Soviet Military Justice and the Challenge of Perestroika

• Author: by Captain Jods M. Prescott
• Pages: 05

I. INTRODUCTION

Under the leadership of General Secretary ofthe Communist Party of the Soviet Umon (CPSUI and President Mikhail Gorbachev, the Umon of Soviet Socmhst Republics (USSR1 LS currently embarked upon an ambitious reform effort, known as perestroika (restructuring) The emphasls of peieatroiko IS on economic reform and corresponding improvements In economic law, as means to resolve the Brezhnev era's legacy of dow economic growth and It8 attendant

shortages of housmg, food, and coneumer goods ' In his openmg address before the recent 19th CPSU Conference, General Secretary Gorbachev stressed that the success ofperestrocko depends upon the ability of the Soviet government to create a socialist state eharaeterized by the rule aflaw in all Certain Soviet jurists descnbe this form of government as e "socialist constitutional state "'

Although efforts to create such a state ~n the USSR have not kept pace with developments in the area of economic reform. they have resulted in Some new laws that grant Soviet citizens greater legal and

'Captarn. Judge Adwcate General'l Corps Currentl: as5lgned at Go\ernmenr Appellate Diviliron. r S Army Legal Services Aganci. Falls Church, \'A B A , Unr-YermQ ofVermont. 1983 J D , Unlverhllyafhlalne. 1986 Graduate ofthe illrhJvdge Advocare Officer Baaie Caurie, 1986 hlemherofrhe barsoffheStafeaf Mame iheU S Court of Military Appeals. and rhe E S Army Court of Military Renew Author of Unired States Y Holt The L'6e oiPiowdaner Inpuiv Information During Sentencing The Army Laai-ei. Apr 1988. at 34 Thls amde 15 based upon a paper iubmlrtDd parlid fulfillment of the Graduate Law Program ar the Geoigefown Umveraxty Law Center The aurhorrrsherfa thank Capfain~DonaldHilleman Bryant Snee andvlto Clement1 rU S Arm?. Judge Advocate GeneraYs Com3i for th& edlford &stance and Professors Anhur Bregma". Llaa Gramk. and vlktor Mozahn

veriity Lmw Center) far their helpful comments and iuggertmns

'40 The Current Digeat dthe Sailet Press no 21 at 1-10 (June

22 1988) [heremafter

naliy R& soulet vnlon

[hereinafter FBIS-SOVI. and Joint Publications Rmeamh Service Sav~ei

Enlon, Ylhtaw Afkri lhereinaffer JPRS-UhlAI, am romprlatianr aitranslatsd iniarmation from varioue foreign media J Y Y T C ~ ~

'FBIS-SOV-88-128, Jul) 5, 1988, ai 143-44 88.018 Jan 28 1988 ar 54 'FBIS-SOV-88-12?, Jul) 1, 1988 81 24 Afly ad. dressed m Gorbachei's speech. ~t 1s clear that meaningful legal refarm Ln the sovletlWdnal Sbatem Can only be scromplmhed st the expmae of the CPSUr broad and per.haps unofficial pawr over rhe operaflon of the Savlet legal r)sfem FBIS.SOV-~~-~P~,

'A saclallbt eonstiturional state IS defined as "a stare that creates ail3 IS dlrected by

them, and submits ileelf tu rh-m " FBIS-SOV-a8-018, Jan 28, 1988, ai 56

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5 1988, at 139.41

CDSPI cnsp. ~orelgn Broadcast information sernce

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rights. such as the ability to appeal adminiatratwe actions' and the right to engage in mare vaned forma of public demonstration.' Further. Sonet legal scholars and offimals continue to promote such additional reforms as permitting the USSR Supreme Court to exercise the poiver ofjudicial review, dramatically curtailing the u e of the death penalty.' and the decnmmalizatmn of many activities, such as certain forms ofpolitical expression currently prohibited under the state dander and anti-Sowet agitation and propaganda laws '

At least as important as the broad legal reforms under consideration are the more technical measures being diecussed and put into effect to improve the efficiency of the investigatory and judicial systems e Currently. the operation of the mvestigatory and judicial s>ctems id uneven at best. baih in term8 of work product and qualit? control super\mon Soviet officials and commentators hare accurate. ly perceived that the extent to which legal reform can be achieved ~nthe Soviet Umon will be determined in large part by the efficacy of the mechaniams for its

Although the course of legal reform in the Soviet Union remains uncertain. c~vilian reforms are likely to have an effect upon Soviet military justice. for the Sovier military and cmlian judicial systems are veq closely Integrated" and share similar problems Further. the historical development of Soviet military Ian. particularl, the broad reforma adapted in the late 1950's. demonstrates that the Soviet military justice qstem 1s respons~eto c~v~lianlegal reform efforts '' This article will present an overv~eiv of the Soviet military

J U S I ~ C ~

system as It 1% presently organized and intended to function Problem areas within the Soviet military justice system w~llbe ex.

amined within this Context, for such an overv~ew accurately describes

lLav orrdpprds Glainosr'm theSoLielCouits. Siinr 'FBIS-SOV-88-149. Aug 3. 1988. st 66-597FBIS-SOV-88-018, Jan 28 1989. at 54-86'FBIS-SOY-58-080. Apr 28, 1988, sf 82'FBIS.SOV-88-128 July 6, 1988 ai 110

62.54 11966) [hereinafter RSFSR Cadeal Gmiburgs The Reform of Sosml Mdrfury Juslrce I963 58, 20 Law in Eastern Europe 31-60 119791

19891 SOVIET MILITARY JUSTICE

the model of socialist legality that reforms are intended to create ~npractice as well as m theory.

