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Special to the JTA American Legal Expert Says Soviet Procedural Mistakes Justify Reversal of Shchara

An analysis of the arrest, trial and appeal process in the Anatoly Shcharansky case has lead on American expert on Soviet law to conclude that grave procedural errors have been committed, warranting a reversal of the conviction.

This conclusion by George Fletcher, Professor of Law at the University of California, Los Angeles, follows a recent 10-day study of the case in Moscow, during which time he interviewed the Shcharansky family, their legal advisor and, among others, the Chief Justice of the Russian Supreme Court. Fletcher is a member of the Steering Committee of the National Lawyers Committee of the National Conference on Soviet Jewry (NCSJ).

Although Fletcher believes Shcharansky is, in fact, innocent “under the vague Soviet definition of treason” he limited his review of the case to procedural improprieties. His findings, in the form of a paper, were released here today by the NCSJ.

“The procedural issue that haunts the Shcharansky case is the violation of the defendant’s statutory right to the assistance of counsel,” charges Fletcher. “Why did Shcharansky end up defending himself? Did the court properly consider petitions to appoint defense counsel? Should the court have permitted the defendant in a capital case to stand alone, without legal assistance?”

Shcharansky was kept in isolation from the day of his arrest on March 15, 1977 until July 10, 1978–six days before his trial began. “There was no way of Anatoly’s knowing anything that happened in the outside world (during this period),” says Fletcher. “The defendant labored under such impediments that he could not carry on an effective defense on his own behalf. The striking fact of Shcharansky’s situation on July 10, 1978 is that he did not know of the worldwide protest mounted on his behalf. Shcharansky began his own defense without even knowing that President Carter had publicly exonerated him of collaboration with the CIA.”

JUDGEMENT TO REMAIN CLASSIFIED

Shcharansky was convicted of treason and disseminating anti-Soviet opinions and sentenced to 13 years deprivation of freedom–the first three in prison and the last 10 in a labor camp. Although the Soviet press prejudged him guilty of spying for the CIA, only Shcharansky himself and some Soviet legal officials know how much of the 50 volumes of documentary evidence and five days of oral testimony given during the trial were actually incorporated into his 50-page judgement.

To this day the courts continue to refuse to give a copy of the judgement to Shcharansky’s family or legal advisor, maintaining that Soviet law only requires them to supply the judgement to the convicted person. Shcharansky is now, as before, in solitary confinement; unable to consult with an attorney and incapable of preparing an appeal on his own. His brother, Leonid, who was in the courtroom during the four or five-hour reading of the judgement, was not permitted to take notes.

According to Fletcher’s interview with A.K. Orlov, Chief Justice of the RSFSR (Russian) Supreme Court, it is unlikely that the contents of the judgement, which includes an explanation of the verdict and the evidence it is based upon, will ever be made public. “Although Justice Orlov was cordial,” writes Fletcher, “he took a firm stand against the family or anyone else receiving a copy of the judgement. Even if the family should now obtain the services of a Moscow lawyer, the lawyer could, at most, read the judgement. He said openly that Soviet officials did not want ‘the judgement to fall into Western hands’.”

Although one of the basic rights of any convicted Soviet defendant is to appeal within seven days for a review of the legality of the conviction, Shcharansky is prevented from making this “causational appeal.” Because one of the three judges who heard his case is a member of the Russian Supreme Court, the judgement in his case is considered to have come from the Supreme Court itself.

The only mode of review now available to Shcharansky is a “protest” proceeding initiated by either Roman Rudenko, the Procurator General of the USSR; L. N. Smirnov, the Chief Justice of the USSR Supreme Court; or Chief Justice Orlov. But according to Fletcher, there is little chance that Shcharansky’s case will be reviewed in this manner.

COURT WON’T REVIEW DECISION

“In the same interview … Chief Justice Orlov said plainly that the Court would not reconsider or review its decision. The Supreme Court was satisfied that the conviction was legally sound. In view of this pre-judgement of the issues, the Chief Justice was obviously not interested in any pleas from Anatoly Shcharansky himself.”

According to Leonid Shcharansky, parts of his brother’s trial were conducted in closed, secret sessions because they allegedly dealt with state secrets or politically sensitive matters. It was during one of these sessions that Sonya Lipovsky, a KGB agent, testified against Shcharansky. Although it is unknown how much weight her testimony carried (because the judgement is unavailable), it is known that Shcharansky was prevented, during his closing argument, from rebutting this or any other testimony given in closed session.

This, says Fletcher, is “the most blatant restriction on Shcharansky’s carrying on his own defense….A month before the beginning of the trial…the Supreme Court of the USSR issued a decree instructing all courts to implement and protect the constitutional right to a defense. Point 17 of this decree says explicitly that the court may not restrict the exposition of arguments bearing on the substance of the case.’ If the court does so restrict the closing argument of the defense, the decree continues, the violation constitutes a per se ground for reversal.”

“There is no doubt,” concludes Fletcher, “that the court violated this provision in Shcharansky’s case by not permitting him to refer to Lipovsky’s testimony in his closing argument. If the matter was politically sensitive, the court could readily have solved that problem by calling another closed session for final argument. There was no excuse for denying Shcharansky’s right to make a closing argument encompassing all the issues in the case.”

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