Some Observations on Soviet Law and Lawyers JOHN ABT In October 1945, I visited the Soviet Union as a member of the CIO delegation, upon the in- vitation of the All-Union Central Council of Trade Unions. My stay was limited to four weeks and, as a labor delegate, was spent largely in visiting factories, talking to workers and trade union representatives and learning about the structure and functioning of the Soviet trade unions. Time did not permit a study of the Soviet legal system or extended discussions with members of the Soviet bar. Nevertheless, such observations as I was able to make may -be of interest to American lawyers whose knowledge of Soviet law is unfortunately all too limited. In conversation with the presiding judge dur- ing a day spent at the City Court of Moscow, I learned something of the structure of the Soviet courts. The highest court is the Supreme Court of the USSR, an appellate body elected by the Supreme Soviet. Each of the sixteen Soviet re- publics likewise has its Supreme Court, elected by the Soviet of the Republic. Below these are the city courts in the large cities and regional courts, which have concurrent jurisdiction in non-metropolitan areas. These are elected for five-year terms by the city or regional soviets. Finally, there are the people's courts, whose jurisdiction covers a district of a large city or a part of a region. Under the 1937 Constitution, judges of the people's courts are to be elected by direct suffrage every three years. The war ielayed direct elections which will, however, be ield in 1946. The people's courts are courts of imited jurisdiction. The city and regional ,ourts have general jurisdiction, both civil and -riminal, and also hear appeals from the people's ourts. The city of Moscow has 150 people's -ourts and 30 divisions of the city court. Our form of jury system is unknown in the 3oviet Union. Instead, every city, regional and )eople's court is composed of a judge and two lay associates for the trial of all cases. The judge is a member of the bar, who devotes his entire time to his office. The associates are drawn from a panel, elected in the same manner and for the same term as the chief judge. They are not trained lawyers, but workers, farmers or professional people and serve for a total of not more than ten days a year. In all matters relat- ing to the examination of witnesses and the con- duct of the trial, each associate has an equal voice with the judge, and in making decisions, each of the three has one vote. Associates sit only in trial courts and do not serve on appeals. Litigants in both civil and criminal cases have the right to challenge the composition of the court and-on a showing of prejudice-to secure the disqualification of one or more of its members. There are 800 members of the Moscow Colle- gium of lawyers. These are all general practi- tioners and exclude those lawyers who are em- ployed on a full time basis by government agencies. The members of the Collegium prac- tice in groups, each group establishing its own office in one of the districts of the city. After discussion and upon recommendation of the Lawyers' Collegium, fees are regulated and fixed on the basis of a definite scale, depending upon the type of case and amount of time in- volved. Fees are paid, not to the individual lawyer but to the group, much as in the case of' an American law firm. One Moscow lawyer remarked to me that the members of the Mos- cow bar have no worries about keeping busy or earning enough in fees. The Presiding Judge informed me that liti- gants are represented by lawyers in seventy to eighty per cent of the civil eases that are tried before the city court. Under the constitution, defendants are entitled to counsel in criminal cases, and counsel is appointed by the court if the defendant does not or cannot afford to retain 364 LAWYERS GUILD REVIEW his own. When I expressed surprise at the high percentage of lawyers retained in civil litigation, the presiding judge replied that this is in large part due to the fact that many categories of liti- gants-such as Red Army men and trade union members-are provided with lawyers without charge. After talking with the presiding judge, I ex- pressed the desire to witness some trials. He ascertained that a divorce case was about to be heard and introduced me to the judge-a woman -who was to try it. As reported in the American press, Soviet divorce law was revised last year, making di- vorce procedure more difficult. Under the prior law, it was only necessary for the parties to appear before a registrar, advise him of their desire, and, satisfactory arrangements having been made for the care of any children, divorce was automatic. Under the new law, a somewhat protracted procedure is required. Application for divorce must first be made to the peoples' court. The judge to whom the case is assigned examines the applicants and makes every effort to reconcile them. If reconciliation is impos- sible, either party may apply to the city or re- gional court for a decree. Publication of notice of the application in a daily paper is required. The court, after a hearing, may grant the appli- cation or-if it finds the grounds insufficient- deny