The Soviet Experience
Lenin may have been a lawyer by education and by professional training, but he held a rather dim view of the legal profession and the whole tsarist legal system. Thus, soon after taking power, he abolished most of the major legal institutions, including the bar.
Thus would begin a violent and uneven progression through civil war, the new economic policy (NEP), and Stalin’s terror that pushed the question of legal aid to the periphery of socialist law. The bar’s autonomy fluctuated as well, although the bar’s independence and its bourgeois origins rendered it a suspect organisation. Nevertheless, some forms of legal aid persisted, especially during NEP, when advocates were required to work in consultation bureaus and accept court appointed cases.[95] However, lawyers were not allowed to play any substantive role in the show trials of the late 1930s, making a political defence impossible.A defined task and corporate structure for the Soviet legal profession only emerged on the eve of World War II. Article 111 of the 1936 Soviet constitution included a general right to a legal defence, but it was only with the passage of the 1939 law on the advokatura that the future organÂisation of the Soviet bar emerged. Lawyers would be required to become members of a local college of advocates and would organise their practices around their participation in state-registered legal aid bureaus.[96] The Ministry of Justice partly retained supervisory control over the advokaÂtura, but the profession exercised a modicum of independence, most notably, the right to organise their work on a fee-for-service basis. Yet this right was restrained by the emergence of a fixed fee schedule to ensure that Soviet citizens retained access to low-cost legal advice.
The growth of the advokatura was restricted during the 1950s, includÂing a quota on the number of Jews who could enter the legal profession.
The Brezhnev era saw a 25% increase in the number of bureaus, although still a significant number of regions lacked such centres.[97] A few first-hand snapshots of the work of advocates and the daily activities of the consultaÂtion bureaus exist, although the impressions remain anecdotal, not scholÂarly. George Feifer, the future journalist, spent a year in Moscow in 1961 exploring all aspects of the Soviet legal system. Not only did he attend numerous trials, but he also explored the three main pillars of Soviet jusÂtice: the judiciary, procuracy, and the advokatura.Feifer identifies the advokatura as the most independent and inquisitive group of Soviet lawyers, often asking about western legal procedures and practices. Yet according to Feifer, advocates played a secondary role in the pursuit of Soviet justice, clearly subordinate to the judiciary and procuracy who openly worked together to the clear detriment of the defence.[98] The advocates worked in the legal consultation bureaus and participated in a large variety of cases. Feifer described the average fare of a lawyer’s docket, consisting of a combination of criminal, civil, and administrative cases, but with a particular Soviet twist. Criminal cases included standard cases of violent crime and robbery, but they often included cases that involved a particularly Soviet focus on criminality, such as theft of state property and petty speculation. Civil cases also involved uniquely Soviet disputes, parÂticularly the division of communal apartments that often accompanied divorce proceedings. These cases dominated the civil docket and, accordÂing to Feifer, possessed no parallel in western legal systems.[99]
Many of these civil and criminal cases eventually landed on the doorstep of the local consultation bureau, subject, however, to the biases and idioÂsyncrasies of the Soviet legal system. To begin with, an advocate’s ability to prove their client’s innocence in criminal cases was extremely limited.
It did happen, on occasion, but Feifer’s conversations with individual lawyers emphasised the general impotence of the advokatura, that cases often were decided from above, thereby leaving limited room for an open and spirited defence.[100] Secondly, fees were set by the local bar association (the Collegium of Advocates) and paid through the bar, which took a 20% cut in the process. On paper, the fees were kept low so as to make legal advice affordable to the average Soviet worker. Advocates, however, regularly negotiated an additional “bonus” with their clients on the side, thereby raising an advocate’s monthly compensation significantly above the averÂage salary of a worker.[101] So like much of Soviet society, a flourishing inforÂmal sector accompanied the formal practice of law.Finally, the bar competed with other institutions in the provision of legal assistance. Feifer describes the practice under Soviet law to allow a representative of the worker’s collective to serve alongside counsel as a lay defender (or an additional accuser). These lay representatives were not trained lawyers. Nevertheless, they helped fulfil the court’s educative funcÂtion and also contributed to the future realisation of the communist ideal, “where government and the courts would have withered away, where physical coercion by the state will have become superfluous, where society will discipline itself—simply, without codes, lawyers or appeals, without the cumbersome formal machinery, like courts, required by the state.”[102]
But by far the biggest alternative source of legal aid outside the bar was provided by the Soviet prosecutor’s office (the “prokuratura” or “procuÂracy”). The procuracy’s mandate went well beyond representing the state in court. Its general supervisory powers, which could be traced back to its initial founding by Peter the Great in 1722, provided the procuracy with general oversight over the entire Soviet legal system.
