The Man with the Poison Gun

by Serhii Plokhy

  The public and the judges alike were clearly moved by the speech. Stashinsky became even paler than usual, his eyes downcast.

  44

  DEVIL’S ADVOCATES

  Immediately after the lunch break, Heinrich Jagusch called on Adolf Miehr, the attorney for the Rebet family, to speak. Up to this point he had been as tough and aggressive as Neuwirth in questioning Stashinsky. Like Chief Prosecutor Albin Kuhn, Miehr rejected the proposition that Stashinsky had carried out his killings under duress. But Miehr was equally not convinced by the prosecutor’s claim that Stashinsky had committed his murders in a perfidious manner. At stake was what type of killing had occurred. In German law, the most severe penalties would be for murder classified as Meuchelmord, or treacherous murder, which would mean that Stashinsky knew that his victim was defenseless and unaware of the impending attack. “Was Rebet defenseless? Was he trusting?” Miehr asked the court, and then answered his own questions in the negative: “In the state in which Rebet climbed the stairs, he certainly was not defenseless. The notion of trust is also irrelevant here.” Miehr reasoned that Rebet was in good health and that he was quite capable of protecting himself against an assailant. He then stated: “The concept of treacherous murder (Meuchelmord), as generally used by nonprofessionals, is . . . inapplicable here.” In a surprising move, Miehr’s argument undermined a key element of the prosecution’s case, which suggested that Stashinsky had killed a defenseless victim whom he had caught by surprise—and therefore should receive the harshest penalties if convicted.

  But that was not the end of Miehr’s unexpected attack on the prosecution’s arguments. He also maintained that it was unreasonable to expect Stashinsky to defect to the West when he first received his criminal orders, given the kind of indoctrination he had undergone in the Soviet Union and his communist convictions. Miehr concluded his surprising speech with a reference to Rebet’s widow, Daria, whose interests he represented—and whose interests diverged from that of the other defendants. “Distinguished Senate!” declared Miehr. “In Frau Rebet’s name I must assure you once again that she feels not the slightest hatred for Stashinsky but sympathizes with him, and she is right to do so. . . . A light sentence would also be sufficient, for Stashinsky’s action means that he will be burdened by his conscience, of which he, being responsible for the deaths of two people, will never rid himself.”1

  What had just happened? Many in the courtroom were stunned by Miehr’s speech. Whose side was this attorney on, and why was he requesting clemency for the murderer and questioning the legal grounding of the prosecution’s argument? Daria Rebet spoke next, bringing some clarity to the issue. A forty-nine-year-old woman with an open face and thin lips that bespoke strong will and determination, she rose from her seat behind the desk shared by family members of the victims and their lawyers. She then told the court, in her heavily accented German, that, given her difficulty with the language, and wanting to be as precise as possible, she would read a written statement. Andrii Rebet, Daria’s twenty-year-old son, who had translated the text from Ukrainian into German, sat next to her, ready to help if required.

  “To begin with,” said Daria, “I must say that I find it very difficult to appear in the role of co-plaintiff in this trial. For the question naturally arises: Whom am I accusing? And if I am to answer that question precisely and truly, then the answer will be as follows: the accusation is directed against those who gave the orders, the Russian Bolshevik regime, the Soviet system, into which people are fitted ruthlessly and almost fatalistically, and in which they become mechanical components.” Like Neuwirth, Daria was attacking the communist system first and foremost. But unlike the Bandera family’s attorney, she was prepared to transfer almost all responsibility from the individual who carried out the criminal order to those who had issued it. “I have no feeling of malice or hatred toward the defendant,” she declared. “I can also say and affirm the same on behalf of my almost full-grown son; more precisely, on behalf of both my children. From a purely human viewpoint, the defendant may be pitied, and I attach no importance to his being punished severely. I see the Stashinsky case precisely as a case, a phenomenon, that is simultaneously a reflection of the tragic fate of our people.”