it. The case that I heard was tried in a small and informal courtroom. The judge and her two lay associates were seated behind a desk, the parties in front of them. This was a consent case and neither spouse was represented by counsel. The judge briefly summarized the facts from the documents before her. The wife deserted in 1941, a few months after marriage, because she didn't want to look after the husband's three children by a former wife. The judge then asked each party to make any statement of facts they wished. Their statements corresponded to her own summary. Then, after the associate judges had asked a few questions, the court retired. It returned in about five minutes when the judge read a memorandum decision stating the facts concisely, granting the divorce, taxing each party with 500 rubles costs, and allowing 10 days for an appeal to the Supreme Court of the RSFSR. I then asked to hear a criminal case and was introduced to the judge who was about to try one. We talked while waiting in his office for the militia to bring the defendants to the courtroom. He had been elected to the city court twelve years ago and until 1941 had sat in its criminal divi- sion. With the outbreak of the war, he went to the front as an infantry officer. He fought throughout the war and, as the string of ribbons on his breast attested, with considerable distinc- tion. He told us that he had served on all fronts, including Poland, Austria and Germany. He had been demobilized only a few days earlier and now was about to hear his first case since June, 1941. Like all of the Russians I met-lawyers, workers, farmers, intellectuals-he stressed the need of closer Soviet-American friendship. He had been much impressed, in the occupied zones, with the good relations between the men of the Red Army and our own and commented particu- larly on the friendliness and cooperative atti- tude of our Negro troops.* The judge told us something about the case we were to hear. He had not seen the accused but was familiar with the facts from the transcript of the preliminary investigation which, in the Soviet Union and throughout Europe, precedes the trial itself. The proceeding was the Case of Kozloff and others. The defendants were four young men and a girl, ranging in age from 18 to 23, who were charged with breaking into an old woman's apartment armed with two revolvers, and rob- bing her of her clothing and other personal be- longings. They returned with their booty to the room of the girl defendant, where they spent the night. The crime had been very clumsily com- mitted, and all were arrested the next morning with their loot at the home of the girl. With the exception of Kozloff-the principal defendant and organizer of the crime-each bad * The conversation turned from war and politics with the question which I had learned to expect from all Moscovites. "Have you seen our ballet?" My affirmative answer and a comment on the Leningrad ballet as well provoked the equally invariable follow-ttp, "Which is better-theirs or ours?" My attempt at diplomatic evasion proved quite unsatisfactory, and the judge explained that his wife was a dancer at the Balshol Theatre in Moscow. a compelling reason for his partisanship. SOME OBSERVATIONS ON SOVIET LAW AND LAWYERS 365 confessed during the preliminary examination and changed his plea during the course of the trial, in the face of the inescapable evidence against him. As I learned later, a plea of guilty does not dispense with a trial of the facts under Soviet law. Despite the nature of the plea, the court is required to make an independent deter- mination of the guilt or innocence of the accused after a full inquiry into the facts. From his examination of the preliminary in- vestigation, it was the judge's impression that the defendants-though young-were hardened and what he called "declassed elements ". Prior to 1941, he said, cases of this character had almost disappeared, but the strains and disloca- tions of war had resulted in some increase in this type.of criminality. He asked us not to be surprised if the sentence imposed seemed severe. The tremendous tasks of peace and reconstruc- tion facing the Soviet people, he told us, per- mitted no leniency toward criminal elements who hindered the achievement of the goals which the whole nation had set itself. Unfortunately, our departure from Moscow on the following day prevented us from hearing the closing pleas of the lawyers or the sentence finally imposed. We were able to listen only to several hours of a trial that consumed a day and a half. The very length of the proceeding in a case of this character and in the face of pleas of guilty is some indication of the court's scrupu- lous observance of the rights of the accused and its care to accord them the full and fair trial which the Soviet Constitution guarantees. This conclusion was borne out of my observation of the trial procedure. The courtroom was rather bare, with space for the participants and about fifty witnesses and spectators. The judge and his two associates sat behind a desk at floor-level and with them the secretary of the court. In front of them was a chair for witnesses, other than the defendants. To their