The Gulag Archipelago (45 page)

Still, it is really quite indecent for a democratic state not to have courts. In 1919, the Eighth Congress of the Party proclaimed in its program: Efforts must be made
to involve all the working population
in the exercise of judicial duties. It did not prove possible to involve "all" the working population. Conducting a trial is a delicate business. But there was no question of getting along entirely without courts.

However, our political courts—the special collegia of provincial courts, the military tribunals (and why, actually, should there be military tribunals in peacetime anyway?), and all the supreme courts too—unanimously followed the path of the OSO. They, too, did not get stuck in the mud of public trials or in arguments between sides.

Their primary and principal distinguishing feature was closed doors. They were first of all
closed courts
—for their own convenience.

And by now we have become so accustomed to the fact that millions and millions of people were tried in closed sessions and have become used to this for so long that now and then some mixed-up son, brother, or nephew of a prisoner will even snort at you with conviction: "And what would you have wanted? . . .

There's
information
here. Our enemies will find out! You can't do it!"

Thus the fear that our "enemies will find out" makes us clamp our head between our own knees. Who in our Fatherland, except some bookworms, remembers now that Karakozov, who fired at the Tsar, was provided with a defense lawyer? Or that Zhelyabov and all the Narodnaya Volya group were tried in public, without any fear that the "Turks would find out"? Or that Vera Zasulich, who attempted to kill the official who was, translated into Soviet terms, the Chief of the Moscow Administration of the MVD—although she missed, and the bullet went past his head—not only was not destroyed in a torture chamber but was
acquitted
in
open
court by a jury—no Troika—and then went off in triumph in a carriage?

Despite these comparisons, I do not at all mean to say that a perfect system of courts and justice ever existed in Russia. In all probability, an excellent judicial system is the last fruit of the most mature society, or else one needs a Solomon. Vladimir Dal notes that in the period before the emancipation of the serfs Russia had "not one single proverb containing any praise of the courts." And that really means something. It seems likely that they never had time to get around to making up a proverb praising the zemstvo chiefs either. But, nevertheless, the judicial reform of 1864 at least set the urban sector of our society on the road toward those English models which Herzen praised so highly.

Saying all this, I still have not forgotten what Dostoyevsky had to say in his
Diary of a Writer
against our trials by jury: about the excesses of some lawyers' eloquence ("Gentlemen of the jury! What kind of woman would she have been if she had not stabbed her rival? Gentlemen of the jury! Who among you would not have thrown the child out of the window?"); and the risk that a juror's momentary impulse might outweigh his civic responsibility. But spiritually Dostoyevsky far outstripped the realities of our life, and he worried about what he shouldn't have worried about! He believed that we had achieved open trials once and for all! (Indeed, who among his contemporaries could have believed in the OSO?) And somewhere else he writes: "It is better to err on the side of mercy than on that of the death penalty." Oh, yes, yes, yes!

Excesses of eloquence do not afflict exclusively a judicial system in process of being established; even more conspicuously, they afflict an already established democracy that has not yet discovered its moral goals. England again gives us examples, as when, for partisan advantage, the leader of the opposition does not hesitate to blame the government for a national predicament worse than actually exists.

Excesses of eloquence are a malady. But what word can we then use for the excessive use of closed doors? Dostoyevsky dreamed of a court in which everything essential to the
defense
of the accused would be set forth by the
prosecutor
. How many aeons will we have to wait for that? Our social experience has so far enriched us immeasurably with
defense lawyers
who
accuse
the defendant. ("As an honest Soviet person, as a true patriot, I cannot but feel repugnance at the disclosure of these evil deeds.")

And how comfortable it all is for the judges in a closed session! Judicial robes are not required and one can even roll up one's sleeves. How easy it is to work! There are no public-address systems, no newspapermen, and no public. (Well, there is a public, an audience, but it consists of
interrogators
. For example, they used to attend the Leningrad Province Court during the day to find out how their "proteges" were conducting themselves, and at night went calling on those prisoners who needed to have their
consciences appealed to
.)3

The second main characteristic of our political courts is the lack of ambiguity in their work, which is to say predetermined verdicts.

