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

111. Information Memorandum From the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Schifter) to Secretary of State Shultz¹

Washington, July 27, 1988

SUBJECT

• Our July Human Rights Discussions in Moscow

Summary. The following are brief accounts of our recent discussions with the Soviets on six issues: the rule of law; psychiatric practices and abuses; legal code revisions; the President’s list; our list of political and religious prisoners; and emigration issues. End Summary.

1. Rule of Law

When we first suggested to the Soviets that we make the rule of law a major topic in our human rights dialogue, we knew, of course, that this was a subject to which General Secretary Gorbachev was paying a great deal of attention. What we had not anticipated is that it would become one of the major concerns of Soviet reformers. But Thesis Eight of the Ten Central Committee Theses for the Nineteenth Party Conference (Tab A)² made the rule of law one of the major reform goals and the Conference adopted a resolution which underlined the importance of legal reform as one of the goals of Perestroyka (Tab B).³

This was the background against which our July 11–13 meetings took place in Moscow. Solicitor General Charles Fried, Assistant Attorney General (Criminal Division) Edward Dennis, and former Deputy Attorney General, now Judge Lowell Jensen had traveled to Moscow to participate in discussions with the Soviets on the rule of law. There were about 20 Soviet participants in our meetings. In addition to Deputy Foreign Minister Adamishin and his staff, they included representatives of the Soviet Ministry of Justice, the Institute of State and Law (the country’s principal legal think tank), the Chief Procurator’s (prosecutor’s) office, law schools, the bar, and the bench (including the Chairman of the Supreme Court of the Russian Soviet Republic, and the Vice Chairman of the Supreme Court of the Soviet Union). Some of the participants were “old thinkers,” but they kept fairly quiet. On the Soviet side the discussions were dominated by “new thinking” and many thoughtful questions were posed to our side.

In our talks we moved rapidly from generalities to specifics. For example, on the subject of an independent judiciary, we were asked questions about the advantages and disadvantages of lifetime tenure for judges. There was interest in our discussion of the jury system, particularly as to the nature of the relationship between a judge and a jury. We discussed the respective roles of the court, the prosecution, and the defense in the preliminary investigation of a criminal case. (In the Soviet Union the courts are not at all involved until a case goes to trial, with warrants issued by the prosecutor rather than a judge. Defense counsel does not enter the case until after the investigation has been completed and the defendant has been charged.) We also discussed the power of U.S. courts to declare laws unconstitutional and executive acts unlawful.

Some of the Soviet participants indicated that they were now participating in the groups charged with responsibility for revising Soviet legal procedures. The questions which they were asking related to issues which they are actively considering. The American experience was, therefore, of great interest to them. Once our meetings were over, a number of Soviet participants told me that they found the discussions most useful as they had picked up information on our legal system of which they had not been previously aware.

The American participants, in turn, found the entire experience most interesting and indicated to me that they would be prepared to participate actively in further work with the Soviets. Judge Jensen has told me that he would be prepared to travel to Washington for the next set of meetings.

The way matters were left was that the Soviets would propose an agenda for a meeting in Washington early in the fall. They urged that highly specific topics be selected, that both sides prepare papers on each subject and exchange them prior to the meeting. The American side agreed.

We have now established a relationship between the top professional level of the Department of Justice and the key players in the Soviet Union in the legal reform effort. I hope that before this Administration leaves office, we shall have institutionalized this relationship.

2. Psychiatry

The Soviets have heretofore agreed, in principle, to a visit by American psychiatrists to the Soviet Union to discuss questions of forensic psychiatry and to visit psychiatric institutions and examine present and former patients. Though we have not formally labeled it as such, it would be an inspection visit to check whether the Soviets have indeed abandoned the practices which have heretofore been characterized as abuse of psychiatry. Responding to an invitation from the Soviets, we submitted the outlines of a proposal which would involve our Department and the MFA as well as the Department of Health and Human Services and the Soviet Ministry of Health. The Soviets took our proposal and told us they will get back to us on it soon.

On our side, the government agency to be involved at the professional end of this effort will be the National Institute of Mental Health (a part of HHS). It will work closely with the leadership of the American Psychiatric Association.

I have every reason to think that the Soviet MFA is working on this issue in good faith. I suspect it has the support of the Communist Party Central Committee staff. But it is clear that the Soviet psychiatric leadership is literally being dragged along. The Soviet psychiatric leaders are making a concerted effort to outflank the MFA and us. They are doing this through Dr. Chazov, the Soviet Minister of Health and 1984 winner of the Nobel Peace Prize (for his leadership in “Physicians Against Nuclear War”). Chazov has gotten in touch with Dr. Lown of the Harvard Medical School, his co-Nobel laureate. Lown has been in touch with a psychiatrist, also at the Harvard Medical School, by the name of Lester Grinspoon.

Grinspoon started earlier this year to put together a group of psychiatrists who would visit the Soviet Union, but after hearing about our undertaking got in touch with me. I told him that as an American citizen he was free to do whatever he wanted to in accepting or not accepting a Soviet invitation to visit the Soviet Union for the purpose of examining psychiatric institutions. I added, however, that if the Soviets have really brought psychiatric abuse to an end, it would be better all around for that fact to be acknowledged by a group whose objectivity was beyond question, which would include past critics of Soviet behavior, rather than a group of psychiatrists who have heretofore been silent on Soviet abuse and have been involved with the Soviets in “peace” organizations, suggesting a political bias. So far, Grinspoon has agreed with this analysis and has not accepted the repeated invitations from the Soviet psychiatric profession.