left was the prosecutor, seated at a small desk. Opposite, were the defense attor- neys, and behind them the five defendants, guarded by a uniformed militiawoman. As in an American courtroom, those present rose when the judges entered or retired. The defendants stood at their places when addressing the court or being questioned. The prosecutor and defense attorneys remained seated through- out the proceeding. In general, the courtroom atmosphere seemed somewhat less formal and forbidding than the usual American criminal court. The defendants were represented by four lawyers. Two of the accused had each retained counsel. The other two lawyers were appointed by the court to defend the remaining defendants. As is the case in all European countries, the Soviet judge plays a larger role in the examina- tion of witnesses than judges under Anglo-Saxon law. Here, the examination of each witness was initiated by the chief judge. He then permitted questioning, in turn, by his associates, the prose- cutor, each of the defense attorneys and each of the defendants themselves. There is no require- ment that the testimony of one witness be com- pleted before questions are put to another. Any one of the participants--judges, prosecutor, de- fense attorneys or defendants-has the right to interrupt the examination of one witness to put related questions to a second or third. I was impressed by the attitude of the prose- cutor and the judges. They were stern but fair. Neither by the substance nor the manner of their examination was any assumption of guilt ex- pressed or implied. Their approach was that of a search for the truth rather than an attempt to prove a preconceived set of facts or to obtain a conviction. No objections to questions were interposed by the prosecutor or defense counsel and there was a complete absence of technicalities or the quibbles and dramatics that sometimes trans- form an American criminal trial into a game of wits between attorneys. At the same time, the defense was given complete freedom to call wit- nesses and adduce evidence. This applied both to counsel and to the defendants themselves. Recognizing the futility of attempting to es- tablish the innocence of their clients, the defense attorneys confined themselves to evidence in mitigation. But at one point in the judge's ex- amination of the defendants, two of them re- sorted to the obvious invention that they did not enter the old woman's house to rob but in search of a Red Army man who supposedly had at- LAWYERS GUILD REVIEW tacked Kozloff. Instead of denouncing this obvi- ous lie, the judge and prosecutor patiently, though at times sharply, cross-examined the de- fendants, bringing out the contradictions and inconsistencies in their tale and thus finally con- vincing them that their story was too thin to stand.. During the course of the trial, it was brought out that Kozloff had been honorably discharged from the Red Army, and his conduct during the case suggested the possibility of shellshoek. At the request of his attorney, the judge at once agreed to have him examined by a psychiatrist before rendering a decision or imposing sen- tence. It is of course impossible to generalize from a single case. Yet, I could not fail to be impressed -as I am sure any other American observer would have been-by the scrupulous care given to safeguarding the rights of the defendants and assuring them a full and fair trial. As a labor lawyer, I was interested in the role of attorneys in the Soviet trade unions. To the surprise of at least some members of the CIO delegation, we learned that the All-Union Cen- tral Council of Trade Unions (the top federation to which all Soviet Trade Unions are affiliated) maintains a legal department. I spent some time with I. S. Drovinikov, the director of the depart- ment, and his first assistant. The legal depart- ment has a central office staff of eight lawyers which services both the AUCCTU and those of its smaller affiliates which do not have their own attorneys. Director Drovinikov, like the head of every other Soviet organization, is encounter- ing the manpower shortage in his search for more lawyers. He expressed surprise at the small size of the CIO legal staff. With two important exceptions, the work of the AUCCTU legal department does not differ greatly in character from that of counsel for an American trade union. In the first place, the Soviet labor lawyer is not required to spend any part of his time defending the existence of his trade union client or its right to organize and bargain collectively. These rights are taken for granted as an integral and vitally important part of the fabric of Soviet life. On the other hand- as I shall indicate more fully-the Soviet labor lawyer has a function that is not regularly per- formed by his American counterpart, that of giving legal advice and representation to in- dividual trade union members. The legal staff of the AUCCTU is consulted on all matters relating to labor laws and regula- tions. These are far more extensive than in America, since basic wage rates, hours, safety measures and other working conditions are gov- erned in great detail by laws or regulations. When these are of general