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.
Chulpenyev's arrest followed. He had one confrontation with Lozovsky. Their previous conversation was not even brought up by the interrogator. One question was asked: "Do you know this man?" "Yes." "Witness, you may leave." (The interrogator was afraid the charge might fall through.)
[Today Lozovsky holds the degree of candidate in medical sciences and lives in Moscow. Everything is going well with him. Chulpenyev drives a trolley bus.]
Depressed by his month's incarceration in the sort of hole in the ground we have already described, Chulpenyev appeared before a military tribunal of the 36th Motorized Division. Present were Lebedev, the Divisional Political Commissar, and Slesarev, the Chief of the Political Branch. The witness Lozovsky was not even summoned to testify. However, after the trial, to document the false testimony, they got Lozovsky's signature and that of Political Commissar Seryegin. The questions the tribunal asked were: Did you have a conversation with Lozovsky? What did he ask you about? What were your answers? Naively, Chulpenyev told them. He still couldn't understand what he was guilty of. "After all, many people talk like that!" he innocently exclaimed. The tribunal was interested: "Who? Give us their names." But Chulpenyev was not of their breed! He had the last word. "I beg the court to give me an assignment that will mean my death so as to assure itself once more of my patriotism"—and, like a simplehearted warrior of old—"Me and the person who slandered me—both of us together."
Oh, no! Our job is to kill off all those chivalrous sentiments in the people. Lozovsky's duty was to hand out pills and Seryegin's duty was to indoctrinate the soldiers.
[Viktor Andreyevich Seryegin lives in Moscow today and works in a Consumer Service Combine attached to the Moscow Soviet. He lives well.]
Whether or not you died wasn't important. What was important was that we were on guard. The members of the military tribunal went out, had a smoke and returned: ten years plus three years' disenfranchisement.
There were certainly more than ten such cases in every division during the war. (Otherwise, the military tribunals would not have justified the cost of maintaining them.) And how many divisions were there in all? Let the reader count them up himself.
The sessions of the military tribunals were depressingly like one another. The judges were depressingly faceless and emotionless—rubber stamps. The sentences all came off the same assembly line.
Everyone maintained a serious mien, but everyone understood it was a farce, above all the boys of the convoy, who were the simplest sort of fellows. At the Novosibirsk Transit Prison in 1945 they greeted the prisoners with a roll call based on cases. "So and so! Article 58-1a, twenty-five years." The chief of the convoy guard was curious: "What did you get it for?" "For nothing at all." "You're lying. The sentence for nothing at all is ten years."
When the military tribunals were under pressure, their "sessions" lasted one minute—the time it took them to go out and come in again. When their working day went on for sixteen consecutive hours, one could see, through the door of the conference room, bowls of fruit on a table set with a white tablecloth. If they weren't in a hurry, they enjoyed delivering their sentence "with a psychological twist": ". . . sentenced to the supreme measure of punishment!" And then a pause. The judges would look the condemned man in the eye. It was interesting to see how he took it. What was he feeling at that moment? Only then would the verdict continue: "... but taking into consideration the sincere repentance ..."
On the walls of the waiting room messages had been scratched with nails and scrawled in pencil: "I got execution," "I got twenty-five," "I got a 'tenner!' " They didn't clean off these graffiti; they served an educational purpose. Be scared; bow down; don't think that you can change anything by your behavior. Even if you were to speak in your own defense with the eloquence of Demosthenes, in a hall empty except for a handful of interrogators—like Olga Sliozberg in 1936, at the Supreme Court—it would not help you in the slightest. All you could do would be to increase your sentence from ten years to execution. For instance, if you were to shout: "You are fascists! I am ashamed to have been a member of your Party for several years!" (Nikolai Semyonovich Daskal did it in 1937, at the Special Collegium of the Azov-Black Sea Province at Maikop, presided over by Kholik.) In that situation what they did was fabricate a new case and do you in once and for all.
Chavdarov has described an incident in which the accused suddenly repudiated at their trial all the false testimony they had given during the interrogation. And what happened? If there was any hesitation while glances were exchanged, it lasted no more than a few seconds. The prosecutor asked for a recess, without explaining why. The interrogators and their tough-boy helpers dashed in from the interrogation prison. All the prisoners, distributed among separate boxes, were given a good beating all over again and promised another after the next recess. The recess came to an end. Once again the judges questioned all of them—and this time they all confessed.
Aleksandr Grigoryevich Karetnikov, the Director of the Textile Research Institute, provided an example of outstanding astuteness. Just before the session of the Military Collegium of the Supreme Court was to begin, he sent word through the guard that he wanted to give supplementary testimony. This, of course, provoked curiosity. He was received by the prosecutor. Karetnikov displayed his infected collarbone, broken by the interrogator who had struck him with a stool, and declared: "I signed everything under torture." By this time the prosecutor was cursing himself for having been so greedy to get "supplementary" testimony, but it was too late. Each of them is fearless only as long as he is an anonymous cog in the whole machine. But just as soon as the responsibility has become personalized, individualized, concentrated on him, just as soon as the searchlight is on him, he grows pale and realizes that he is nothing and can slip on any chance banana peel. So Karetnikov caught the prosecutor, and the latter was unwilling to suppress the whole business. The session of the Military Collegium began and Karetnikov repeated his statement in front of them. Now there was a case in which the Mili
tary Collegium went out and really conferred! But the only verdict they could have brought in was acquittal, which would have meant releasing Karetnikov on the spot. Therefore they brought in no verdict at all!
As if nothing at all had happened, they took Karetnikov back to prison, treated his collarbone, and kept him another three months. A very polite new interrogator entered the case, who wrote out a new warrant for Karetnikov's arrest. (If the Collegium had not twisted things, he might at least have spent those three months as a free man.) The interrogator asked the same questions as the first interrogator. Karetnikov, sensing freedom in the offing, conducted himself staunchly and refused to admit any guilt whatever. And what happened next? He got eight years from an OSO.
This example shows well enough the possibilities available to the prisoner and the possibilities available to the OSO. It was the poet Derzhavin who wrote:
A partial court is worse than banditry.
Judges are enemies; there sleeps the law.
In front of you the citizen's neck
Lies stretched out, quiet and without defense.
But it was a rare thing for such accidents to take place in the Military Collegium of the Supreme Court. For that matter, it was in general rare for it to rub clear its clouded eyes and take a look at any individual little tin soldier of a prisoner. In 1937, A.D.R., an electrical engineer, was taken up to the fourth floor, running upstairs with a convoy guard on either side of him. (In all probability, the elevator was working, but there were so many prisoners pouring in and out that the officials and employees would not have been able to use the elevator if the prisoners had been permitted to.) Meeting a convicted prisoner who had just left, they dashed into the court. The Military Collegium was in such a hurry they hadn't sat down yet, and all three members remained standing. Catching his breath with difficulty, for he had been weakened by his long interrogation, R. blurted out his full name. They muttered something, exchanged glances, and Ulrikh—the very same, no less—proclaimed: "Twenty years!" And they dragged R. out at a gallop and, at a gallop, dragged in the next prisoner.
The Gulag Archipelago Page 36