The nervousness of the Soviet psychiatrists can easily be understood. What the reform has done, as far as I can tell, is get persons out of psychiatric hospitals who have been committed for political or religious activities. As far as we can tell, there have been no new commitments for political or religious reasons during the last 18 months or so. A law has been enacted which makes psychiatrists criminally liable if they wrongfully commit a person to a psychiatric institution. The Special Psychiatric Hospitals have been transferred from the Ministry of the Interior to the Ministry of Health. Some judicial review of psychiatric commitments is now contemplated. But—and this is another one of the compromises which Gorbachev seems continuously be forced to agree to—the past abusers of psychiatry are still in place. It won’t be easy for American psychiatrists to agree to what in Argentina is called the “punto final,” pardoning past transgression. But the APA officials with whom I have discussed this matter tell me that if they are convinced that the Soviet Union has turned over a new leaf, they are going to work with whoever is in charge in the Soviet Union, in the hope that they can get past the old crew to work with younger people who are untainted.

At this point we cannot be sure that the DOS/HHS-sponsored visit will take place as contemplated. It will depend on whether the MFA can trump Dr. Chazov.⁴

3. Code Revision

We have been told that Soviet changes in certain practices are to be institutionalized by changes in the legal codes. The code provisions which make dissenting political advocacy and unauthorized religious activity crimes are to be repealed or significantly modified. The law on religion is to be amended so as to take care of many of the concerns which we have expressed in the past. The emigration law is to be amended so as to allow the children of parents who refuse their consent to emigration to litigate this issue in the courts. The revised law is also to specify criteria for the denial of exit permits on security grounds. The Central Committee meeting which starts next Friday⁵ is supposed to set a timetable for adoption of these new laws.

4. The President’s List

When turning to lists, it has become our custom to start with the 18 imprisonment and emigration cases on the President’s list.⁶ By the time of my Moscow discussion, eight of these cases had been resolved, leaving a balance of ten. My Soviet interlocutors indicated that four of the remaining cases were likely to be resolved in the near future, all of them imprisonment cases. They were those of Father Svarinskas, Lukyanenko, Rusak, and Gayauskas. Since I left Moscow, one of the cases, that of Father Svarinskas, has in fact been resolved. We have thus reached the halfway mark of resolved cases on the President’s list.

5. Our Prisoner List

We received a detailed response to our list of political and religious prisoners. The Soviet answer acknowledges the present status as prisoners of some of the people on our list, tells us that others have been released, and tells us further that some of the names on our list are unknown to them. We are now in the process of analyzing this response.

6. Emigration

We discussed our U.S. Rep list and our Refusenik cases. Recent progress on these lists is quite limited.

As to new applicants for exit permits, the Soviets told us that during the first half of 1988 about 36,000 exit permit were granted, including 16,000 to the FRG, 8,000 to the United States, 8,000 Israel, and 4,000 to other countries. For the first time in over half a year I was not given exact figures regarding the backlog of applications as of the first of the month of cases ready for processing. Instead I was given “incomplete estimates.” I construe this to mean that the number of applications for exit permits has increased so sharply that the Soviets are afraid to admit it.

One new development, which became clear only after my departure from the Soviet Union, is Soviet willingness to open up emigration for Pentecostals. Ethnically, most Soviet Pentecostals are either Russian or German. German Pentecostals leave under the German emigration program. Russian Pentecostals leave on exit permits for Israel as if they were Jews. In this manner the Soviets avoid setting a precedent for unlimited emigration of ethnic Russians. During the month of July about 25 percent of the ostensibly Jewish emigrants arriving in Vienna have been, in fact, Pentecostals. There is every reason to think, therefore, that Pentecostals have become the fourth group authorized to emigrate from the Soviet Union.

At the same time, it looks to me as if the figures of ethnic Jews leaving the Soviet Union in July is down from the June figure. We have to see whether this is an aberration or a new trend.

[7.] Division at the Top

On each of the foregoing human rights issues, the evidence of a division of opinion within Soviet government circles is clear. The fact that such a split exists was freely admitted by Deputy Foreign Minister Adamishin in a recent informal conversation with me. I told him that a favorable resolution of the remaining imprisonment cases was clearly within announced present Soviet policy and could make a great contribution to further improvement in our bilateral relations. His response was: “All you ever worry about is our relations with you. We also have to worry about our relations within our own country.”

1. Source: Department of State, Central Foreign Policy File, P880109–1397. Confidential. Drafted by Schifter. Copies were sent to Kampelman, Ridgway, and Abramowitz. A stamped notation on the memorandum indicates Shultz saw it.
2. Not found.
3. Not found.
4. In telegram 25164 from Moscow, October 28, the Embassy reported that it had not yet received approval from the Soviets for a psychiatric abuse advance team visit. (Department of State, Central Foreign Policy File, D880959–0757)
5. August 5.
6. See Document 109.