It reviewed adminisÂtrative protests dealing with ministries, enterprises, social organisations, state officials, and citizens. Such protests often overlapped with court cases, but unlike pursuing the case via a hired advocate, no fees were incurred by referring the case to the procuracy for supervisory review.[103] Individual citizens possessed another avenue of appeal to the procuracy: the personal complaint. The complaint process covered a host of grievÂances, such as housing, pension, labour regulations, taxes, and administraÂtive fines. Strict timelines covered the resolution of complaints, and depending on the region and subject matter, a significant number of comÂplaints were satisfied. The individual complainant also was not responsible for any legal fees, although once the action was commenced, the procuraÂtor retained full discretion as to how to pursue the matter.[104]Therefore, while Soviet legal assistance differed sharply from its tsarist predecessor, it raised similar professional issues and provoked similar responses from the authorities. To begin with, a system of legal aid, if properly administered, requires significant legal and professional autonÂomy for lawyers. Such independence is especially critical in criminal cases, since the adversarial process inevitably pits the state against the individual. The pre-revolutionary bar (with some important caveats) possessed such independence to defend the individual, much to the growing disdain of tsarist officials who waged a persistent rearguard battle against the consulÂtation bureaus and the provision of low-cost legal aid. In contrast, the Soviet Union institutionalised legal aid as the main task of the advokatura, but made sure that the state and the Communist Party retained ultimate control over the bar at all times. Legal aid also embodied a notion of pubÂlic service, one of the ideal attributes of a profession. The tsarist advoka- tura pursued this ideal through its defence in appointed cases and via the consultation bureau, with the broad goal of enhancing the legal rights of individuals and workers.
The Soviet advokatura supported a notion of public service as well, but with the broader agenda of educating people about their rights and duties under socialism. The pursuit of public service and legal aid, however, did not translate into a true professional monopoly for the Soviet bar, especially when taking into account the procuracy’s involvement in individual claims pursuant to its supervisory review powÂers. In the final analysis, both tsarist and Soviet officials were reluctant to grant the advokatura a professional monopoly and the institutional presÂtige and leverage that such recognition provides.Finally, as in tsarist times, legal aid became politicised, albeit with sharp distinctions between the two eras. Pre-revolutionary advocates particiÂpated in many of the political trials, travelling the country and enjoying great notoriety (and some significant victories). It was also dangerous work, where advocates sometimes found themselves subject to prosecuÂtion and other disciplinary actions. Soviet lawyers also participated in political cases—provided that they had received special clearance from the bar leadership and the KGB—but with a much more limited public platÂform and with no chance for acquittals.[105] The famous Soviet defence attorney Dina Kaminskaya described in her memoirs her experience as a political defender. While she personally did not fear participating in politiÂcal trials, she sympathised with others who did. These lawyers were afraid that even if they conducted their defence within the boundaries of Soviet law (i.e. making no constitutional arguments and only analysing the releÂvant legislation pursuant to the case), they could still be expelled from the profession and forever lose their right to practise law. And this fear was not misplaced: Kaminskaya describes the expulsion of the advocate Boris Zolotukhin from the Moscow College of Advocates after his spirited defence of the poet and human rights activist Alexander Ginzburg.[106]
The 1977 Soviet constitution enshrined legal aid as a fundamental right.
According to Article 158, all people accused of a crime were guarÂanteed the right of defence. Article 161 further assigned the advokatura with the more general right to provide legal aid to citizens and organisaÂtions, and that such assistance would be free in those instances so defined by law. Such official recognition, however, provided little cover when Mikhail Gorbachev assumed power in 1985 and embarked on an ambiÂtious programme of legal reform. The advokatura benefitted from this process, in the sense it became more independent from the state and creÂated new institutions to defend its corporate interests.[107] Yet the Soviet advokatura was uniquely unprepared for the legal and economic transition that was about to take place. To begin, there simply were not enough practicing advocates to meet demand. In fact, many cases proceeded withÂout legal counsel; Professor Kathryn Hendley noted that only 20% of the worker-plaintiffs in labour cases actually engaged the services of a lawyer at trial.[108] Official fees continued to be set unrealistically low; in 1988, conÂsultation bureaus charged 2 rubles (approximately $3.20) for an initial review of a criminal and civil case.[109] Extra fees still were the norm to hire an attorney, although regulations issued in 1988 sharply reduced the reliÂance on these supplemental payments by allowing advocates to negotiate the terms of their engagement with the client.[110]The legal market was changing in other ways as well by the end of perÂestroika. Legal cooperatives began to be formed, outside the established advokatura and therefore outside the bar’s professional oversight and code of ethics.[111] These cooperatives focused on commercial law and were organised as a profit-making business. While some advocates joined the cooperatives, no mass exodus from the bar occurred. According to the historian Pamela Jordan, Soviet advocates lacked an “entrepreneurial spirit” and opted for the steady work that membership in the college of advocates and the legal consultation bureaus provided.[112] The collapse of the Soviet Union, however, ushered in a new political and legal era, in the process renewing the long-running debate on how best to provide legal assistance to the Russian population.