Journal of Criminal Law and Criminology Volume 54 Issue 3 September Article 1 Fall 1963 Soviet Criminal Law--e Last Six Years F.J. Feldbrugge Follow this and additional works at: hps://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons , Criminology Commons , and the Criminology and Criminal Justice Commons is Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. Recommended Citation F.J. Feldbrugge, Soviet Criminal Law--e Last Six Years, 54 J. Crim. L. Criminology & Police Sci. 249 (1963)
Transcript
Journal of Criminal Law and CriminologyVolume 54Issue 3 September Article 1
Fall 1963
Soviet Criminal Law--The Last Six YearsF.J. Feldbrugge
Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc
Part of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice Commons
This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.
Recommended CitationF.J. Feldbrugge, Soviet Criminal Law--The Last Six Years, 54 J. Crim. L. Criminology & Police Sci. 249 (1963)
Dr. Feldbrugge is an Associate of the Documentation Office for East European Law, attached tothe Faculty of Law of the University of Leyden. He formerly served as Assistant in the Crimino-logical Institute of the University of Utrecht, where he gained the degree of Doctor of Law for athesis on Soviet Criminal Law.
As revealed in the following article, since 1957 the Soviet Union has devoted considerable attentionto the field of criminal law. Activity in this area gives evidence of new trends and interests. The timeis thus appropriate for an analytical review of Soviet action and thinking concerning crime andpunishment and the administration of criminal justice. The first portion of this article is devoted to areview of legislative enactments and judicial decisions during the period from the beginning of 1957 tothe end of 1962. The second portion presents an analysis of the principal trends which the authordiscerns from a study of this period.-EDITOR.
I. LEGISLATIVE AND JUDICIAL DEVELOPMENTS,1957-1962
A. Legislation of the USSR
Legislation of the Union of Soviet Socialist Re-publics includes laws, decrees (ukaz) of the Presid-ium of the Supreme Soviet (the collective headof State of the USSR), decrees (postanovlenie) ofthe Council of Ministers of the USSR, and decrees(postanovlenie) issued by the Supreme Court ofthe USSR.
1. Article Mat of the Constitution was modifiedby a law of 11 February 1957' to the effect thatthe promulgation of general codes, which formerlyhad been the task of the federal legislature, wastransferred to the legislative bodies of the 15Union republics. Only the drafting of Basic Prin-ciples (which, in the case of criminal law, includesthe general part of the code) was reserved to thefederal legislature.
2. A law of the following day (12 February1957) 2 amended articles 104 and 105 of the Consti-
The following abbreviations have been used:Ved. = Vedomosti Verkhovnogo Soveta (State Ga-
zette)BVS = Biulleten' Verkihovnogo Suda SSSR (Bulletin
of the Supreme Court of the USSR)SGP = Sovetskoe Gosudarstvo i Pravo (Soviet State
gality).1 Ved. SSSR 1957 no. 4, text no. 63.2 Ved. SSSR 1957 no. 4, text no. 84.
tution and abolished chapter VII of the Law onthe Court Organization (Law of 16 August 1938).All these measures deal with the Supreme Courtof the USSR.
3. At the same time, a new Statute of the Su-preme Court of the USSR was introduced, con-sisting of 20 articles.3 We shall return to thissubject below.
4. On the occasion of the fortieth anniversaryof the October Revolution, a general amnestywas issued (decree of the Presidium of the SupremeSoviet of 1 November 1957).4 This amnesty in-cluded, among other things, the release of thefollowing groups of prisoners: men over 60 yearsof age, women over 55 years of age, pregnantwomen, women with children under 8 years, andchildren under 16 years. All prison sentences ofmore than 3 years were halved.
This decree was not applicable to those con-victed either of offenses against the State (chapterI of the special part of the 1926 Criminal Code ofthe RSFSR), or of the crimes of banditism, murder,manslaughter, robbery with violence, grievousbodily harm, serious forms of hooliganism (seebelow), rape, and theft of socialist property on alarge scale. Also excluded from the decree werethose with a second or later conviction for theft,those who had already been convicted three times,
3 Ved. SSSR 1957 no. 4, text no. 85.4 Ved. SSSR 1957 no. 24, text no. 589.
F. J. FELDBRUGGE
and those prisoners who had misbehaved. whileserving their sentence.
5. The Plenum of the Supreme Court, in adecree of 27 June 19585 addressed to the CriminalChamber of the Supreme Court, drew the atten-tion of this Chamber to its special functions inrelation to the editing and publishing of decisions,the examination of criminal court practice andjudicial statistics, and instruction in the field ofadministration of justice.
6. On 25 December 1958,6 the Supreme Sovietof the USSR passed the Basic Principles of Crimi-nal Legislation of the USSR and the Unionrepublics, the Law on the Crimes against theState, the Law on Military Crimes, the BasicPrinciples of Criminal Procedure of the USSRand the Union republics, and a host of other lawsof less interest (see further this paper sub "Codi-fication of Criminal Law").
7. In a joint decree of the Central Committeeof the Communist Party and the Council ofMinisters of the USSR dated 2 March 1959, 7 itwas stated that in the future the public would beassigned a greater role in the effort to controlcrime (see below, pp. 265-66). This is a remark-able piece of legislation, not specifically providedfor in the Constitution; such joint decrees usuallycontain basic statements concerning a new line tobe followed in a particular area of legislation.
8. The Plenum of the Supreme Court devotedthree decrees to the question of how this last men-tioned policy should be implemented by the courts.8
9. A decree of the Presidium of the SupremeSoviet of the USSR dated 13 January 19609 addsa second paragraph to article 1 of the Law onCrimes against the State; this paragraph providesthat Soviet citizens recruited by foreign espionageagencies are not punishable if they have not yetcarried out any espionage activities, and if theyhave notified the authorities promptly about theirconnections with such agencies.
10. A decree of the same body of 23 August196010 enacted new Disciplinary Regulations forthe Armed Forces of the Soviet Union.
11. A decree of the Presidium of the SupremeI BVS 1958 no. 5, pp. 5-6.1 Ved. SSSR 1959 no. 1, text nos. 6, 8, 10, 15.Izvestiia 10 March 1959.
8 Decree of 19 June 1959, BVS 1959 no. 4, pp. 4-7;decree of 19 December 1959, BVS 1960 no. 1, pp. 9-12!decree of 26 March 1960, BVS 1960 no. 3, pp. 5-10.
9 Ved. SSSR 1960 no. 3, text no. 24.10 Ved. SSSR 1960 no. 34, text no. 325.
Soviet of 24 February 1961" added a new article(article 27) to the Law on Crimes against theState, in order to correct an obvious draftingomission.
12. A decree of the same body of 25 March196112 added a second paragraph to article 25 ofthe Law on Crimes against the State, by which thepenalties for serious forms of illegal currencytransactions were sharply increased.
13. The death penalty was introduced by adecree of the Presidium of the Supreme Soviet ofthe USSR for a number of crimes, including theftof State or social property on a very large scale,professional counterfeiting, and specific crimes(such as terrorizing other prisoners, attacking theprison administration, or organizing or participat-ing in groups organized for these purposes) com-mitted by especially dangerous recidivists or per-sons serving sentences for serious crimes.13 Up tothis time the list of capital crimes had includedsome crimes against the State, some militarycrimes, and murders committed under aggravatingcircumstances.
14. Fraud in planning accounts was penalizedby a decree of 24 May 1961."4
15. The Plenum of the Supreme Court of theUSSR devoted two decrees to the diversificationof prisons and corrective labor institutions, point-ing out that the court in its sentence should deter-mine the type of institution to which the offenderwill be committed."5
16. Capital punishment was also introduced forserious forms of illegal currency transactions, thepenalties for which had been increased alreadyearlier in 1961.16
17. Criminally careless use or storage of agri-cultural machinery, resulting in damage to themachinery, was made punishable by a decree ofthe Presidium of the Supreme Soviet of 29 Decem-ber 1961.17
18. A decree of 15 February 196218 introducednew rules aimed at the protection of policemen andmembers of Voluntary People's Brigades (seebelow); in particularly serious cases of attempts on
"Ved. SSSR 1961 no. 9, text no. 91.1s Ved. SSSR 1961 no. 13, text no. 137.13 Ved. SSSR 1961 no. 19, text no. 207.14 Ved. SSSR 1961 no. 22, text no. 225.11 Decree of 19 June 1961, BVS 1961 no. 4, pp. 5-7;
decree of 31 July 1962, BVS 1962 no. 5, pp. 13-16.16 Ved. SSSR 1961 no. 27, text no. 291, decree of 1
July 1961.17 Ved. SSSR 1962 no. 1, text no. 5."I Ved. SSSR 1962 no. 8, text no. 83.
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the lives of these persons the death penalty mustbe applied.
19. A decree of the same day extended theapplicability of capital punishment to serious casesof rape.19
20. A decree of 20 February 1962 providedincreased penalties (up to the death penalty) forofficials accepting bribes. 2
21. During 1961 and 1962 the Plenum of theSupreme Court of the USSR made more and moreuse of its power to issue authoritative interpreta-tions of the law. The same right has been given tothe Plenums of the Supreme Courts of the Unionrepublics. In a decree of 31 March 1962 the USSRPlenum encouraged the Plenums of the republicanSupreme Courts to avail themselves more freelyof this possibility."