11. SOVIET MILITARY JUSTICE SYSTEM A. MILITARY TRIBUNALS

With the exception of the USSR Supreme Court, the Soviet military tribunals are the only all-union (federal) courts in the Soviet legal system l3 Comparable to the civilian People's Courts (clty or district level courts), the lowest.level courts in the Soviet military JUStiCe aystem are the mfenor mdltary tribunals, which are standing courts organized at the army, flotilla, mllitary formation or garriaan level.'* The appellate authority for these courts, and cdurts of first instance in them own nght in certain cases, are the atanding military tribunals organized at the armed forces, military district, force poup, or fleet le~ela.'~

At both levela, the military tribunals consist of a trainedjudge and two layjudges. calledpeople's ~ssessors, in the first Instance, and of three trained Judges in cases brought before a mlh. taiy tribunal of the upper level on appeal, elther by way of cassation or supervision Military judges must have a higher legal education,

"RSFSR Codea. 6upm note 12. at 17 One form of military court 18 nor federal, houeuer, namely, the Officera' Comrades' Courts of Honor &nerally. Comrades' Courta are mfarmal lay fnbunala whose member3 are elected by general meet>ngs of collectivsr and which deal with minor infractions of the law or regulatmns V Tere-bhv, The Saviet Court 93-96 r1936i

"Starute on Milatar). Tribunal. art 1 11958. amended 1980). iianrlaid an Basrr

Documents of the Soviet Legs1 Swtsm 165 (W Butler tram & ed 19831 [herelnaftsr Basic Documents1 For example, B Sarlet tank army contalnn between two and four tank divisions and between m e or two motonzed nRe divmonb Combined Arms and Senices Staff School. Ft Leavenworth. Saiief Army Equlpmsnt Organization and Operations (E614l241

I19851 [hereinafter Soviet Army1 Each t& division has &pro. x~marely 11,470 troops, and each motonzed rifle dwmon has approx~mately 12,696 traaps Id at 262.84

"Soviet Amy, supra now 14.

BI 252-54 In peacetime. there are mteen mhtnr) dmtncfi ?n the USSR and four grou~auf forcsa m Eaatsrn Europe id at 223.'*Am 7, Baric Documanti, 8vpm note 14, st 166. Caeaabon IS B term descrhng BJI ~ppealpmceab ~n B civil law iyetem See Black's Lan Dictionary 197 16th ed 19791 A eassafmnal appsal ma) be brought by elfher B defendant or B pmscutor v Terebhv. supio note 13, at 142 Although B CeePat1msl appeal 18 nor B full de nom ~ P Y I ~ W

the

court "examma the record. welgha the ewdence. admm newly dlsemvered evldenke If neeoa~aq, and determines whether the h e r caurt's ruling LI aupponed by the e">-dense " Minan & Morris. Lrn'"mseling am Enigma An Introduction Lo Soiid Lax and the Souat Legal System, 19 Geo Wash J lnt'l & Ecan 13, 46 "401 (19861 The grounds for ~ 8 8 ~ ~ f l o n

818 "til The ~muffir~encyor mearrectness offhe ~nqu~ry proceed-

both priortoand arrhetnal. I21 Materialvialationbof therulesafproeedure (31 A nolatmn or incorrect ~nrerprsratmn offhe Bubifantive law, (4) A plamlg uniuit &dm or sentence ' J Zelitch. Soviet Adm>mafranon of Criminal Law 290-91 (1931) Asupermalmal appeal mesnr that the 'earreap~ndmg procurafar DT chairman of a hieher court IC entitled to bubm>r his Protest to the prsmdium ai 8 remmal terrifo~

YT other

court ewal ~n etsfu~,

if he considers the respectwe pdgmenr. dec& OT radsr passed by B People's Court to be wonp or unlauiul

"

~ngs

v Tsrebllov bu#m note 13, at 127

be at least twenty-five years old and are elected to them powions for five-year terms by the Presidium ofrhe USSR Supreme Soviet '"

Peo-

ple s assessors need only be twenty-one years old, are elected by mill-tary service members for terms of two and one-half years. and are vested aith all of the rights of apdge in Court People's aase8sors serve on the bench for only two weeks per year and they then return to their regular duties le Both judges and people's asses~o~smust be

on active military duty

The appellate murr for the superior military tribunals IS the M111- tary Division of the USSR Supreme Court, and the Milltar) Diu,-mods appellate authority 1% a plenary session of the USSR Supreme Court itself Unlike an American military accused, who may appeala court-martial conviction through one of the service courts of revmv, the United States Court of Military Appeals, and finally to the United States Supreme Court."' a Soviet milnary accused, like his c~nlian counterpart. 1s limned to one cassational appeal to the next highest

Soviet military tribunals have jurisdiction over all crimes committed by military sernee members, quasi-military personnel of state security agencies. and certain crimes such as espionage. even If committed by civilians In geographic areas where there are no CI.u h m COUITS, military tribunals may try both cnminal and cinl

cases 25 Military tribunals also hare Junsdlctlon over...