Government, Law and Courts in the Soviet Union and Eastern Europe, by Grovski & Gryzbowski

[p022] Government, Law and Courts in the Soviet Union and Eastern Europe. By Gsovski and Grzybowski (2 vols.). Atlantic Books. £8 8s. This is a massive work. The two volumes comprising it purport to be a comprehensive survey of the legal systems in the Soviet Union and Eastern Europe, and of their trans- formation since the war. The authors are experts in their native law, but in addition have been trained in Anglo-Saxon Jaw; the two chief edi- tors both hold leading positions in the Library of Congress, Washing- ton, D.C. It is therefore not sur- prising to find that they are hostile to the Soviet regime. The first volume deals with the origin of the régimes, administration of justice, organization of the courts and judicial procedure. The second volume is concerned with substantive faw—tor politically-minded people, the sections on ‘Workers and Fac- tory’ and ‘Land and Peasant’ are well worth studying to observe ex- actly how the degeneration in the Soviet State was accompanied by changes in the kw. I would hasten to add that I am here concerned with the facts as distinct from many of the conclusions drawn by the authors. As might be expected, they accept LABOUR REVIEW — June-July, 1960 the traditional proposition of bour- geois lawyers that the courts (at any rate in the advanced capitalist states such as Britain, France, Holland, USA) are independent of all other institutions and can be relied on to exercise justice impartially. I do not propose to examine this concept now for we are here concerned with Soviet-type law and not with bour- geois legal theory. However, the point should be made, because from there the authors are able to make their most effective attack upon the Soviet legal system and regime (and for that matter upon all the States in Eastern Europe in the Soviet bloc and Yugoslavia, whose systems of law and State apparatus are modelled upon the Soviet Union). The critic- ism is based upon the following type of reasoning and is perfectly valid: In the Soviet Union, say the apolo- gists for the régime, the State is identified with all other institutions, ie., it is a workers’ and peasants’ state and therefore Trade Unions and law Courts, for example, cannot represent an interest other than that of the workers and peasants! Who determines this interest? Ultimately the Politbureau of the Communist Party of the USSR. In this organ resides complete sovereignty over all other institutions; the Courts are in- struments of the Government. Soviet legal theory presupposes no conflict of interest between the people and the Government institutions. The Soviet Constitution looks good on paper. It looks like a socialist document. It is supposed to be the fundamental law of the land. But in fact provisions in the Consti- tution have been set aside by ad- ministrative decree and the newly enacted rule incorporated into the Constitution only at a later date! Declarations of rights are excellent— but the real question (re the Soviet or any other Constitution or body of laws) is: what is the remedy if there is a breach of the law? For example, the Constitution of the USSR guarantees inviolability of the person, and now nobody may be arrested except by order of a Court of Law or Procurator. Suppose a relation or friend of mine is arrested by the secret police or some other agency, I can lodge a complaint with the Procurator (Public Prosecutor); but it is then up to him whether he takes the matter further and if he does not, I have no remedy (the Procurator for a particular area is appointed by the Procurator-General or Attorney-General, who is elected by the Supreme Soviet). In other words, there is an administrative dis- cretion in the matter. In Britain in similar circumstances I could apply for a writ of Habeas Corpus which would compel the person having custody of my relative or friend to justify the detention in open court (in the presence of the press), i.e., I would invoke a judicial process. The Procurator in the USSR, who is supposed to be the watchdog of the Law, is in fact little different from any administrative agency. According to Vyshinsky he must in all phases of his activities, be primarily ‘the leader of the policy of the Communist Party and of Soviet authority, the champion of Socialism’. Once again the com- plete identification of the Soviet State and the people is assumed. The reader might be interested to note what Soviet Law regards as the proper relationship between lawyer and client—again in the view of Vyshinsky. The first requirement which must be met by the defence counsel is that in presenting evidence in favour of a defendant he must -proceed ‘not from the interests of his client but from the interests of the building up of Socialism, from the interests of our State’. In addition, Vyshinsky required of the counsel for the defence a ‘high feeling of political responsibility and high poli- tical qualifications’. It may well be that matters have improved since Vyshinsky used those words in 1934: but Soviet jurists in recent times frankly recognize that the problem of the relation of defence counsel to his client and the court is ‘most highly controversial in Soviet theory and most complex in practice’. And as jong as Vyshinsky’s definitive statements are not repudiated, one is surely entitled to retain a healthy scepticism! The work deals with the changes in the Soviet criminal code of Dec- ember, 1958. These are important for ihey indicate an apparent break with the arbitrariness of the past. In my opinion the three most im- portant changes are: (1) The principle now is ‘criminal punishment may be applied only by a court sentence’. If this is consist-

[p023] SUMMER BOOKS ently carried out it means that the power of the secret police or other administrative authority is severely curtailed. However, the experience of the past is such that one is chary of accepting the principle at its face value. For example, penalties ad- ministratively meted-out were not called punishments but ‘repressions’, ‘measures of social defence’, or were not designated by any special term. The new principle could be side- tracked in the following way. De- portation for from 2 to 5 years under the law against ‘parasitic ele- ments’ is not called punishment but ‘a measure of public censure’ and the behaviour of the person involved is not called an ‘offence’ or ‘crime’; so that deportation might still be imposed in spite of the new law be- cause technically it is not a ‘punish- ment? for a ‘crime’ committed. The authors consider that the powers of the Ministry of the Interior and of the Committee of State Security must be precisely and legally defined so as to leave no loophole. This has not been done so far. (2) Renunciation of the applica- tion of punishment by analogy. The law now states that nobody may be convicted for an act which is not directly specified by a penal statute. (3) Retrospective criminal legisla- tion is now forbidden. Let us assume then that the new laws mean what they say. This only signifies an end to arbitrary rule and the beginning of the rule of law in the Soviet Union—over 40 years after the Revolution! Take a look at the balance sheet in the Soviet Union. On one side, a dynamic, planned economy, ex- panding rapidly, using its resources intelligently and fairly soon to take first place in the world—a society which has cast off the fetters of private property relations. On the other side, the Party with absolute control of the state, the business of government remote from the masses, administration having usurped the functions of social initiative and action. The disparity between the two is enormous; the one represent- ing the future of mankind, the other laden with the refuse of the past. For the people of the Soviet Union and Eastern Europe this unbalance must surely resolve itself into the struggle for political freedom. SAM REYNOLDS. Ex-Soviet Citizens