Defense(redirected from defenselessness)
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(judicial), the procedural actions directed toward disproving the accusation against the accused (prisoner) or mitigating his responsibility. The judicial defense includes the actions of the accused, of defense counsel, of the persons conducting the inquiry, of the investigator, and of the procurator and court, aimed at obtaining a full, comprehensive examination of the account of the accused’s innocence or of the presence of mitigating circumstances, as well as the explanation to the accused of his rights.
In the USSR the right of the accused to judicial defense is guaranteed by the Constitution of the USSR (art. III) and regulated by the code of criminal process. The investigator, the procurator, and the court are obliged to ensure the accused of the possibility of defending himself, by all means and methods established by law, against the accusation brought against him, as well as to ensure him of the protection of his personal and property rights. The accused has the right to know of what he is accused and give explanations concerning the accusation brought against him, to present evidence, to submit petitions and present challenges, to be-come aquainted with all materials of the case after the completion of the investigation, and to bring complaints against the actions and decisions of the persons conducting the inquiry, the investigator and the procurator. Within three days of the examination the accused is entitled to receive a copy of the indictment and a copy of the court ruling or of the judge’s decree concerning the indictment. The accused has the right to submit evidence, to participate in the examination of all evidence, to speak in his defense (if there is no defense counsel), to have the last word, and to appeal the verdict.
The accused may retain defense counsel from the moment that the preliminary investigation has been completed; at the decision of the procurator, defense counsel may participate in the case from the moment the accusation is presented (Decree of the Presidium of the Supreme Soviet of the USSR, Aug. 31, 1970). In cases of minors, of the mute, deaf, or blind, or of other persons who, because of physical or mental defects, are unable to exercise their right of defense, the participation of defense counsel is obligatory. He enters the proceedings from the moment the accusation is presented. The participation of defense counsel is also obligatory in cases in which a state or public prosecutor participates, in cases of persons who do not speak the language in which the judicial procedure is conducted, and in cases of persons whose interests are in conflict, even if one of them has defense counsel. Defense counsel is also obligatory in cases involving persons accused of committing a crime for which the death penalty may be inflicted; in this instance defense counsel must participate in the case from the moment when the accused was informed of the completion of the preliminary investigation and when all the material of the case was presented to him for examination. If in any of these instances the defense counsel was not invited by the accused himself (by his lawful representative or, on their request, by another person), the investigator and the court are obliged to ensure the participation of defense counsel in the case. Violation of the accused’s right to defense is an unconditional ground for annulling the judgment.
The accused’s right to defense is also guaranteed in the legislation of other socialist countries. In the German Democratic Republic, for example, the accused has procedural rights that allow him to actively defend himself against an accusation. Defense counsel has access to the proceedings from the moment the accusation is presented; the participation of defense counsel is obligatory in all cases of intentional crimes for which deprivation of freedom for a period of two years or more is prescribed, as well as in all cases of serious acts of negligence for which deprivation of freedom for a period of five years or more is prescribed.
In Hungary, the accused may at all stages of a proceeding submit petitions, become acquainted with the material of the case (after the completion of the preliminary investigation), participate in the judicial examination, appeal the decision of the investigating agencies and the court, and retain defense counsel. The participation of defense counsel is obligatory in cases of persons who are mentally ill or judged to be feeble-minded (from the stage of the preliminary investigation) and in cases of crimes for which the law prescribes a penalty of deprivation of freedom for a period of over five years or if the accused is held in custody. Defense counsel is also obligatory in cases of deaf or mute persons or of persons suffering from mental disabilities, in cases of accused who do not know the Hungarian language, and in cases of acts in which a decision may be rendered involving compulsory medical treatment, as well as in instances when the accusation is supported by the procurator.
In Bulgaria, defense counsel participates in the case not only from the moment of completion of the preliminary investigation but also of the inquiry. Instances of the obligatory participation of defense counsel in the judicial examination are provided for.
The legislation of bourgeois countries formally proclaims the accused’s right to defense, but in fact this right remains a privilege of the propertied classes, primarily because of the extremely high cost of legal assistance. In Great Britain, for example, where a system of precedents is in force, the judicial procedure is extremely complex, and, therefore, the participation in a case of a lawyer is particularly essential; the defendant must pay for the services of two lawyers a solicitor and a barrister. The laws that provide for free legal assistance apply only to cases involving some of the gravest crimes. In all other instances the question of assigning free defense counsel is decided at the discretion of the justices of the peace or of the Council of the Legal Society designated by the lord chancellor and by the General Council of the Legal Profession. The council may refuse to assign a free lawyer for many reasons, such as if in its opinion the accused does not have “reasonable grounds to defend his interests in court.”
