CHANGES IN SOVIET ADMINISTRATIVE LAW UNDER GORBACHEV

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00551R001700940032-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 107
• Document Creation Date: December 27, 2016
• Document Release Date: November 26, 2012
• Sequence Number: 32
• Publication Date: May 27, 1988
• Content Type: MISC

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DISTRIBUTION LIST: "Changes in Soviet Administrative Law
Under Gorbachev"
Embassy Moscow - Political Counselor
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Mr.
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Studies
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? STAT
DIA
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CIA
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STUtY EVALUATION FORM
TITLE: Changes in Soviet Administrative Law Under Gorbachev
CONTRACTOR: Professor Peter Maggs, University of Illinois
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CHANGES IN SOVIET ADMINISTRATIVE LAW UNDER GORBACHEV*
by Peter B. Maggs
Task 2 Report Under Contract 1724-720082
- May 27, 1988
Submitted by:
*Research and writing was supported under United States
Department of State Contract No. 1724-720082. The
opinions, findings, and/or conclusions herein are solely
those of Peter B. Maggs and are not officially endorsed by
the Department of State.
STAT
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CHANGES IN SOVIET ADMINISTRATIVE LAW UNDER GORBACHEV
EXECUTIVE SUMMARY
Since Gorbachev took office, a number of important changes
have been made in administrative law. The most significant
changes appear to be aimed at enhancing the power of the central
authorities to carry out its restructuring ("perestroika") of the
Soviet system. Less significant changes have followed a long-
standing pattern of application of administrative law to deal
with specific social problems.
Soviet legal scholars indicate that the administrative law
system that developed from the 1930s through the early 1980s
frustrated attempts at economic restructuring in a number of
ways. They say that masses of detailed regulations issued by
administrative bodies have made the managers of lower-level
organizations unable to exert any initiative. They agree that
new laws and decrees of the central government that purported to
decentralize the economy in the 1960s were defeated by
subsequently-enacted regulations of the ministries and state
committees that administered the economy and by local government
ordinances. Even though, in theory, USSR laws prevailed over all
subordinate legislation, Soviet legal scholars argue that there
was no effective channel through which state enterprises or
individual citizens could seek review of the administrative
regulations that frustrated the laws' intent.
The important changes in administrative law involve a repeal
of masses of older administrative regulations that conflicted a
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with the legislation on restructuring of the economy, creation of
new administrative law enforcement agencies, enhancing the power
of existing enforcement agencies, creation of new "super-
ministries," reduction in the powers of ordinary economic
ministries, expansion in the areas of freedom of action of lower
level agencies, granting lower level areas the right to sue
superior and regulatory agencies to enforce administrative law
rights, a limited enlargement of the right of private citizens to
sue government officials, increasing the penalties for
administrative violations, and the active use of the law o
administrative violations against such problems as alcohol and
narcotics.
All of the measures strengthen administrative law, in the
sense that they make it a more powerful instrument for the
enforcement of centrally-determined policy, not in the sense that
they make it a power restricting the freedom of the policy-makers
themselves. All of the measures increase the power of the top
levels of Soviet authority. Some of the measures, those aimed at
giving enterprises and cooperatives more rights and better legal
channels for their enforcement, increase the power of the bottom
level of the economy at the expense of the middle, a necessary
step if "perestroika" is to work.
ii
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TABLE OF CONTENTS
I. Introduction 1
II. Purging Outdated Administrative Legislation 3
III. Changes in the Powers of the Agencies
That Enforce Administrative Law 7
A. Introduction 7
B. Strengthening State Arbitration 7
C. Strengthening the Courts 8
D. Strengthening the Procuracy 9
E. Strengthening the Administrative Structure
for Environmental Protection 11
F. Strengthening the Administrative Structure
in Nuclear Energy Regulation 13
G. Strengthening the Administrative Structure
in Flight Safety Regulation 14
H. Strengthening the Police 14
I. Strengthening the Power of the Health
Authorities to Deal With Narcotics and AIDS 16
J. Adjusting the Power of Health Authorities
to Deal with Psychiatric Patients 18
IV. Restructuring of the Administrative System 19
A. Introduction I 19
B. Revising the Powers of Top Level
Organizations 21
1. Introduction 21
iv
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2. Super-Ministries 22
a. The State Agroindustrial
Committee 22
b. Construction 23
c. Heavy Industry and Geological
Exploration 24
d. Computers 25
e. Foreign Trade 26
f. Education 27
g. Science and Technology 27
3. Ministries 30
4. Republic Organizations 30
C. Creation of New Intermediate Level
Organizations 31
1. Introduction 31
2. Branch Councils 31
3. State Production Associations 31
4. Cooperative Structures 34
D. Increasing the Powers of Bottom Level
Organizations 38
1. Introduction 38
2. Enterprises, 38
3. Cooperatives 39
V. Strengthening Judicial Review of Administrative
Action 40
A. Introduction 40
6
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B.
Judicial Review of Actions of Superior
Agencies
41
1.
Introduction
41
2.
Rights of Enterprises to Sue Their
Superiors
42
3.
Rights of Cooperatives to Sue
Superior Agencies
48
C.
Judicial Review of Acts of Regulatory Agencies
50
1.
Introduction
50
2.
Right of Enterprises to Sue Regulatory
Agencies
50
3.
Right of Cooperatives to Sue Regulatory
Agencies
a. Suit in Case of Illegal Order
50
by a State Agency
51
b. Suit to Block Dissolution
52
4.
Right of Citizens
a. Right to Sue Where Decisions are
53
Made by Individual Administrators
53
b. Right to Sue Administrative Agencies
64
(1) Introduction
64
(2) Suit to Force Registration of a
Cooperative
64
c. Judicial Review of Administrative Agency
vi
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Regulations in Criminal Proceedings Against
Citizens
66
VI.
Legislation on Administrative Violations
67
A.
Introduction
67
B.
Higher Fines
69
C.
Specific Offenses
70
1. Miscellaneous Transport, Health and Safety
Offenses
70
2. Alcohol
71
3. Drugs
71
4. Prostitution
75
5. Hard Currency and Equivalents
76
6. Natural Resource Protection
77
7. Draft Registration
77
vii
re
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CHANGES IN.SOVIET ADMINISTRATIVE LAW UNDER GORBACHEV
I. Introduction
Administrative law, according.to a standard American
definition, is "the law concerning the power and procedures of
administrative agencies, including especially the law governing
judicial review of administrative action."1 The following
discussion will give attention both to the changes in the power
and procedures of administrative agencies and to the degree to
which new Soviet legislation has broadened the possibilities for
judicial review of Soviet officials' and agencies'-administrative
actions. It will also consider another area that Soviet writers
classify as part of administrative law. This is the system of
administratively-imposed penalties agaidst individuals for minor
violations of the law too insignificant.to constitute crimes
Since Gorbachev took office, a number of important changes
have been made in administrative law. The most significant
changes appear to be aimed at enhancing the power of the central
authorities to carry out its restructuring ("perestroika") of the
Soviet system. Less significant changes have followed a long-
standing pattern of application of administrative law to deal
with specific social problems.
Soviet legal scholars indicate that the administrative law
system that developed, from the 1930s through the early 1980s
frustrated attempts at economic restructuring in a number of
ways. They say that masses of detailed regulations issued by
administrative bodies have made the managers of lower-level
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organizations unable to exert any initiative. They agree that
new laws and decrees of the central government that purported to
decentralize the economy in the 1960s were defeated by
subsequently-enacted regulations of the ministries and state
committees that administered the economy and by local government
ordinances. Even though, in theory, USSR. laws prevailed over all
subordinate legislation, Soviet legal scholars argue that there
was no effective channel through which state enterprises or
individual citizens could seek review of the administrative
regulations that frustrated the laws' intent.
The important changes in administrative law involve a repeal
of masses of older administrative regulations that conflicted
with the legislation on restructuring of the economy, creation of
new administrative law enforcement agencies, enhancing the power
of existing enforcement agencies, creation of new "super-
ministries," reduction in the powers of ordinary economic
ministries, expansion in the areas of freedom of action of lower
.level agencies, granting lower level areas the right to sue
superior and regulatory agencies to enforce administrative law
rights, a limited enlargement of the right of private citizens to
sue government officials, increasing the penalties for
administrative violations, and the active use of the law of
administrative violations against such problems as ,alcohol and
narcotics.
? All of the measures strengthen administrative law, in the
sense that they make it a more powerful instrument for the
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enforcement of centrally-determined policy, not in the sense that
they make it a power restricting the freedom of the policy-makers
themselves. All of the measures increase the power of the top
levels of Soviet authority. Some of the measures, those aimed at
giving enterprises and cooperatives more rights and better legal
channels for their enforcement, increase the power of the bottom
level of the economy at the expense of the middle, a necessary
step if "perestroika" is to work.
Purging Outdated Administrative Legislation
A program to "clean up" administrative legislation began in
1987. This program combined a technical element and a policy
element. The technical element involved the beginning of an
effort to repeal obsolete administrative regulations and to
organize and publish those regulations that are still in force.
The policy element involved the reexamination of all
administrative regulations, the immediate repeal of those in
conflict with the principles of the restructuring of the economy,
and the adoption of new regulations consistent with the new
directions of the economy.
Under Brezhnev, the Soviet government began a long-term
project to collect the laws (adopted by the Supreme Soviet) and.
the government decrees (adopted by the Council of Ministers),t?
repeal those that were obsolete, to arrange the remainder in
logical order, and to publish them in a Collection of Laws (Svod
zakonov) for the USSR and for each republic.2 This project is
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now nearing a successful conclusion. The Collection of Laws of
the USSR has appeared in full and the republic Collections of
Laws are nearly complete. Each Collection of Laws is in
convenient loose-leaf form; supplements allow updating to
reflect the current state of the law. An experimental computer
system at the Institute of Soviet Legislation serves as the
prototype for a future nationwide computer legal data base.
While there have been a few problems in the codification process-
-updates have been slow and a great deal of legislation is still
classified as secret--overall the project has been a major
technical legal achievement.
Pleased with these results, Soviet scholars clamored for the
logical next step--a similar codification project for the.,
economic administrative regulations issued by the various
ministries and state committees. The passage of the package of
"perestroika" legislation in the summer of ,1987 made the task
more complex and more urgent. The mass of old administrative
regulations, based on the theory of detailed management by
economic ministries and government agencies, was in conflict with
the letter 'and spirit of the new legislation. What previously
was a relatively noncontroversial, but low priority proposal for
better technical organization of legislation now became an
essential element of "perestroika." If the new economic approach
was to have a chance, the old administrative regulations
absolutely had to be swept away and new regulations had to be
drafted and adopted. Subsequent codification and publication of
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the surviving and new regulations would be useful, but not as
urgent.
The Council of Ministers organized a high level commission
to supervise the repeal of the old regulations. The Commission
chairman, Deputy Chairman of the USSR Council of Ministers, L.A.
Voronin, explained the Commission's work in an interview in
Ekonomicheskaia gazeta. Under the supervision of the
Commission, each government agency was responsible for putting
its own house in order. As a result of the work of the
commission, the USSR Council of Ministers repealed or amended
over 1,200 decrees; republic council of ministers repealed or
amended about 7,500 decrees. USSR ministries and departments
repealed over 33,000 administrative regulations. Republic
ministries and departments repealed over 80,000 administrative
regulations.
The result has been a sharp reduction in the quantity of
administrative regulations in force. The Ministry of Non-Ferrous
Metallurgy, to take an extreme example, repealed around 4,000
regulations, leaving only 170 in force. Work is still continuing
to eliminate regulations issued in the 1920s, 1930s, and 1940s
that have long since become dead letters but have never formally
been repealed. While, in an era of deregulation, no replacement
is needed for many of the repealed regulations, in ;some cases new
regulations are needed to replace those abolished. Particularly
needed are new statutes on supply of producer and consumer goods
that would take account of the promised increased role of
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contract and corresponding decreased role of planning. Emphasis
is being placed on expanding "horizontal" sanctions, such as
damages for breach of contract, and reducing or eliminating
"vertical" sanctions--penalties for failing to follow detailed
orders from above.
The Chairman of the Commission sees as the next stage of the
project the compilation of collections of legislation and
regulations and the distribution of these collections to the
affected enterprises. This approach would fall short of the full
publication suggested by many legal scholars. Full publication
is probably hindered by three factors, the Soviet penchant for
secrecy, the ministries' fear of criticism of their regulations,
and the perennial Soviet paper shortage.
The danger remains that as soon as the Commission finishes
its work, the various ministries and state committees will slip
back into their old ways, issuing a proliferation of decrees that
deprive subordinate enterprises of all independence. To help
prevent this, the Commission is proposing a new decree "On
Improving the Procedure for Preparation and Promulgation of
Departmental Regulations.114 Serious consideration is being given
to a procedure whereby regulations that affect organizations
outside the issuing ministry would be have to receive the
approval of the Ministry of Justice.
III. Changes in the Powers of the Agencies That Enforce
Administrative Law
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A. Introduction
Administrative law is enforced by a variety of agencies.
With one notable exception, the powers of all of these agencies
have been increased under Gorbachev. Efforts have been made to
increase the independence of State Arbitration and the courts.
The Procuracy has been given new powers to stop illegal
activities. The police and health authorities have been given
additional powers to fight narcotics traffic, AIDS, and
prostitution. Only the psychiatric establishment has seen its
powers cut back.
B. Strengthening State Arbitration
A Party-Government decree and legislation adopted in 1987
were designed to strengthen State Arbitration.5 State
Arbitration decides contract and other disputes where the parties
are state agencies or cooperatives (other than collective farms).
The Law on the State Enterprise,6 which went into effect on
January 1, 1988, provides a new role for State Arbitration in
deciding disputes between enterprises and the ministries or
agencies to which they are subordinate. This legislation (which
will be discussed in detail below) requires State Arbitration to
nullify actions of a ministry or other superior agency that
interfere with the independence granted to the enterprise under
the new Law on the State Enterprise and to grant money damages
for harm caused by the illegal actions. Given the.political
power of ministries, raising the status of State Arbitration is
essential if it is to play the role'of watchdog over ministry
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activities. The new legislation raises this status in a number
of ways. First, the position of State Arbitration was raised
from that of "attached to the Council of Ministers of the USSR"
to the loftier status of "of ,the USSR," placing State Arbitration
on the top level of government agencies whose importance is
symbolized by the fact that they report directly to the Supreme
Soviet. Second, the powers of State Arbitration were
significantly reworded. The 1979 Law on State Arbitration in the
USSR had provided that the tasks of State Arbitration included:7
active influence in the decision of economic disputes
at enterprises, institutions, and organizations for the
purpose of ensuring their observance of socialist legality
? ? ?
The new legislation provides:8
active influence on enterprises, institutions,
organizations, their superior agencies and officials for the
purpose of ensuring their observance of socialist legality
? ? ?
