Law of the Soviet Union
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The Law of the Soviet Union was the law developed in the Soviet Union (USSR) following the October Revolution of 1917. Modified versions of the Soviet legal system were adopted by many Communist states following the Second World War including Mongolia, the People's Republic of China, the Warsaw Pact countries of eastern Europe, Cuba and Vietnam.
Soviet legal system regarded law as an arm of politics and courts as agencies of the government. The system was designed to protect the state from an individual, rather than to protect an individual from the state. Extensive extra-judiciary powers were given to the Soviet secret police agencies.
Soviet concept of law
Soviet law was rooted in pre-revolutionary Russian law and Marxism/Leninism. Pre-revolutionary influences included Byzantine law, Mongol law, Russian Orthodox Canon law, and Western law. Western law was mostly absent until the judicial reform of Alexander II in 1864, five decades before the revolution. Despite this, the supremacy of law and equality before the law were not well-known concepts, the tsar was still not bound by the law, and the "police had unlimited authority."
Marxism/Leninism viewed law as a superstructure in the base and superstructure model of society. "Capitalist" law was a tool of "bourgeois domination and a reflection of bourgeois values." Since law was a tool "to maintain class domination", in a classless society, law would inevitably disappear.
Like all other government institutions, the judiciary was officially subordinated to the Supreme Soviet of the Soviet Union.
Early Soviet law
In 1917, the Soviet authorities formally repealed all Tsarist legislation and established a socialist legal system. This system abolished Western legal concepts including the rule of law, the civil liberties, the protection of law and guarantees of property. Crime was determined not as the infraction of law, but as any action which could threaten the Soviet state.
For example, profiteering could be interpreted as a counter-revolutionary activity punishable by death. The deportation of the 'Kulaks' in 1928-31 was carried out within the terms of Soviet Civil Code. Some Soviet legal scholars even asserted that "criminal repression" may be applied in the absence of guilt.". Martin Latsis, chief of the Ukrainian Cheka explained:
- "Do not look in the file of incriminating evidence to see whether or not the accused rose up against the Soviets with arms or words. Ask him instead to which class he belongs, what is his background, his education, his profession. These are the questions that will determine the fate of the accused. That is the meaning and essence of the Red Terror."
The purpose of public trials was "not to demonstrate the existence or absence of a crime - that was predetermined by the appropriate party authorities - but to provide yet another forum for political agitation and propaganda for the instruction of the citizenry. Defense lawyers, who had to be party members, were required to take their client's guilt for granted..."
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- 1918 Soviet Russian Constitution
- 1924 Soviet Constitution
- 1936 Soviet Constitution
- 1977 Soviet Constitution
Soviet criminal and civil cases involve trials that were "primarily[...]official investigation[s] of the truth of the claims and defenses presented". Soviet law is very similar in this respect to civil law of European countries like France and Germany.
Criminal cases consisted of a preliminary examination before the indictment and the actual trial. In the preliminary examination, the sledovatel (or "investigator") "interrogate[d] the accused and the witnesses and examine[d] evidence". The accused was informed of his/her rights before the examination. Before 1958, counsel was only available during the trial. After 1958, counsel was available at the last stage of the preliminary examination after the accused was indicted. The examiner was prohibited from using force though the accused could be confined for long durations: up to 10 days before being charged, up to 9 months during the preliminary investigation (with the approval of the Procurator General) The testimony to be used in the trial was presented to the accused. The sledovatel was subordinate to the procurator (prokuratura) that was tasked with the prosecution, "'general supervision' of legality", and reporting illegal administrative actions. The indictment that included the preliminary examination was considered the "official record" at trial.
The trial court consisted of a professional judge with a 5-year term and two assessors (lay judges) from the population with a 2.5-year term. The proceedings were informal compared to United States standards. The judges first questioned accused and witnesses, then the procurator and defense counsel to corroborate the evidence in the indictment. The accused and the victim could question each other or the witnesses. The accused was presumed innocent, though not in the common law sense. The court decided by majority vote. The accused or the procurator could appeal decisions to a higher court consisting of three professional judges that reviewed the facts and the law. If the procurator appealed, the higher court could set aside the judgment and remand the case. Although the decision of the appeals court was "final", higher courts could review them as "supervision". Here, the accused or his/her counsel could submit briefs, but they could not appear in person.
During the trial, the judges had the additional responsibility of educating the people like revealing and removing the causes and conditions that led to the crime.
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In Soviet law, rights were granted by the state and thus were subordinate to the state. Rights were commitments by the state to enact laws that would secure benefits for the citizens. However, if the state failed to do so, citizens had no legal remedy. Soviet law emphasized economic and social rights over civil and political rights. The 1977 Constitution included the rights work, health, education and guaranteed freedoms of speech, the press, assembly, and others.
- Theory and decrees
- Richard Pipes Russia Under the Bolshevik Regime, Vintage books, Random House Inc., New York, 1995, ISBN 0-394-50242-6, pages 402-403
- Berman, H. J. (1948). "The Challenge of Soviet Law". Harvard Law Review 62 (2): 220–265. doi:10.2307/1336434.
- Richard Pipes (2001) Communism Weidenfled and Nicoloson. ISBN 0-297-64688-5[page needed]
- Richard Pipes (1994) Russia Under the Bolshevik Regime. Vintage. ISBN 0-679-76184-5., pages 401-403.
- Yevgenia Albats and Catherine A. Fitzpatrick. The State Within a State: The KGB and Its Hold on Russia - Past, Present, and Future, 1994. ISBN 0-374-52738-5.
- Berman, H. J. (2007). "The Comparison of Soviet and American Law". American Business Law Journal 1: 68. doi:10.1111/j.1744-1714.1963.tb01183.x.
- Berman, Harold J. (1983). "Soviet Union". In Kadish, Sanford H. Encyclopedia of Crime and Justice. New York: The Free Press. pp. 207–15. ISBN 0-02-918110-0.
- Berman, Harold J. (1 Nov 1979). "American and Soviet Perspectives on Human Rights". Worldview (New York) 22 (11): 15–21. ISSN 0084-2559. Retrieved 18 Nov 2011.
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- Butler, William Elliott (1988). Soviet law (2nd edn. ed.). Stoneham, Massachusetts: Butterworths Legal Publishers.