[That same collection edited by A. Y. Vyshinsky,
Ot Tyurem k Vospitatelnym Uchrezhdeniyam
, includes materials indicating that the predetermination of verdicts is an old, old story. In 1924-1929, sentences were determined by joint administrative and economic considerations. Beginning in 1924, because of national
unemployment
, the courts reduced the number of verdicts which sentenced prisoners to corrective labor while they continued to live at home and increased short-term prison sentences. These cases involved only nonpolitical offenders, of course. As a result, prisons were overcrowded with short-termers serving sentences of up to six months, and not enough use was being made of them in labor colonies. At the beginning of 1929, the People's Commissariat of Justice of the U.S.S.R., in Circular No. 5,
condemned
short-term sentences and, on November 6, 1929, the eve of the twelfth anniversary of the October Revolution, when the country was supposedly entering on the construction of socialism, a decree of the Central Executive Committee and the Council of People's Commissars simply
forbade
all sentences of less than one year!]

In other words, you, a judge, always know what the higher-ups expect of you (furthermore there's a telephone if you still have any doubts). And, following the example of the OSO's, sentences might even be typed out ahead of time, with only the prisoner's name to be added later, by hand. And in 1942 Strakhovich cried out during a session of the military tribunal of the Leningrad Military District: "But I could not have been recruited by Ignatovsky when I was only ten years old!" But the presiding judge barked back: "Don't slander the Soviet intelligence service!" The whole thing had been predetermined long before: each and every one of the Ignatovsky group was to be sentenced to be shot. Some man named Lipov got included in the group, but
no one
from the group
knew him
and he knew
none
of them either. Well, so, all right, Lipov got ten years.

How hugely the predetermination of sentences contributed to easing the thorny life of a judge. It wasn't so much a mental relief, in the sense that one didn't have to think, as it was a moral relief. You didn't have to torture yourself with worry that you might make a mistake in a sentence and make orphans out of your own little children. And the predetermination of sentences could dispose even so immovable a judge as Ulrikh to good humor, (And what major execution had he not pronounced?) In 1945, the Military Collegium was hearing the case of the "Estonian separatists." Short, stocky, good-humored Ulrikh was presiding. He didn't pass up a single opportunity to joke not only with his colleagues but also with the prisoners. (After all, that's what humaneness is! A new trait—where had it ever been seen?) Having learned that Susi was a lawyer, he said to him with a smile: "Well, so now your profession can be of some use to you!" Well, there is no need to quarrel. Why be embittered? The court routine proceeded pleasantly. They smoked right at the judge's table, and at a convenient moment broke off for a good lunch. And when evening began to fall, they had to go and
confer
. But who confers at night? They left the prisoners to sit at their desks all night long and went on home. At nine in the morning they came in all brisk and freshly shaved: "Rise. The court is in session." And all the prisoners were given a "ten-ruble bill" apiece.

And if anyone should object that the OSO at least proceeded without hypocrisy, whereas there was hypocrisy in instances like the above—they pretended to be conferring but didn't really confer—we would certainly have to enter a strong—very strong—dissent!

Well, the third and final characteristic is
dialectics
. (Which used to be crudely described in the folk saying: "Whichever way you point a wagon tongue, that's the way it goes.") The Code cannot be a dead weight in the path of the judge. The articles of the Code had been around during ten, fifteen, twenty years of rapid change, and, just as Faust said:

The whole world changes and everything moves forward, And why should I be afraid to break my word?

All the articles of the Code had become encrusted with interpretations, directions, instructions. And if the actions of the accused are not covered by the Code, he can still be convicted:

• By analogy (What opportunities!)
• Simply because of
origins
(7-35: belonging to a socially dangerous milieu)

[In the Republic of South Africa, terror has gone to such lengths in recent years that every
suspicious
(SOE—Socially Dangerous Element) black can be arrested and held for three
months
without investigation or trial. Anyone can see immediately the flimsiness of this: why not from three to ten years?]