Thus the new version expressly gives State Arbitration the power
to act against superior agencies, for instance ministries.
C. Strengthening the Courts
Other recent initiatives are likely to strengthen the
courts. It will be important to have stronger courts, as well as
stronger State Arbitration because new and proposed legislation
will give the courts broader jurisdiction over administrative law
issues. In particular (as will be discussed below) courts will
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be given power over complaints by citizens against illegal
actions by officials, and by cooperatives against illegal action
by government,agencies and higher level cooperative
organizations. While no new legislation has been passed on the
courts, Supreme Court President Terebilov has exerted strong
leadership in efforts to free judges from local political
influence. Leading legal scholars are proposing a number of
concrete measures to. increase the status of the courts, the most
important of which, is the elimination of the role local Party
authorities now play in the selection, retention, and promotion
of judges. It is likely that at least some of these measures
will be adopted.
D. Strengthening the Procuracy
New legislation has granted increased powers to the
Procuracy to enforce administrative legality.9 These new powers,
if fully utilized, could substantially enhance the role of the
Procuracy in ensuring that the policies decreed by central
authorities are in fact carried out by local officials.
One new power gives the Procuracy a more direct way to
exercise its responsibility of supervision of compliance with the
law. Under previous legislation, the Procuracy could only
"protest" a violation to the party involved. If that party did
not accept the protest, the only remedy for the Procuracy was to
protest to the next higher organization in the chain of command
of the party the Procuracy claimed committed the violation.
Meanwhile the violation could continue. The new legislation
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gives the Procuracy the power to issue a demand for elimination
of violations of the law, a demand that must be obeyed
immediately. The following langauge implements this power:
"Demands of Procurators. for the elimination of law violations
discovered by them-, presented by the established procedure, are
obligatory for fulfillment." The new legislation also specifies
the procedure: "A written order for the elimination of the
violation of a law shall be sent to the agency or official who
has allowed the violation or to the agency or official superior
in order of subordination who is authorized to eliminate the
violation committed." Soviet procurators have made_little use of
this new power so far, according to one Soviet commentator.1?
One report of the use of the power has appeared in the official
journal of the Procuracy.11 In this case, the Procurator sent a
written order for the correction of law violations to-a housing
cooperative after nonmembers were put on board in a fake election
and the resulting board illegally allocated housing. The same
report mentioned use of the power against a condition illegally
favoring senior workers in a labor collective contract.
Another power clarifies the power of the Procuracy to
intervene in two important areas. A clause that included among
the functions of the Procuracy, "the struggle with violations of
the laws on the protection of socialist property" was amended to
read "the struggle with violations of the laws on the protection
of socialist property and other violations of the laws in the
area of the national economy." A new clause has added the
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function, "the struggle with violations of the laws directed at
ensuring the rights and legal interests of citizens." These two
clauses will make it clear that the Procuracy can intervene to
protect both cooperatives and citizens engaged in individual
labor activity and thus force the economic policies of the
central authorities on often reluctant local officials.
Another new power is designed to bring the pressure of the
Procuracy to bear on legislative authorities, to ensure that they
comply with centrally-decreed policy. This provision allows
officials at appropriate levels of the procuracy to participate
in meetings of a wide variety of legislative and administrative
agencies.
E. Strengthening the Administrative Structure for
Environmental Protection
Starting well before Gorbachev took office, before the
period of "glasnost'," Soviet scholars were complaining about the
administrative structure for environmental and natural resource
protection. This administrative structure gave individual
ministries the conflicting tasks of both exploiting and
protecting nature. The scholars suggested that the only solution
would be to create a single, powerful, independent environmental
protection agency. This longstanding demand was fulfilled by a
Party-Government ,decrees of January 7, 1988.12 This decree
provided for the creation of the USSR State Committee of for the
Protection of Nature and the transfer to it of the nature
protection subdivisions of the USSR State Agro-Industrial
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Committee, the USSR State Committee on Science and Technology,
the USSR State Committee on Forestry, the USSR State Committee on
Hydrometeorology and Environmental Monitoring, the Ministry of
Melioration and Water Husbandry of the USSR, the USSR Ministry of
the Forest, Cellulose-Paper, and Woodworking Industry, the USSR
Ministry of Fisheries, and the USSR Ministry of Geology. The
list of names of the ministries previously involved in
environmental protection suggests the nature of the problem that
led to the scholar's complaints. The ministry in charge of paper
production could hardly be expected to be a vigilant monitor of
effluent from pulp mills, for instance.
The organizational structure and legal powers of the
Committee are designed to make it far more effective than were
previous environmental protection bodies. The Committee will be
organized as a union-republican committee with a structure
consisting of republic committees for the protection of nature
and local nature protection agencies. The Committee have the
power to issue environmental regulations binding on all
ministries, departments, associations, enterprises, and
organizations. It will have the power to forbid construction and
to stop operations violating natural resource or environmental
protection rules. It will be empowered to sue Soviet and foreign
enterprises, organizations, and private individuals who have
caused damages to the state by pollution or by misuse of natural
resources. It will have jurisdiction over administrative
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offenses involving environmental pollution and misuse of natural
resources.
The overall result of what the legislation calls "radical
restructuring of nature protection" is to change the Soviet
natural resource and environmental protection system to one much
more similar to those in Western countries.
F. Strengthening the Administrative Structure in Nuclear
Energy Regulation
The Chernobyl disaster led to new legislation strengthening
the administrative structure for nuclear safety enforcement. A
new statute granted extensive powers to the USSR State Committee
on Supervision of Safe Conduct of Work in Atomic Energy
(Gosatomenergonadzor).13 The charter 'grants the power to conduct
inspections of nuclear installations at any time, to issue
obligatory orders to nuclear plants on correcting safety
violations, to shut down plants that are in violation of safety
regulations, and to recommend discharge or suspension of
personnel responsible for safety violations.
Nuclear safety was also emphasized in two other 1987
decrees, one on the Ministry of Atomic Energy,14 and the other on
the discipline of those employed by the Ministry)-5
As with environmental protection, in the area of nuclear
safety, there has been a move toward creating a stronger
independent regulatory agency. The move is hardly surprising
given the large figures that Soviet economists have estimated as
the cost of the Chernobyl mishap.
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G. Strengthening the Administrative Structure in Flight
Safety Regulation
Following the general trend toward making regulatory
agencies independent of the ministries whose activities they
regulate, the State Commission on Flight Safety was made
independent of the Ministry of Civil Aviation.16 The predecessor
institution, governed by 1975 legislation, had been subordinate
to the Ministry of Civil Aviation.17 'The new legislation, in
addition to making the State Commission independent, considerably
broadens its powers. It is to have more powers with respect to
supervising aircraft production and more powers with respect to
inspection of military passenger transport aircraft. The latter
powers include the power to approve the use of military aircraft
for civil air transport. The grant of this power raises the
intriguing possibility that the Soviet Union will emulate the
People's Republic of China, which has allowed its military air
transport service to carry foreign tourists on charter flights,
expanding the tourist trade capacity, earning substantial
additional hard currency, and introducing an element of
competition.
H. Strengthening the Police
Recent legislation has substantially expanded the power of
police to deal with drug traffickers and prostitutes. This
legislation show the readiness of the authorities to increase the
use of administrative compulsion on the public to combat
perceived social problems, without worrying excessively about the
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civil rights of the antisocial elements who are the targets of
the compulsion.
A 1987 edict authorized routine police drug searches without
the formalities usually required for police searches:18
. . . in localities where the [local government] has made a
decision to introduce checking for the illegal transport of
narcotics and plants containing narcotics, authorized
officials of the agencies of internal affairs (the police)
may conduct searches of transportation, of the person of
drivers and passengers, and also of pedestrians, of their
possessions and freight, may seize any discovered narcotics,
plants containing narcotics, and documents.
A May 1987 edict gave the police more powers to deal with
prostitution.19 The edict gave police the power to round up
"persons with respect to whom there are sufficient bases to
suppose that they are engaging in prostitution," search them and
their possessions, and send them for compulsory examinations for
sexually-transmitted diseases. This aspect of the legislation
could the dual purpose of urban beautification by getting the
prostitutes off the streets and out of hotels and of submitting a
high-risk group to compulsory AIDS testing. Since this portion
of the legislation did not impose any criminal or administrative
penalty, it could rest on "sufficient bases to suppose" rather
than on the proof of actually engaging in prostitution. The
police and medical authorities will probably warn prostitutes
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found to be infected with venereal disease or the AIDS virus of
their potential criminal liability, if they continue in their
profession, under legislation such as Article 115 of the RSFSR
Criminal Code, which punishes placing a person in danger of
infection with venereal disease or of the new criminal
legislation providing long terms of incarceration for exposing
others to the AIDS virus.20
I. Strengthening the Power of the Health Authorities to
Deal With Narcotics and AIDS
New legislation broadened the power of health authorities to
order testing of suspected drug addicts and AIDS carriers, to
order compulsory treatment of addicts regardless of their age or
health, and to separate addicts who were carrieis of the AIDS
virus from other addicts undergoing compulsory treatment.
Legislation adopted in 1987 provided for compulsory testing
for both narcotics21 and AIDS.22 The following provisions were
adopted for compulsory drug testing:
Persons with respect to whom there are sufficient data
to suppose that they use narcotic means for nonmedicinal
purposes are obligated to undergo medical testing in
accordance with the established procedure. If such persons
refuse medical testing they may be compulsorily hospitalized
for a period of not more than ten days for testing by a
procedure to be determined by the USSR Ministry of Health,
the USSR Ministry of Internal Affairs, and the USSR
Procuracy. 0
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The AIDS testing regulations were largely aimed at foreigners:
1. Citizens of the USSR and also foreign citizens and
stateless persons living or sojourning on the territory of
the USSR may be obligated to undergo medical testing for
discovery of infection with the AIDS virus. The rules for
testing established by the USSR Ministry of Health in
accordance with the provisions of the present Edict shall be
subject to publication and should be open for consultation.
Persons with respect to whom there are bases to suppose
that they are infected with the AIDS virus, in case of
refusal to be tested voluntarily, may be brought to medical
institutions by health-care agencies with the aid, in
necessary cases of the agencies of internal affairs.
Foreigners and stateless persons, in case of refusal of
testing, may be expelled from the boundaries of the USSR in
accordance with Paragraph 2 of Part 1 of Article 31 of the
USSR Law of June 24, 1981, "On the Legal Status of Foreign
Citizens in the USSR" (Ved. SSSR, 1981, No. 26, item 836).
Laws on compulsory treatment for drug abuse have been
broadened to cover minors, the elderly, and the ill, as well as
those able to work. Legislation in the 1970s had provided for
compulsory treatment of drug addicts and for confining them in
institutions where they would have to work while being treated.23
New legislation provided for the creation of treatment-
educational institutions for teen-age drug addicts.24 Other
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legislation provided for the compulsory assignment of adult drug
addicts who could not work (the ill, the disabled, and the
elderly) to special treatment centers. This legislation could
provide a means of quarantine of intravenous drugs addicts
carrying the AIDS virus. The relevant language is "Persons
suffering from drug addiction who are afflicted with a serious
accompanying illness that prevents their presence in treatment-
labor sanatoria." 25
J. Adjusting the Power of Health Authorities to Deal with
Psychiatric Patients
Legislation adopted early in 1988 restricted the power of
the psychiatric authorities in the area of involuntary
commitment.25 Why were these authorities' powers cut back, when
the other administrative law enforcement agencies saw there
authority enlarged? There appear to be a number of reasons.
First, neither the Party leadership nor the public considers that
there needs to be any increase in getting mentally ill persons
into institutions. (Contrast the opinion of most of the public
and some of the leadership that strong administrative action is
needed against prostitutes, drug dealers, AIDS carriers, careless
nuclear reactor operators, and environmental polluters.) Second,
psychiatric commitment has been abused in the past against
whistleblowers, dissidents, and to save criminals (who bribed
psychiatrists to declare them insane) from labor camps or death
penalties. Details of the abuses involving whistleblowers and
criminals were discussed in a companion report on Soviet Criminapl
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Law; details of abuses involving dissidents will be discussed in
a companion report on Soviet Civil Rights Law. Suffice it to
say, the Soviet leadership is interested in protecting
whistleblowers, punishing criminals, and having a good
international image concerning its treatment of dissidents.
Introducing more legality into the legislation on psychiatric
commitment serves all three of these interests.
IV. Restructuring of the Administrative System
A. Introduction
What has happened in the restructuring of the administrative
system can best be understood in terms of the underlying theories
that appear to be driving the change. Soviet economists and,
under their influence, at least some of the Soviet leadership,
seem to be moving closer to accepting certain economic principles
long embraced by their Western counterparts. These include the
ideas that economic progress is faster where most economic
activity is conducted by competitive enterprises, that
competitive enterprises must be subjected to some government
regulation because of the "externalities" (such as air pollution)
that they would impose upon society if unchecked. Management
science suggests that a single manager can effectively manage
only a small number of subordinates.
These ideas suggest a lesser role for the ministries. The
principle of competition suggests that it is inappropriate to let
a single ministry dominate a particular area of the economy. Te
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problem of "externalities" suggests that a ministry should not be
self-regulating on matters such as environmental pollution.
Management science suggests that the number of units at the level
just be low the top be reduced to a manageable number. Changes
in administrative law can be explained as an apparent attempt to
apply these principles. Attempted solutions to the economic
domination of the ministry include: (1) a reduction in the power
of the ministry, with a corresponding increase in the power of
subordinate enterprises, so that may exercise initiative in
competition among themselves; and (2) the creation of new forms
of economic organizations engaged in the supply of goods and
service to the economy, but not _subordinate to any administrative
hierarchy--the new cooperatives. As already mentioned above, the
attempted solution to the problem of externalities has been to
turn self-regulation in such areas as environmental protection
into external regulation by an independent agency. Finally, the
creation of a limited number of super-ministries, which will be
discussed below, complies with the suggestion of management
science that no manager should try to manage more than a small
number of subordinates.
Even though, on the surface, much of the new legislation
appears to be an implementation of these Western economic
theories, it is very difficult to know how the legislation will
work in practice. The foreign observer of Soviet administrative
law always faces a basic problem in determining the real, as
opposed to the theoretical administrative chain of command. In,
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many Soviet hierarchies, the literal text of the law calls for
power to be exercised from the bottom up, but in fact it is
exercised from the top down. Examples include the Party, elected
government bodies, and the agricultural cooperative systems.
Changes in Soviet legislation in recent years on the surface
alter this system. In some cases, for instance in the creation
of the "agro-industrial system" and of "super-ministries" the
legislation has appeared to impose a more "top down" form of
administrative organizations. Other legislation, such as the law
on the State Enterprise, the Decree on the State Production
Association, and the Draft Law on the Cooperative, have appeared
to impose a bottom-up organization, with each higher level
elected by a lower level. Because this "bottom-up" legislation
is very new, it remains to be seen if it will actually change the
administrative hierarchy in practice.