B. The Most Important Legislative Acts of theUnion Republics
1. Measures taken in October, 1956,22 againstnomadic gypsies might be seen as the first move ina campaign against "parasites," that is, personswho live on income not earned by their own laboror on income derived from the exercise of illegalprofessions or practices.
The Uzbek SSR was the first republic to pass alaw against "parasites and anti-social elements,"on 27 May 1957.? According to this law, personswho do no regular work, such as tramps, gypsies,etc., may be exiled by a public assembly to labor
colonies for a period not exceeding five years. The
decision of the public assembly had to be sanc-
tioned by the local executive committee, but the
ordinary courts were completely excluddd from
this procedure. Similar laws were passed in the
Turkmen, the Latvian, the Tadzhik, the Kazakh,
the Armenian, the Azerbaidzhan, the Kirghiz, and
the Georgian republics.'4 According to the last
enactment published in this series, the decree of
the Presidium of the Supreme Soviet of the
11 Ved. SSSR 1962 no. 8, text no. 84.2 Ved. SSSR 1962 no. 8, text no. 85.21 BVS 1962 no. 3, pp. 38-39." Decree of the Presidium of the Supreme Soviet of
the USSR of 5 October 1956, Ved. SSSR 1956 no. 21,text no. 450.
"Pravda Vostoka 29 May 1957.2 Turkmenskaia Iskra 1 June 1957, Sovetskaia
Latvia 15 October 1957, Kommunist Tadzhikistana23 January 1958, BVS 1958 no. 2, p. 46 (Kazakhstan),SIu 1958 no. 5, p. 73 (Armenia), SZ 1958 no. 8, p. 91(Azerbaidzhan), SZ 1959 no. 3, p. 81 (Kirghizia), SZ1960 no. 11, p. 82 (Georgia).
Georgian republic, only the executive committeeitself was entitled to exile "parasites."
After some hesitation the RSFSR followed witha decree of 4 May 1961."- This decree laid downthat not only the public assembly, with the subse-quent sanction of the local executive committee,could exile "parasites," but also the courts (i.e.the people's court). The example of the RSFSRwas soon followed by the Lithuanian, Ukrainianand Belorussian republics,26 while the Uzbek andKazakh republics apparently brought their pre-vious legislation into line with that of the RSFSR."No pertinent information is available about thestate of affairs in the other republics, but from adecree of the Plenum of the Supreme Court of theUSSR addressed to all courts it would appearthat at the time of that decree (12 September1961) the court was the normal authority entitledto exile "parasites" in all republics.?
2. Another move in the same campaign is therevival of comrades' courts in all republics (seebelow, page 266.
3. The Presidia (heads of State) of the SupremeSoviets of the Tadzhik, Georgian, Armenian,Kirghiz, Azerbaidzhan, Belorussian, Estonian,Kazakh, Lithuanian, and Latvian SSR's abolishedthe Ministries of Justice in these republics.29 Inall probability this was also done in the Mol-davian, Turkmen, and Uzbek republics; but itwas not done in the RSFSR and the Ukraine. Theresponsibilities of these ministries, which werelimited-as the care of prisoners at that timebelonged to the Ministry of Internal Affairs of theUSSR"°-were transferred to the Supreme Courtsof the respective republics.
2" Ved. RSFSR 1961 no. 18, text no. 273.26 SZ 1961 no. 8, p. 79.2BVS 1961 no. 5, pp. 36, 38.18 BVS 1961 no. 5, pp. 8-11."Tadzhikistan: decree of 17 November 1958, BVS
1959 no. 1, p. 44; Georgia: BVS 1959 no. 4, p. 41;Armenia: ibid.; Kirghizia: ibid.; Azerbaidzlan: BVS1960 no. 4, p. 63; Kazakhstan: ibid.; Estonia: ibid.;Belorussia: ibid.; Lithuania: decree of 5 August 1959,Ved. Litovskoi SSR 1959 no. 15, text no. 158; Latvia:the abolition of the Latvian Ministry of Justice can beinferred from article 48 of the Constitution of theLatvian SSR, as amended, see Ved. Latviiskoi SSR1960 no. 45, p. 34.
3OThe USSR Ministry of Internal Affairs wasabolished by a decree of the Presidium of the SupremeSoviet of the USSR of 13 January 1960, Ved. SSSR1960 no. 3, text no. 25. Its tasks were transferred to thecorresponding Ministries of the Union-republics. Therepublican Ministries of Internal Affairs were renamedMinistries for the Protection of Public Order; see forthe RSFSR: decree of 28 August 1962, Ved. RSFSR1962 no. 35, text no. 535.
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F. J. FELDBRUGGE
4. In the RSFSR the effort to increase publidparticipation in the struggle against crime founcexpression in Regulations on the Comrades'Courts3lt and Regulations on the VoluntaryPeople's Brigades; 32 the latter are to be regardedas an unpaid assistant police force, with ratherlimited authority, to help maintain order in thestreets and in public buildings, cinemas, etc.
5. During 1959, 1960, and 1961, pursuant tothe Basic Principles of Criminal Legislation ofDecember, 1958, Criminal Codes were enacted inall Union republics (see this paper sub "Codifica-tion of Criminal Law").
6. New Regulations on Corrective LaborColonies and Prisons of the Ministry of InternalAffairs of the RSFSR were enacted by an RSFSRdecree of 29 August 196 1.3 These Regulationspresumably supersede the corresponding provisionsof the RSFSR Corrective Labor Code of 1933.
7. Regulations on the Administrative Com-mittees of City and Rayon Soviets (decree of thePresidium of the Supreme Soviet of the RSFSRof 30 March 19 62)1 contained provisions concern-ing the function and procedure of these com-mittees, which deal with petty offenses not com-ing within the scope of criminal law proper. Theseverest penalty that can be imposed by thesecommittees is a fine; in that case the offender hasthe right to appeal to the People's Court.
C. The Codification of Criminal Law
Originally, the various member States of theSoviet Union had their own codes of law. In thelargest and most important member State, theRussian Socialist Federal Soviet Republic(RSFSR), until recently the Criminal Code of1926 was in force. This Code was directly appliedin some Union republics, and in others it wascopied more or less slavishly. The 1936 Constitu-tion of the USSR stipulated that there were to be(Federal) Codes operative for the entire Union.With a few exceptions, however, (e.g., the 1938Law on the Court Organization of the USSR) this
11 Decree of the Presidium of the Supreme Soviet ofthe RSFSR of 3 July 1961, Ved. RSFSR 1961 no. 26,text no. 371.
2 Decree of the Council of Ministers of the RSFSRand of the Office for the RSFSR of the Central Com-mittee of the CPSU of 30 March 1960. The text of theseRegulations can be found in Spravochnik druzhinnika(TFE VOLmTARY PoLcEMu's GUiDE), Moscow1961, pp. 16-24.
"Decree of the Presidium of the Supreme Soviet ofthe RSFSR, Ved. RSFSR 1961 no. 37, p. 556; un-fortunately Vedomosti do not give the text of thedecree.
"Ved. RSFSR 1962 no. 13, text no. 166.
provision has not been carried out. In the years1955 and 1956 increased activity in this field wasnoticed for the first time, but this activity was dis-rupted by the constitutional reform of 12 February1957, mentioned above, which returned to theUnion republics the power to issue their ownCodes. Only the promulgation of basic principleswas reserved to the union legislature. Accordingto a report in SIu in January, 1958,35 drafts of anew Criminal Code and a Code of Criminal Pro-cedure were at that time in circulation in theRSFSR. The texts of these drafts, however, havenot been published, so that it is possible only toobtain some idea of their contents from the reac-tions expressed in readers' letters to the journals.Similar drafts appear to have been in existence inthe other Union republics in 1958.
In May, 1958, the drafts of the basic principleswhich had been promised in the preceding yearwere published, and on December 25th the BasicPrinciples of Criminal Legislation were adoptedby the Supreme Soviet, together with the Prin-ciples of Criminal Procedure and Court Organiza-tion and the laws concerning crimes against theState, military crimes, and military tribunals.(The passing of the last three laws was in conflictwith the Constitution of the USSR, which reservesto the union legislature only the power to promul-gate basic principles.) The Principles of CriminalLegislation regulate the general part of the Crimi-nal Code and deal with the following matters: theoperation of the Criminal Code in time and space,the definition of punishable offenses, the definitionof such matters as intention and negligence,minority, age limits, non-imputability, self de-fense, the defense of necessity (force inajeure), at-tempt and participation, the kinds of punishmentswith their general maxima and minima, aggravat-ing and extenuating circumstances, .concursus,conditional sentence, parole, and limitation.
The most striking differences from the formerprovisions are as follows: the imposition of punish-ment is henceforth only to be possible in relationto a penal offense stated by the law (introductionof the nultum criinen, nulla poena rule); the aboli-tion of analogy,36 the replacement of the terms"socially-dangerous act" and "legal measure for
35 SIu 1958 no. 1, pp. 29 ff.3Article 16 of the former Criminal Code of the
RSFSR allowed the imposition of a penalty in cases of"socially dangerous acts" not mentioned by the Code,by reference to a provision of the Code which definedthe "most similar" offense. In this way any unwantedactivity could be branded a criminal offense per ana-logiam.
