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