B. Revising the Powers of Top Level Organizations
1. Introduction
The top level organizations in the Soviet economy are called
"ministries" or "state committees." Some of these organizations
manage a relatively narrow area of the economy. Others manage a
very broad area, supervising the work of a number of subordinate
ministries, committees, or organizations. Soviet terminology
does not distinguish between the two types of organizations. For
the purposes of this report I will distinguish ordinary
ministries (some of which bear the formal name of "state
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committees") and "super-ministries" (which usually bear the
formal name of "state committee").
2. Super-Ministries
An important trend in administrative restructuring has been
the combining of ministries into new "super-ministries." The new
super-ministries should be easier for the Politburo to manage
because there are fewer of them. Such super-ministries are often
called "State Committees," but are distinguished from other state
committees by the size, number, and importance of subOrdinate
organizations. In recent years super-ministries have been
created, or have had their powers increased in the areas of
agriculture, construction, computers, metallurgy, foreign trade,
education, and also science and technology.
a. The State Agroindustrial Committee
The most notable example of a super-ministry is the State
Agroindustrial Committee of the USSR, which was formed in 1985 by
combining six organizations that had previously existed
independently: The Ministry of Agriculture, the Ministry of
Fruit and Vegetable Raising, the Ministry of the Meat and Milk
Industry, the Ministry of the Food Industry, the Ministry of
Rural Construction, and the State Committee on Production-
Technical Support for Agriculture.27 This committee is at the
head of a powerful network of 'organizations extending in a
hierarchy down to the rural district level and responsible for
trying to solve the perennial Soviet food production and
distribution problem.
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b. Construction
The organization of construction was changed from an
industry basis to a regional basis in 1986.28. The country was
divided into four main regions. Construction of industrial
facilities in each region (with the exception of transportation
construction) was concentrated under a single regional super-
ministry.29 Construction of housing and public service
facilities was made largely the responsibility of republic and
local governments.30 Previously, construction had been more on
an industry by industry basis, with ministries doing their own
construction or specializing in a particular type of
construction. A companion decree called for more use of
wholesale trade in construction materials and for an increased
role for construction contracts.31 The Decree on Improving the
Administration of the Construction Industry called for a
significant reduction in the staff of the ministries engaged in
construction. Presumably less staff would be necessary as a
result of elimination of parallelism in the old system and as a
result of more reliance on contract and less on planning. The
whole reorganizations is highly reminiscent of Khrushchev's
scheme of regional economic councils, which many foreign analysts
saw as having less of an economic than a political purpose--to
destroy the power of the existing Moscow-based ministries.
Under Khrushchev, central power reasserted itself in the
form of "state committees," whose coordinating role gradually
grew until they became indistinguishable from the abolished
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ministries. An important step in the 1986 economic reforms was
the adoption of a new statue on the State Construction Committee
(Gosstroi)32
The broad definition of powers of the new committee and the
concurrent weakening or abolition of the old branch construction
ministries would appear to give the new committee greater power
than its predecessor, the
Construction (also called
USSR super-ministry above
c. Heavy
State Committee on Matters of
"Gosstroi") and to make it almost a
the regional super-ministries.33
Industry and Geological Exploration
As another step in the centralization of the management of
industry, 1987 legislation calls for the restructuring of heavy
industry and geological exploration to remove republic
jurisdiction.34 Until 1987, key ministries in heavy industry had
been organized as "union-republican" ministries. The 1987 decree
called for reorganization of these ministries as "all-union"
ministries.
responsible
metallurgy,
Ministries and organizations affected were those
for energy and electrification, coal, ferrous
nonferrous metallurgy, the oil refining and
petrochemical industry, and geology. One can only speculate on
the purpose of this change in the administrative structure. It
may well be that some of the more obsolete "smokestack industry"
plants cannot survive under the promised system of full economic
accountability and self-financing. Under announced policies,
these inefficient plants should be closed and their workers
should be laid off. Republic authorities would be extremely
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likely to use their powers to resist plant closings in their
republics, regardless of the inefficiency of the plants slated
for closing. As another example, the exhaustion of the oil
fields in Azerbaidzhan might suggest spending new oil exploration
funds on more promising areas, such as Siberia, from the point of
view of the national interest. But such a shift might meet with
heavy resistance from the republic government in Baku.
d. Computers
Computers also got their super-ministry under Gorbachev.35
The Statute on the new State Committee on Computer Technology and
Informatics gave the Committee extensive powers to carry out its
purpose of speeding computerization in the Soviet Union. The new
"super-ministry" has broad ruling making powers, "to adopted
decrees and orders, to approve instructions, rules, and
methodological guides on questions within the competence of the
Committee, which shall be obligatory for all ministries,
departments, enterprises, and organizations." The decree also
granted the power to consider disputes between government
agencies on matters connected with computers.
The State Committee will be responsible for developing and
enforcing a "uniform technical policy" in the computer industry,
a policy applicable both to enterprises under its jurisdiction
and those under the jurisdiction of other organizations.
The creation of the new State Committee recognizes the
importance of standardization to the advancement of the computer
industry. The experience of countries more advanced in computerp
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than the Soviet Union, and the Soviet experience with its copies
of IBM and Digital Equipment Company computers shows that
standardization of computer hardware is absolutely essential to
provide a basis for software development. Standardization is
also of great importance in computer communications, since
computers using different communications systems cannot "talk" to
one another.
The dispute settlement function of the Committee is
reminiscent of a similar power given to the new State
Construction Committee in the area of construction. This power
is ill-defined by the legislation and its relationship to the
more formal dispute settlement power of State Arbitration is
unclear.
e. Foreign Trade
By a January 1988 decree, the two major foreign trade
bodies, the Ministry of Foreign Trade and the State Committee on
Foreign Economic Relations were merged into a single
organization, thus creating another "super-ministry." The
decision to make this merger was apparently reached at some time
during 1987, for on December 22, 1986, new Statutes were adopted
on the Ministry of Foreign Trade36
Foreign Economic Relations.37 The
and the State Committee on
function of the new foreign
trade body is likely to be quite different because of the change
in the structure of international trade taking place as a result
of the authorization of foreign trade operations by individual
enterprises and associations. While the Statute on the new body,
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is not yet available, it is likely to put more emphasis on
information and coordination functions and less on direct
management of foreign trade.
f. Education
The two education ministries, the Ministry of Higher and
Specialized Secondary Education and the Ministry of Education,
were merged in 1988. Details on the merger will be added to a
later revision of this report.
g. Science and Technology
A new decree has enhanced the powers of the State Committee
on Science and Technology.38 The decree strengthens the
horizontal coordinating function of the Committee by the formal
inclusion of officials of other agencies as ex-officio members of
the Committee. These are the President of the USSR Academy. of
Sciences, the President of the All-Union Academy of Agricultural
Sciences, the President of the USSR Academy of Medical Sciences,
the Minister of Higher and Specialized Secondary Education of the
USSR, the Chairman of the USSR State Committee on Standards, the
Chairman of the Committee on Matters of Inventions and
Discoveries, the Deputy Chairman of each of the permanent bodies
of the Council of Ministers and the Deputy Chairman of the State
Planning Committee. Like the old statute, the new decree
provides for the inclusion of outstanding scholars and leaders of
industry.
The State Committee has participated regularly in goal-
oriented programs for application of. science and technology to ,
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particular areas of the economy. Formal provision for its
coordinating role with the Academy of Sciences and the State
Planning Commission in such programs is provided in the 1987
Decree. In addition to this program development, the Committee
is to manage-"interbranch scientific and technical systems" and,
together with the State Planning Committee to provide them with
the necessary research facilities.
Under both the old statute and the new decree, the Committee
had the obligation to audit the technological level of production
and the quality of research work in the various branches of the
economy. The new decree adds an additional important quality
control function, that of consideration of proposals of
ministries, departments, and republic counCils of ministers for
the creation of new research and development organizations.
The provisions on financing of research work are also left
unfinished. The State Committee on Science and Technology,
together with the State Planning Committee and the USSR Ministry
of Finance are given six months to issue financial regulations
implementing the principles of the decree. These principles
include: transfer of 'research organizations to full economic
"accountability and self-financing, replacement of budget
financing with contract financing by interested customers;
continued use of budget financing for important projects and
technological breakthroughs. Proposals for budgetary allocations
are to be made by the State Committee to the Council of
Ministers.
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The provisions on information reflect the already-planned
transition to a centralized, computerized scientific information
system. The State Committee is to exercise "methodological
guidance and supervision, of the work of agencies of scientific-
technical information, regardless of their departmental
subordination. Its instructions on access to information systems
and distribution of information resources are to be obligatory
for all information organizations. These extensive powers are
clearly designed to allow development of an integrated
information system for the whole country instead of. a fragmented,
organization-by-organization system.
The new decree transfers major responsibilities to the State
Committee in the area of inventions and innovations. This
transfer is symbolized by the transformation of the USSR State
Committee for Matters of Inventions and. Discoveries into the
Committee for Matters of Inventions and Discoveries Attached to
the State Committee of the USSR on Science and Technology. In
another example of the hastiness with which the decree. was
drafted, the Committee is called upon to conduct a radical
restructuring in the area of invention, but no guidelines are
given on how this is to be done. In the mew Decree., as in the
1966 Statute,-the Committee-is given the responsibility to
involve scientific and technical societies and the All-Union
Society of Inventors and Innovators in the development of
technology. The new decree adds a duty tor the Committee to
involve members of these societies in planning, perhaps
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reflecting the greater attention given to the All-Union Society
in recent legislation.
3. Ministries
With the creation of super-ministries on the one hand and
the granting of new powers to subordinateenterprises on the
other, the administrative powers of the economic ministries are
to be correspondingly reduced, according to a 1987 deCree.39 A
new Statute on the USSR Ministry is to be issued reflecting the
new role of the ministry. Ministries are no longer to set annual
plans for subordinate enterprises, but rather are to set long
term, stable norms. They are to develop wholesale trade as
substitute for some Of the previous area of planned supply.
At the same time, in connection with the introduction of
greater freedom for lower level enterprises, the ministries are
given a new task, to prevent abuse of thisfreedom, by
counteracting monopolistic tendencies and
4. ,Republic Organizations
The 1987 economic reform legislation
concentrate
services to
Enterprises
practices.
ordered republics to
their production efforts on consumer goods and
meet the needs of the local population.40
in these areas are to be transferred from USSR to
republic jurisdiction, or in some cases to local jurisdiction..
C. Creation of New Intermediate Level Organizations
1. Introduction
New legislation deals with the legal status of three types
of intermediate level organizations between the ministry and
a
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operating organization levels: branch councils, state production
associations, and cooperative bodies. The branch councils are
new, but probably insignificant. The state production
associations, on paper at least, represent a major new
development. The cooperative bodies are old in some cases, new
in others.
2. Branch Councils
A decree dated July 17, 1987,41 ordered the creation of
"branch councils" (sovety otraslei) within ministries and
departments. The decree calls for the drafting of a Statute on
the Branch Council. The branch council would be made of
enterprise directors, outstanding workers, trade union
representatives, scholars, and specialists. It would meet at
least twice a year. However, it would have no power other than
to make recommendations, thus it is unlikely that the new
institution will have any significant effect.
3. State Production Associations
A decree dated July 17, 1987,42 called for the creation of a
new type of organization, the State Production Association
(Gosudarstvennoe proizvodsvennoe ob"edinenie), to act as an
intermediate level between enterprises and associations on the
one hand and ministries or governmental bodies on the other. The
Central Committee and the Council of Ministers adopted a statute
on the State Production Association on September 23, 1987.43
Ever since the 1930s, there have been intermediate organizations
between the ministries and the operating enterprises. In the
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past, the executives of these organizations have been appointed
by the top officials of the ministry, who have had the power to
hire and fire them at will. The new legislation preserves many
of the functions of the old intermediate economic administrative
organizations, but provides for a very different organizational
structure. It provides that a "Council of Directors" is the
highest administrative body. This Council consists of the heads
of all the independent organizations that are included in the
State Production Organization. The State Production Organization
has a general director, chosen in a manner parallel to that of
the head of a state enterprise. The general director is elected
for five years by the Council of Directors, subject to
confirmation by the superior organization. The general director
may be discharged before his term is up by the superior agency on
the basis of a decision of the Council of Directors.
To the author of the present report, the administrative
structure of the State Production Associations raises serious
economic issues. The Decree calls for wide usage of these
Associations as intermediate administrative links both on an
industry and a regional basis. It is too early to know how
widely this institution will be used or if the Council of
Directors will really have the powers given to it on paper. The
administrative structure of the Associations would appear to be
incompatible with either a planned or a market economy. The
history of state planning shows that enterprises have always
sought "easy to fulfill" plans and that a main function of
B
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intermediate administrative organizations below the ministry
level and above the enterprise level has been to know the real
capacities of enterprises and to set plans that would force
enterprises to produce up to their maximum potential. Presumably
a Council of Directors would set themselves plans that were easy
to fulfill. In a market economy, to quote Adam Smith, "People of
the same trade seldom meet together, even for merriment and
diversion, but the conversation ends in a conspiracy against the
public, or in some contrivance to raise prices." Since a typical
production association is supposed to unite the manufacturers in
a particular industry, from the market economy viewpoint the
Council of Directors looks like the ideal administrative
structure for a cartel.
Soviet history tends to contradict economic theory and
suggest that the change in administrative structure may have no
effect whatsoever. Essentially what has been done is to apply to
industry a structure something like what has existed since the
1920s for the "consumer cooperative" ("potrebitel'skaia
kooperatsia") that handles various administrative functions in
trade in rural areas. This system has always been organized, in
theory, from the bottom up and has always been run in practice
from the top down.
4. Cooperative Structures
The legal concept of a cooperative allows practical
flexibility while preserving ideological consistency. According
to orthodox Soviet Marxism, the Soviet Union has reached the
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stage of where all basic means of production are socially owned.
There are two major categories of socialist ownership in Soviet
law: state ownership and cooperative ownership. The later
category is wonderfully flexible in practice, allowing the
authorities to shift between de facto private control and de
facto government control while maintaining a myth that they are
(or are not) moving toward socialism. This use of cooperatives
started in the 1920s, when "Tsentrosoiuz," purportedly a union of
agricultural cooperatives, was formed to allow what was in fact
state trading in grain in foreign countries that were resistant
to trading with official Soviet state agencies. The collective
farm as a form of cooperative allowed Stalin to maintain an
official myth that farmers were voluntarily cooperating, when in
fact their farms were being seized and they were being forced
into organizations under full state control. "Housing
cooperatives" and "garage cooperatives" allowed a shift from
public to private housing in urban areas while maintaining a myth
of socialized housing. Most recently, the "cooperative"
restaurants and other business allowed under Gorbachev have made
possible a de facto restoration of capitalist business in some
areas while pretending that it is still socialist. As a result
of this history, the category of cooperative ownership includes
some very different types of organizations, with very different
administrative structures. The new Draft Law on the
Cooperative44 is an attempt to combine these cooperatives under a
a
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single legal umbrella, with a standardized administrative
structure.