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social protection" by "crime" and "punishment";the reintroduction of the principle of guilt intothe law; and in criminal procedure, the greateremphasis now put on the right to defense, and theobligation placed on the prosecuting State attorneyto produce sufficient evidence; in future arrestmay be carried out only with the approval of theState attorney or upon the order of the court.These Principles of Criminal Legislation andCriminal Procedure, which form the foundationfor the criminal legislation of the USSR and its15 union republics, will not be discussed anyfurther here, since there is sufficient Western litera-ture available on the subject.N'
The union republics were thus enabled to begintheir legislative work. In the course of 1959,drafts of criminal codes appeared everywhere; inseveral republics this happened as early as Feb-ruary (and probably even earlier in some places),barely a few weeks after the publication of theBasic Principles.-" What probably happened isthat older drafts were adapted at the last momentto the new Principles. In Uzbekistan, a CriminalCode was passed in this way and put into forceby the Supreme Soviet of that republic by 21May 1959,39 and in Kazakhstan a Code was passedin July, 1959,4° (becoming effective on 1 January1960). We may well wonder why a small CentralAsian republic took the lead in the codificationrace; in the Soviet Union it is usual for the RSFSRto set the pace. (The same occurred, althoughprobably for other reasons, with the so-called anti-parasite legislation: here too the Uzbek SSR tookthe initiative.) A closely related question is: towhat extent were the legislatures able to workindependently, free from the influence and aspira-tions of the central government? There are severalfactors which make it difficult to analyze therelationship between the competency and theactual power of the union legislature and that ofthe legislatures of the member states. On the onehand, the legal provisions on this point are notalways equally clear, and on the other hand, theunion legislature frequently does not restrict itselfwithin the established limits. As far as criminallaw is concerned, the union legislature is compe-tent only to issue basic principles (since February,
n Grzybowski, K., in Osteuroparecht 1960, no. 2/3,pp. 108-22; 7 HiGHLIGHTs oF CuRRENT LEGISLATIONAND AcTIVITIEs iN MID-EURoPE 1959 no. 1, p. 3 ft.;no. 2/3, p. 49 ff.; no. 5/6, p. 2 2 7 ff.; 3 LAW IN EASTERNEUROPE (Leyden 1959).
38 SZ 1959 no. 3, pp. 7-8.31 Cf. Ved. SSSR 1960 no. 3, text no. 16.40 Cf. Ved. SSSR 1960 no. 3, text no. 19.
1957), but nonetheless, military crimes and crimesagainst the State are controlled by union criminallegislation. Further, even when the limits of legis-lative power are clear, and both parties abide bythem, a crucial influence on the lower legislaturecan still be exercised through other channels-i.e.,the Communist Party and the official bureaucratichierarchy. For instance, when, as reported above,a number of smaller republics almost simultane-ously abolish their ministries of justice, or passalmost identical measures against certain unde-sirable phenomena such as hooliganism or the so-called parasites, it is difficult not to conclude thatthis is in fact the result of instructions from thecentral authority. This is also consistent with whatwe know of other areas of public life in the SovietUnion.
However, on closer examination, in the case ofthe codification of the criminal law, matters seemto be somewhat different. In other words, the de-centralization begun in 1957 by Khrushchev(including the division of the country into a num-ber of economic districts, which has been a measureof real significance to the economy of the country)seems also to a certain extent to have been seri-ously applied in the field of law. The author isinclined to accept that there was no prototypeCriminal Code formulated by the central authorityand sent to the member states to be copied withminimal modifications. In support of this it shouldbe pointed out, among other things, that therewere other means available by which the desiredlegal uniformity could have been guaranteed. Inthe first place, the legislative power of the unionrepublics was considerably reduced by its limita-tion to the special parts of the criminal law, and,even within these limits, various areas, such ascrimes against the State and military crimes, werealready exhaustively regulated by the union legis-lature. The remaining offenses have, during recentyears, been the subject of lively discussion in thelaw journals of the Soviet Union, often leading todefinite conclusions, such as that a certain penaloffense should be dropped, that a particular defini-tion should be modified, etc. Finally, in the begin-ning of 1959, four inter-republican conferences onthe codification of criminal codes were held, inKiev (for the Ukraine, White Russia, and Mol-davia), in Tiflis (for the three Trans-Caucasianrepublics), in Riga (for the three Baltic republics),and in Tashkent (for the five Central Asian repub-lics).4A Delegates from Moscow were present at all
41 SZ 1959 no. 7, pp. 3-6.
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F.J. FELDBRUGGE
four conferences and took an important part in thediscussions of the draft codes of the relevant mem-ber states. The importance of these conferencescan also be inferred from the fact that it wasplanned to have the lectures and discussionsprinted. It is interesting to note, in this connection,that the leading article, in SZ 1959, No. 7,42 re-marked that this material might be of future usein the interpretation of the law; the extensivelegislative material usually available to us in theWest, in the form of ministerial memoranda, par-liamentary debates, and other documents, is, forthe most part, missing in the Soviet Union, becausethe representative bodies pass all bills unani-mously and without any serious discussion. Thereason for this, as is well known, is that in theSoviet Union, for certain reasons, the decisionsare prepared and made in advance, before a matteris considered by the Supreme Soviet or by anyother representative body. The parliaments areonly supernumeraries in a huge stage show, par-ticipants in a liturgy the course of which theythemselves do not determine. Yet, it would seemthat in applying and interpreting the law, the needis felt to be able to refer to the deliberating phaseof the legislative process.
A small example might throw some light on theprocedure followed in the preparation of thecriminal codes of the member states. B. S. Niki-forov, the chief of the criminal law department ofthe All-Union Institute for Legal Sciences, hasdiscussed, in an article in SZ,11 the drafts of variousrepublics. In dealing with the draft Criminal Codeof the Moldavian SSR, he criticizes the Moldavianframers for unnecessarily making punishable anumber of offenses, which, in his opinion, aretotally unimportant, such as the illegal sale ofhouses and the illegal manufacture of objects forreligious services, e.g., crosses, icons, etc. It can-not be doubted, in the present author's opinion,that the views of so influential a man as Nikiforovwill be taken into account in Moldavia; thisdemonstrates at the same time both the freedomwhich the drafters have to make such regulations,which are not found in the other republics, and thecontrol exercized on them from outside.
Consideration of the Uzbek Criminal Code alsostrengthens the impression that the regional legis-lature can act on individual initiative, albeit with-
42 Sbid.11 SZ 1959 no. 8, pp. 7-13.
in rather narrow limits, and with due allowance foroutside criticism. 4
The first part of the Code is an almost literalreproduction of the Basic Principles, with a fewadditions and elaborations, as allowed or pre-scribed by the Basic Principles: e.g., the Code pro-vides definitions of "recidivists" (art. 23) and"especially serious crimes" (art. 23), which werenot defined in the Basic Principles.
In the special part of the Code the differentkinds of offenses are grouped in chapters. Thesequence of the chapters differs from that followedin the old codes. This change has a certain sig-nificance, for the sequence of the chapters in thespecial part offers an (unofficial) indication of thedegree of seriousness attached to the different typesof crimes by the lawmakers. The sequence of theUzbek code is: crimes against the State; crimesagainst life, health, freedom, and the dignity ofpersons; crimes against socialist property; crimesagainst personal property; crimes against politicaland labor rights of citizens; crimes committed byofficials in the carrying out of their duties; crimesagainst the administrative order; crimes againstpublic order and security; and, finally, militarycrimes. These come last, not because they are ofrelative unimportance, but because they are to beregarded as a kind of appendix to the Code.
The most salient feature of the Uzbek Code is thetendency towards maximum penalties lower thanthose provided by the old Code.
It is possible that the Uzbek Code was a modelfor the new criminal codes of the other republics;however, if that were the case, one might haveexpected a somewhat longer test-period (the UzbekCriminal Code was passed in May, 1959, theKazakh Code in July, 1959, and seven othercriminal codes at the end of 1960 and during thefirst weeks of 1961). This interval of about a yearand a half should preferably be explained other-wise: during this period the Soviet government hadembarked on a policy called "the participation ofthe public in the struggle against crime" (thissubject will be dealt with summarily at the end ofthis article). The implementation of this policynecessitated a number of minor alterations in thedraft criminal codes, and has probably been themajor cause of the delay in the enactment ofcriminal codes in the other 13 republics.
"This is confirmed by the Chairman of the LegalCommittee of the Council of Ministers of the ArmenianSSR, loannesian (the former Armenian Minister ofJustice), in an article in SGP 1960 no. 3, p. 46.
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The most important event in Soviet criminal lawsince the Basic Principles of 1958 was undoubt-edly the enactment of the new Criminal Code ofthe RSFSR on October 28, 1960 (the Code cameinto force on January 1, 1961). The Code con-tains 269 articles (as against 205 in the old Code)and an appendix.
Like the Uzbek Code, the Russian Code in itsgeneral part (corresponding with the Basic Prin-ciples) supplies more or less precise definitions ofseveral concepts which were only mentioned, butnot explained in the Basic Principles, e.g., "espe-cially dangerous recidivists" (see article 23 of theBasic Principles and article 24 of the CC of theRSFSR). It elaborates on some points which wereleft to the legislatures of the republics by the BasicPrinciples; for instance, article 21 of the Code pro-vides for two kinds of punishment which are notfound in the Basic Principles: dismissal fromemployment, and payment of compensation fordamage caused by the offense. The Code also listsmore aggravating and extenuating circumstances(arts. 38 and 39) than those in the Basic Principles(arts. 33 and 34). In many instances, in both thegeneral part and the special part, allowances havebeen made for new institutions, deriving from the"participation of the public in the struggle againstcrime," such as the comrades' courts and the neworganization of probation. The most importantaddition to the general part of the Code is a com-pletely new chapter (VI) "On Compulsory Medicaland Educational Measures." This consists of sixarticles (58-63), some of them quite long, estab-lishing new rules for dealing with persons whocommit an offense while suffering from mentaldiseases, or while under the influence of drugs,etc., and with children below the age limit forcriminal responsibility.