  Andrii Rebet later remembered that his mother’s words were met with disbelief in the courtroom. They made a strong impression on Stashinsky, whose demeanor changed visibly for the better. Andrii fully supported his mother’s position on the question of Stashinsky’s punishment. The Rebets wanted it to be above all a trial of the Soviet regime and its methods of suppressing the Ukrainian national movement. As may be judged from her statement and later writings, Daria was prepared to see Stashinsky not as a perpetrator or a traitor, as Bandera’s followers saw him, but as a victim of the Soviet regime. Her hope was that the publicity accompanying the trial would change the West’s treatment of Ukrainian émigrés and their cause, and that news of the trial would reach Ukraine to “give deluded people a reason to think seriously.”2

  Later in the day, Stashinsky got help from another unexpected source. It appeared that Charles Kersten, the high-profile and politically powerful attorney on Yaroslava Bandera’s legal team, had also switched sides during the course of the trial. Kersten had remained silent through most of the trial. Although he was officially just a consultant to Hans Neuwirth, many regarded him as the senior figure in the triumvirate of lawyers representing the Bandera family. A photo taken during a trial recess showed him walking very confidently, one hand in his pants pocket, between his two colleagues: Hans Neuwirth limping with a cane, and the diminutive Jaroslav Padoch carrying a briefcase. There was no doubt about who was the most influential. The United States ruled the world, and its support was essential for the continuing existence not only of West Berlin but also of West Germany itself. Everyone knew that Kersten was not just any American: he had connections at the highest levels in Washington.

  Kersten addressed the court in English, speaking as if to an American courtroom and using his substantial oratorical skills. He would pause after every paragraph, allowing the interpreter to translate his words into German. Like Daria Rebet and her attorney, Kersten was not there to go after Stashinsky. His main task, as he had formulated it in a letter to Senator Thomas Dodd two weeks earlier, was to expose the threat that the Soviet Union presented to the Western world, especially its government’s proclivity for killing its political opponents. “If Stashinsky had not defected,” said the former congressman, his voice loud and clear, “some stubborn anti-Soviet UN delegate, for example, might one day be found dead in New York, victim of a ‘heart attack’ produced by this masterpiece of Soviet science.” He put the killings of the two émigré leaders into the broader context of Soviet policy toward Ukraine and its liberation movement. He referred to the Great Ukrainian Famine of 1932–1933, the Great Terror of the late 1930s, and the brutal suppression of the Gulag uprising in Kengir, Kazakhstan, in 1954, where a good half of the prisoners were Ukrainians, many of them former soldiers of the Ukrainian Insurgent Army.

  Kersten’s speech gave Stashinsky renewed hope. “Mrs. Bandera does not seek vengeance but justice for Stashinsky,” declared the US congressman, “recognizing that he was not arrested in the course of his crimes but fled to the West and voluntarily told the full story of the Soviet government’s crime and his part in it.” Kersten believed that the true goal of the trial was to uncover the “real criminals” at the highest levels of Soviet power. “The Council of Ministers of the Soviet Union, in this case, has been proved guilty of murder in the first degree,” he told the court. “This Court may not be able to prescribe the punishment for the real culprit. But it can render a historic judgment and declaration finding the Soviet government guilty of murder, a judgment that will hearten a large part of mankind that is afflicted with the Russian Communist conspiracy.” For Stashinsky, the session must have been an emotional roller coaster, for Kersten was followed directly by Jaroslav Padoch, who went hard not only after the Soviet leaders
in Moscow but also after the assassin himself.3

  But then came the concluding statement of Stashinsky’s own lawyer, Helmut Seidel, and the scales of justice began again to tilt in his favor. Throughout the trial, Stashinsky had stuck to his story: that he had considered the struggle for Ukrainian independence to be futile and had been a true communist believer when he had committed his crimes. It was only after the killings that he had discovered the truth and repented for his actions. Seidel was happy to reinforce this narrative in his own concluding statement to the court. Seidel cut a striking figure and made a strong impression on those in the courtroom. “He speaks in a very calm voice, but confidently, and with extraordinary command of the case,” wrote one of Bandera’s followers in his report on the trial. “He deftly exploits all the errors and inappropriate expressions of the previous attorneys to diminish the guilt of his client.” Volodymyr Stakhiv, a close associate of Daria Rebet who was present in the courtroom, wrote that “Dr. Helmut Seidel’s defense speech was composed professionally and delivered brilliantly.”4