As its model, the law takes two existing administrative
structures, that of the consumer cooperative ("potrebitel'skaia
kooperatsia") network and that of the system of collective farm
councils. The consumer cooperative network is theoretically, as
mentioned above, organized from the bottom up, with each higher
level chosen by the lower levels. In fact it is operated as a
top-down state agency, with the top organization, "Tsentrosoiuz,"
giving orders down the chain of command as in an ordinary
45
economic ministry. The system of collective farm councils,
with an all-union collective farm council at the top was approved
by a 1971 decree (Ob utverzhdenii polozheniia o soiuznom sovete
kolkhozov i primernykh polozhenii o sovetakh kolkhozov soiuznoi
respubliki, avtonomnoi respubliki, kraia, oblasti i raiona, SP
SSSR, 1971, No. 12, item 90; Svod zakonov SSSR, 7.287.) Unlike
the consumer cooperative structure, the collective farm council
structure does not appear to do anything. Instead, collective
farms are run, top down, by a system with the USSR State Agro-
Industry (Gosagroprom) Committee at the top, through the local
agro-industry administrative organizations. There is no national
structure at all for housing cooperatives or the new small-
business cooperatives--both are subject to supervision by local
governments.
The Draft Law on the Cooperative envisions a pattern of
cooperative hierarchy similar to that of the consumer
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cooperatives and the collective farm council structure, but run
from the bottom up. Article 14 of the Draft Law provides that
cooperatives may form "unions" (soiuzy) or "associations"
(ob"edineniia) on "strictly voluntary bases." These unions or
associations may be organized by type of activity or on a
territorial basis. They would be formed at congresses or
meetings of delegates or agents of cooperatives. The law
specifies the basic purposes of these unions or associations in
extremely vague language, such as "the development of
recommendations on the fullest use of reserves and
possibilities," "the study of the state and prospects for the
development of the market," "representing the interests [of the
cooperatives] before the appropriate state and other agencies,"
"rendering necessary support in the improvement of production,
the introduction of the achievements of scientific and technical
progress .
These unions of cooperatives would be, according to the law,
remarkably free of legal controls. Their charters would not have
to be registered with any government agency. They could own the
property necessary for their activities. Their sources of
support would be payments from the income of their members and
income from their own economic activity.
The Draft Law raises many questions but provides few answers
about the role of these unions. Will there be any, change in the
current arrangements for the administration of consumer
cooperatives and collective farms, both of which in theory are
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already in accordance with the new law, but in practice are
completely contrary to its spirit? Is there really any need to
form a hierarchy above the housing cooperatives? What would be
the function of a hierarchy above the business cooperatives?
It is this last question that creates the greatest
possibility for struggle between proponents of different
directions for the administration of the Soviet economy. One
possibility could be to continue the present policy under which
the business cooperatives are small and lack any organizational
structure. Another would be to allow the business cooperatives
to unite in an organization that would do what the Draft Statute
suggests, namely coordinate their operations and protect their
interests. The problem with this approach is that it could allow
the businesses to engage in coordinated monopolistic practices.
A third approach would be to force the formation of the
hierarchical structure provided by the Draft Law and then to
follow the example of the consumer cooperative system by using
this organization to exert power from the top and thus "tame" the
cooperatives. Although the draft law says that membership in
organizations of cooperatives is voluntary, it could prove in
practice to be no more voluntary than membership in collective
farms, which is also theoretically voluntary. A simple means to
compel membership would be for state authorities to sell supplies
to cooperatives only through the hierarchy.
A major difference between the status of business
cooperatives and collective farms under the draft law is found ip
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their relation to the state planning system. Collective farms
are required by current law and would be required by the Draft
Law to obey planning tasks assigned to them by agricultural
planning agencies. Cooperatives, under the Draft Law, may seek,
but are not required, to seek plan assignments in the form of
state orders. Cooperatives that accept state orders would get
the right to purchase necessary raw materials through the state
planning system.
D. Increasing the Powers of Bottom Level Organizations
1. Introduction
A major theme of the legislation of recent years has been in
increasing the area of discretionary authority of the economic
operating units at the bottom level of the economy, while
concomitantly reducing the administrative authority of superior
agencies. This is reflected in the new Law on the State
Enterprise. The Draft Law on the Cooperative provides the legal
basis for a new type of organization that would start out its
existence free from the detailed administrative controls that
have constrained enterprise initiative.
2. Enterprises
The new law on the Enterprise transfers many decisions on
planning and employee compensation from superior agencies to the
enterprise itself. Superior agencies will only be able to plan
part of the production of an enterprise, by the issuance of
"state orders" instead of the former planned tasks. Annual plans
are supposed to be drawn up by the enterprise, rather than
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dictated from above. The rules for sharing profits with superior
agencies are supposed to be set on a long term stable basis, to
prevent superior enterprises from confiscating unexpected profits
and thereby discouraging initiatives. No limits are to be set on
the maximum pay of employees. If enterprises really obtain all
these powers, the administrative authority of superior bodies
will be substantially reduced, with a corresponding increase in
enterprise discretion. The basic problem is the doubt of many
Soviet officials that an appropriate set of incentives is in
place which would lead the newly freed enterprises to act in the
public interest.
3. Cooperatives
A series of decrees in 1987 authorized the creation of a
number of new types of cooperative organizations: food service
and preparation,46, consumer goods production,47, consumer
services,48 and recycling.48 Further legislation provided
avenues for sale of goods produced by cooperatives.50 and for
some minor changes in the "consumer cooperative" system that
markets agricultural productions and sells consumer goods in farm
areas.51
These statutes granted a great deal of discretion to the new
?types of cooperatives, in particular freeing them from any
obligation to perform planned tasks or state orders and from any
limit on employee compensation. The new Draft Law on the
Cooperative generalizes from the statutes, authorizing
cooperatives to be formed in all areas of the economy. It cuts.
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back on effective powers in the area of employee compensation by
indicating that there will be a progressive income tax on
earnings.52
V. Strengthening Judicial Review of Administrative Action
A. Introduction
Opportunities for judicial review of administrative action
have always been weak in the USSR. The result has been that
intermediate administrative organizations have often been able to
frustrate the policies of higher levels of the system, since the
operative agencies and individuals on the bottom of the pyramid
had no effective way to challenge illegal decisions of the
intermediate organizations. Major changes in the scope of
judicial review law under Gorbachev are designed curb the power
of intermediate agencies to frustrate centrally-decreed policies,
by allowing those on the bottom level of the system to secure
judicial review of the legality of the actions of these agencies.
There are three types of potential plaintiffs in these court
actions: state enterprises (or associations), cooperatives, and
individual citizens. There are two types of potential
relationships between the plaintiffs and the defendants. The
plaintiff may be subordinate to the defendant, as in the case of
an enterprise dissatisfied with orders issued by its ministry or
an employee with a grievance against his employer. The plaintiff
may be subject by law to the regulatory power of the defendant,
as in the case of a cooperative or private business-owner neediro
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a license from local government authorities, or an enterprise
subject to regulations issued by an environmental protection
agency. Recent changes in administrative legislation have
promised increased judicial review in a number, but far from all
of the possible relationships that can arise in Soviet
administrative law. Because the changes in legislation are so
new (in the case of cooperatives, they are still just in draft
form), it is too early to know exactly how they will work in
practice.
B. Judicial Review of Actions of Superior Agencies
1. Introduction
State enterprises always are subordinate to some superior
agency; low level government administrative agencies and
institutions are subordinate to higher government administrative
agencies, only cooperatives some cooperatives are formally
subordinate to a superior agency; individual citizens are
subordinate to their employers in their labor relationship. The
discussion below will concentrate on the rights of enterprises
and cooperatives against their superiors, the main area in which
change has taken place. Institutions, such as universities, have
not yet been granted power to sue their administrative superiors.
Cooperatives cannot sue administrative superiors because they do
not have any. Issues between employer and employee are generally
the subject of labor law, and which will be the topic of a
separate report to follow this report on Soviet Administrative
Law. Therefore they will not be discussed in detail here.
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2. Rights of Enterprises to Sue Their Superiors
The new legislation provides new enforcement mechanisms
designed to let lower level organizations enforce their increased
powers against the decreased authority of superior agencies.
Past "reforms" have failed because reallocations of power on
paper did not work in practice due to the lack of enforcement
regulations. This lack allowed the ministries to raise
themselves by their own bootstraps by issuing regulations giving
back to themselves the powers that the reform legislation had
taken away. Soviet legal scholars have suggested that the
problem can be avoided this time by giving the lower level
organizations the right to sue to enforce their rights.
Generally, under Soviet law, an organization can only appeal
adverse administrative decisions up through the administrative
chain of command. Thus, for instance, if a branch administration
of a ministry issued a regulation or order injurious to an
enterprise subordinate to the ministry, the director of the
enterprise could go to the minister and, if dissatisfied, to the
Council of Ministers. The director could also appeal informally
to the Party Secretariat. What the director could not do was to
bring the issue before a court or arbitration tribunal. Several
factors undoubtedly made these channels of appeal ineffective:
the tendency of superiors to back up subordinates,,the limits on
the time available to top officials for consideration of appeals,
and the enterprise director's fear of retribution by an angered
superior.
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The new legislation provides broad rights for lower level
organizations to sue superior agencies. The key questions, which
can only be answered by practice, are if the existence of the
right to sue will deter superior agencies from acting illegally
with respect to subordinates and if the subordinate agencies will
dare to, use this right. While the new procedures for
adjudication of disputes can lesson the problems of superiors'
lack of time and tendency to back up subordinates, they will
stiff face the problems of the danger of retribution and of the
shortage of lawyers. Any enterprise manager who regularly sues
his superiors is likely to wonder about the effect on his future
career.- The Soviet Union does not have a surplus of lawyers.
Large
legal
areas
Soviet organizations in urban areas have capable staff
counsel. Smaller
enterprises and
often have no staff legal counsel
outside counsel experienced in economic
enterprises in rural'
and no easy access to
litigation.
Since state enterprises have only enjoyed the new rights to
sue since January 1, it is too early to tell how effective the
right will be. It is, however, instructive to look at the
published report of one of the first such cases.53 An enterprise
in Tyumen received new facilities to expand its capacity to
manufacture batteries. The enterprise estimated that it could
make 400,000 batteries during 1988; the Ministry of the
Electrical Engineering Industry issued a state order for the
production of 600,000 batteries. The enterprise would be subject
to penalties of six million rubles if it fell 200,000 batteries,
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short of the amount decreed by the state order. On January 19,
1988, the enterprise filed a complaint in State Arbitration
seeking a reduction in its state order to 400,000 batteries.
It is evident from this case that "perestroika" has not
reached the battery industry. The output of the enterprise
appears to be 100% planned, under the new name of a "state order"
rather than the old.,name of a "production plan." Thus the
enterprise is trying to use the new right to sue, not to enforce
its rights under the "perestroika," but rather to deal with a
problem long typical of Soviet planning, the tension between
enterprise managers who understate their production potential to
secure low plans that will be easy to fulfill and ministerial
authorities who seek high plans to increase the. production of
their branch of the economy. The newspaper report states that "a
commission from Moscow--including Ministry experts and research
scientists" had examined the situation and supported the
enterprise's position. The newspaper report did not make clear
whether this commission was sent on the initiative of the
Ministry or of State Arbitration. Since State Arbitration lacks
real fact-finding ability it must rely on the opinion of experts
such as this commission. Yet this is the same sort of commission
that a minister might appoint to advise him on a problem of this
type. What this case suggests is that as long as the old
planning procedures remain in effect, the new right to sue really
means just an improvetent of the bargaining position of lower
level enterprises in receiving easier plans. This situation is,
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not compatible with the principle announced by Gorbachev of
"uskorenie" or "speed-up" of the economy.
It is not clear where the lawyers or adjudicators could be
found to support a massive use of the?remedy of suits against
subordinates by superior. The number of new lawyers for the next
five years is already determined by the low existing law school
enrollments. These new additions to the bar will be largely
offset by the death and retirement of senior attorneys.
The 1987 Law on the State Enterprise54 defines a new right
for the enterprise, the right to sue a superior agency. The
right as expressed in the enterprise law is considerably stronger
than it was in the discussion draft of the law. Article 9 of the
new law provides:
A ministry, department, or other superior agency may
give an enterprise orders only in accordance with its
competence as established by legislation. If a ministry,
department, or other superior agency issues an act not in
accord with its competence, or in violation of the
requirements of legislation, the enterprise shall have the
right to bring suit in State Arbitration to have the act
declared invalid in whole or in part.
Damages caused to the enterprise as a result of the
fulfillment of the order of a superior agency that violates
the rights of the enterprise or as the result of the
improper fulfillment by the superior agency of its
obligations with respect to the enterprise are subject to
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compensation by the agency. Disputes on compensation shall
be decided by State Arbitration.
In the published discussion draft of the enterprise statute,
this language Was considerably weaker155
The ministry, department, or other superior agency may
give an enterprise orders only in accordance with its
competence established by legislation.
Damages caused to the enterprise as the result of
fulfilling the order of a superior agency violating the
rights of the enterprise are subject to compensation by the
agency which gave the order. Disputes on the question of
compensation for damage shall be decided by State
Arbitration.
It is important that the new legislation gives jurisdiction
over disputes between an enterprise and its superior ministry to
State Arbitration rather than departmental arbitration. Under
Soviet law, State Arbitration has had jurisdiction over disputes
between enterprises subordinate to different ministries, while
each ministry has had its own arbitration system for deciding
disputes between enterprises subordinate to itself.56 If the
arbitration system of a ministry, whose personnel are appointed
by the ministry, were to have jurisdiction over disputes between
an enterprise and the ministry, the enterprise could not expect
an independent decision. Therefore the enterprise law provides.
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for the decision to be made by State Arbitration, which is an
organization completely independent of the ministries.
The legislation gives two basic powers to State Arbitration:
to declare an administrative act invalid and to award damages.
From the language of the new legislation, it would appear that an
act of the superior agency declared invalid by State Arbitration
in a dispute involving a particular enterprise would thereafter
be unenforceable against any subordinate enterprise. Damages
could be huge, indeed so huge it is not clear how the a ministry
could pay them. Ministries as such do not have significant
physical or cash assets even if they manage huge subordinate
enterprises. The ministry is a collection of bureaucrats in an
office building in Moscow. Under Soviet finance law, payment of
salaries takes precedence over all other claims. The office
building belongs to the state and cannot be attached under Soviet
law. Various other funds of the Ministry, such as those for
encouragement of innovation, are not subject to attachment. A
major claim, such as the six million rubles mentioned in the
Tyumen battery case, could hardly be paid out of the Ministry's
petty cash fund that it uses to buy paper clips and similar
office supplies.
