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Home > Journals > Michigan Law Review > MLR > Volume 48 > Issue 8 (1950)

 

Abstract

An eminent American legal philosopher has recently written in the pages of this Review that Soviet leaders have discovered some ancient truths-namely, that some respect must be paid, sooner or later, to the principle of legality. In the light of various memoirs and disclosures of persons who have experienced or studied life in Soviet labor camps, such a statement invites incredulity. Can it have any basis in fact? Can it be possible that there is a dualism in Soviet practice, with one set of experiences supporting the conclusion that there is a trend toward legality and another set of experiences supporting the conclusion that the Ministry of Internal Affairs rules without any respect for what the common law lawyer means by legality?

It will be the purpose of this paper to present evidence throwing light on the Soviet attitude toward what the common law lawyer would call "due process of law" in criminal proceedings. Much more might be included in the concept of legality, but there will probably be agreement that legal protection of the individual accused of crime is the heart of the concept. Soviet law and practice will be examined as it relates to trial by a judicial body, trial by jury, presence at one's own trial, availability of counsel, opportunity to be heard, knowledge of the offense charged, and the confrontation of witnesses. These elements enter into the concept of "due process" as the courts of the United States have defined it in cases arising under the Fifth Amendment to the Constitution.

Several of these elements are named in the Sixth Amendment to the Constitution. When such facts as are available to the researcher have been presented, the question will be raised as to why Soviet law and practice has taken the direction indicated by the evidence.

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