• For
contacts with dangerous persons
(Here's scope for you! Who is "dangerous" and what "contacts" consist of only the judge can say.)

[This is something we hadn't known, something the newspaper
Izvestiya
told us in July, 1957.]

But one should not complain about the precise wording of our published laws either. On January 13, 1950, a decree was issued re-establishing capital punishment. (One is bound, of course, to consider that capital punishment never did depart from Beria's cellars.) And the decree stated that the death sentence could be imposed on
subversives
—diversionists. What did that mean? It didn't say. Iosif Vissarionovich loved it that way: not to say all of it, just to hint. Did it refer only to someone who blew up rails with TNT? It didn't say. We had long since come to know what a "diversionist" was: someone who produced goods of poor quality was a diversionist. But what was a
subversive?
Was someone
subverting
the authority of the government, for example, in a conversation on a streetcar? Or if a girl married a foreigner—wasn't she
subverting
the majesty of our Motherland?

But it is not the judge who judges. The judge only takes his pay. The directives did the judging. The directive of 1937: ten years; twenty years; execution by shooting. The directive of 1943: twenty years at hard labor; hanging. The directive of 1945: ten years for everyone, plus five of disenfranchisement (manpower for three Five-Year Plans).

[Babayev, in fact a nonpolitical, shouted at them: "You can '
muzzle
' me for three hundred years! But I'll never lift my hand for you, you benefactors!"]

The directive of 1949: everyone gets twenty-five.

[Thus it was that a real spy (Schultz, in Berlin, in 1948) could get ten years, and someone who had never been a spy, Günther Waschkau, got twenty-five. Because he was in the wave of 1949.]

The machine stamped out the sentences. The prisoner had already been deprived of all rights when they cut off his buttons on the threshold of State Security, and he couldn't avoid a stretch. The members of the legal profession were so used to this that they fell on their faces in 1958 and caused a big scandal. The text of the projected new "Fundamental Principles of Criminal Prosecution of the U.S.S.R." was published in the newspapers, and they'd
forgotten
to include any reference to
possible
grounds for acquittal. The government newspaper issued a mild rebuke:

"
The impression might be created
that our courts only bring in convictions."

But just take the jurists' side for a moment: why, in fact, should a trial be supposed to have
two
possible outcomes when our general
elections
are conducted on the basis of
one
candidate? An acquittal is, in fact, unthinkable from the economic point of view! It would mean that the informers, the Security officers, the interrogators, the prosecutor's staff, the internal guard in the prison, and the convoy had all worked to no purpose.

Here is one straightforward and typical case that was brought before a military tribunal. In 1941, the Security operations branch of our inactive army stationed in Mongolia was called on to show its activity and vigilance. The military medical assistant Lozovsky, who was jealous of Lieutenant Pavel Chulpenyev because of some woman, realized this. He addressed three questions to Chulpenyev when they were alone:

1. "Why, in your opinion, are we retreating from the Germans?" (Chulpenyev's reply: "They have more equipment and they were mobilized earlier." Lozovsky's counter: "No, it's a
maneuver
. We're
decoying
them.")

2. "Do you believe the Allies will help?" (Chulpenyev: "I believe they'll help, but not from unselfish motives." Lozovsky's counter: "They are deceiving us. They won't help us at all.")

3. "Why was Voroshilov sent to command the Northwest Front?"

Chulpenyev answered and forgot about them. And Lozovsky wrote a denunciation. Chulpenyev was summoned before the Political Branch of the division and expelled from the Komsomol: for a defeatist attitude, for praising German equipment, for belittling the strategy of our High Command. The loudest voice raised against him belonged to the Komsomol organizer Kalyagin, who had behaved like a coward at the battle of Khalkhin-Gol, in Chulpenyev's presence, and therefore found it convenient to get rid of the witness once and for all.