Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

107. Telegram From the Department of State to the Embassy in the Soviet Union¹

Washington, April 2, 1988, 1423Z

104022. Subject: US/USSR March 24–25 Roundtable on Human Rights Issues. Reftels: A) State 84473, B) Moscow 7191, C) Moscow 6933, D) Moscow 4525, E) State 69066.²

1. Summary: On March 24/25, U.S. and Soviet Government officials, joined by legal and medical experts held a roundtable discussion in Washington on various human rights topics of mutual interest. Future meetings were agreed on in principle and several possible topics for further discussion were identified. End summary.

2. HA Assistant Secretary Schifter led the U.S. delegation, which included non-governmental U.S. experts Hon. Frank Kaufman, senior U.S. District Court Judge; Dr. Loren H. Roth, Western Psychiatric Institute, Pittsburgh, PA; Dr. Roger Peele, Director of St. Elizabeth’s Hospital, Washington, DC; Attorney Charles Ruff, former U.S. Attorney; Attorney Paul Kaminar, Washington Legal Foundation; Attorney Paul M. Smith; and Attorney Craig Baab. Deputy Foreign Minister Adamishin formerly headed the Soviet side, but, except for one brief appearance did not participate in the meetings. Other Soviet participants were Veniamin F. Yakovlev, Director of the Institute of Legislation, USSR Ministry of Justice; Vasiliy A. Vlasikhin, specialist in American Constitutional Law and Criminal Justice, USA–Canada Institute; Dr. Gennadiy N. Milekhin, Serbskiy Institute. Soviet Embassy Minister-Counselor Sergey Chetverikov and Counselor Bulay also participated.

3. These meetings arose in response to the eight-point proposal for bilateral cooperation put forth by Deputy Foreign Minister Adamishin last November (reftel D).³ Generally exhibiting a spirit of cooperation, both U.S. and Soviet experts explained laws and implementation of laws in each of our two countries regarding involuntary psychiatric commitment; the interrelationship of domestic and international law concerning human rights; capital punishment; and freedom of conscience.

4. Interesting trends and patterns in this first meeting were:

—The Soviet approach was initially combative, forcusing on U.S. failure to ratify the International Human Rights Covenants. As the meeting progressed, however, rapport was established between the two sides, particularly with Yakovlev. Yakovlev went quite a distance in conceding human rights problems in the Soviet Union and indicating Soviet interest in effecting basic changes. At the conclusion of the meetings, he indicated that he had been somewhat apprehensive and was pleasantly surprised at how well things had gone. He expressed his strong interest in continuing the dialogue.

—Generally, Adamishin noted that there are three channels for discussions of humanitarian issues between the U.S. and Soviet Union: 1) between the MFA and the State Department, 2) between lawmakers (e.g. Congressman Hoyer’s upcoming trip to Moscow), and 3) between experts such as were attending the current roundtable meeting. Adamishin expressed hope that, as part of Perestroyka, expert-to-expert meetings could go on without needing continual shepherding by Ministries, but not totally beyond governmental control. He also suggested that a non-governmental source of financing be established to support symposia between experts, a sort of bilateral human rights fund.

—Yakovlev and Milekhin were the only two genuine experts brought by the Soviets; Vlasikhin, as noted below, served as polemicist, and employing his knowledge of the U.S. and of English to advance arguments which in toto were a thinly disguised lure in the direction of moral equivalence thinking. Yakovlev was thoughtful and well-prepared; he may very well be an important person in such studies of Soviet legal and judicial reform as may be underway. Milekhin seemed, disingenuously or not, surprised that U.S. professionals would have considered that Soviet psychiatrists would have abused their profession; but this wore off, or was abandoned, during the two days, and he appears to be interested in further dialogue.

—Despite the ups-and-downs of the preparatory period; the unpromising exchanges embassy went through over whether meeting would take place; what agenda would be; and so on, the round table discussions quickly came to the point. No lingering or footdragging came from the Soviet side, once here; and this may be instructive for future planning of such meetings.

