This is a technical monograph, and the first thing to say about it is that it is a real one. Yuri Stetsovsky's subject is the narrowest and most testable question in Soviet public law — what a defence lawyer may actually do, and when — and he works it through with the apparatus of a practitioner: articles of the Fundamentals of Criminal Procedure of 1958, the criminal procedure codes of the fifteen republics where they diverge, and several hundred rulings of the USSR and RSFSR Supreme Courts cited by volume and page in the official gazettes. Unlike many Progress titles, it is not a reprint dressed in a later date. It cites the USSR Law on the Bar of 30 November 1979, the RSFSR Regulations on the Bar of 20 November 1980, and a decree of the Presidium of the Supreme Soviet of 18 May 1981 on compensation for wrongful prosecution. The text is of 1981 or 1982 and argues from the law as it then stood.
The commission is stated in the opening lines, and stated fairly. "Unfortunately, readers' information about Soviet law is often incomplete, and at times even distorted," Stetsovsky writes. "The purpose of this book is to help the reader understand the right of the accused to defence in the USSR." The frame throughout is the Helsinki Final Act of 1975 and the International Covenant on Civil and Political Rights, quoted repeatedly and, on the whole, accurately. This is a book written to be read abroad, by lawyers, as a reply.
It deserves to be read that way — which means holding it to the standard it sets for itself. Stetsovsky sets a high one. "The principle of guaranteeing the accused's right to defence," he writes, "does not depend on the character of the charge, or on the personality of the accused, or on the persuasiveness of the evidence gathered against him." That is the correct principle and it is the sentence on which the book must be judged.
Begin with what holds up, because a good deal does.
The account of ordinary criminal defence is substantially accurate and in places genuinely valuable, since much of it is not available in English elsewhere. Counsel is mandatory — and his absence is unconditional grounds for quashing a conviction — in the cases of minors, of the deaf, mute and blind, of persons who cannot defend themselves through physical or mental handicap, of those who do not speak the language of the proceedings, and of anyone facing the death penalty. Legal aid is genuinely cheap and in defined circumstances free: the manager of a legal advice bureau, the presidium of a college of barristers, and equally the investigator, procurator or court may release a citizen wholly or partly from paying, and where the state body does so the advocate is paid by the state. On access to the file, the rule as Stetsovsky states it is unambiguous — "All the materials of the case must be presented to the defender without exception" — and he adds that no time limit on counsel's study of the file is permissible, that the investigation period must be extended rather than counsel hurried, and that a barrister instructed on the morning of the trial must be granted an adjournment. He quotes the Supreme Court: "the accused's right to defence cannot be considered secured if his counsel has not been afforded sufficient time to study the case."
Nor is the book a simple advertisement. It records the Plenum of the USSR Supreme Court throwing out a bribery conviction because the testimony of the convicted men "had been obtained as a result of the investigator's improper methods." It notes that Soviet criminal law punishes coercion to give evidence, knowingly unlawful arrest, and the knowing prosecution of an innocent person. It carries, at length, a case from the Kalinin region in which a woman convicted of murdering her husband was finally cleared: her barrister raised the matter with the Chairman of the RSFSR Supreme Court during his public reception hours, two successive protests were entered, and the Criminal Bench eventually held that she had acted in lawful self-defence when, having been beaten with a metal file, she picked up the fallen file and struck back. That is a real story about a real profession, and readers who imagine Soviet defence advocacy as pure theatre should sit with it. So should they sit with Stetsovsky's insistence that counsel may never abandon a client, may never act to his detriment, and is bound by professional secrecy that neither investigator nor court may pierce.
One small credit is owed against the companion volume in this series. Vladimir Terebilov's The Soviet Court (1973), written by the sitting Minister of Justice, told its readers that "in December 1948, the Soviet Union signed and later ratified the Universal Declaration of Human Rights" — an impossibility, since the Declaration is a General Assembly resolution, and a falsehood twice over, since the USSR abstained on it. Stetsovsky does not repeat the error. He reaches the Declaration correctly, through the Final Act's undertaking to act in accordance with it, and quotes Article 11 as it stands: everyone charged with an offence has the right to be presumed innocent "until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." He is the better lawyer. That is exactly why the omissions cost him more.
Now the omissions.
In some ninety-seven thousand words on the right of the accused to defence in the USSR, the name Stalin does not appear. Neither does Vyshinsky — Andrei Vyshinsky, Procurator-General from 1935, prosecutor of the Moscow trials, and the author of the doctrine of evidence that made them work. The words purge and terror do not occur in any political sense; the single use of "repression" is the phrase "penal repression" in a passage about the burden of proof. The year 1937 does not appear anywhere in the book. Neither does 1938, except inside the title of a legal digest covering 1938–1978. The Moscow trials are not mentioned, in any form, at any point.