  “I defend Stashinsky—a person, such a person as you or I,” Seidel told the court, “a peasant’s son whom accident and fate placed in a difficult situation: a person with whom I became acquainted, at first somewhat withdrawn and reserved, but later with a gentle and almost happy openness and a phenomenal memory, so that you are simply horrified on seeing the contrast between him and the deeds he carried out.” Seidel explained that contrast as a consequence of Stashinsky’s upbringing, which instilled in him Marxist ideology, Soviet patriotism, and obedience to superiors. “Before this court there stands a man who has come from a country where completely different ethical and moral concepts prevail. He was told that there is no such thing as individual freedom; that freedom is willing and conscious service to the inevitable. And who can establish the inevitable better than the Council of Ministers of the Soviet Union itself?”

  Seidel told the court that he was not going to argue with the prosecution’s suggestion that Stashinsky could not have acted under duress, given that the KGB was not a military organization. As far as Seidel was concerned, discipline in the KGB was tougher than in the army. Still, he was not going to base the defense of his client on the “following orders” argument. He argued instead that Stashinsky had killed Rebet in accordance with the ideological dogmas instilled in him by the KGB, and that he had assassinated Bandera out of fear that if he did not do so, he would be next in line. He then formulated his main argument: “What I am about to say is entirely in accord with my profound legal conviction, to wit, that the defendant is not the one who committed the crime but only the accessory to the criminal.”

  Seidel’s speech changed the mood in the courtroom. It seemed that by portraying Stashinsky as a mere accessory to the murder, his attorney had found the perfect formula to both condemn the Soviet Union for what it was doing to its own citizens and its opponents abroad and to punish the assassin, whose confession and testimony had made the world aware of the danger posed by the Soviet regime. Daria Rebet later remembered that Hans Neuwirth, realizing the change of mood among the judges, made a statement declaring that he did not insist on a life sentence for the accused. But Chief Prosecutor Albin Kuhn stuck to his guns, confirming that he wanted a life sentence for each of the two murders committed by the defendant.

  Bogdan Stashinsky was the last to speak at the trial that was deciding his fate. “I can only assert,” declared Stashinsky, pale as always, “that I have already said everything I could and can say. My testimony is, in fact, at the same time a sign of my repentance. I am aware of my guilt, and I can only ask the distinguished court to be guided more by considerations of mercy than of law.” His testimony was indeed the only card he could play in court. He played it well. If Charles Kersten was right, and there was a deal between the authorities and Stashinsky, he was clearly keeping his part of the bargain by delivering the most damning testimony about the Soviet practice of political killings that had ever reached the Western world.

  The trial was now over. Heinrich Jagusch announced that the verdict would be made public at 9:00 a.m. on Friday, October 19, 1962. Stashinsky, the families of his victims, and the world at large would have to wait four long days to learn the judgment.5

  45

  VERDICT

  The journalists who gathered on the morning of October 19 to hear the verdict in the Stashinsky case were not sure what to expect. On the last day of the trial they had witnessed a “tense legal contest,” as Reginald Peck wrote in the Daily Telegraph. Not only did the prosecution and the defense define the two murders differently, but the families of the victims seemed to be divided on who was the main perpetrator, Stashinsky or the Soviet regime. A day earlier, the Berliner Zeitung of East Berlin had published a long article claiming once again that it was Reinhard Gehlen and his people who had killed Bandera. The newspaper accused Heinrich Jagusch and the court of following orders from the West German government and substituting anticommunist rhetoric for missing evidence. “Whatever the court’s verdict,” declared the newspaper, “one thing can already be said ahead of time: there will be no truth in the verdict.”1