The special part of the Code is divided into 12chapters: crimes against the State; crimes againstsocialist property; crimes against life, health,freedom, and the dignity of persons; crimes againstthe political and labor rights of citizens; crimesagainst the personal property of citizens; economiccrimes; crimes committed by officials in the carry-ing out of their duties; crimes against the adminis-tration of justice; crimes against public order,public security, and public health; crimes consti-tuting remnants of local customs; and military
crimes. (Note the difference in the sequencebetween this enumeration and that in the UzbekCriminal Code.)
The chapter on crimes against the State is analmost verbatim reiteration of the "Law on theCrimes against the State." (Supra p. 250, sub. 6,and p. 252.) A striking feature of the chapter oncrimes against socialist property is the disappear-ance, in many cases, of minimum penalties. Thisis an important step forward. The maximumpenalties are generally less severe than under theold law.
In the next chapter, the article which deals withmurder committed under aggravating circum-stances (art. 102) gives a list of these circumstanceswhich can be regarded as exhaustive. Where amurder comes within the scope of article 102, themurderer can be condemned to death (provided,of course, that the general conditions for theapplication of the death penalty are fulfilled).Article 102 includes murders committed in a blood-feud (the former Code did not contain such a pro-vision). This seems strange to the Western reader,who is inclined to regard the influence of tribalcustoms as a certain justification of the criminal'sconduct.
A general characteristic of the special part ofthe Code is the lowering of maximum penalties;we have already seen the same trend in the UzbekCriminal Code. In some instances the offender canbe punished only if an administrative penalty hasalready been applied to him previously for thesame type of offense (e.g., article 166: poaching).Administrative penalties are entirely outside thecompetence of the ordinary courts and may beimposed for minor misdemeanors by the people'sjudge as unus index or by the administration; theyare not governed by criminal law. In chapter VI(Economic Crimes) the definition of speculationhas been considerably broadened. According toarticle 154, speculation is now defined as the pur-chase and sale of goods and other objects withthe intention of making a profit.
Article 206, the first article of Chapter X (CrimesAgainst Public Security, Public Order and PublicHealth), defines hooliganism (kinligansvo), whichis numerically one of the most prominent offensesin the Soviet Union. Such a definition was an un-fortunate omission from the old code. Accordingto article 206, hooliganism includes all intentional(deliberate) acts which grossly violate the public
order and which demonstrate an obvious lack ofrespect towards society. Article 209, in the samechapter, appears to have been designed as the
Russian counterpart to the "parasite laws" in a
19631
F. J. FELDBRUGGE
number of other Soviet republics (see above). Itpenalizes tramps and pedlars, but only if thesepersons have been warned twice before by theauthorities; it is superseded now by the RSFSRparasite decree. Also worthy of mention is article227, which is directed against persons who, asorganizers of religious communities, conduct anyactivity which causes damage to health or which isaccompanied by sexual perversions. The articleseems to have in mind certain mystical sects whichnow and again are mentioned in the Soviet press.
It should be noted that the RSFSR Code stillcontains a chapter on "Crimes Constituting Rem-nants of Local Customs." The Uzbek Code, ob-viously for "cosmetic" reasons, did not contain asimilar chapter, but had corresponding provisionsscattered all through the Code. The chapter in theRSFSR Code applies only in those regions wherethe offenses mentioned are remnants of local cus-toms. For instance, bigamy committed by anAdyge man in the Adyge Autonomous District ispunishable under article 235 (imprisonment orcorrective labor up to one year), while bigamycommitted by a Russian in Moscow is punishableunder article 201 (corrective labor up to one year,or a fine up to 500 (since 1 January 1961: 50)roubles or public reprimand).
The appendix to the Code enumerates thoseassets which cannot be confiscated.
Shortly after the enactment of the RussianCriminal Code, similar codes were enacted in theUkraine, Georgia, Latvia, Estonia, Belorussia andAzerbaidzhan.45 Later on in 196146 Kirghizia,Armenia, Moldavia, Lithuania, Tadzhikistan andTurkmenistan followed.
D. Administration of Justice
In 1957-1962 197 criminal cases were publishedin BVS, the organ of the Supreme Court of theUSSR, part of them in extenso, the rest in the formof abstracts. In the consideration and analysis ofthese cases it should be kept in mind that theSupreme Court, in selecting and publishing them,took into account, among other things, the need
11 Cf. Pravda Ukrainy 29 December 1960 (Ukraine);Izvestiia 1 January 1961 (Georgia); Izvestiia 8 January1961 (Latvia); Izvestiia 10 January 1961 (Estonia);Ved. SSSR 1961 no. 4, text no. 40 (Belorussia); Ved.SSSR 1961 no. 4, text no. 37 (Azerbaidzhan).
46 Cf. Ved. SSSR 1961 no. 15, text no. 163 (Kirgh-izia); no. 23, text no. 238 (Armenia); no. 23, textno. 236 (Moldavia); no. 34, text no. 358 (Lithuania);no. 48, text no. 485 (Tadzhikistan); TurkmenskaiaIskra 23 December 1961 (Turkmenia).
to provide instruction for the lower ranks of thejudiciary; such a policy emerges from the Statuteof the Supreme Court (art. 9). The court practice,as published in BVS, is therefore more an index ofthe criminal policy of the Soviet Union than ofcriminality.
These 197 decisions were taken by the followingcourts:
The Plenum of the Supreme Court of the USSR.. 75The Criminal Chamber of the Supreme Court of
the USSR ............................... 76The Military Chamber of the Supreme Court of
the USSR ................................. 22The Presidium of the Supreme Court of the
R SFSR ................................... 6The Criminal Chamber of the Supreme Court of
the Ukrain. SSR ........................... 5The Presidium of the Supreme Court of the
Latvian SSR .............................. 7The Presidium of the Supreme Court of the
Lithuanian SSR ............................ 2The Presidium of the Supreme Court of the
Uzbek SSR ................................ 1The Presidium of the Supreme Court of the
Turkmen SSR .............................. 1The Presidium of the Supreme Court of the
Tadzhik SSR ............................. 1The Presidium of the Supreme Court of the
M oldavian SSR ............................ 1
197
Generally in the Soviet Union the chief inter-ested parties (the defendant, the prosecution, thevictim, the civil plaintiff and civil defendant, andsome others) may appeal once to a higher court.Besides appeal there is the so-called extraordinaryprotest procedure. An extraordinary protest canbe lodged by the chairman or the state attorney(the prokurar) of the court involved or of the nexthigher court. An extraordinary protest need not be,and often is not (see following paragraph), detri-mental to the interests of the defendant, althoughit is heard without the participation of the defend-ant or his counsel. The overwhelming majority ofthe decisions dealt with in this review were madeas a result of such extraordinary protest proce-dures.
The first striking observation is, perhaps, thatmost of the decisions brought about an improve-ment in the position of the defendant (154 cases);in 43 cases of this group the defendant was evenacquitted. This is especially remarkable becausethe progress of a case through the various courts
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is sometimes very slow; in four instances the casehad been tried by six different courts (not takinginto account the fact that cases are frequentlyreferred back to another court). In 38 cases thepublished verdict worsened the position of thedefendant, and in five cases neither improvementnor deterioration could be established.
As far as could be determined in the majorityof the cases studied, the highest authority itselfdecided the main issue. Only in 51 cases did thetext report reference to a lower court, usuallybecause of inadequate investigation.
The original charges in these 197 cases can betabulated as follows:
10. Resisting the police ................... 111. Making counterfeit money ............. 112. Illegal marriage ...................... 113. Speculation .......................... 414. Offenses against the nationalization of
land (Art. 87-a of the old CC of theRSFSR) ......................... 1
15. Exercising an illegal occupation ......... 316. Theft of socialist property ............. 53
including, in the form of banditism. (6)17. Theft of private property .............. 28
including, in the form of robbery.. (6)18. Counter-revolution .................... 119. Crimes against the State (not further
described) ....................... 120. Transport offense (Art. 59-3c of the old
CC of the RSFSR) ............... 721. Arson ............................... 122. Corruption ........................... 323. Misuse of authority by officials ......... 924. Neglect of official duty ................ 125. Failure to obey a superior (military)
officer .................. ...... 126. Desertion ............................ 227. Unauthorized absence of military
personnel ........................ 628. Transport offense by military personnel.. 329. Not identifiable ....................... 3
Multiple charges are responsible for the factthat this total is higher than the number of cases.With regard to the list of crimes we can note thefollowing:
Ad. 1.: Soviet criminal law makes no distinctionbetween murder and manslaughter as separatecrimes. Premeditation can, however, constitutean aggravating circumstance, in which case thedeath penalty or a maximum punishment of 15years is possible as opposed to a maximum of 10years in the case of the unqualified crime (accord-ing to the old CC of the RSFSR).
