The Gazette 1990

GAZETTE

DECEMBER 1990

Younger Members News

Last September/October, I was amongst a group of 22 Irish solicitors and barristers who took part in an exchange programme with Russians organised by the Youth Exchange Bureau, an authority established under the auspices of the National Youth Council of Ireland. The group comprised 16 barristers and six solicitors (including two solicitors from Northern Ireland). The lawyer? exchange pro- gramme was one of a number of Russian/Irish exchanges organised throughout the year including one for journalists and one for members of the construction industry. The programme was intended to be a "work shadow" exchange where we would shadow an individual Russian partner at his/her work for the two week period and stay in his/her home and in turn provide a reciprocal scenario in Ireland. The entire group was sent to a town in the Russian Republic called Tver (still Kalinin in most atlases - it reverted to its pre 1917 revolution name of Tver during the summer of 1990). Tver is a very old town situate on the Volga about 100 miles north west of Moscow on the Moscow - Leningrad railway line. The town has a population of about 500,000 and its main industry is textile manufacture. It transpired that the standard of English of most of our partners was insufficient to enable us to pursue a genuine work shadow pro- gramme either in Russia or Ireland. (Needless to say the Russian vocabulary of the Irish group was minimal - most people improved on their ability to play acting charades by the end of the trip). The programme provided in Tver gave us an interesting overview of the Soviet legal system, particularly in the area of criminal law. Most of our partners were either admini- strative personnel in the prokuratura (local state pro- secutors' office), prosecution lawyers or defence lawyers. (The Soviets were amazed to discover that in Ireland barristers are entirely independent and can prosecute and defend in different cases). During the first week of our trip we

had a number of lecture/question and answer sessions. Communica- tion was made possible by means of an interpreter. One of the more novel features of the work programme was the attendance at two trials where we were afforded simultaneous translation of the pro- ceedings. In other words, once anyone had spoken a sentence or two, the flow was interrupted whilst the subject matter was translated for our benefit. One of the trials involved a student charged with the theft of car windscreens (a far more serious offence that than the theft of car windscreens in Ireland as cars are in short supply in the Soviet Union and spare parts extremely difficult to procure). The defendant decided to plead guilty and to represent himself. The court was a district court presided over by a judge and two lay assessors. Three interest- ing features of Soviet criminal law emerged from this particular case namely: — 1. If a defendant pleads guilty to a charge he/she cannot be convicted on the basis of this admission alone. There must be independent evidence to support the charge. We were advised that this procedure is now always adopted in order to avoid the type of confession convictions which took place during the Stalinist period. 2. Victims of a crime have a status in court as such (not merely as witnesses) and may give evidence/comment and demonstrate how they have been affected by the crime, although it is unclear to what extent the court actually takes their views into account. In the particular case one of the victims had no qualms in telling the court that he had since replaced the windscreen stolen with a purchase on the black market (which action is itself an illegal offence). 3. Alcohol is considered to be an aggravating rather than a mitigating element when in- volved in the commission of an offence. This factor is sympto- matic of a society which places

a greater emphasis on personal accountability than is normally seen in many Western Euro- pean societies. The features referred to at 1 and 2 above are particularly interesting in the context of celebrated cases in this country in recent years where there had been an admission of guilt to a serious crime and no evidence was put to the court as to its commission. The court has confined itself solely to the sentencing of the accused. This practice has given rise to serious criticism as it leaves questions relating to the crime unanswered and grievances unremedied for the victims and their families. In many respects the criminal law and criminal procedures in the Soviet Union are quite different to our own system. The most obvious feature of this is that the criminal trial does not promote an adver- sarial system of justice as most of the ground work has already been dealt with at one or more formal investigations which take place prior to the trial. The concept of private property rights was introduced in Russia effective from 1st July, 1990 although the procedures for implementing the new laws have not yet been expounded e.g. our partners were unable to indicate to us how a straightforward transaction such as the purchase of a private dwelling would be financed in the future. Because there is no developed system of private property there is also no developed system of con- tract or tort. The prosecutor's office also has a role in the civil law procedure that exists. In fact it is quite apparent that in the Soviet system the effectiveness of the local administration in administer- ing the system is, in practice, more important than awareness and acknowledgement of individual legal rights as such. For the very reason that there has been no developed concept of private property rights there exists no solicitor's profession although Notaries Public do carry out the function of advising people on matters such as wills and simple

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