The fear of retribution by superior agencies will
undoubtedly dampen the enthusiasm of enterprise executives for
suing those agencies. Under the law as it stood before the new
Law on the State Enterprise went into effect, superior agencies
could discharge enterprise managers virtually at will. While
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Soviet labor law provided ordinary workers with the right to go
to court to appeal arbitrary discharge, it denied this right to
executives. This law has been modified by the new Law on the
State Enterprise, but the threat of retribution by the superior
agency has by no means been eliminated. Under the new law57, the
"labor collective" of the enterprise elects the head of the
enterprise, subject to confirmation by the superior agency, for a
term of five years. The superior agency has the power to remove
the head of the enterprise "on the basis of a representation of
the labor collective." Even if the head of an enterprise assumed
that his "labor collective" would resist pressure from the
superior agency to ask that he be fired, the head would still
have to face the danger that the superior agency would refuse to
consent to his reappointment.
3. Rights of Cooperatives to Sue Superior Agencies
The right of a cooperative to sue superior cooperative
agencies in case of an illegal order are weaker than those of a
state enterprise. The Draft Law on the Cooperative provides:55
Interference in the economic or other activity of the
cooperative on the part of state and superior cooperative
agencies is not allowed with the exception of cases provided
by the present Law.
Damages caused to a cooperative as the result of
fulfillment of the orders of state and superior cooperative
agencies violating the rights of the cooperative, and also.
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as the result of the improper fulfillment by superior
cooperative agencies of their obligations with respect to
the cooperative shall be subject to compensation by these
agencies. Disputes over compensation for damages shall be
decided by a court or arbitration.
For no clear reason, this language reverts back to the somewhat
weaker language of the draft enterprise law, leaving out the
power to declare an administrative act invalid that the Law on
the State Enterprise granted to State Arbitration. The
jurisdictional provision is also weaker, "arbitration" rather
than "State Arbitration" as found in the Enterprise Law. This
would mean that disputes between 'cooperatives and a higher level
agency in a cooperative system could be decided by an arbitration
tribunal subordinate to that higher level agency, and in fact
subject to the influence of that agency. The weak features of
this Article of the Draft Law on the Cooperative seem out of
harmony with the general trend of changes in administrative law.
It is quite possible that the weakness will be recognized and
corrected in the final version of the Law on the Cooperative.
C. Judicial Review of Acts of Regulatory Agencies
1. Introduction
All types of entities in the economy--enterprises,
cooperatives, and individual citizens are subject to the
jurisdiction of regulatory agencies--they must obey environmental
control regulations, for instance. The law as it is developing.
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Gorbachev differs, for no clear reason, in the way in treats with
the question of judicial review of acts of regulatory agencies.
State enterprises have no clear right to sue regulatory agencies
or their officials. Cooperatives have broad powers to secure
judicial review of the action of regulatory agencies. Citizens
can sue officials who take illegal action, but have no remedy for
illegal action of collegiate bodies, except in certain situations
covered by specific legislation.
2. Right of Enterprises to Sue Regulatory Agencies.
The New Law on the State Enterprise gives the enterprise a
clear right to judicial review of action by "superior" agencies,
but is silent on its right
This silence would seem to
instance, have no right to
environmental,
3.
The Draft
to review of action of other agencies.
suggest that an
judicial review
enterprise, would,
of actions of
for
financial, and other regulatory agencies.
Right of Cooperatives to Sue Regulatory Agencies
Law on the Cooperative59 like the Law the State
-Enterprise, provides the right to sue state agencies. Like a
state enterprise, a cooperative has the right to sue in case of
an illegal order of a superior agency, though the remedies of the
cooperative are significantly more limited. Would-be founders of
cooperatives are given the right to sue authorities to force them
to approve its charter and cooperatives may sue to block their
dissolution. These rights have no parallel for state
enterprises, whose creation and dissolution is at the full
discretion of administrative authorities. Because the state
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agencies that regulate cooperatives lack the legal power to
remove a cooperative's management and are limited in their power
to dissolve a cooperative, a cooperative's management may be more
willing to sue in practice than the management of a state
enterprise.
a. Suit in Case of Illegal Order by a State
Agency
Cooperatives are never subordinated to state agencies;
therefore any suit by a cooperative against a state agency is a
suit by the cooperative against an outside regulatory agency, not
against a superior agency. While, as mentioned above, the Draft
Law on the Cooperative gives less rights to the cooperative than
the Law on the State Enterprise grants to the state enterprise
with respect to orders of superior agencies, the Draft Law on the
Cooperative gives more clearly defined rights to the cooperative
with respect to orders of state agencies outside the chain of
command than the Law on the State Enterprise does for
enterprises. The difference may well reflect the haste in which
the Draft Law on the Cooperative was prepared more than any
fundamental policy decision. Therefore the difference may not
survive in the final version of the Law on the Cooperative.
The Draft Law on the Cooperative provides:60
Interference in the economic or other activity of the
cooperative on the part of state and superior cooperative
agencies is not allowed with the exception of cases provided
by the present Law.
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Damages caused to a cooperative as the result of
fulfillment of the orders of state and superior cooperative
agencies violating the rights of the cooperative, and also
as the result of the improper fulfillment by superior
cooperative agencies of their obligations with respect to
the cooperative shall be subject to compensation by these
agencies. Disputes over compensation for damages shall be
decided by a court or arbitration.
Note the phrase "state and superior cooperative agencies" with
the adjective "superior" modifying only "cooperative" and not
state. This terminology'appears to give cooperatives what the
Law on the State Enterprise did not give to state enterprises,
namely the clear general right to sue state agencies outside the
chain of command.
b. 'Suit to Block Dissolution
The cooperative also has the right to go to court in case
the government tries to dissolve it.61'
The activity of the cooperative may also be terminated
by decision of the executive committee of the Soviet of
people's deputies in cases when it contradicts the law or
the charter or in case of the Cooperative is operating at a
loss or is unable to pay its debts. A decision to terminate
the activity of a cooperative may be appealed to the
executive committee of the superior Soviet of people's
deputies, the Council of Ministers of an autonomous
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republic, or the Council of Ministers of a union republic
not divided into provinces or to a court.
4. Right of Citizens to Sue
a. Right to Sue Where Decisions are Made by
Individual Administrators
The most-publicized item of legislation in the area of
administrative law in recent years was the 1987 law on the rights
of citizens to ?sue administrative officials who had infringed
upon their rights.62 The law as passed was highly disappointing
to many Soviet and foreign observers, because it was narrowly
drawn so as provide relatively little expansion of the rights of
Soviet citizens to sue for their rights. However, the edict on
psychiatric commitment adopted early in 198763 suggests that the
law on the right to sue officials may gradually be given more
A
significance by future legislation.
The principle of the right of citizens to sue officials must
be credited to Brezhnev, for it was introduced in his 1977
Constitution, which provided:
Article 58. Citizens of the USSR have the right to
appeal the actions of officials and of state and social
organizations. The appeals shall be considered by the
procedure and within the periods established by law.
Actions of officials done in violation of law,
exceeding authority, or infringing upon the rights of
citizens may be appealed to court by the procedure
established by law.
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Citizens of the USSR have the right to compensation for
damages caused by the illegal acts of state and social
organizations and also officials in the fulfillment of their
service obligations.
Almost a decade passed from the time the Constitution was adopted
without the enactment of the law called for by Paragraph 2 of
Article 58 to establish the procedure for appealing illegal
actions of officials to court. Soviet legal scholars wrote
extensively about the new law, debating the form it should take.
64 The situation became increasingly embarrassing for the Soviet
authorities. Finally, in the summer of 1986, First Secretary
Gorbachev promised in a speech that the law would be passed.65
Preparation of the law was included in the legislative drafting
plan adopted in the fall of 1986.66. A draft law was prepared by
the Ministry of Justice, the Supreme Court, and the Ministry of
Internal Affairs. By a decree of May 15, 1987, the Supreme
Soviet ordered that the Commissions on Legislative Proposals of
the Soviet of the Union and the Soviet of Nationalities consider
the draft and report it out to the Supreme Soviet67 The Supreme
Soviet adopted the law in June 1987,68 but in a manner that
suggests some policy disarray. The deputies were unusually sharp
in their criticism of the draft law. The accompanying decree on
the provision for putting the law in force contained the
following unusual provision:69
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2. The Presidium of the Supreme Soviet of the USSR
and the Commissions on Legislative Proposals of the Council
of the Union and the Council of Nationalities shall consider
the proposals made by deputies in the course of
consideration of the draft of the USSR Law on the Procedure
for Appealing to Court Unlawful Actions of Officials
Infringing on the Rights of Citizens, and shall report on
the results to the next session of the Supreme Soviet.
Breaking the pre-glasnost' Soviet practice of showing respect for
newly enacted legislation, a leading legal commentator published
an extremely critical article about the new law the press only
two months after the law had been adopted."
At the next session of the Supreme Soviet, the law was
amended, but the amendments did not go very far in improving the
position of the aggrieved citizen.71 Even as amended, however,
the law grants only rather limited new rights to citizens.
Consider some of the key sections of the law.
Art. 1. The Right to Bring an Appeal in Court
A citizen shall have the right to bring an appeal in
court if he considers that the actions of an official have
infringed upon his rights.
Actions may be appealed to court that are done
individually ("edinolichno") by officials in their own name
or in the name of the organization represented.
This Article of the law was promptly criticized for the fact that
it denied citizens the chance to get court review of actions of ,
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collective bodies. The restriction to acts of individual
officials is arguably in accordance with the language of Article
58 of the Constitution quoted above. Note the difference between
the language in the first paragraph of Article 58, "the actions
of officials and of state and social organizations" and the
language of the second paragraph, "Actions of officials." A
Soviet critic pointed out that the most common areas of citizen
complaint were unfairness in housing and pension matters, and
that such complaints would not be subject to judicial review,
because it was made by a collective body.72 The same author
pointed out that the status of denial of residence permits was
left unclear by the law, since such denials were sometimes made
by individual officials and sometimes by collective bodies. This
observation raises the possibility that some agencies may try to
insulate the decisions of their officials from suit by changing
their internal procedures so that decisions adversely affecting
citizens, instead of being made by officials are formally made by
collective bodies on the recommendation of officials.
On the other hand, the new law provides a convenient
technique for areas in which the leadership decides it is
expedient to. expand judicial review of administrative action. An
example is provided by the 1988 Statute on the Conditions and
Procedures for the Provision of Psychiatric Assistance. This
legislation provides for compulsory commitment to a mental
institution not by the decision of a commission of psychiatrists,
but by decision of a "chief psychiatrist" on the advice of a
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commission. Thus the formal basis for commitment will be the
decision of a single official. The new legislation explicitly
provides that the decision of the chief psychiatrist may be
contested in court under the procedure established by the 1987
Law on Contesting the Action of Officials. This legislation on
psychiatry provides a prototype that could be used in other areas
to expand the right of citizens to contest government decisions,
without taking the more daring step of amending the 1987 law to
cover collegial as well as individual action.
Further criticism73 was aimed at the explicit exemptions
provided by Article 3 of the law:
The following actions of officials may not be contested
in court in accordance with the present law: those actions
for which a different procedure for appeal has been provided
by criminal procedure or civil procedure legislation, by
legislation on the procedure for considering labor disputes,
on discoveries, inventions, and innovation proposals, on
administrative violations, on individual labor activity, and
by other legislation of the USSR and the union republics;
and also legislation connected with ensuring the defense
capability of the country and state security.
Consider each of these.
Criminal and civil procedure legislation already provides
carefully defined channels for appeal of criminal and civil court
cases. Thus the new law is entirely justified in creating an
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exemption for these two areas, where there are already adequate
appeal procedures in place. The Law on Administrative Violations
(discussed below) allows review by a judge, but without the full
possibilities of, for instance, the criminal appellate system.
However, given the minor nature of most administrative
violations, the limited review available would probably seem
adequate to most Soviet critics.
The legislation on discoveries, inventions, and innovation
proposals limits the possibility of appeal to the courts because
of the courts' lack of expertise on the technical issues
involved. Some issues, such as whether or not a claimant was in
fact a co-inventor can be considered by the court. Other, more
technical issues, such as whether or not the claimed invention is
really a significant advance over preexisting technology, are
decided by a highly specialized and skilled administrative agency
with no appeal to the courts. This exception is likely to be
accepted without much complaint by Soviet commentators.
In the discussion preceding the law, all Soviet commentators
had agreed that it should contain exclusions for national defense
and state security. Thus these exceptions are no surprise. They
do eliminate, however, any hope that a would-be emigrant could
attack in court a finding that he should be barred from
emigration because of exposure to state secrets.
The exception relating to individual labor activity
conflicts with current economic policy. This exception could be
eliminated by future legislation if the current favorable 8
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attitude toward individual labor activity persists. The areas
allowed for "individual labor activity" (i.e., private business
activity) were expanded by 1986 legislation.74 Most types of
individual labor activity require a license. According to press
reports, local authorities in many areas have blocked individuals
from engaging in perfectly legal types of individual labor
activity by denying them licenses. The current legislation
allows an appeal only through political rather than judicial
channels:75
A decision to refuse to issue permission to engage in
individual labor activity may be appealed to the executive
committee of the superior Soviet of people's deputies,
Autonomous Republic Council of Ministers, or Union Republic
Council of Ministers (for a republic not divided into
provinces).
Since the higher political agencies are probably more likely to
back up their subordinate organizations than courts would be,
this limitation on appeals makes it possible for local
authorities to frustrate the national economic policy of liberal
allowance of licenses for small private business operations.
Thus it would not be surprising to see the law amended in such a
way as to allow judicial review.
The most controversial exception is that for labor disputes.
The controversy arises because of the fact that Soviet labor law
provides two different procedures for contesting dismissal, one
for ordinary employees and the other for executives. Ordinary .
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employees may Contest their dismissal in court, and the courts
have been strict in requiring the reinstatement of illegally-
dismissed employees. Many executives, on the other hand, may
only appeal their dismissal to higher administrative agencies in
the chain of' command. Appeals of dismissals are governed by the
Statute on the Procedure for Consideration of Labor Disputes 76
Art. 41 of this Statute, provides that those employees whose jobs
are listed in List No. 1 in Appendix 1 to the Statute,, may not
appeal dismissals to the courts. List No. 1 includes such
executives as directors and deputy directors of enterprises,
chief engineers, legal counsel, and chief accountants, heads of
shops, divisions, and departments, and their deputies.
This difference in the position.of ordinary employees and
executives is neither surprising nor unique to the Soviet Union.