Ad. 9: See above p. 255.Ad. 13: See above p. 255.Ad. 14: This generally concerns occupations
which violate the socialist economic system.Ad. 15: Banditism consists of being a member of
a permanent armed band which systematicallycarries out robberies.
Ad. 19: This article makes punishable breachesof labor discipline committed by transport workers,as a result of which damage is likely to be causedor is actually caused. In practice it almost alwaysconcerns traffic offenses.
We will now examine more closely the numeri-cally strongest groups in this list: homicide andtheft (which together form almost two-thirds ofthe published cases).
In 9 of the 58 published cases of homicide, thelast hearing of the case brought the defendant noimprovement in his position because the originalconviction was upheld; in two other cases theoriginal conviction was upheld, but extenuating cir-cumstances were recognized. In another case ayoung man escaped capital punishment for a mur-der committed on his 18th birthday, because thePlenum of the Supreme Court accepted that hehad not completed his eighteenth year of life untilmidnight on the day of his birthday. In eight casesthe accused was acquitted: twice by recognition ofself defense, and in six cases because of insufficientevidence. In the other nineteen cases, in which theevidence was considered faulty or inadequate, thecase was referred back to a lower court. In morethan half of the cases discussed, the crime wascommitted under the influence of alcohol (33times). The final result of the 58 original convic-tions for intentionally committed murder can thusbe distinguished as follows:
Original verdict sustained ................. 11(No improvement in position of ac-
Quashed because of defective evidence . .. 25(Referred back to a lower court ...... 19)(Acquittal ......................... 6)
Modification of the charge ................. 20(In the Soviet Union the higher court
can modify the charge and thendecide the case itself without refer-ring it back.)
(Unqualified murder ................ 5)(M anslaughter ..................... 8)(Homicide committed while exceeding
the limits of self defense ........... 2)(Homicide committed under the in-
fluence of a strong emotion ........ 1)(Grievous bodily harm .............. 3)(Hooliganism ...................... 1)
Self defense .............................. 2
58
It is noteworthy that in the case of theft, also,most of the final decisions were to the advantageof the defendant. Of the six original convictionsfor banditism and the six for robbery, only one wassustained. An appreciable percentage of the theftswere also committed under the influence of alcohol(12 of 81).
The original convictions were dealt with asfollows:
Original conviction sustained .............. 25(No improvement in position of ac-
cused ........................... 13)(Reduction of punishment ........... 12)
Quashed because of defective evidence . .. 33(Referred back to another court ...... 16)(Acquittal ......................... 17)
Quashed because of non-observance oftechnical rules of procedure ............ 1
Modification of the charge ................. 22(Less serious form of theft ........... 11)(Hooliganism ...................... 3)(Abuse of authority ................ 8)
81
Conviction for abuse of authority instead oftheft of socialist property occurs especially with
conversion by officials where there is no clear in-tent to appropriate public property for personal
use.Some of the decisions published in BVS are
indicated as abstracts; if we may infer from this
that the others are reported in extenso we can then
deduce that the specifications provided for by
law concerning the form of verdicts are not takenseriously by the highest courts in the SovietUnion: as an example, a report of the composi-tion of the court is never made even thoughrequired by the law of procedure. The decisionsrarely exceed two printed pages (in bold type).Daring juridical constructions are not to be foundhere; the most interesting aspect of the publishedcases is that they provide a glimpse of the actualpractice of the administration of justice in penalcases.
The short opinions often have a journalistictone; their informal character and close resem-blance to the vernacular of newspaper and radiocertainly make them more readable than thegeneral run of decisions in other countries. In thesix years under review only once was a judgmentannotated. We give below a translation of a deci-sion of the Plenum of the Supreme Court of theUSSR, as it was printed in BVS 1959, no. 5.47
"The difference between indirect intent andcriminal recklessness consists in this, that inthe first case the perpetrator intentionallyallows the possible consequences to arise,while in the second case he hopes on insuffi-cient grounds to forestall them.
"The case GANANIUK, E. V.Decision of the Plenum of the Supreme Court ofthe USSR of 17 June 1959.
"On 7 October 1958 the people's court ofthe Stalin district of the city of Erevan con-victed E. V. GANANIUK under Art. 162paragraph 1 [the subparagraph of the Articlewas not indicated] of the Criminal Code ofthe Armenian SSR.
"The Criminal Chamber of the SupremeCourt of the Armenian SSR on 14 October1958 upheld the verdict of the people's court.
"GANANIUK was found guilty of the in-tentional killing of the boy Artiusa GRIGOR-IAN under the following circumstances. Inthe course of trying out his motorcycle on 25September 1958 on Tel'man Street in thecity of Erevan, GANANIUK drove at a highspeed (65-70 km per hour), as a result ofwhich he hit the boy GRIGORIAN who wascrossing the street and who died on the spotof the skull injuries he received.
"The deputy Procurator General of theUSSR, who considered the definition of theact committed by GANANIUK according to
471BVS 1959 no. 5, pp. 6-8.
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Art. 162 CC of the Armenian SSR as incorrect,lodged a protest with the Presidium of theSupreme Court of the Armenian SSR inwhich he entered a plea that the criminalactions committed by GANANIUK be definedaccording to Art. 165 CC of the ArmenianSSR. The Presidium of the Supreme Courtof the Armenian SSR did not agree with this,and dismissed the protest on 16 February1959.
"On the same grounds the President of theSupreme Court of the USSR lodged a protestwith the Plenum of the Supreme Court ofthe USSR.
"After examining the documents and eval-uating the grounds set forth in the protest,and after having heard also the conclusion ofthe deputy Procurator General of the USSR,who agreed with the protest, the Plenum ofthe Supreme Court of the USSR found thatthe protest should be granted on the followinggrounds.
"In rejecting the protest, the Presidium ofthe Supreme Court of the Armenian SSRcame to the conclusion that the convictedGANANIUK had committed the crime, notthrough negligence, but with indirect intent.In this respect the Court considered it suffi-cient to refer to only one circumstance whichin its opinion completely characterized thenature of the convicted man's guilt, namely,the fact that GANANIUK consciously droveat a high speed, that is to say, to the infringe-ment of the law committed by him; it did notconsider the attitude of the accused withregard to the results foreseen by him (whichwere afterwards realized), whereas it is thedetermination of just this circumstance whichis of crucial importance in establishing theboundary between intent and negligence inthe form of criminal recklessness.
"The documents of the present case showthat GANANIUK, on 25 September 1958 atabout 17:00 o'clock, left the technical schoolwhere the motorcycles were parked with theintention of checking his sports-motorcyclefor a race. Riding along Tel'man Street,GANANIUK noticed that because workinghours were over the number of pedestrianshad increased. In order to avoid possible acci-dents, he decided to go back to the schooland after having turned around he reducedhis speed.
"According to his own report, he kept to aspeed of between 45-50 km per hour, notgoing slower even at an intersection.
"At that moment there suddenly appearedat an unmarked pedestrian crossing a childwho crossed the street from left to right.GANANIUK, who wanted to avoid runninginto the child, began to brake and attemptedto pass the child on the left, but in doing sohe hit the child on the elbow as a result ofwhich it was thrown 3 to 4 meters to the sideand died of the head injuries it received.
"From what has been set forth it followsthat the conclusion of the Presidium of theSupreme Court of the Armenian SSR, thatGANANIUK violated the rules for drivingmotor vehicles, is in agreement with the docu-ments. This violation consists of the fact thatGANANIUK, although he reduced the speedof his motorcycle, on his way back to thegarage, nevertheless rode at a speed of 45-50km per hour instead of the speed of 30 km perhour prescribed for that locality. He alsofailed to exercise due caution at the intersec-tion.
"Nonetheless, it is also clear that GANA-NIUK, although he committed a violationof the regulations for driving motor vehicles,took into account the fact that the street onwhich he rode back to the garage was a dead-end street and that there was very littlepedestrian traffic on it. Because he was anexcellent driver, he also counted on the factthat should pedestrians appear on the road hecould avoid them without causing them anyharm. This conviction was based on years ofexperience with, and an unusually good con-trol over, the motorcycle, which was sup-ported by the report included in the dossier.
"Consequently it must be accepted thatGANANIUK was aware of the harmful conse-quences which his behavior in the given cir-cumstances could cause; this fact, however,still did not provide any grounds on which itcould be found that the act committed byGANANIUK was committed with indirectintent, because in such cases the guilty indi-vidual foresees and intentionally allows thepossibility of the occurrence of socially-dan-gerous consequences. Although GANANIUKin the given instance did foresee the possi-bility of the occurrence of such consequencesof his behavior, he at the same time counted,
F. J. FELDBRUGGE
without sufficient grounds, on being able toprevent these consequences. It should there-fore be recognized that GANANIUK didnot commit the act with indirect intent, asincorrectly stated in the decision of the Presid-ium of the Supreme Court of the republic,but through negligence in the form of criminalrecklessness.
"Concerning the Court's reference to thefact that GANANIUK fled from the sceneof the accident and left the victim behind in adangerous condition, it should be noted thatthis fact, in the particular instance, has noconnection with the question concerning thesubjective aspect of the original punishableact. Nor can it be considered as a circum-stance which aggravates his guilt, becausestatements made by the accused which arenot contradicted by any other evidence, indi-cate that after running down the child hebrought the motorcycle to a stop and at-tempted to help the victim but was forced toleave the scene of the accident because thecrowd which had gathered threatened toattack him with stones.