application, they are issued by the Council of People's Commissars and when applicable to a particular industry, by the People's Commissariat having jurisdiction over the industry in question. No labor law or regulation is issued until it has first been submitted to the AUCCTU for criticism, discussion and agreement. All of these are transmitted to the legal department for an opinion both as to the form and substance of the proposal. Moreover, the AUCCTU and its affiliates are constantly ,making proposals of their own for additions to or modifications of the labor laws. The legal department is in- variably consulted as to these and has the task of drafting them for submission to the appro- priate commissariat. A second duty of the legal department is to give advice as to the interpretation and applica- tion of existing labor laws and regulations. It serves both the AUCCTU and those trade unions which do not have their own counsel. In addition, it is constantly called upon for advice by trade union officers in the factory organiza- tions. In this connection, it should be noted that the Soviet trade unions function in two fields which particularly require legal guidance. Under Soviet law, they are charged with the enforcement of all labor laws including those relating to wages, hours, overtime pay, woman and child labor, vacations and holidays, safety and sanitation and the like. The power of en- forcement includes the power to impose a fine, not in excess of 500 rubles, or to stop an un- guarded or faulty machine from running. More serious penalties may be imposed through a court action, initiated by the trade union. In addition, the Soviet trade unions hold and administer the social insurance fund and handle SOME OBSERVATIONS ON SOVIET LAW AND LAWYERS 367 all claims and make all payments to Workers for health, accident, maternity, old age and the other forms of Soviet social insurance. To per- form these functions, every trade union organi- zation, from the shop group of not more than twenty workers to the factory committee has its labor protection inspector or committee and its social insurance delegate or committee who serve as volunteers. These functionaries are capable of solving most of the problems which arise, but in the case of difficult cases, solicit and receive professional advice. The legal department also undertakes, alone or in conjunction with other departments of the AUCCTU to explain and popularize Soviet labor laws and regulations. When an impor- tant new law is adopted, conferences of trade union leaders and representatives are called at which the law is explained and discussed. Manuals and handbooks are prepared, covering every phase of labor regulation. These vary from large and highly detailed works for the use of the leadership to simply written pam- phlets to be put into the hands of each worker. Extensive use is made of the labor press for the same purpose. In addition to these responsibilities, the AUCCTU legal department supervises the work of a corps of trade union law consultants who serve in each of the large cities of the Soviet Union and furnish free legal service to all trade union members. In Moscow, for example, the AUCCTU employs seventeen lawyers on a full time basis as consultants. They are assisted by more than 100 volunteer consultants, practicing lawyers who spend some part of their time doing this work. The consultants give free legal aid to all trade union members on every type of personal legal problem. This includes representation in litigation and the prosecution of appeals to all courts, 'in criminal as well as civil matters, unless-as I was informed-the consultant feels that the worker is not deserving of assistance in which case he is left to retain an attorney him- self. Lawyers also serve the trade unions in their day-to-day negotiations with management. The trade union factory committees of the largest Soviet factories employ a full time lawyer. The factory committees of smaller factories join to- gether to employ a lawyer who divides his time among them. The plant administration is also represented by counsel who, like the trade union lawyer, participates in negotiations and the settlement of disputes from their inception. These brief observations and impressions will doubtless raise as many questions as they answer in the mind of the reader, as indeed they have in that of the writer. One conclusion that they compel, however, is the need for contact and interchange between the members of the American and Soviet Bars. Close cooperation between our two great nations is the key and the precondition to a stable and enduring peace. That in turn depends in large measure upon friendship and common understanding between our people. American and Soviet lawyers, through their organizations, can make a real contribution in this direction by organizing a Soviet-American .law committee just as the trade unions of the two countries have now es- tablished a trade union committee, for the pur- pose of exchanging delegations and information and consulting on common problems. From my talks with Soviet lawyers and judges, I am con- fident that such a suggestion would receive a warm response from the Soviet bar.