In the USA, the law on justice in criminal cases of Aug. 20, 1964 provided for the appointment of free defense counsel, but many qualifications substantially limit the availability of free defense. In particular, this law extends only to federal courts, in which only a small range of cases are considered; the question of whether the accused is indigent is decided without supervision at the discretion of a federal judge. In France, the law of Jan. 15, 1963, introduced a number of limitations on the participation of defense counsel in the preliminary investigation: the court obtained the right to bar a lawyer from participating in a case if it considers that his speeches have political overtones. Judicial defense is also made difficult by the fact that defense counsel may be present only during the interrogation of the accused and at confrontations in which the accused participates.
T. N. DOBROVOL’SKAIA
a type of combat undertaken to thwart or repulse an enemy attack, to defeat the enemy, to retain captured positions, and to create favorable conditions for the transition to an offensive. Troops usually pass to the defensive when the situation is unfavorable, when time has to be gained in order to concentrate forces and assume the offensive or to economize forces along certain axes and create a superiority over the enemy on other axes, to repulse enemy counterattacks and counterstrikes in an offensive, to secure the flanks of advancing troops, or to consolidate captured lines. The defense is organized either ahead of time or is taken up when the troops are forced to pass to the defensive by the enemy. Depending on the missions to be performed and the forces and combat means involved, the defense may be of strategic, operational, or tactical importance.
In antiquity and in the Middle Ages fortified cities, fortresses, and castles were used for defense. The equipment of armies with firearms in the 14th and 15th centuries led to the construction of defensive field fortifications, mostly of earth, which were used for firing at the enemy and as shelters from cannonballs and bullets. The appearance in the mid-19th century of rifled weapons with a high maximum rate and range of fire made it necessary to refine the methods of defense. The combat formations of troops were echeloned in depth to strengthen the defense. During the defense of Sevastopol’ in 1854–55, the Russians created for the first time a fortified zone 1,000–1,500 m deep and built protected positions for the artillery. At the same time rifled weapons made it possible to strike at the advancing enemy from greater distances. During the defense of Port Arthur in the Russo-Japanese War of 1904–05, the Russian troops used a system of fire and connecting trenches, as well as deeper defense positions (up to 2–3 km) and rear defense lines. The appearance of machine guns, magazine rifles, and rapid-fire cannon greatly increased defensive firepower and led to the creation of a fire system that could repulse concentrated attacks by enemy infantry and cavalry. On the whole the defense still consisted mainly of strong points with intervals between them; objects of the terrain were adapted for defensive purposes.
At the beginning of World War I (1914–18) the armies of all the belligerent countries began digging ditches in the intervals between the strong points, thus creating uninterrupted trench lines. The troops were deployed on several defensive positions echeloned in depth 3–4 km from each other. Rear (reserve) defense zones were set up behind the positions and beyond the reach of enemy artillery fire. This resulted in a new type of defense along a continuous front, with a system of man-made constructions and obstacles; the defense acquired an operational depth. The experience gained in the war pointed to the need to build a defense for warfare against tanks, artillery, aviation, and chemical weapons.
In the 1930’s the theory of defense was greatly developed in the Red Army. In view of the increased striking power of advancing troops, it was considered important that the defense be deep, with many zones and with antiartillery, antitank, and antiaircraft capability. By the beginning of World War II (1939–45) and during the war, the massive use of long-range artillery, tanks, and aviation led to the construction of an even deeper defense. For instance, the zone of defense of a Red Army corps was up to 15 km deep and consisted of two defense zones, each 4–6 km deep. Each defense zone consisted of two or three trenches. The defense system was comprehensively developed by the Soviet armed forces in the Great Patriotic War (1941–45), especially in the battle of Moscow of 1941–42, the battle of Leningrad of 1941–44, the battle of Kursk of 1943, and the Balaton defensive operation of 1945.
In present-day conditions, the defense must be very strong to resist nuclear weapons, artillery, tanks, and aircraft. The defense is based on the skillful utilization of favorable conditions of the terrain, the organization of the ground by engineer work, the use of obstacles, and the dispersed disposition of the troops along the front and in depth. The strength of the defense consists of strikes with all types of weapons, large-scale maneuvering of fire, and counterattacks and counterstrikes. The major conditions for the success of the defense are the high morale and combat qualities of the troops, the stamina of the troops, and the constant coordination and continuous control of the troops.
P. K. ALTUKHOV