"At the time of the accident GANANIUKwas sober. He is described as a well-disci-plined and hard-working student and as a first-rate sportsman who had taken part in manyimportant competitions.
"Taking into account the cited concretecircumstances of the case, which providegrounds for reducing the punishment im-posed on GANANIUK, the Plenum of theSupreme Court of the USSR concurs in theprotest and decides in accordance with point'b' of Art. 9 of the Statute of the SupremeCourt of the USSR:
"The decision of the Presidium of theSupreme Court of the Armenian SSR of 16February 1959 concerning E. V. GANANIUKis quashed, and the verdict of the people'scourt of the Stalin district of the city ofErevan of 7 October 1958 and the decision ofthe Criminal Chamber of the Supreme Courtof the Armenian SSR of 14 October 1958 arequashed; the acts of GANANIUK are to bedefined according to Art. 165 of the CC ofthe Armenian SSR, instead of according toArt. 162, paragraph 1 of the CC of theArmenian SSR."
The crux of the case is clear; it concerns the
borderline between intent and negligence. In thefield of procedural law many comments could bemade which would, however, carry us too farafield. The author would point out only the re-markable fact that at no point is there any indica-tion of what punishment was meted out by thefirst court or, later on, by the Appeal Court. Atthe end of the decision we see that the act com-mitted apparently falls under a different articlethan that originally applied, but nothing is saidconcerning the actual punishment, even thoughthe Supreme Court does not refer the case back.In some of the decisions, however, the sentence isreported.
Finally, we must mention that in 55 of the 197cases discussed in this review the offenses werecommitted under the influence of alcohol, accord-ing to the published verdicts and abstracts.
The Bulletin of the Supreme Court of the USSRcontains, as well as decisions in individual cases,general instructions (in the form of decrees) con-cerning the interpretation of the law. The grow-ing number of such decrees seems to point to theincreasing importance attached to this part of thetask of the Supreme Court. In one exceptional casean individual decision was given the force of ageneral instruction; as in most continental coun-tries, there is generally no force of precedent inthe Soviet Union.48
II. RECENT TENDENCIES iN SovETCRniINAL LAW
Soviet criminal law seems, during recent years,to have been dominated chiefly by two tendencies.These tendencies can be characterized as astrengthening of socialist legality and an effort tofight crime more effectively.
Socialist legality is a concept in Soviet juris-prudence which has undergone appreciable modi-fication over the years. At present it shows, tosome extent, signs of resemblance to such typicallyWestern constitutional principles as the independ-ence of the judiciary and reasonably guaranteedrights of the accused.
This development is undoubtedly a reaction tothe arbitrary and unlawful procedures of theStalin era. It seems likely that the new leadingclass in the Soviet Union-the high-level partyfunctionaries, the industrial and economic leaders,the higher civil servants, and all those who to-
48 BVS 1962 no. 6, pp. 32-35, decision of 30 November1962.
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gether possess the actual political power in theSoviet Union-is not prepared, in the long run, tolive and work under the insecurity of a Stalinistclimate.
Besides this tendency towards strengtheningsocialist legality, which we may regard as a reac-tion to the recent past, there can also be perceivedan effort to fight crime more effectively. These twophenomena are of course not unconnected. Thelatter can be seen, in a way, as another reactionto the Stalin era. In those days most problems wereanswered with slogans, and there was little con-cern with a systematic and rational criminalpolicy. Those responsible for framing criminal lawusually took incidental measures against certaincurrently troublesome kinds of penal offenses,such as theft of government property, carelessnessin production, absenteeism, etc. In addition, invarious periods (particularly in the thirties),criminal policy was, for the most part, determinedby the need to supply fixed numbers of forcedlaborers.
There is reason to assume that these measures
caused no significant drop in ordinary crime. In
the post-war years many new regulations werepromulgated,--for example, the decrees of June 4,1947, concerning theft of public and private prop-
erty 9 and the decree of April 30, 1954, concerningthe re-establishment of the death penalty for
murder committed under aggravating circum-stances.5 0
Soviet jurists have said, in referring to the actual
connection between socialist legality and the fightagainst crime, "that a consistent maintenance ofsocialist legality is in no way in contradiction with
the effort to fight crime, but on the contrary isprecisely the most important prerequisite foraccomplishing this end." 51
Socialist legality thus signifies a state in whichlaw rules the country, in which the existing lawsare strictly upheld, and in which it is endeavoredto regulate by law all rights and duties consideredto be of some importance. These two phenomena,
the strengthening of socialist legality and theattempt at effective control of crime, will now be
discussed separately in the light of opinions ex-pressed in Soviet law journals.
4 Ved. SSSR 1947 no. 19.10 Ved. SSSR 1954 no. 11.5 Leader article in SZ 1957 no. 2, p. 11.
A. The Strengthening of Socialist Legality
This effort is expressed primarily in the demoli-tion of many institutions dating from the Stalinera. The accepted doctrine on this point is thatStalin, who was otherwise not without merit, madethe great mistake of building up around himself apernicious cult of his own person, and that thiscult made it possible for the criminal Beria and hisassociates to infiltrate the government apparatus,which they then used to destroy true communists.The more serious outgrowths of this system wereuprooted in the years immediately after 1953;attention is now directed to the elimination of allStalinist thinking.
Because ideological continuity is of great im-portance in Marxism, a connection was soughtwith the older generation of jurists of the periodjust after the October revolution. The well-knownleading figures of the first ten years of Sovietlaw, Stuchka, Pashukanis, Krylenko, and others,reviled during the thirties by Vyshinsky andfinally purged, have been rehabilitated. 2 Vysh-insky himself is now sharply criticized.2 TheStalin period is regarded as a temporary aberra-tion, and for each new standpoint an attempt ismade to show it to be completely in agreementwith, and originating from, Leninist principles.Even the most technical legal problems are con-tinually solved with a reference to some pronounce-ment by Lenin. Pre-revolutionary Russian juris-prudence enjoys a benevolent regard.
In 1961 and 1962 a sharper ring might be heard(following suit to Khrushchev's renewed attacks onthe cult of the personality) in the criticism of theStalin era and particularly the Vyshinsky schoolof law.M
The strengthening of socialist legality is imple-mented principally through criminal procedure.This is understandable if it is kept in mind that theactual content of Soviet criminal law, with itsmany vague and broad definitions and numerousescape clauses, is realized by its application withinthe framework of criminal procedure.
In the criminal law proper, various old ideashave re-emerged. They are to a certain extent
12 Cf. Strogovich, M. S., At the Sources of SovietJurisprudence, in SZ 1957 no. 10, pp. 19-25.
'3 Cf. Aleksandrov, M., Strengthening SocialistLegality and the Application of Soviet Law, in VestnikMoskovskogo Universiteta (Law Series) 1957 no. 2,pp. 103-117.
"Cf. Piontkovskii, A., Unmask Completely theFallacious Views of Vyshinsky in the Theory of SovietCriminal Law, SZ 1962 no. 7, pp. 10-15.
1963]
F. J. FELDBRUGGE
incorporated in the Basic Principles of CriminalLegislation of December 1958, namely the elimina-tion of analogy and the consistent application ofthe rule that punishment can be imposed by thecourt only for an offense created by a criminallaw. Both these rules, however, had long beenaccepted in actual practice. Analogy was seldomapplied, and not at all in recent years, accordingto L. Smirnov, vice-president of the SupremeCourt of the USSR. 5 The same informant alsostates that the rule that punishment can be im-posed only through a court sentence implies inpart a reaction against the "administrative juris-diction" of organs of the Ministry of InternalAffairs, i.e., the notorious MVD. 6
In this context the so-called parasite legislationis to be seen as a serious backward step. Under it,an individual can be banished for five years by apeople's meeting solely on the grounds of a "para-sitic, anti-social" way of living. These measureshave been criticized in the law journals,57 and theturn taken by parasite legislation in 1961 (onwhich we reported above, see text at page 251)seems to imply a modest triumph for socialistlegality.
Another success scored by socialist legality wasthe provision for appeal to the people's court wherefines are imposed by administrative committees(see text at page 252).
In criminal procedure, a sensitive area had beenthe preliminary investigation. There were numer-ous complaints about the manner in which theinvestigation was sometimes carried out. Theprincipal question here was which authority shouldcarry out the investigation. The former situation,in which it was made in part by the police and inpart by special investigators attached to theProkuratura, was considered unsatisfactory.-s Pos-sible solutions were to assign the investigativepower either to the police, to the Prokuratura,to the courts, or to a special department attachedto the Ministry of Justice (the police are under thejurisdiction of the Ministry of Internal Affairs; theProkuratura is completely independent and organ-ized along hierarchical lines). Article 28 of the
55 In a statement concerning the new Basic Prin-ciples, BVS 1958 no. 4, p. 22.
56 Ibid.57 For instance, by the Moscow law faculty, in
Vestnik Moskovskogo Universiteta (Law Series) 1958no. 1, pp. 189-91.
58 Rudenko, R. (the Procurator General of theUSSR), in SZ 1959 no. 4, pp. 3-15.
Basic Principles of Criminal Procedure finallydecided the matter in favor of the Prokuratura.
Investigation of crimes against the State is stillin the hands of the personnel of the KGB, theCommittee for National Security, which is re-sponsible to the Council of Ministers and which isthe successor to the MVD in this respect (art. 28of the Basic Principles of Criminal Procedure).Since the fall of Beria, the importance and influ-ence of this special police seem to have beengreatly reduced.