In unionized industries in the United States for instance,
ordinary workers are,given elaborate protection against
unjustified discharge by collective bargaining contracts, while
executives may often be fired much more freely. The difference
fits in well with the Soviet "nomenklatura" system which gives
the Party a major role in the hiring and firing of executives.
On the other hand there is- a major distinction The Secretary of
Transportation in the United States cannot fire the head of an
airline or trucking company even if that company makes a nuisance
of itself by repeatedly suing the Department of Transportation.
In the Soviet Union-, the minister of an economic ministry has
long had effective power to fire subordinate officials and the,
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head of an enterprise has had the power to fire other enterprise
executives (except the chief accountant and legal counsel, who
perform watchdog functions and so can be fired only by higher
authorities.) As discussed above, some of this power of
arbitrary discharge may be.limited by the new enterprise
legislation, which provides for the election of certain
management officials and for their removal only with the consent
of the relevant electorate.
The need for the exception to the law on suing officials
really reflects the fact that the Soviet legislation has used
procedural law to implement a substantive policy. The
substantive policy--that higher level executives can dismiss
lower level executives if dissatisfied with their performance--
may well be necessary to efficient operation of any modern
economic organizations. However, instead of implementing this
policy as a substantive one, Soviet law has purported to grant
executives very broad substantive rights to job tenure, but then
has defeated them by denying effective means of enforcement. A
change in the appeals procedures, allowing executives to go to
court over discharge could only realistically be made if
accompanied by a significant broadening of the grounds upon which
superior executives could legally discharge their subordinates.
Article 4 of the law as originally drafted required that an
administrative appeal be made before application to a court.
An appeal may be made in court only after the filing by
the citizen of an appeal against the actions of the official
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with the agency or official superior in the chain of
command.
A similar requirement of "exhaustion of administrative remedies"
is found in the administrative law of many countries of the
world. However, such a requirement does present an obvious
bureaucratic obstacle to the complainant. This requirement of
administrative appeal before going to court was eliminated by the
October 1987 amendments to the law. As amended, Article 4
provides:
An appeal against actions of an official, at the
discretion ?of the citizen, may be made in court after
appealing these actions to he higher official or agency in
the chain of command or directly to the court.
In some instances, it may still be to the advantage of the
citizen to go to the higher official or higher agency rather than
to a court. A court can only reverse illegal actions of
officials. A higher official or agency might be persuaded to
reverse not only illegal actions, but also actions that were
legal, but which were unduly burdensome on the citizen involved
or were contrary to the spirit of government policies.
Article 9 of the law was also eventually amended. The
original version of Article 9 provided:
The decision of a court on a complaint is not subject
to appeal, but may be protested by way of supervision by a
procurator.
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The filing of a protest shall suspend the execution of
the decision.
The amendment changed Article 9 to read as follows:
The decision of the court on a complaint may be
appealed and protested in accordance with the rules of civil
court procedure.
The filing of a protest shall suspend the execution of
the decision.
The amendment to Article 9 broadens the rights of the
citizen, but also increases the rights of the official whose
decision the citizen is contending. Under the original Article
9, if a citizen won in the trial court, his victory was final,
unless the Procuracy decided to intervene. Under the new law,
the citizen gains the right to appeal an unfavorable decision in
the trial court, but now runs the risk that a favorable decision
in trial court will be appealed by the official sued or will be
reversed on protest of a higher court officer. (Civil procedure
legislation allows officers of higher courts to "protest"
decisions of lower courts and thus to bring the decisions before
the higher court for review, even if the decision has not been
appealed by either of the parties or protested by the
Procuracy.77) Overall this change is highly advantageous to the
citizen, because the higher the court that considers the case,
the less likely it will be to be subject to the political
influence of the local official being sued.
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b. Right to Sue Administrative Agencies
(1) Introduction
As already mentioned, some Soviet commentators were
disappointed by the fact that the law on the right to sue for
illegal acts of officials did not extend to illegal acts of
administrative agencies. Legislation has long given the right to
sue administrative agencies but only in certain specified areas.
One important additional area would be added if the Draft Law on
the Cooperative is adopted--the right to sue to force
registration of a cooperative.
(2) Suit to Force Registration of a
Cooperative
As mentioned above, under the draft statute, any group of
three or more citizens has the right to form a cooperative. The
group must present the draft charter of the cooperative to the
local Soviet for registration. (The would-be founders would not
have to look far to find legal help in preparing a charter. An
advertisement has been appearing regularly in the advertising
pages of Vecherniaia Moskva: "ADVICE BY A LAWYER: At Law Office
No. 6 of the Moscow City Organization of Lawyers a special group
of qualified lawyers has been created for rendering citizens and
organizations legal assistance on questions of indijk7idual,
cooperative, and contract labor activity. Office hours: Tuesday
and Thursday from 3:00 p.m. to 7:00 p.m. at 5 Prospekt Mira.")
Problems under the 1987 legislation on cooperatives typically
occurred at this point. The local Soviets would often reject
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charters for no good reason. At this point the founders faced a
double legal problem. There was no legislation stating that the
local authorities had to approve every lawful proposal presented
to them. There was no way to test the rejection in court. The
new draft legislation attempts to solve both these problems:78
The charter of the cooperative shall be considered by
the executive committee of the corresponding Soviet of
people's deputies within a one month period from the day of
its presentation for registration.
The executive committee of the district, city, or urban
district Soviet of people's deputies has the right to refuse
the cooperative registration of its charter only in case the
charter contradicts legislation in force.
A refusal to register the of the cooperative may be
appealed to the executive committee of the superior Soviet
of people's deputies, the Council of Ministers of the
autonomous republic, the Council of Minsters of a union
republic not divided into provinces; or to court.
Unlike an enterprise director, who might lose his job or future
good relations if he sued his ministry, would-be founders ot a
cooperative have little to lose by suing. Newspaper reports of
the 1987 experience suggest that the local authorities would
often not mind losing such a lawsuit. They may bel afraid to take
responsibility for approving an innovative or daring cooperative
venture even though they have no real substantive objection to
it. 0
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c. Judicial Review of Administrative Agency
Regulations in Criminal Proceedings Against
Citizens
Under Soviet law, only humans/ (and not enterprises or
organizations) can commit crimes. Therefore the defendant in a
criminal case is often a private citizen. However, in a number
of instances, issues of the powers of enterprise officials are
tried under the guise of criminal prosecutions of individual
citizens. Given the delays in the courts, it may take a very
long time until the plaintiff's position is vindicated and the
illegal administrative action is overturned. Thus the temptation
may be for an official to go ahead and disobey an administrative
regulation that appears to be illegal or impossible to obey in
real economic life. The problem is that by doing so, the
official laces possible criminal prosecution for serious crimes.
In particular, if in disobeying superior orders the official
disposes of state property, he may be guilty of theft of state
property, a capital offense if over 10,000 rubles worth of
property is taken. Past judicial practice has been clear that an
official may be guilty of theft of state property even if he took
his actions solely for the public benefit as he saw it and not to
line his own pocket. The result of this practice is that more
cautibus officials will not lightly disobey.even apparently
illegal orders from superior agencies. In December, 1986, the
USSR Supreme Court freed officials from a charge of theft of
state property in a case where they had really tried to overcome,
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bureaucratic regulations which were preventing a job from getting
done by forbidding payment of the going rate for the necessary
work.79 A leading Soviet criminal law specialist published a
comment on this case in Izvestia, indicating that he hoped that
the decision would mark the start of a trend toward removing good
faith violations of administrative regulations from the criminal
courts.80
VI. Legislation on Administrative Violations
A. Introduction
Administrative law has played an important role for decades
in the control of conduct that is antisocial (for example, minor
traffic offenses), but is not so serious as to warrant the
complexities of criminal sanctions. Recent legislation has
extended the application of such administrative sanctions in such
problem areas as alcohol, drugs, prostitution, blackmarketeering,
and environmental protection. However, the new legislation is
really just a continuation of a decades-old policy of applying
administrative measures against.perceived social problems.81
A major technical legislative achievement of the early 1980s
was the codification of Soviet legislation on administrative
violations. Fundamental Principles of Legislation/of the USSR
and the Union Republics on Administrative Violations were adopted
in 1980.82 On the basis of the Fundamental Principles, each
republic adopted a Code on Administrative Violations.83 The
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final step in this-law revision process occurred in 1986 under
Gorbachev, with the-repeal and amendment of legislation
inconsistent with the new Code.84 Note that the old law was
repealed two years after the new law was passed. Soviet practice
in the case of major legislation has been to pass the new law,
appoint a study committee to study which old laws should be
repealed or amended as_a result of the new law, and then repeal
the old laws when the committee has done its work. During the
interim period, the courts and administrators have to figure out
which parts of the old laws remain valid.) This legislation
organized an area that had previously been chaotic. Rules
providing for administrative fines and penalties had ,previously
been scattered throughout Soviet legislation. There was no
statement of general principles or procedures for dealing with
administrative violations. The codification provided a statement
of general principles applicable to all violations, standard
procedures for dealing with the violations, and gathered and
organized the definition of various administrative offenses.
Since this major overhaul of the administrative violations
legislation has been accomplished successfully, there is now no
pressure any further general reform of the law of administrative
violations. Only one general change has been made; perhaps
reflecting the effects of inflation; the maximum /limits on fines
have been raised were raised. Most of the changes to the
administrative violations laws during the period 1985-1988,
however, have been additions to the codes made as part of
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campaigns against specific social problems. There have been
quite a few such additions, and no deletions from the list of
administrative offenses, suggesting an increased use of the law
on administrative violations for social control.
B. Higher Fines
May 1987 legislation raised the maximum schedule of ?fines
for administrative violations.85 The old provision had read as
follows:
Where it is necessary to increase the responsibility
for individual types of administrative violations, RSFSR
legislation may establish a fine for citizens of up to 50
rubles and for officials of up to 100 rubles; USSR
legislation may establish a fine for citizens of up to 100
rubles and for officials of up to 200 rubles.
The new legislation changed this to read:
Where it is necessary to increase the responsibility
for individual types of administrative violations, RSFSR
legislation may establish a fine for citizens of up to 50
rubles and for officials of up to 100 rubles and for
mercenary administrative violations--up to 200 rubles; USSR
legislation may establish a fine for citizens of up to 100
rubles and for officials of up to 200 rubles 4nd for
mercenary violations and violations of the legislation on
the struggle with drunkenness--a fine of up to 300 rubles.
As will appear below, not only were the limits for fines raised;
fines were raised for a number of common types of'administrativc
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offenses. There were probably two reasons for the increase in
fines. First, inflation may have rendered the earlier maximum
fines unrealistic. Second, plans for decriminalization of
certain alcohol-related offenses may have required that fairly
stiff non-criminal penalties be available for them.
C. Specific Offenses
1.
Miscellaneous
Offenses
A 1986 Decree recodified the rules providing administrative
fines for a number of minor offenses in the area of transport,
health, and safety, defining offenses in more detail, adding some
offenses, increasing the fines for most offenses. The decree
appears to be utterly devoid of political significance. It
continues the anti-smoking campaign, which had already led to
banning smoking on airplanes, by providing a five ruble fine for
smoking on subways and suburban trains and also for smoking in
no-smoking areas on other trains. Fines for riding without
tickets were increased, but still remain low--five rubles on
suburban trains and ten rubles on other trains.
2. Alcohol
1987 legislation added an Article 160-2, "Making or Storing
Strong Homebrewed Distilled Spirits Beverages Without the Purpose
of Sale."86 This was part of a package of legislation that
removed criminal liability for first offenses involving making or
storing hard liquor for personal use. Before this legislation,
home production of beer or wine was an administrative offense,
Transport,
Health and Safety
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while production of hard liquor was a criminal offense. The
legislation kept commercial production of hard liquor as a
criminal offense, created a new criminal offense of repeated non-
commercial production of hard liquor, and decriminalized the
production of hard liquor for personal use. Published statistics
of the Soviet anti-alcohol campaign and listed extraordinarily
large numbers of criminal convictions, numbers so large that the
prosecution of the cases must have taxed the resources of the
criminal justice system. Since the courts were in practice
sentencing the first offenders to fines rather than imprisonment,
the shifting of these violations from the criminal courts to the
much simpler administrative violation procedure must have seemed
the expedient thing to do.
3. Drugs
1987 Legislation added a number of new drug-related offenses
to both the criminal code and the administrative violation code.
87
The legislation appears to have had a threefold purpose:
first, to fill some gaps or loopholes in the narcotics
legislation, second, to provide a graded series of offenses so
that the punishment would better fit the violation, and third, to
encourage voluntary cooperation by drug-users with the
authorities. Added to the Criminal Code were articles on
involving minors in the non-medicinal use of medicines and other
stupefying substances, repeated offenses of the illegal obtaining
or possession of narcotics in small quantities or the use of
narcotic substances without doctor's orders, and the repeated .
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illegal planting or growing of oil poppies and less dangerous
varieties Of hemp (Severe criminal penalties were already on the
books for growing opium poppies or marijuana/hashish hemp.). A
new Article 99-1 of the Code on Administrative violations,
provided a'fine of up to 100 rubles for "Failure to take measures
for ensuring the established system of. security for plantings of
hemp and oil poppies, of places of storage and processing of
these crops, and also failure to take measures for the
destruction of stubble and production waste containing narcotic
substances." A new Article 99-2 provided a fine of 20 to 100
rubles for the illegal planting or cultivation of oil poppies or
of the less dangerous varieties of hemp. Article 44 of the Code,
which had read "Use of narcotic substances without a physician's
prescription shall entail the imposition of a fine in an amount
of up to 50 rubles," was amended substantially, to read as
follows:
Article 44. Illegal Obtaining or Use of Narcotic
Preparations in Small Quantities or the Use
of Narcotic Preparations without a
Physician's Prescription
The illegal obtaining or storage without the intention
of distribution of narcotic preparations in! small amounts
and also the use of narcotic preparations ThTithout a
physician's prescription --
shall entail the imposition of a fine in the amount of
up to 100 rubles or corrective work for aperiod of one,to
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two months with the confiscation of twenty percent of
earnings and in exceptional cases, if by the circumstances
of the case and considering the personality of the violator,
these measures shall be considered as insufficient, by
administrative detention for a period of up to 15 days.
Note. A person who has voluntarily surrendered a
narcotic preparation he possessed in small amounts, which he
obtained or stored without the purpose of distribution, and
also a person who voluntarily applied to a medical
institution for the rendering of medical aid in connection
with the use of narcotic substances without a physician's
prescription, shall be freed from administrative
responsibility for the actions proscribed by the present
article.