This is not the same silence as Terebilov's, and it is worse. Terebilov was writing a general survey of the courts, and the Terror was one episode among the many he passed over. Stetsovsky is writing specifically and only about the defence — and the show trials of 1936, 1937 and 1938 are the defining event in the history of criminal defence in the Soviet Union. In the first two of them the accused had no defence counsel at all. In the third, such counsel as appeared for three of the medical defendants did not contest the prosecution case. A book that asks what the defence may do, and never mentions the proceedings in which the defence was abolished, has excused itself from its own question.
The Left Opposition put the point at the time, and put it as a point about counsel. Writing on 18 December 1936, between the first and second Moscow trials, Trotsky attacked the Western jurists who had certified the proceedings as fair, and fixed on their argument that men who asked for their own execution could not have been coerced: "They asked for death themselves, then. They 'freely' renounced counsel for the defense. What sinister hypocrisy! What shame!" That sentence, from The Moscow "Confessions", is the exact objection Stetsovsky's book exists to answer and does not answer.
There is a second, sharper coincidence. Stetsovsky's constitutional foundation for the right to defence before 1958 is Article 111 of the 1936 Constitution, and he tells us that where the criminal procedure legislation was silent the courts applied it directly: "Before 1959–1961, for example, many points about the accused's right to defence had not been regulated in detail in the legislation on criminal procedure, and Article 111 of the 1936 Constitution of the USSR was directly applied in the conduct of concrete criminal cases." The Stalin Constitution was adopted in December 1936 — four months after the first Moscow trial and one month before the second. Trotsky had already reviewed it, from the announcements, in April of that year, and observed of the drafting that "the 'most democratic constitution in the world' is being elaborated and introduced in a manner that is not entirely democratic," which was a mild way of noting that no one had been shown the text. Stetsovsky cites Article 111 for the proposition that the constitutional right to defence was operative and enforced. He does not mention the years in which it was not.
Then there is Krylenko. The Terebilov volume's most eloquent passage was a short biography of Nikolai Krylenko, People's Commissar of Justice, that ran through his career and stopped at his eighty books, without recording that he was arrested in January 1938 and shot on 29 July that year. Stetsovsky reaches him too, from a different direction and just as briefly. Discussing whether it is proper for advocates to be paid by their clients, he quotes the Fourth All-Russia Congress of Soviet Justice Workers of January 1922, where "the Chairman of the Supreme Tribunal under the All-Russia Central Executive Committee, N. V. Krylenko," said: "we cannot change people, we cannot force a defendant not to pay his counsel to defend him to the best of his ability. It is being asked why we put the Bar in better financial conditions than judges and procurators, but I would like to see an accused person who would pay me for accusing him. We have to allow for the situation in which we live."
It is a good remark, dry and practical, by a man arguing that the defence should be properly resourced. Stetsovsky cites it approvingly and moves on to the decree of 26 May 1922. Nine years after Terebilov and by a different author, the same jurist is quoted with respect on the same subject, and the same fact about him is unsayable. Nothing in either book allows a reader to learn that a People's Commissar of Justice was shot.
The book's institutional history has the same shape. It traces the Bar from the decrees of 1918 to the Regulations on the College of Defenders of 1922 and the Fundamentals of the Judicial System of 1924 — and then goes straight to 1958 and 1979. The Statute on the Bar of 1939, which reorganised the profession, is absent, along with the decade it belongs to.
That accounts for the past. The present is handled by a subtler method: not silence but placement.
The Criminal Code articles under which Soviet political defendants were actually tried were Article 70 of the RSFSR Code — anti-Soviet agitation and propaganda — and Article 190-1, dissemination of deliberate fabrications defaming the Soviet state and social system. Neither number appears in this book. The phrase "anti-Soviet agitation" appears exactly twice, both times in the same sentence, and that sentence is not Stetsovsky's. It is in the reprinted text of the Fundamentals of Criminal Procedure at the back of the volume, in Article 28, which allocates investigative jurisdiction: preliminary investigation is carried out by investigators of the Procurator's Office, of the agencies of the interior, "and by investigators of the security services" in cases under the Law on Criminal Liability for State Crimes — high treason, espionage, terrorist acts, sabotage, wrecking, "anti-Soviet agitation and propaganda," involvement in "an anti-Soviet organisation," and the rest. Stetsovsky's own two hundred and thirty pages of commentary never return to that list. In his prose, the KGB investigates nothing; a footnote in the Introduction says only that a "smaller number still" of cases go to "investigators of the state security agencies."
Article 190-1 is invisible for a reason the book's own framework cannot accommodate. It sat outside the state-crimes chapter, was not KGB-reserved, and was tried in ordinary courts by ordinary judges — which is precisely what made it useful, and precisely what a study organised around procedural categories will fail to see. A jurisdiction can be political without being formally exceptional.