Khrushchev stated at the 21st Party Congress inJanuary 1959 that at that time there were nolonger any prosecutions for political crimes in theSoviet Union. We know, however, that since thenseveral espionage trials have been held (e.g., thatof Powers).
One of the most important developments withregard to socialist legality is the increase in legalprotection given to the individual. There are twoinstances of this in criminal law: first, the newcriminal legislation provides more proceduralguarantees than formerly pertained for the ac-cused in a criminal trial; second, the law and theadministration of justice now assist the victim ofthe crime. Such assistance can be seen in thebroad interpretation and close attention given bythe Supreme Court to the operative provisions con-cerning self defense, and in the interest shown,particularly in the literature, in the parties to acivil suit and in the victims of crime.n
A few years ago a wide-spread controversy de-veloped among Soviet jurists concerning the evi-dentiary value of confessions by accused persons. 60
In the Stalin-Vyshinsky period confessions, espe-cially in political trials were often the most im-portant or only evidence. (This reliance uponconfessions might be explained in the followingway: if the accused has not committed the act butmust nevertheless be convicted for other reasons,a confession has appreciable propaganda valueand restores, as it were, the broken spiritual soli-darity in a totalitarian society.) At present theopinion prevails that a confession is a form ofevidence equal to other forms, but that a confes-sion not supported by other evidence is not ade-quate as complete proof.
The attempt to introduce particular mitigatingfactors and more differentiation in penal sanc-tions may be seen both as a strengthening of the
-1 Ga'perin, I., in SGP 1957 no. 10, pp. 45-54.10 Rakhunov, R. D., in SGP 1956 no. 8, pp. 34-43.
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SOVIET CRIMINAL LAW-THE LAST SIX YEARS
principle of socialist legality and as an endeavorto find more effective methods for fighting certainforms of criminality.
The Supreme Court of the USSR has given thecourts several instructions (as a consequence of thedecisions of the 21st Party Congress; see infra,p. 265), all of which aim at a milder policy towardsaccused and convicted persons. There is hardly asingle writer who does not point out the need for,and the benefits of, less drastic penal intervention;according to present opinion stern measures arenecessary only against repeated offenders, al-though with respect to such offenders it must bekept in mind, too, that the primary objective isre-education. It was reported above that in thecriminal codes already passed, the maximumsentences in many cases have been considerablyreduced.
Besides reflecting the realization that it is unde-sirable to apply the rather severe penalties pro-vided in cases of common theft and "hooliganism"to insignificant offenses, the steps taken to provideseparate penal provisions for mild forms of suchoffenses also reflect a policy to intervene in areaspreviously outside the scope of criminal law. Thisview is supported especially by the new penalmeasures introduced in various Union republicsagainst the less serious forms of speculation andrelated practices, making possible a more effectivecontrol of undesirable forms of private commercialenterprise.
After 1960, the campaign for socialist legality,having reached certain targets, subsides, and thelegislative fervor of the Soviet state turns towardsother aims. In 1961 and 1962 there is a suddengrowth in the number of capital crimes. Possiblythe increased freedom of recent years has engen-dered among private citizens and Soviet officialsalike those practices now being eyed with jealousdisapproval by the regime. Private trade, bribery,"speculative" dealings in gold and foreign cur-rency, plan-fraud-all this not seldom on an exten-sive scale and not infrequently by high-rankingofficials-have elicited a prompt and vigorousreaction from the obviously vexed authorities.6'But the newly created capital crimes cannotbe attributed entirely to this reaction. The intro-duction of capital punishment for serious cases ofrape, prison riots, and violence against policemenseems to be motivated by the regime's annoyance
61 Cf. Leon Lipson, Execution: Hallmark of "SocialistLegality"; Harry Willets, The Wages of EconomicSin, in 11 PROBLEMS Or CommnuNIs no. 5.
with hardened criminals (those most liable toreceive a death sentence in such cases). Annoyancehas always been one of the chief elements of theSoviet attitude towards crime; in a militantlyorganized and dynamic society like the SovietUnion, forever chasing its citizens towards thefulfilment of the next plan, the criminal is more ofa nuisance and a greater burden on progress thanin more static or freer societies. The social strag-gler is invited to rejoin the ranks immediately,and if he cannot or will not do so, he is annihilated.This political context explains the polarizationwhich has taken place in recent years in Sovietcriminal policy: lighter penalties for petty offenses,harsher penalties for serious offenses.
B. Tix Control of Criminality
Crime, according to Marxism, is a phenomenonwhich cannot take root in a socialist society andwhich must inevitably die out there. The criminal-ity which still exists in such a society is explainedas being due to remnants of capitalism in theconsciousness of individual Soviet citizens and tooutside influences. This explanation was initiallyconsidered as conclusive, dosing the door to anysociological and psychological approach to theproblem of crime. The resulting lack of recognitionof criminology as a science in the Soviet Union isevident by its absence from literature referencesand bibliographies. It should be noted, however,that in recent years there has been less readinessto accept a proposition which is at best a primitiveapriorism. 2 It is quite evident that gradually theneed has developed to acquire some understandingof the causes of criminality and effective counter-measures against it.
Soviet jurists have never lacked ingenuity infinding a theoretical-Marxist basis for new ideas.
62 Cf. Gertsenzon, A., in SIu 1958 no. 1, p. 10 ff.and Sakharov, N., at a meeting of the All-Union LawInstitute, SIu 1958 no. 1, p. 64 ff. In 1961 a monographwas published (A. B. SAxxAov, TE PERSONA=JTYoF T=E OFFENDER AND T=E CAUSES OF CRIME (Moscow1961)) which could properly be classified as crimino-logical. The author is mainly concerned with a socio-logical approach to the crime problem, and is avowedlyinfluenced by Czechoslovakian authors. Notwith-standing the rather primitive level of the book, it isthe first study of this kind in the Soviet Union andtherefore of great interest. Another important con-tribution to this discussion is QuEsTioNs OF THEMETHOD OF STMDYING AND PREVEN G Canis(Moscow 1962), edited by Professor A. A. Gertsenzon,who played a decisive role both in the elaboration ofthe RSFSR Criminal Code and in the re-emergence ofcriminology in the Soviet Union.
1963]
F. J. FELDBRUGGE
The problem of the causes of criminality has beendiscussed in particular by two of the most promi-nent theoreticians of criminal law, the Moscowprofessors Piontkovskii3 and Utevskii.64 Piontkov-skii distinguished between various groups ofcauses. Motives such as cupidity, revenge, jeal-ousy, etc., express, according to him, ideas whichoriginate and flower in exploiting societies; thesecan therefore quite justifiably be considered rem-nants of the past. In the Soviet Union there is nosocial basis for such ideas; their existence is a resultof social consciousness lagging behind socialreality. This gap must be bridged particularly bycultural-educational work. Another cause ofcriminality is the bourgeois influence to whichsome Soviet citizens are exposed. Further, thereare "non-antagonistic contradictions" between thecontinually growing wishes of the population andthe economic capacities of the country. (Accord-ing to Marxist doctrine, there are antagonisticcontradictions present in capitalist society whichwill inevitably cause this society to decline; non-antagonistic contradictions are also inherent insocialist society before the final stage of commu-nism is reached; generally speaking these non-antagonistic contradictions are the driving forcebehind every social development.) Non-antago-nistic contradictions appear, for instance, in theimmense housing shortage in the Soviet Union,which is the immediate cause of all sorts of crimes.Finally, there are causes which are not to be foundin the consciousness but in the byt, the habits ofthe people, such as the misuse of alcohol.
There is according to Piontkovskii no simpleformula for fighting crime. Theft of socialistproperty must be checked mainly by better pre-ventive and repressive control, and the control ofalcoholism must be principally effected through theKomsomol. At the same time the whole system ofimprisonment, in all its aspects, must be betterregulated and organized. In this connection thewriter remarks that this is of special importance inrelation to repeated offenders. He suggests that aless automatic application of parole and improvedorganization of re-employment after release mayhave a favorable effect on recidivism.
Utevskii seeks the explanation of the causes ofcriminality more in an elaboration and deepeningof the concept "remnants of the past in human
11 The Causes of Crime and the Way To Fight Crime,SGP 1959 no. 3, pp. 84-98.
14 Methods and Organization of the Study of Crime andthe Criminal, SGP 1959 no. 11, pp. 59-68.
consciousness." Both writers, however, urge studyand work in various directions to arrive at a morepractical and effective control of criminality; bothalso state that little has been done in this field.
In this new effort an important place has beenassigned to the use of statistics, especially in theactivities of the Supreme Court of the USSR. It isclear that this Court (as far as criminal law is con-cerned) must serve as a kind of study and actioncenter in the campaign against crime. It must con-fine its attention to the study of criminal statisticsand court practice in criminal cases and to the pub-lication of these data. In this connection it isauthorized to give directives to the courts aboutthe application of legal provisions, and to submitbills to the legislature. The Supreme Court of theUSSR occupies itself with the administration ofjustice only when the unity of law in the SovietUnion is threatened.