  Heinrich Jagusch began his reading of the verdict soon after 9:00 a.m. It was a long document. The judge started with the biography of the accused. It took some minutes before he reached the assessment of the arguments presented by the prosecution and the defense. “The Court of Criminal Appeal of the Federal High Court agrees with the indictment, inasmuch as the two crimes constitute murder by poison,” declared Jagusch. That was a clear victory for the prosecution. Unfortunately for the Bandera camp, the prosecution might have won the battle but was about to lose the war. “The Court of Criminal Appeal,” continued Jagusch, “. . . agrees with the opinion of defense counsel: in neither case was the accused the perpetrator of a murder though he carried out the acts of killing alone, but only a tool and an assistant. The perpetrators, that is to say the murderers, are those persons who were responsible for planning and plotting the murders down to the last detail as regards the victims selected, the place, time and method of murders.”

  This was the crux of the trial, and Jagusch and the rest of the judges sided with the defense. Jagusch argued against the prosecution’s case, according to which “a person who commits a deed entirely on his own must without exception always be condemned as the perpetrator.” Why? Because, Jagusch said, as long as there were “states that plan political murders, [and] issue orders,” and as long as “they shall . . . ideologically train certain of their subjects” to carry out those orders, the citizens of such states could not be judged according to the same standards as those of other countries. Jagusch brought up the example of Nazi Germany and the impact its state and ideology had had on regular citizens: “Those who morally resist such negative forces stand alone within the masses when confronting them,” said the judge, who had lived through the period. “Those who succumb to these forces succumb to a skillful, overpowering, officially controlled mass influence; they do not succumb to incentives that come under the general category of criminology.”2

  If Stashinsky was indeed just an accessory to murder, and the actual perpetrators were in Moscow, what action could be expected from the court? There was little that Jagusch and the German judiciary system could do about Aleksandr Shelepin, to say nothing of Nikita Khrushchev. As Jagusch said, “Since they hold high-ranking offices in their sovereign territory of a foreign power, they are withdrawn from our efforts to ensure that justice is done, although in the long run no one can escape his just punishment.” Stashinsky, on the other hand, was subject to the court’s jurisdiction. “The sentence pronounced by this court is not intended to destroy the accused,” continued Jagusch. “As far as humanly possible, it is to help him atone. The separate sentences for each of the two cases of murder are six years’ penal servitude; the sentence for treason is one year’s penal servitude. A total sentence of eight years’ penal servitude, allowance to be made for imprisonment pending trial,
suffices for atonement.”3

  When Jagusch finished reading the verdict, very few people in the room could fully comprehend the importance of what had just happened. A mere eight years for two murders? That was particularly shocking, given that the prosecution had demanded two life sentences. Bandera’s followers tried to put up a brave face under the circumstances. They had also sought an indictment of Moscow and international legitimacy for their struggle—those two goals had been achieved. But they lost the fight to see Stashinsky condemned as a traitor to the Ukrainian nation. Daria Rebet and her circle of Ukrainian émigrés had taken a different stand, treating Stashinsky more as a victim than as a perpetrator, and the court’s ruling seemed to endorse their position.

  Many of Bandera’s followers and people sympathetic to the Organization of Ukrainian Nationalists expressed disappointment with the ruling. Among them was Jaroslav Padoch, who had left Karlsruhe before the announcement of the verdict. “News has just arrived of the eight-year prison term for Stashinsky,” wrote Padoch from the United States on October 19 to Stepan Lenkavsky, Bandera’s successor at the top of OUN, a Munich acquaintance. “Although none of the prosecutors wanted harsh punishment for him, it is still hard to think of it: eight years for two lives. A cheap, very cheap price.” He added that in Svoboda, a leading Ukrainian-language newspaper in the United States, news of the verdict had appeared next to a story about a death sentence imposed by a Soviet court in Lviv on a person accused of bribery. “Two systems, two standards of humanism,” wrote the clearly disappointed Padoch.