The state-secrets rule is where the two halves meet, and here Stetsovsky is more informative than Terebilov and therefore more damaging to his own case. Terebilov had said only that trials could be closed to protect state secrets and that "exceptions in Soviet law are minimal." Stetsovsky specifies the machinery: "Under the law the court is obliged to refuse an open session in order to protect information constituting a state secret. The list of such information is established by the USSR Council of Ministers." So the executive defines the category, the security service investigates the offences that fall into it, and the definition is what closes the courtroom. Stetsovsky adds that "it is seldom necessary to hold the whole of a court examination behind closed doors" and that once the sensitive circumstances have been investigated "obstacles to the public's access to the courtroom disappear." Every worked example he gives of a properly closed hearing concerns a sexual offence or a juvenile.
The same doubleness runs through his account of when counsel arrives. Stetsovsky states the general rule honestly, and the appendix states it again in the words of Article 22: "A defender is permitted to take part in a case from the moment the accused is informed of the conclusion of the preliminary investigation and the whole file of the case is presented to him for his information. A defender may be admitted to a case by order of the procurator from the moment the charge is laid." Outside the mandatory categories, then, an accused person has no lawyer for the whole of the investigation — months, in a serious case — unless the procurator chooses to admit one. Stetsovsky is candid that this is discretionary, and he lists the grounds on which the discretion is generously exercised: the complexity of the case, a protracted period in custody, a case returned for further investigation, an accused who is insufficiently literate or of advanced age. The one consideration he does not raise is that the official who decides whether the accused may have a lawyer during the investigation is the official conducting the prosecution, and that in a case the state wishes to control he will decide against.
Only one criminal case in the entire book is named and dated. It is not a Soviet one. Illustrating the accused's right to receive letters in custody, Stetsovsky writes: "During the preliminary investigation of the case of the American pilot Powers for espionage, for example, Powers received letters from his relatives." A footnote adds that the U-2 was shot down on 1 May 1960, and then: "This case was heard in open court on 17–19 August 1960, and the Military Bench of the USSR Supreme Court found Powers guilty of espionage." The single state-security proceeding the book is willing to describe is the one the Soviet state staged for the world's press, with an American defendant, foreign correspondents in the hall, and an outcome fixed in advance. It is offered as evidence of how open such cases are.
Finally, the Bar itself. Stetsovsky argues at length that colleges of barristers are self-managing social organisations, not state bodies, and much of the argument is sound — members are admitted, not appointed; they sign no employment contract; their pay comes from clients and not the treasury; they receive none of the guaranteed wage, hours or leave that Soviet employees enjoy, and pay for their own holidays and social insurance. But he also records, without comment, the two facts that qualify it. A barrister "may be expelled from a college by the presidium… when he has committed offences incompatible with membership." And where a decision of a college's general meeting or presidium does not comply with legislation, "the USSR Ministry of Justice suspends its operation." A profession whose governing body can expel a member on an open-textured ground, and whose governing body's decisions the Ministry of Justice can stay, is independent within limits the book declines to trace.
The book rests its case on the Helsinki Final Act. The Moscow Helsinki Group, formed in 1976 to monitor Soviet compliance with that Act, had by the time of writing been dismantled — Yuri Orlov, Alexander Ginzburg and Anatoly Shcharansky were all imprisoned by 1978, and named as such in the letter Charter 77 and the Polish committee KOR addressed to their counterparts across Eastern Europe, reprinted in Intercontinental Press on 25 June 1979. The group announced its own dissolution in September 1982, the year this volume appeared. And the most prominent legal event of the years in which Stetsovsky was writing was one his subject cannot reach at all: in January 1980 Andrei Sakharov, a member of the Academy of Sciences, was stripped of his honours and removed to Gorky by administrative act, without charge, trial, court or counsel. Intercontinental Press of 4 February 1980 carried David Russell's report of it, arguing that the exile was "an attack against the interests of all workers and other citizens of the Soviet Union," that the bureaucracy's aim was to warn "every single Soviet citizen that no expression of differences with the government will be tolerated," and — against the Cold War use being made of the case in Washington — that Carter's Olympic boycott was itself "an act of hostility not only against the Soviet government, but also against the Soviet workers." That is the tradition's position, and it is the one this edition is published from: the defence of Soviet legality against the Soviet bureaucracy, not against the October Revolution.
So the finding is not that Soviet criminal defence was a fiction. It plainly was not. Free or nearly free representation was available to ordinary people across a vast country for divorce, housing, theft and manslaughter, and this book is a competent guide to how it worked. Stetsovsky writes as a lawyer on the defence's side, pressing at the edges of his own system — arguing for wider access to the file, longer preparation, more consistent appointment of counsel. He is not a propagandist, and the book is not a lie.
It is something more particular. A parallel jurisdiction existed: offences the book never numbers, investigated by a service it names once in a footnote, heard behind a closure whose scope was set by the Council of Ministers, before defendants whom no advocate could reach until the prosecution had finished with them. Stetsovsky supplies every component of that description and never assembles it. Read him for the law of the Soviet defence, which he knew as well as anyone alive. Read the gaps for the cases in which that law did not run — and remember his own rule, that the right to defence "does not depend on the character of the charge, or on the personality of the accused." He wrote the standard. He was not free to apply it.