The basis for these new responsibilities of theSupreme Court was established by the above men-tioned Statute for this Court passed on February12, 1957, by the Supreme Soviet.6 This Statutegreatly limited the authority of the Supreme Courtas far as the administration of justice was con-cerned. The Criminal and Civil Chambers of thisCourt (as far as appellate jurisdiction is concerned)now handle only protests of the President of theSupreme Court or of the Procurator General of theUSSR against a verdict or decision of one of theChambers of a Supreme Court of a Union republic(art. 11).66
The Plenum of the Supreme Court hears, amongother things, protests lodged by the President orthe Procurator General of the USSR against averdict or decision of one of the Chambers of theSupreme Court (art. 9-a), or of the Presidium ofthe Supreme Court of a Union Republic (art. 9-b).
At the same time as the judicial task of theSupreme Court of the USSR was reduced, its taskin other fields was enlarged. In article 9 of theStatute, the Plenum is given the right to presentdrafts of laws to the Supreme Soviet; it is alsocharged with the publication of court practice, theanalysis of judicial decisions, and the compilationof legal statistics. It can give directives for theelucidation and application of the law.
The personnel of the Supreme Court (president,2 vice-presidents, counsellors, and people's asses-sors) cannot be arrested or prosecuted without the
61 Cited s'upra note 3.16 Cf. Szirmai, Z., Res .udicata in the Law of the
USSR, in I LAW iw EAsTERN EUROPE (Leyden 1958).
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SOVIET CRIMINAL LAW-THE LAST SIX YEARS
approval of the Supreme Soviet or the Presidiumof that body (art. 17). The chairmen of the SupremeCourts of the Union republics are qualitate quamembers of the Supreme Court of the USSR(art. 3).
In the last few years figures on crime have oc-casionally been published in the Soviet Union. InMarch 1957, SGP published a rather unusualarticle, written by a district prokuror (State attor-ney) who, on the basis of statistical material, hadmade a study of the causes of crime in his districtand then considered the most suitable methods forits prevention 7 This article shows, even moredearly than the practice of the Supreme Court,how extremely important a part is played by alco-hol in certain groups of offenses in the SovietUnion. According to the figures given by Iakovlev(concerning the Perm district in the eastern partof European Russia), 50% of the cases of theft ofprivate property were committed by persons underthe influence of alcohol; for the offense of "hooli-ganism" the figure was as high as 95% in theperiod under study. On the basis of this material,Iakovlev makes suggestions for effective pre-vention.
In an article in SGP by P. S. Romashkin andA. A. Gertsenzon the following percentages aregiven for offenses committed under the influence ofalcohol: hooliganism 96%, murder 70%, rape 67%(these figures probably hold for the entire Union).
With an eye to this problem, many authors pointout the primarily educational function whichpunishment must fulfil. Re-education must takefirst place particularly in the corrective laborcolonies, where detention sentences are normallyserved in the Soviet Union. One of the ways ofachieving this would be through more individual-ized treatment.6 9 This is practicable because thereare various types of colonies. Good behavior mightearn transfer to a colony with a milder r6gime. Thedecentralization trend which began in 1957 hascreated some problems here, however, becausesince that time the colonies have been mainly underthe administration of the district governments,and in general the aim is that a convicted personshould serve his sentence in a colony located in hisown district. It is obvious that the smaller districts,
67 Iakovlev, M., The Prevention of Crime (Accordingto Data From the Molotov District), SGP 1957 no. 3,pp. 45-54. Since the fall of Molotov the district carriesagain its old name of Perm.
68 SGP 1959 no. 2, pp. 32-47.9 Anushkin, G., Urgent Problems of Prison Practice,
SZ 1957 no. 3, pp. 27-32.
particularly, cannot provide sufficient alternativetypes of treatment. In this case, it has been re-marked, there should be no hesitation in commit-ting a convicted person to a colony outside his owndistrictY0
Generally speaking, it can be said that, judgingby articles and communications in the various lawjournals, considerable progress has been madetowards a rational and balanced policy. Thereare supervisory commissions, made up of eminentofficials of labor unions, kolkhozes, etc., who regu-larly visit the prisons and colonies in order to checkon the performance of the prison administration,and who have interviews with the inmates inwhich complaints are heard.7' Apparently in somecases prisons or colonies are adopted by localfactories, implying that assistance is given withregard to the work done by the prisoners, the voca-tional training of prisoners, and their employmentafter release.72 Mention is also made of rehabilita-tion commissions, which appear to play a specialrole in re-employment.73 Extensive proposals fornew penitentiary legislation are now under dis-cussion.7 4
The concept called "the participation of thepublic inothe campaign against crime" was intro-duced by Khrushchev at a Komsomol congress in1958 and again at the 21st Party Congress inJanuary 1959. It dominated the field of criminallaw in the Soviet Union in 1959 to such an extentthat hardly anything was written on other ques-tions. Since this subject is very extensive, and in away separate from the main body of criminal law,we shall only touch upon some highlights here.75
Besides the ordinary criminal law jurisdiction,Soviet law recognizes three exceptional kinds: ad-ministrative jurisdiction, disciplinary jurisdiction,and the so-called comrades' courts. The adminis-trative jurisdiction is exercised by a court consist-ing of one people's judge, or by local administrativeauthorities, who may impose short detention sen-tences or fines for unimportant offenses such as
70 Raskin, A. and Shishov, 0., in SIu 1959 no. 5,pp. 14-17.
71 SZ 1959 no. 11, pp. 31-36.72 SZ 1959 no. 12, pp. 23-29; SIu 1959 no. 12, pp.
16-19.73 SGP 1959 no. 6, pp. 128-33.74 Cf. Malandin, I. G., Academic Conference on
Codificational Problens of Corrective Labor Law, Pravo-vedenie (Legal Science) 1961 no. 3, pp. 190-94.75 Cf. Glenn G. Morgan, People's Justice: The Anti-Parasite Law, People's Voluntary Militia, and Com-rades' Courts, in 7 LAw IN EAsTEN EUROPE, pp.49-81 (Leyden 1963).
1963]
F. J. FELDBRUGGE[
small thefts and mild forms of hooliganism. Thisjudicial procedure was introduced primarily toprovide an alternative to the draconian punish-ments which were provided for the "full-sized"forms of offenses. Disciplinary jurisdiction can beexercised in all enterprises, businesses, and insti-tutions.
The comrades' courts have existed for manyyears in agriculture, factories, and individual hous-ing units. An attempt is now being made to revivethese rather neglected institutions, among otherways by expanding their authority. The punish-ments which they may impose are rather insignifi-cant, but their moral authority, if the reports areto be believed, is very great. They are meant toact on all sorts of small offenses which are too un-important to be handled by the courts. In additionto the rules of Soviet law, they must also enforcethe rules of Soviet morality.
7 6
Other expressions of the attempt to recruit thepublic's assistance in the campaign against crimeare found in the setting up of a so-called voluntarypeople's militia. This is supposed to take over, to alarge extent, the work of the police with regard tothe maintenance of the public order. In addition,various committees, comprised of representativesof organizations and even of individual citizens,have been established to deal with such matters aschild welfare and rehabilitation. Such volunteerorganizations are apparently principally theproduct of local initiative; the voluntary people'smilitia, for instance, seems to have been the resultof the initiative of Leningrad factory workers.
It is, in the author's opinion, impossible to givea simple explanation of this development. Someof the factors which might be mentioned are: thewish to take serious measures against particularsocial abuses; motives of economy (reduction inthe number of judges and police personnel); thewish to permit, cautiously, some assumption ofinitiative by the population (perhaps because theSoviet regime will become increasingly dependenton the support of the population); and the wish tooffer, for once, some competition to Yugoslaviansocialist achievements by showing that the SovietState, by transferring government functions tosocial organizations, is in the process of disappear-ing, as it should according to Marx.
76 Min'kovskii, G. M., in SGP 1959 no. 12, pp. 92-97.
CONCLUSION
The political and economic decentralizationinitiated by the legislative work of the SupremeSoviet in February 1957 is, according to the signsavailable to us, for the most part dictated by thedesire for greater efficiency, for more efficaciousand appropriate work, and for less bureaucracy.The changes in the field of law certainly evidencethese aims. The greater part of the readers' columnsin SZ and SIu is taken up by complaints aboutbureaucracy.
Considerations of efficiency and economy canalso be seen behind the reforms in the field ofjudicial organization, in particular of the people'scourts. In Estonia and Armenia an experiment wasmade with the merger of people's courts of thefamiliar type (one judge and two people's asses-sors) into larger courts.w Since this reorganizationapparently resulted in an appreciable economy ofpersonnel and a simplification of the hierarchicalcontrol, the system was introduced in other re-publics as well (e.g., arts. 28 and 29 of the Law onthe Court Organization of the RSFSR and art. 19of the corresponding law of the USSR).
Finally, a favorable sign in Soviet criminal lawis the indication of increased interest in the lawof foreign countries. For example, the experience ofsatellite countries, which have not employed thedoctrine of analogy, seems to have stimulated itsabolition in the Soviet Union. While this increasedinterest is naturally directed especially toward thepeople's democracies, a certain revived interestand deepened criticism can also be observed withregard to Western criminal law. Until recently thehorizon of Soviet legal study was limited to 19thcentury German doctrine, and the controversywith the West was expressed by Soviet legal litera-ture in the traditionally Marxist churlish coffee-house style.
All things considered, it can be said that inrecent years Soviet criminal law has shown arapid development in a generally favorable direc-tion. One should guard, however, against too muchoptimism; the course set by the party leadershipis, for the present, binding and inescapable for thecriminal law.