The combined effect of the new criminal legislation and the
new administrative legislation is to created a graded series of
drug offenses, and to divert the less serious offenses from
criminal to administrative punishment. Under the prior law,
there was only, on the one hand, a serious criminal offense, and
on the other hand a very minor administrative offense. In
addition to creating two levels of criminal offenses, the new law
creates a much wider gradation of potential punishments for the
administrative drug offenses. The maximum fine is doubled from
50 to 100 rubles. "Corrective work" is a punishment with a
number of elements: the person sentenced to corrective work,
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cannot quit his job or take a vacation; a portion of his salary
is taken as a fine; time spent in "corrective work" is not
counted toward earning vacation time; certain social security
benefits based upon "uninterrupted" and "general" working time
may be reduced. The 15 day administrative detention allows the
police to get minor drug offenders off the streets without going
through the complexities of the criminal process.
The use of "campaigns" against various types of antisocial
activity has been a feature of Soviet law for decades. One very
typical feature of such a "campaign" is the rewriting of criminal
and administrative legislation to provide a more finely graded
series of responses to the offenses involved. Often, before the
start of a campaign in a particular area, the criminal law was
used in that area only for most serious offenses, while
administrative law was used to levy small fines for lesser
offenses, and really minor offenses were ignored altogether.
Once a campaign was started, the Criminal Code would be amended
to provided more detailed definitions and gradations of offenses,
with the more serious administrative offenses, perhaps being
criminalized. The administrative legislation would likewise be
amended to provide a gradation of penalties for different levels
of conduct not serious enough for criminal prosecution. Thus the
1987 amendmenLs to the anti-narcotic legislatiOn followed a
pattern very typical of campaigns in Soviet law.
4. Prostitution
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Until 1987 prostitution as such was not illegal under Soviet
law. Prostitutes who did not hold regular jobs could be
prosecuted as parasites under Article 209 of the RSFSR Criminal
Code. Those who accepted payment in foreign currency could be
prosecuted for violating currency regulations. One result of
"glasnost'" was the appearance of articles in the Soviet press
sharply critical of the existence of widespread prostitution.88
While an occasional liberal jurist argued that prostitution
should not be punished because of the difficulty of
distinguishing it from normal dating practices (such as inviting
a woman for dinner and giving her a present) and because of the
unfairness of prosecuting prostitutes but not their clients, the
overwhelming majority of articles and letters to the editors
favored making prostitution illegal. A May 1987 edict provided a
fine of up to 100 rubles for the first offense of "engaging in
prostitution" and up to 200 rubles for the second offense within
a year. This edict came in for prompt criticism on the ground
that the penalties it provided were far to low, amounting to just
a minor cost of doing business for the professional prostitute."
However, a sociological study has indicated that the lowest half
of prostitutes were receiving under 20 rubles per client and that
this was the group that solicited clients most openly."
5. Hard Currency and Equivalents
Legislation made some changes in the rules governing hard
currency, and its equivalents (gemstones, precious medals,
coupons for use in special stores). A 1985 USSR edict and 0
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subsequent legislation in the republics provided administrative
sanctions for violation of rules regulating the handling of gems
and precious metals in state enterprises and other organizations
and granted the power to impose fines granted to Ministry of
Finance inspectors.91 Officials responsible for receiving,
dispensing, accounting for, or storing gems and precious metals
and for dealing with scrap containing precious metals were made
subject to fines of up to 100 rubles by the heads of state
inspection of the USSR Ministry of Finances Assay Supervision,
and of up to 200 rubles by the head and deputy heads of the USSR
Ministry of Finances Administration of Precious Metals. Edicts
adopted in 1987 raised the fines and simplified the enforcement
of penalties for illegal operations with foreign currency and
payment documents.92 They raised fines from 50 rubles for each
offense to 100 rubles for the first offense and 200 rubles for
subsequent offenses. Probably inflation had made 50 rubles fines
totally ineffective. The new edicts turned enforcement over to
lower level police officials, an appropriate step considering the
widespread nature of the offense. Apparently the higher fines
were also ineffective in stopping black market operations in
foreign currency equivalent coupons; in January 1988, the
-C-ouncil of Ministers adopted a decree providing for phasing out
the use of the coupons by July 1, 1988.93
The edicts also created a new offense of approaching
foreigners with the purpose of obtaining things' from them (thus
;
allowing arrest of blackmarketeers without the need to show that
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a blackmarket transaction had actually occurred). This
legislation, along with the anti-prostitution edict, appears to
have been part of a cleanup campaign, designed to make it easier
for the police to deal with undesireables.
6. Natural Resource Protection
While the most important change in natural resource
protection was the creation of an independent regulatory agency,
already discussed above, a few miscellaneous additions were made
to the rules on administrative violations of natural resource
protection legislation. A 1986 edict gave forestry officials
jurisdiction to enforce penalties for violation of forest fire
safety rules.94 A 1987 edict added a new violation, "Harming Gas
Mains While Doing Work."95
7. Draft Registration
Legislation adopted in the summer of 1985, presumably in
connection with the war in Afghanistan, somewhat strengthened
administrative liability for violation of the rules for military
draft registration and also made some technical changes in the
terminology of the legislation."
Soviet draft registration is the responsibility of military
commissariats in urban areas and local Soviets in rural areas.
Housing administrators and homeowners are required to report
information on eligible young men to these authoFities. They
1
also are supposed to deliver notices from the military
registration authorities to the young men. As a double check,
employers and educational institutions are suppbsed to keep tFack
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of their draft status of their employees and students. As a
third check, local police are supposed, in the course of issuing
and cancelling residence permits, to verify the draft status of
these young men.
The 1985 legislation was designed to strengthen this system.
The legislation provided fines for: (1) housing administrators
and homeowners who failed to provide information to the military
authorities on young men subject to the draft; (2) for employer
officials and school administrators who hired or admitted draft-
eligible young men who were not registered for the draft; (3)
housing administrators, homeowners, employer officials and school
administrators who failed to deliver notices from the draft
authorities to draftees; (4) employer officials who hindered
the appearance of draftees who were called to active duty. In
each case the fines were 10 to 20 rubles for the first offense
and 20 to 50 rubles for subsequent offenses within a year.
Fines were also provided for officials of two organizations
responsible for providing information that would allow the draft
authorities to know the physical and personal status of young men
under their jurisdiction. Officials of medical-labor expert
commissions, were made subject to fines for failure to report
findings of disability. Officials of the agencies of
registration of civil status (ZAGS) were made subject to
administrative liability for failure to report name changes,
birth date corrections, and deaths involving young men eligible
for the drafts.
8
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The new legislation also strengthened the administrative
responsibility of prospective draftees who violated registration
regulations. It retained the previous 10 ruble fine for first
offenses, but added a new fine of 10 to 50 rubles for repeated
offenses within the course of a year.
The new legislation also Made some minor terminological
changes, eliminating references to "military registration desks"
of local executive committees, and replacing outdated
designations of housing administration authorities with
references to current Soviet legal titles for such officials.
While this draft legislation was a natural reaction to the
pressures upon the registration system created by the war in
Afghanistan, it also was significant as the first in what was to
become a pattern of actions under Gorbachev involving the
strengthening of administrative law as a means of problem-
solving.
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1
2
NOTES
Kenneth C. Davis, Administrative Law Treatise, 2nd ed. (San
Diego: 1978), P. 1.
Stephen D. Steinmetz, "The U.S.S.R.1?Digest of Laws: Legal
Reform a la russe," New York University Journal of
International Law and Politics, 17 (1985) 949.
3 "Priznany utrativshimi silu," -Ekonomicheskaia gazeta, 1987,
No. 12, p. 4.
4 "0 sovershenstvovanii poriadka podgotovki.i izdanii
vedomstvennykh normativnykh aktov."
5
Decree of the Central Committee of the Communist Party of
the Soviet Union and the Council of Ministers of the USSR,
"0 dal'neishem sovershenstvovanii deiatel'nosti organov
Gosudarstvennogo arbitrazha i povyshenii ikh roli v
ukreplenii zakonnosti i dogovornoi distsipliny v narodnom
khoziaistve," SP SSSR, 1987, No. 15, item 59. 0 vnesenii
izmenenii i dopolnenii v zakonodatel'stvo Soiuza SSR o
gosudarstvennom arbitrazhe. Ved. SSSR, 1987, No. 7, item
92. 0 vnesenii izmenenii i dopolnenii v zakonodatel'stvo
Soiuza SSR po voprosam gosudarstvennogo arbitrazha, Ved.
SSSR, 1987, No. 25, item 355. 0 podvedomstvennosti sporov,
voznikaiushchikh pri zakliuchenii dogovorov podriada na
8
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6
7
8
9
10
11
- 81 -
kapital'noe stroEtelistvo, organam gosudarstvennogo
arbitrazha. Biulleten' normativnykh aktov, 1987, No. 4, p.
48. 0 vnesenii izmenenii i dopolnenii v zakonodatel'nye
akty RSFSR.po voprosam gosudarstvennogo arbitrazha, Ved.
RSFSR, 1987, No. 28, item 989:
O gosudarstvennom predpriiatii (0b"edinenii), Ved. SSSR,
1987, No. 26, item 385, Art. 6
O gosudarstvennom arbitrazhe v SSSR, Ved. SSSR, 1979, No.
49, item -844, Art. 3.
O vnesenii izmenenii i dopolnenii v zakonodatel'stvo Soiuza
SSR o gosudarstvennom arbitrazhe. Ved. SSSR, 1987, No. 7,
-iteit 92.
O vnesenii izmenenii i dopolnenii v Zakon SSSR "0
prokurature SSSR, Ved. SSSR, 1987, No. 25, item 349.
B. Zimonenko, "Rabotaet ii Zakon?," Sotsialisticheskaia
zakonnost', 1987, No. 11, p. 62.
"Iz praktiki prokurorskogo nadzora," Sotsialisticheskaia
zakonnost', 1987, No. 11, p. 75.
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- 82 -
12 0 korennoi perestroike dela okhrany prirody v strane, SP
SSSR, 1988, No. 6, item 14.
13
14
15
16
17
18
0 merakh po povysheniiu effektivnosti i usileniiu nadzora za
bezopasnost'iu v atomnoi energetike, SP SSSR, 1987, No. 17,
item 63.
Ob utverzhdenii Polozheniia o Ministerstve atomnoi
energetiki SSSR, SP SSSR, 1987, No. 25, item 88
Ob utverzhdenii Ustava o distsipline rabotnikov sistemy
Ministerstva atomnoi energetiki SSSR, SP SSSR, 1987, No. 25,
item 87.
Ob utverzhdenii Polozheniia o Gosudarstvennom komissii po
nadzoru za bezopasnost'iu poletov vozdushnykh sudov pri
Sovete Ministrov SSSR, SP SSSR, 1987, No. 30, item 104.
Ob utverzhdenii polozhenii o gosudarstvennoi komissii po
bezopasnosti poletov grazhdanskoi aviatsii SSSR'i
gosudarstvennom aviatsionnom registre grazhdanskoi aviatsii
SSSR, SP SSSR, 1975, No. 12, item 72; as amended, SP SSSR,
1984, No.. 20, item 108.
0 vnesenii izmenenii i dopolnenii v nekotorye
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19
20
21
22
23
- 83 -
zakonodatel'nye akty SSSR, Ved. SSSR, 1987, No. 25, item
354.
O vnesenii izmenenii i dopolnenii v zakonodatel'stvo RSFSR
ob otvetsevennosti za administrativnye pravonarusheniia,
Ved. RSFSR, 1987, No. 23, item 800.
O merakh profilaktiki zarazheniia virusom SPID, Ved. SSSR,
1987, No. 34, item 560.
O vnesenii izmenenii i dopolnenii v nekotorye
zakonodatel'nye akty SSSR, Ved. SSSR, 1987, No. 25, item
354.
O merakh profilaktiki zarazheniia virusom SPID, Ved. SSSR,
1987, No. 34, item 560.
O prinuditel'nom lechenii i trudovom perevospitanii bol'nykh
narkomaniei, Ved. RSFSR, 1972, No. 35, item 870; 1974, No.
29, item 782.
24 0 vnesenii izmenenii i dopolnenii v nekotoryel
zakonodatel'nye akty RSFSR i utverzhdenii Pollibzheniia o
lechebno-vospitatel'nom profilaktorii dlia bol'nykh
narkomaniei, Ved. RSFSR, 1986, No. 33, item 919.
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- 84 -
25 0 vnesenii izmenenii i dopolnenii v Ugolovnyi kodeks RSFSR,
Kodeks RSFSR ob administravnykh pravonarusheniiakh i drugie
zakonodatel'nye akty RSFSR," Ved. RSFSR, 1987, No. 27, item
961.
26
27
Ved. SSSR, 1988, No. 2, item 19.
0 dal'neishem sovershenstvovanii upravleniia
agropromyshlennym kompleksom, SP SSSR, 1985, No. 34, item
160.
28 0 dal'neishem sovershenstvovanii upravleniia stroitel'nym
kompleksom strany. SP SSSR, 1986, No. 30, item 160.- Ob
29
izmeneniiakh v sisteme organov upravleniia stroitel'nym
kompleksom. Ved. SSSR, 1986, No. 35, item 730.
Ob utverzhdenii Polozheniia o Ministerstve stroitel'stva v
severnykh i zapadnykh raionakh SSSR, SP SSSR, 1987, No. 21,
item 78. Ob utverzhdenii Polozheniia o Ministerstve
stroitel'stva v iuzhnykh raionakh SSSR, SP SSSR, 1987, No.
16, item 62.
30
Ob utverzhdenii Tipovogo polozheniia o minxsterstve
stroitelistva soiuznoi respubliki, SP SSSre, 1987, No. 13,
item 49.
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31 o merakh po sovershenstvovaniiu khoziaistvennogo mekhanizma
v stroitel'stve, SP SSSR, 1986, No. 30, item 161.
32
33
34
35
Ob utverzhdenii Polozheniia o Gosudarstvennom stroitel'nom
komitete SSSR. SP SSSR, 1987 No. 3, item 15.
Ob utverzhdenii polozheniia o gosudarstvennom komitete SSSR
po delam stroitel'stva (Gosstroe SSSR), SP SSSR, 1968, No.
3, item 14; 1981, No. 2, item 3.
0 sovershenstvovanii deiatel'nosti respublikanskikh organov
upravleniia, SP SSSR, 1987, No. 39, item 124.
Ob obrazovanii obshchesoiuznogo Gosudarstvennogo komiteta
SSSR po vychislitel'noi tekhnike i informatike. Ved. SSSR,
1986, No. 13, item 219. Ob utverzhdenii Polozheniia o
Gosudarstvennom komitete SSSR po vychislitel'noi tekhnike i
informatike, SP SSSR, 1987, No. 29, item 101.
36 Ob utverzhdenii Polozheniia o Ministerstve vneshnei torgovli
SSSR, SP SSSR, No. 7, item 30.
II
37
Ob utverzhdenii Polozheniia o Gosudarstvenoom komitete SSSR
1
po vneshnim ekonomicheskim sviazam, SP SSSR, No. 5, item 20.