PSYCHIATRY

5. The discussion of psychiatric commitments centered around (1) balancing the need to protect society from dangerously insane persons and the need to protect the individual’s rights, and (2) the interplay between legal and medical issues in the treatment of psychiatric patients. The U.S. side presented an overview of the types of psychiatric treatment given in the U.S., how many psychiatric patients are treated against their will, the differences between civil commitments and criminal commitments, etc. The Soviets focused on their concept of alleged safeguards against abuse of psychiatry, such as the role of the procurator, who functions as quote an Ombudsman unquote in the Soviet legal system to ensure compliance with the law. Yakovlev conceded that laws regarding psychiatric commitment had not always been followed in the past. The position of chief psychiatrist was created to deal with organizational questions, local party officials have been told to deal with all complaints, and local Soviets are required to help place mental patients back into society. A discussion of technical aspects of appointing a guardian ensued.

6. In response to questions about the mistreatment of mental patients, as described by Anatoly Koryagin and Viktor Davydov, in special psychiatric hospitals, Dr. Milekhin simply dismissed the notion that psychiatry could be abused for political purposes. He maintained that incorrect diagnoses must be examined individually, and cannot be clinically discussed in general terms. Later, Milekhin defended the existence of special psychiatric hospitals from which a patient cannot escape as necessary in order to protect society and hospital personnel from dangerously sick people who do not themselves know they require treatment. The Soviets also described the procedure for judicial review of emergency commitment which, according to Milekhin, was recently codified. Though the issue of Soviet abuse of psychiatry was not pressed on Milekhin in the course of the formal meetings, it was forcefully brought to his attention in private conversations with Assistant Secretary Schifter and with Ellen Mercer of the American Psychiatric Association. At the end of the meeting, Milekhin asked an HA officer somewhat plaintively whether Americans really believe that Soviet psychiatrists have been guilty of misdeeds. He was assured that we did.

7. An invitation was extended by Dr. Milekhin to U.S. psychiatrists to visit the Serbskiy Institute and lecture to Soviet psychiatrists, and the Soviet psychiatrists were invited to reciprocate the visit here. During Milekhin’s first day in Washington the American Psychiatric Association (APA) received him at its offices here and arranged for visits to St. Elizabeth’s Hospital and the George Washington University Hospital Psychiatric Ward. Suggested topics for a series of future symposia on psychiatry include judicial review of involuntary psychiatric commitment and treatment, both civil and criminal; legal protections for psychiatric patients; and the insanity defense.

Relationship of Domestic and International Laws on Human Rights

8. The discussions on relations between domestic and international laws on human rights began with the Soviet Union enumerating the human rights conventions to which it is a party, such as the International Covenant on Economic and Social Rights; the Covenant on Civil and Political Rights; the Universal Declaration of Human Rights; and the Helsinki Final Act. They then went on to describe how “glasnost” has led to changes in the legal and economic spheres and greater democratization in the political sphere.

9. A/S Schifter brought this discussion back from the theoretical to the practical by pointing out that laws are not self-enforcing, and that implementation is vital. Vlasikhin (whose overall role was provocative, defensive, and out of sync with the other Soviets) responded with a presentation on several topics including: the importance of having an independent judiciary; U.S. non-ratification of human rights covenants, such as the Genocide Convention;⁴ the Fourteenth Amendment of the U.S. Constitution; the non-enforceable nature of international law; President Reagan quote packing the bench with conservatives unquote; restrictions on demonstrations in the U.S., alleged violation of attorney/client privilege by lawyers; infiltration of the Committee to Aid El Salvador by the FBI as a restriction on freedom of expression, and the increasing threat to privacy in the U.S. posed by computers. The U.S. side pointed out that the openness of our system, as demonstrated by the Freedom of Information Act, ensured that such problems would come to light, and be dealt with. We noted that any reform in the Soviet Union comes about after internal policy changes, not public scrutiny and discussion. We also questioned the extent to which principles found in the international accords are adhered to in the Soviet Union.

10. Assistant Secretary Schifter suggested that future discussions focus on trying to clarify the terms of what was agreed to in the Helsinki Final Act. All 35 member states would ultimately need to be involved in formally defining the terms, but the U.S. and USSR could bilaterally start that debate. Yakovlev did not pick up on this suggestion, but noted that it was useful to discuss real mechanisms of implementation and of actual experiences with problems.

