but when a Kulak or one of the bourgeoisie is involved and the offense is against the state or the order of government, the case goes to a higher tribunal and the rights of the defendant are more circumscribed. In a trial when the accused is of a socially dangerous character, and restrictions are held to be necessary, the discretionary power of the judge may draw such limits as depriving the defendant of rights of counsel, of certain witnesses, or of records in the case. Such procedure, however, is said to be unusual and resorted to only in cases where the offense is of a highly dangerous character. Even in such an instance the defendant may still conduct his own case with all of his customary rights. The accused may be a socially dangerous character who must necessarily be subjected to restrictions. It is likely that this happens in a small degree and only in the most serious cases, but in fairness a chapter dealing with the rights of the defendant should call attention to this possible limitation.

To see the defendant in court one is impressed with the amount of liberty he has. One forgets that he is the man whose life or liberty is in jeopardy. He talks, he interrogates, he explains and argues. And it is amazing to see how these people have come to understand the working of the law. It is a part of the duty of the collegium of lawyers to help in explaining and popularizing the Soviet laws and a good job they have done of it, too. Of course, they have had their helpers, but one finds children who know why the law of August 7, 1932, providing a death penalty for larceny from the state was necessary, and as for the enactment which specifies a five-year period of imprisonment for adulteration in an effort to make for better quality, every housewife knows the answer. She demands better material for her dresses, better sugar for her table, and she has heard all about the law, its necessity and purpose, in her factory or other place of work.

That acquaintance with the laws, that knowledge of the principle involved, makes it possible for an offender to do a pretty good job as his own attorney, unless he be one of the illiterate peasants. In that case, if he has no counsel, he can be rather sure of the court’s interest in finding out the facts and in interpreting them correctly. It is to the state’s interest to see that the accused person has every opportunity to be treated fairly, and the court is only the organ of the state in carrying out such a policy.

As has already been said, the people seem in most cases to agree with the verdict of the court and that is worth something as an indication of justice. They are encouraged to follow the case and to understand the application of the law. After hearing their discussion at a trial, one would know of their intense interest. It seems to be an added cloak of protection for the defendant in case a judge did exceed fair play. It would be felt in the appeal!

In the event of a verdict of guilty the convicted one now has his right of complaint so that his case will be reviewed by the cassational division of the higher court, the Regional or the Supreme Court, or to the latter even from the first. Herein is his last chance of life or liberty. Already we have talked of cases where the decision of the lower courts was reversed. That happens in about ten per cent. of the cases. So a man has a slim one-chance-in-ten hope of getting off from his punishment.

Perhaps the reader has, in this enumeration of rights, been impressed with the absence of one held dear in the United States—the right of a person to trial by a jury of his “peers.” But the system existent in the Soviet Union bears a resemblance in effect, although they repudiate the idea of our jury system both for political expedience and because they think the practice unsound from a judicial point of view. However, the two persons who sit with the judge do actually provide some check on his judgment and authority.

In the Soviet system the two jurors, or co-judges, may decide independently of the judge in all cases. They are selected with a view to their having some ability to serve, and most of them seem to be people of intelligence who take an active part in the trial. While they are without doubt subject at times to influence from the judge in deliberating on the verdict, there seems also ground for suspecting that because of their nearness to the workers there would be a strong tendency to reflect the opinion of such a group in a verdict they would render. They cannot be regarded as party tools, since a large majority are not party members as against the large majority of judges who are. However, there is a class feeling. The court, as said before, is an organ for carrying out the policy of the state, and decisions will naturally consider the dangerous character of the person on trial. The class nature of the procedure is apparent and is acknowledged, but it is held to be legitimate, a necessity. The jurors could not be expected to aid in a decision, or render one on their own account, which would go against this policy. Thus it would seem that the jurors might have effect in trials not of a class nature, might actually constitute an additional safeguard to the rights of the defendant. There are cases on record where they have gone against the judgment of the court, and rendered their own verdict, thus proving that they are not always a rubber stamp.

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