Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 24, 1990 TAG: 9006240273
SECTION: HORIZON PAGE: C-1 EDITION: METRO
SOURCE: HARRY WILSON
DATELINE: LENGTH: Long
"The American founding fathers were closer to the truth than Lenin was," admits Valeri Savitsky, head of the Justice Administration Department of the Soviet Institute for U.S. and Canadian Studies. Savitsky was among a number of Soviet experts who discussed the changes in the Soviet justice system under President Mikhail Gorbachev with a delegation from the United States recently.
The power of the Communist Party is the largest obstacle facing criminal-justice reformers, Savitsky said. All judges are still members of the party, and in may ways are subservient to local party officials. Separation of powers and the independence of the judiciary are themes being repeated by legal experts throughout the Soviet Union.
Several months ago, the CBS News program, "48 Hours," showed what it called the "last gulag" in the Soviet Union, and more recently the program took viewers inside a "typical" prison just outside Moscow. Although the criminal-justice system is undergoing major changes, they are not taking place nearly as fast as viewers were led to believe.
In reality:
Guilt is rarely disputed in the Soviet system in which 90 percent of all defendants plead guilty.
Only about 10 percent of the individuals brought before a court receive any meaningful defense from an attorney. There are fewer than 27,000 defense attorneys for the 1.54 million people who face court each year. More often than not, the role of a defense attorney is to argue for leniency in sentencing after admitting the client's guilt.
Jury trials are unheard of. Most cases are decided by a professional judge and two "lay assessors" on a simple majority vote. Both the assessors and judges are elected in free elections, but they usually run unopposed. The assessors - citizens who serve two weeks each year - seldom vote against the judge in deciding the outcome of a case.
Investigation and prosecution of criminal cases is under the direction of a procurator, who also oversees judges, prisons and the entire criminal-justice system. This presents a potential conflict of interest, according to Vasily Vlasihin, senior research fellow in law at the Institute for U.S. and Canadian Studies.
Prison conditions for the most part remain appalling by U.S. standards.
Under the Soviet justice system, less serious criminal cases are handled administratively rather than by a judge and lay assessors. For example, the head of the local police may fine an individual for public drunkenness when guilt is "obvious." There are also "people's courts" that may consist of co-workers in a factory or neighbors in an apartment complex who sit in judgment of peers who are accused of minor offenses. They may impose small fines, require restitution or demand public apologies.
Appeals exist in the Soviet system, but it is unusual for a defendant to be granted more than one appeal. It is also possible for procurators to request an appeal. Again, it is uncommon for the original decision to be disturbed.
To understand the changes in the Soviet system of criminal justice, we must first understand that the Soviet system is more like the continental model of France, Germany and Switzerland than the American model. In technical terms, it is more inquisitorial, less adversarial. The primary purposes of the system are to uncover the truth and do justice. The protection of individual rights is much less important in the Soviet system.
The major structural difference between Soviet and U.S. versions of criminal justice may be found in the office of the procurator and his vast authority over every facet of the system.
The face of the Soviet criminal-justice system is changing, however. Perestroika is having effects throughout Soviet society. Numerous reforms have been adopted in recent years, most of them directed at the protection of individual rights. For example, all citizens may now seek legal relief from illegal actions by governmental bureaucrats and supervisors in the work place.
Other changes may be on the horizon. Savitsky is optimistic that Gorbachev is sincere in his efforts to reform the system and that the power of the Communist Party is being redistributed to other groups. Some judges are now elected by the Regional Congress of People's Deputies (the legislature in each republic), although Savitsky believes the results of this will be "negative." To effectively remove the party from the system, "we need judges to be appointed for life by a higher body of either the republics or the U.S.S.R.," he said.
Application of the death penalty is likely to be restricted to cases of murder, rape of a minor, espionage, sabotage and treason. Some form of a jury system may be adopted as well, Savitsky said.
The Institute for U.S. and Canadian Studies has prepared a draft of a law that would remove the procurator as supervisor of the court. The measure is being considered by the Supreme Soviet. The procurator would be one part of the system, not the dominant force behind criminal justice. Defense attorneys would achieve greater power in the process and higher status under this reform. Their role has become somewhat more important in recent years.
Another law proposed by the institute would unite the investigative function in the Soviet Union. It would create a united team of investigators from the Ministry of Internal Affairs (police), the KGB and the Procurator's Office. This law is opposed by the MIA and the KGB, who have proposed a reorganization that, Savitsky claims, would give them "unlimited rights, undefined functions. It would create a state within a state." It is unclear how the Supreme Soviet will respond to these competing bills.
One of the most outspoken and independent leaders in the reform movement is Andre Makarov, perhaps the most famous defense attorney in the country, who once defended the son-in-law of Premier Khruschev. He has even won some of his cases, an almost unheard-of feat.
Makarov, who is not formally connected with the Institute for U.S. and Canadian Studies, but works with it, tackles both the government and reform groups when he feels it is necessary. The road to criminal-justice reform will not be easy, he says.
by CNB