11. The March 25 morning session opened with A/S Schifter’s suggestion that polemics be put aside, and discussions center on areas which Gorbachev identified as needing change under quote Perestroyka unquote. An independent judiciary would be a worthwhile subject of discussion, while free elections were too far from the Soviet reality to be a worthwhile topic.

Capital Punishment

12. The discussion of capital punishment elucidated the circumstances in both countries under which such punishment could be imposed. Vlasikhin told us that a debate is under way in the Soviet Union over limiting capital punishment, and whether or not to abolish it altogether for economic crimes. Both sides agreed that the death penalty for first degree murder would probably remain in place in both countries, due to public outrage at particularly savage crimes. The Soviets said they would find it useful to examine U.S. experience in establishing standards for capital punishment, and the role of the jury in meting out the death penalty. The Soviets are considering instituting an augmented collegium of people’s assessors in cases involving capital offenses, rather than the usual two people’s assessors. Philosophical discussion of the deterrent and punitive aspects of capital punishment took place, generally reflecting differences between the benefits and drawbacks of a pluralist, federalist system as opposed to a centralist system.

13. Yakovlev said that the parties involved in revising the Criminal Code are the Ministry of Justice; his Institute of Law, a research institute under the procurator system known by the acronym PP (Sic: with a name so long he could not remember it),⁵ the Legal Departments of the Presidium of the Supreme Soviet, the Commission of Legislative Projects in the Supreme Soviet, and various working groups of scholars. The five-year plan for revising the Criminal Code covers 38 items which are grouped into eight sections comprising three major groupings: A) development of democracy, self-management, and rights and freedoms of citizens, B) economic management and the national economy, and C) social questions. Some of the specific changes being considered are: decriminalization of homosexuality; decriminalization of drug use; replacement of forced labor with detention in colonies or settlements; instituting jury trials; restricting the number of crimes punishable by imprisonment; abolition of Article 190–1; allowing pre-trial meetings with attorneys; etc.

14. We, in turn, suggested discussing limits on the power of police authorities; requirements for issuance of arrest and search warrants; interception of mail; wiretaps; and electronic surveillance. We indicated that we would be prepared to discuss the implementation of restraints on the FBI in carrying out investigations, wiretaps, etc. Vlasikhin said there was a suggestion afloat in the Soviet Union to have warrants approved by judges instead of the procurator (who serves as the prosecutor) and agreed to recommend this topic to Moscow. However, Yakovlev was not as eager to pursue it, and preferred to have further discussions on the legal procedure for imposing the death penalty, and the appeals process. Another suggested topic which came up was the mental competency of a defendant to stand trial.

Freedom of Conscience

15. The last session (March 25 afternoon) covered freedom of conscience. The U.S. side gave detailed explanations of the laws protecting religious freedom, including the rights of atheists, and the separation of church and state. The Soviet side gave a historical perspective of the close ties between church and state under the Tsars, and what they viewed as the resultant strong opposition of the Bolsheviks to the Orthodox Church and to all existing religious faiths. As Yakovlev put it: We substituted a new religion for the others. The U.S. side brought up the repression of the Ukrainian Catholic Church, the imprisonment of Lithuanian Catholic priests, requirements for registering religious groups, limitations on teaching religion to children, and offered to send Bibles to the Soviet Union to alleviate the shortage (see below). The Soviets mentioned that 435 new religious associations and groups had been formed in the last few years. They enumerated the numbers of churches of different denominations, mosques, and synagogues in existence, and pointed to the return of cathedrals and monasteries to the church as church property. They explained that separation of church and state in the USSR did not allow for the teaching of religion in state schools, and that any religious instruction outside of the family would be considered a school, and would be prohibited as contrary to the Soviet Constitution. They also said a new edition of the Bible would be issued before June 13 in honor of the millenium of Christianity, but that the limited numbers would not satisfy the demand, that Burlatskiy’s⁶ Commission had asked that the antiquated law on religion in the USSR be brought up to date, and that the revisions in that law were being actively drafted now. Some proposed changes would give a religious organization the rights of a legal person, and also give religious associations the opportunity to participate in charity, the conservation of historical and cultural monuments, and other expanded rights. In response to a U.S. comment, the Soviets admitted that religious associations were sometimes arbitrarily denied the right to register, or to engage in practices such as ringing church bells, because of quote local abuse unquote of administrative authority. They expressed a hope that the state would ensure that legally given rights were not impinged in future. In response to a comment by A/S Schifter that the arbitrariness of local authorities seemed to get worse the further one got from Moscow, the Soviets quoted the saying that God is in heaven, and the Tsar is far away.