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- 86 -
38 Postanovlenie TsK KPSS i Soveta Ministrov SSSR, 17 iiulia
1987 g. No. 817. 0 povyshenii roli Gosudarstvennogo
komiteta SSSR po nauke i tekhnike v upravlenii nauchno-
tekhnicheskim progressom v strane, SP SSSR, 1987, No.34,
item 116.
39
40
41
Postanovlenie TsK KPSS i Soveta Ministrov SSSR, 17 iiulia
1987 g. No. 823. 0 perestroike deiatel'nosti ministerstv i
vedomstv sfery material'nogo proizvodstva v novykh
usloviiakh khoziaistvovaniia, SP SSSR, 1987, No. 38, item
122.
0 sovershenstvovanii deiatel'nosti respublikanskikh organov
upravleniia, SP SSSR, 1987, No. 39, item 124.
Postanovlenie TsK KPSS i Soveta Ministrov SSSR, 17 iiulia
1987 g. No. 823. 0 perestroike deiatel'nosti ministerstv i
vedomstv sfery material'nogo proizvodstva v novykh
usloviiakh khoziaistvovaniia, SP SSSR, 1987, No. 38, item
122
42 Postanovlenie TsK KPSS i Soveta Ministrov SSSR, 17 iiulia
1987 g. No. 823. 0 perestroike deiatel'nosti ministerstv i
vedomstv sfery material'nogo proizvodstva v novykh
usloviiakh khoziaistvovaniia, SP SSSR, 1987, No. 38,
122
item
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43 Ob utverzhdenii Polozheniia o Gosudarstvennom
proizvodstvennom ob"edinenii, SP SSSR, No. 47, 1987, item
156.
44 "Proekt: Zakon Soiuza Sovetskikh Sotsialisticheskikh
Respublik o kooperatsii v SSSR," Izvestia, March 6, 1988, p.
2
45 0 merakh po dal'neishemu razvitiiu potrebitel'skoi
kooperatsii. SP SSSR, 1986, No. 8, item 45. 0 merakh po
dal'neishemu razvitiiu potrebitel'skoi kooperatsii RSFSR. SP
RSFSR, .1986, No. 14, item 96.
46 0 sozdanii kooperativov obshchestvennogo pitaniia, SP SSSR,
1987, No. 10, item 41. Primernyi ustav kooperativa
obshchestvennogo pitaniia, Ekonomicheskaia gazeta, 1987, No.
9, p. 11. 0 sozdanii kooperativov po vyrabotke
konditerskikh i khlebobulochnykh izdelii, SP SSSR, 1987, No
44, item 148.
47
0 sozdanii kooperativov po proizvodstvu tovarov narodnogo
potrebleniia, SP SSSR, 1987, No. 10, item 42. Primernyi
ustav kooperativa po proizvodstvu tovarov narodnogo
potrebleniia, Ekonomicheskaia gazeta, 1987, No. 9, p. 13
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-88-
48 0 sozdanii kooperativov po bytovomu obsluzhivaniiu
naseleniia, SP SSSR, 1987, No. 11, item 43. Primernyi ustav
kooperativa po bytovomu obsluzhivaniiu naseleniia,
Ekonomicheskaia qazeta, 1987, No 9, p. 12.
49 Ob organizatsii zagotovki i pererabotki vtorichnogo syr'ia
na kooperativnoi osnove, SP SSSR, 1987, No. 11, item 44.
Voprosy kooperativov po zagotovke i pererabotke vtorichnogo
syr'ia, SP SSSR, 1987, No. 26, item 90.
50 0 merakh po uluchsheniiu organizatsii prodazhi tovarov,
proizvodimykh kooperativami i grazhdanami,
zanimaiushchimisia individual'noi trudovoi deiatel'nost'iu,
SP SSSR, 1987, No. 45, item 152.
51 0 merakh po dal'neishemu razvitiiu potrebitelskoi
kooperatsii. SP SSSR, 1986, No. 8, item 45. 0 merakh po
dal'neishemu razyitiiu potrebitel'skoi kooperatsii RSFSR. SP
RSFSR, 1986, No. 14, item 96.
52
The tax, with rates up to 70% was reported to have been
adopted in early April 1988. TASS report quoted in Radio
Liberty, The USSR This Week, Week of April/8 at April 2.
53 Stanislav Maltsev and Vladimir Gurevich, "For the First
Time: Suing the Ministry," Moscow News, 1988, No. 8, pe 9.
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'T
- 89 -
54 Ved. SSSR, 1987, No. 26, item 385
55 Pravda, Feb. 8, 1987
56
Pravlia rassmotreniia khoziaistvennykh sporov
gosudarstvennymi arbitrazhami, Svod zakonov SSSR, 10.177,
Art. 9.
57 0 gosudarstvennom predpriiatii (Obnedinenii), Ved. SSSR,
1987, No. 26, item 385, Art. 6
58
Art. 9, Para. 2.
59 "Proekt: Zakon Soiuza Sovetskikh Sotsialisticheskikh
Respublik o kooperatsii v SSSR," Izvestia, March 6, 1988, p.
2
60
61
Art. 9, Para. 2.
Article 15, Para. 4
62
0 poriadke obzhalovaniia v sud nepravomernykh deistvii
ushchemliaiushich pravia grazhdan, Ved.
dolzhnostnykh
SSSR, 1987, No. 26, item 388.
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63 Ved. SSSR, 1988, No. 2, item 19
64
D.M. Chechot, "Konstitutsiia SSSR i sudebnyi kontrol' za
administrativnoi deiatel'nost'iu," Pravovedenie, 1979, No.
3, p. 21. V.M. Murad'ian, "Sudebnyi kontrol' za
administiaidvnymi aktami,"-Sovetskoe gosudarstvo i pravo,
1978, No. 11, p. 77. S.N. Bratus', 70 rasshirenie sudebnoi
zashchity subflektivnykh pray grazhdan," Problemy
sovershenstvovaniia sovetskoao zakonodatel'stva, Vol. 15
(1979); p. 23. ,B.T. Bezlepkin, "Zakonodatel'nye problemy
sudebnoi zashchity pray grazhdan," Pravovedenie, 1984, No.
5, pp. 58-59. V.I. Remnev, "Pravo zhaloby i
administrativnaia iustitisiia v SSSR," Sovetskoe gosudarstvo
i pravo, 1986, No. 6, p. 35. M.S. Studen'inka "Sootnoshenie
administrativnogo i sudebnogo kontrolia v sovetskom
gosudarstvennom upravlenii," Uchenye zapiski VNIISZ, 22
(1970), p. 71; A.T. Bonner and V.T.K. Kvitkin, Sudebnvi
kontrol' v oblasti aosudarstvennogo upravleniia (Moscow:
1973); A.A. Mel'nikov, "Pravo grazhdan obzhalovat' v sud
deistviia dozhnostnykh lits," Sovetskoe gosudarstvo i pravo,
1978, No. 11, p. 64; V.I. Remnev, "Sootnoshe,nie sudebnogo
administrativnogo poriadka rassmotreniia zhilob grazhdan,"
Pravovedenie, 1984, No. 5, p. 52; M.V. Kaniseva,
/
"Konstitutsionnoe pravo na obzhalovanie,v Sisteme
politicheskikh pray i svobod," Pravovedenie, 1986, No. 4, p.
72. L.A. Sevat'ianova, "Sudebnyi kontrol' i za zakonnost'.iu
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- 91 -
deistvii organcAi upravleniia i dolzhnostnykh lits," Problemy
sovershenstvovaniia sovetskogo-zakonodatelsstva; Trudy 34.
(Moscow 1986), p: 161. B.N. Iurkov, "Pravo na obzhalovanie
v sud deitsvii administrativnykh organov," Pravovedenie,
1986, No. 2, P. 37. V.I. Remnev, "Pravo zhaloby i
administrativnaia iustitsiia v SSSR: (Perspektivy razvitiia
v svete itogov XXVII sflezda KPSS)," Sovetskoe gosudarstvo i
pray?, 1986, No. 6, P. 22.
65 M.S. Gorbachev,'PoliticheSkii doklad TsK KPSS XXVII eezdu
66
KPSS (Moscow 1986), p. 78.
0 plane podgovtovki zakonodatel'nykh aktov SSSR,
postanovlenii Pravitel'stva SSSR i predlozhenii po
sovershenstvovaniiu zaknodatel'stva SSSR na 1986-1990 gody,
Y-
Ved. SSSR, 1986, No. 37, item 782
67 0 proekte Zakona SSSR o poriadke obzhalovaniia_v sud
nepravomernykh deistvii dolzhnostnykh lits,
ushchemliaiushchikh prava grazdhan, Ved. SSSR, 1987, No. 20,
item 271.
68
0 poriadke obzhalovaniia v sud nepravomernykh deistvii
dolzhnostnykh lits, ushchemliaiushich pravi grazhdan, Ved.
SSSR, 1987, No. 26, -item 388.
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69 0 vvedenii v deistvie Zakona SSSR "0 poriadke obzhalovaniia
v sud nepravomernykh deistvii dolzhnostnykh lits,
ushchemliaiushich prava grazhdan," Ved. SSSR, 1987, No. 26,
item 389.
70 R. Livshits, "0 sudebnoi zashchite," Izvestia, Sept. 29,
1987, p. 3.
71 0 vnesenii izmenenii v Zakon SSSR "0 poriadke obzhalovaniia
v sud nepravomernykh deistvii dolzhnostnykh lits,
ushchemliaiushich prava grazhdan," Ved. SSSR, 1987, No. 42,
item 692.
72 R. Livshits, "0 sudebnoi zashchite," Izvestia, Sept. 29,
1987, p. 3.
73 R. Livshits, "0 sudebnoi zashchite," Izvestia, Sept. 29,
1987, p. 3.
74 Ob individual'noi trudovoi deiatel'nosti, Ved. SSSR, 1986,
No. 47, item 964, Art.6.
75
Para, 2.
76 Polozhenie o poriadke rassmotreniia trudovykh sporov, Svod
zakonov SSSR, 2.451. 8
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77
- 93 -
RSFSR Civil Procedure Code, Arts. 319-320.
78 Art. 10, Para. 5.
79
80
81
82
Case of S.M. Tokachev, A.N. Smirnov, and Others, BVS SSSR,
1987, No. 2, p. 12.
A. Iakovlev, "VedomStvenoe ugolovnoe pravo: razmyshleniia o
psikhOlogii zapretov," Izvestia, Feb. 8, 1988, p. 2, col. 1.
B.M. Lazarev, "Administrativnye pravonarusheniia i
otvetstvennost' za ikh sovershenie," Sovetskoe gosudarstvo
pravo, 1985, No. 8, p. 30. V.V. Lazarev and L.L. Popov,
"Novoe zakonodatel'stvo ob administrativnykh
pravonarusheniiakh i ego primenenie," Sovetskoe gosudarstvo
i pravo, 1986, No. 3, p. 51. Ob izmenenii i priznanii
utrativshimi silu reshenii Pravitel'stva RSFSR ob
administrativnykh pravonarusheniiakh, SP RSFSR, 1986, No.14,
item 97. 0 vnesenii izmenenii i dopolnenii v Kodeks RSFSR
ob administrativnykh pravonarusheniiakh, Ved. RSFSR, 1987,
No. 7, item 201.
Ved. SSSR, 1980, No. 44, item 909.
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83 E.g., RSFSR Code on Administrative Violations, Ved. RSFSR,
1984, No. 27, item 909; Svod zakonov RSFSR, 8.401.
84
85
Ob izmenenii i priznanii utrativshimi silu nekotorykh
zakonodatel'nykh aktov RSFSR ob administrativnykh
piavonarusheniiakh,'Ved. SSSR; 1986, No. 6, item 175.
0 vnesenii izmenenii i dopolnenii v zakonodatel'stvo SSSR ob
otvetstvennosti za administrativnye pravonarusheniia, Ved.
-)
SSSR, 1987, No. 22, item 312. 0 vnesenii izmenenii
dopolnenii v zakonodatel'stvo RSFSR ob otvetsevennosti za
administrativnye pravonarusheniiai Ved. RSFSR 1987, No. 23,
item 800.
86 0 vnesenii iimenenii i dopolnenii v nekotorye
zakonodatel'nye akty RSFSR, Ved. RSFSR, 1987, No. 24, item
? 839.
-87
'0 vnesenii izmenenii i dopolnenii v nekotorye
zakonodatel'nye akty SSSR, Ved. SSSR, 1987, No. .25, item
354. 0 vnesenii izmenenii i dopolnenii N.! Ugolovnyi kodeks
RSFSR, Kodeks RSFSR ob administravnykh pravon'arusheniiakh
drugie zakonodatel'nye akty RSFSR," Ved. RSFSR, 1987, No.
27, item 961.
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88
L. Kislinskaia, "'Legkoe povedene' na vesakh
Sovetskaia Rossiia, March 12, 1987, p. 4; G.
pravosudiia,"
Kurov,
Match
19,
"Uspoved"Nochnoi babochki," Sovetskaia Rossiia,
1987, p. 4.
89
E.g., M. Gurtovoi, Trud, July 31, 1987, P. 4.
90
A.A. Gabiani, Sotsiologicheskie issledovania,
1987, No.
6,
p. 61.
91
0 Ob administrativnoi otvetstvennosti za narushenie pravil
92
polucheniia, raskhodovaniia, ucheta, khraneniia ?
dragotsennykh metallov i kamnei iii izdelii, ikh
soderzhashchikh, a tazhe sbora i sdachi v gosudarstvennyi
fond ikh loma i otkhodov," Ved. SSSR, 1986, No. 1, item 5;
0 vnesenii izmenenii i dopolnenii v Kodeks RSFSR ob
administrativnykh pravonarusheniiakh, Ved. RSFSR, 1986, No.
6, item 176.
0 vnesenii izmenenii i dopolnenii v zakonodatel'stvo SSSR ob
otvestsvennosti za administrativnye pravonarusheniia, Ved.
SSSR, 1987, No. 22, item 312; 0 vnesenii izmenenii i
dopolnenii v zakonodatel'stvo RSFSR ob otvetsevennosti za
administrativnye pravonarusheniia, Ved. RSFSR, 1987, No. 23,
item 800
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93
94
95
96
- 96 -
Izvestia, Jan. 29, 1988, p. 3.
0 vnesenii izmenenii i dopolnenii v Kodeks RSFSR ob
administrativnykh pravonarusheniiakh, Ved. RSFSR, 1986, No.
6, item 176.
0 vnesenii izmenenii i dopolnenii v Kodeks RSFSR ob
administrativnykh pravonarusheniiakh, Ved. RSFSR, 1987, No.
7, p. 201.
Ob administrativnoi otvetstvennosti za narushenie pravil
voinskogo ucheta, Ved. SSSR, 1985, No. 32, item 582.
6
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