16. The U.S. side pointed out that there seemed to be de facto toleration of religious instruction, and asked whether that could be codified by amending Articles 142 and 227 of the RSFSR Code.⁷ A/S Schifter suggested as a future roundtable topic Article 18 of the Universal Declaration of Human Rights, which dealt with freedom of thought, conscience and religion in teaching, practice, worship and observance. The Soviets spoke of the need for reform of Soviet law to bring more quote equality unquote between believers and non-believers. None of the specific questions asked by the U.S. side were answered with clarity.

Possible Future Topics

17. In the wrap up, Adamishin’s wish to see further contact between both sides’ Ministries of Health and psychiatrists was reiterated by Milekhin. Assistant Secretary Schifter clarified the difference between health and legal aspects of psychiatric issues and insisted they be treated separately. The following legal topics for further discussion were suggested:

—Procedural aspects of capital punishment;

—Legal regulation of freedom of expression;

—Rights of the individual in criminal proceedings;

—Legal mechanisms for implementation of principles, and clarifying our understanding of the terms of the Helsinki Accord;

—The role of an independent judiciary; and

—Limitations on the role of the police;

—As to psychiatric issues agreement was reached to proceed with commitments to psychiatric hospitals;

—Insanity as a defense in criminal proceedings, and competency to stand trial;

—The health aspects of psychiatry.

18. While no firm date was set for the next round of talks, and no specific discussion topics were actually agreed upon. It was agreed that plans will be developed promptly for further sessions. We will be providing by septel⁸ our thinking for Embassy to convey to MFA proposing a possible human rights roundtable discussion along the above lines linked to upcoming April Ministerial in Moscow. Our initial thoughts are leaning toward a 2–3 day session beginning on Monday, April 18, or Tuesday, April 19 in advance of Ministerial.⁹ Septel follows.

Armacost

1. Source: Department of State, Subject Files—Human Rights Files, 1988, Lot 90D46, PREL—Human Rights 1988. Confidential. Drafted by Lerner; cleared in HA, HA/HR, and EUR/RPM; approved by Parris. Sent for information to Leningrad, Vienna for CSCE Delegation, and all NATO capitals.
2. In telegram 4525 from Moscow, February 26, the Embassy reported on February 21–22 human rights talks in Moscow. (Department of State, Central Foreign Policy File, D880167–0011) In telegram 69066 to Moscow, March 5, the Department transmitted a Soviet draft statement regarding the human rights roundtable. (Department of State, Central Foreign Policy File, D880190–0615) In telegram 6933 from Moscow, March 17, the Embassy conveyed a Soviet counter-proposal for the human rights roundtable. (Department of State, Central Foreign Policy File, D880232–0266) In telegram 84473 to Moscow, March 18, the Department transmitted its concerns about Soviet requests for the human rights roundtable. (Department of State, Central Foreign Policy File, D880233–0637) In telegram 7191 from Moscow, March 18, the Embassy reported it had conveyed the Department’s concerns to the Soviets. (Department of State, Central Foreign Policy File, D880235–0790)
3. See Document 100.
4. See Document 72 and footnote 6 thereto.
5. Not further identified.
6. Fyodor Burlatsky, Chairman of the Soviet Human Rights Commission.
7. Article 142 delineated penalties for violating laws concerning the separation of church and state. Article 227 concerned religious activities that induced citizens to refuse social duties.
8. In telegram 102918 to Moscow, April 1, the Department transmitted its proposal for a human rights roundtable. (Department of State, Central Foreign Policy File, D880282–0158)
9. In an April 26 information memorandum to Shultz, Schifter summarized human rights talks that took place in Moscow, April 18–22. (Department of State, Secretary Subject and Country Files—MemCons on US–USSR Relations, 1981–1990, Lot 93D188, Moscow–4/88—Shultz-Shevardnadze)