Chapter 7 – In the Engine Room
In this chapter, A.S. describes the court system, and how sentences are determined and handed out. A.S. starts with the day he and his fellow cellmates have received their sentence. He is brought into a room and seated on a stool opposite a neat, black-haired NKVD major. Leafing through a pile of papers, the major finds the paper which referred to A.S. and reads it aloud in a bored patter, where A.S. learns he has been sentenced to 8 years of corrective labor.
It is so everyday and routine that A.S. finds it anti-climactic. Trying to give the moment at least a little importance, A.S. asks the major with a tragic expression “But really, this is terrible! Eight years! What for?” “Right there” the major shows once again where to sign. A.S., unable to think of anything else to do, signs. “Let’s move along” commanded the jailer. And I moved along.
A.S. discusses the OSO (special council of the NKVD) which is empowered by law to hand out administrative sentences (ie. without any trial). Russia had administrative sentences to a certain extent even under the Tsars, where a Tsar might occasionally exile without any trial those who had incurred their displeasure:
Thus the tradition of the “dotted line” – the administratively issued sentence – dragged on. But it was too lax; it was suitable for a drowsy Asiatic country, but not for a country that was rapidly advancing . . . and if it was still possible to enumerate names and cases, this was not, begging your pardon, real scope.
Real scope entered the picture with the twenties, when permanently operating Troikas – panels of three, operating behind closed doors – were created to bypass the courts permanently.
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The Troikas which handed out these administrative sentences generally operated behind closed doors, and in the strictest privacy. A prisoner never saw or confronted these judges who were passing out administrative sentences, and one couldn’t be certain in fact that the Troika existed at all. A.S. wonders half in jest but half seriously whether all that existed was a remarkably efficient group of typists printing out sentences. A.S. notes that in the world of communist ideology, one can’t in any event be too squeamish about terms like “guilt” or “innocence”:
Please forgive us, reader. We have once more gone astray with this rightist opportunism – this concept of “guilt”, and of the guilty or innocent. It has, after all, been explained to us that the heart of the matter is not personal guilt, but social danger. One can imprison an innocent person if he is socially hostile. And one can release a guilty man if he is socially friendly.
But lacking legal training, we can be forgiven. For the 1926 Code, according to which we lived for twenty-five years and more, was itself criticized for an “impermissible bourgeois approach” . . , for some kind of “bourgeois weighing of punishments in relation to the gravity of what had been committed”.
(Page 282)
The OSO process had the ‘advantage’ (from the perspective of those running this system), that it could work at tremendous speed, and its penalty could not be appealed. There was no appeals jurisdiction above it, and no jurisdiction beneath it. In the words of A.S. “It was subordinate only to the Minister of Internal Affairs, to Stalin, and to Satan”.
A.S. includes various anecdotes about prisoners discovering their sentences. There’s the woman who, expecting a 15 year sentence finds that a typo has given her only a 5 year sentence, causing her to gratefully and thankfully sign her sentence quickly (to the confusion of the officer giving her the sentence). There is the group of unsentenced prisoners who have already arrived at the camp, and are driven to the courtyard to receive the NKVD officer who has arrived to inform them of their penalties. Squinting at their thin footwear and the steaming frost of the cold winter day, he says “Well anyway men, why should you freeze out here? The OSO gave you all ten years apiece. There are just a very, very few who got eight. You understand? Disperse!”
Aside from the OSO, there were also more normal courts. Here A.S. describes the key characteristics of the courts in the USSR at this time:
- They were first of all closed courts. They kept their affairs private and did not get stuck in the mud of public trials or in arguments between sides.
- There was a lack of ambiguity in their work – which is to say, the verdicts were predetermined. You, as a judge, always knew what the higher ups expect of you (and there’s a telephone if you still have any doubts).
- The criminal code was broad enough, that virtually anything or anyone could be plausibly found to be guilty of some crime. Aside from violations of the code itself, guilt could be found simply because of social origin (7-35: belonging to a socially dangerous milieu) or for contacts with dangerous persons (who is “dangerous” and what “contacts” consist of, only the judge can say).
A.S. discusses the fact that the mere existence of these various security branches provided a strong incentive to continue to bring cases, if only to prove that they were actually doing something. Ultimately, most of those caught up in the system understood it was a farce.
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.“
(Page 293)
A.S. gives some anecdotes for those cases which did in fact come before courts, where a prisoner would confront his/her judge. He discusses a prisoner who, just before his court session, gave word through his guard that he wanted to give supplementary testimony. Eager to get such supplementary testimony, the prosecutor receives him:
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, who was now unwilling to suppress the whole business . . .
They took Karetnikov back to prison, treated his collarbone, and kept him another three months. A very polite new interrogator entered the case . . . Karetnikov, sensing freedom in the offing, conducted himself staunchly and refused to admit any guilt whatsoever. And what happened next? He got eight years from an OSO
(page 295)
A.S. concludes his chapter by discussing his personal visit to the Supreme Court of the USSR in 1963, when he was able to meet in person seventy officials of that court. The very same court that had been handing out endless sentences for decades. But he was assured that it had not been them handing out those sentences and perpetrating injustice for many years, those others were no longer present. A.S. hears stories about how the courts had been humiliatingly subservient to the (State Security) Organs. A.S. describes looking around himself in astonishment, finding that in the end these judges were still just people, real people. Smiling and telling stories, explaining their intentions. And he had no illusions that if things turned full circle and it was once again up to them to try him, maybe in that very hall – well, so they would convict him.
For many centuries there had been a proverb: “Don’t fear the law, fear the judge”. But in the case of the USSR, individual people and judges lagged behind the system in terms of cruelty. The proverb needed to be reversed and the system itself condemned “Don’t fear the judge, fear the law”.
Chapter 8 – The Law as a Child
In this chapter we learn about the law in the early years following the October Revolution, which included the Revolutionary Tribunals. A substantial portion of this chapter describes the exploits of N.V. Krylenko, a high-level prosecutor in the Peoples Commissariat of Justice. A.S. was provided by well-wishers an intact copy of a collection of speeches for the prosecution delivered by Krylenko, although A.S. laments that this record is naturally one-sided since it doesn’t include the records from the defense perspective. Stenographic records of many such trials were either never kept or were ultimately destroyed.
The All-Russian Central Executive Commitee had the right to intervene in any judicial proceeding … (And, as the reader understands, it was not necessary for the entire Executive Committe to assemble at a meeting to this end, since its Chairman, Sverdlov, could correct a sentence without leaving his office). All of this, Krylenko explains, “shows the superiority of our system over the false theory of the separation of powers” that is, the theory of the independence of the judiciary.
(True, Sverdlov also said: “It is very good that the legislative and executive power are not divided by a thick wall as they are in the West. All problems can be decided quickly)
(Page 307)
One gets the impression that in the early years following the Revolution, the state of the law and court system was fairly chaotic. There were very few established codes and standardized judicial process in those early years, they had thrown out the Tsarist codes but had not yet composed their own.
And so we heard from Comrade Krylenko that a tribunal was not that kind of court! [ie. one concerned with the guilt or innocence of a particular defendant] On another occasion we would hear from him that a tribunal was not a court at all: “A tribunal is an organ of the class struggle of the workers directed against their enemies” and must act “from the point of view of the interests of the revolution . . . having in mind the most desirable results for the masses of workers and peasants. “No matter what the individual qualities [of the defendant], only one method of evaluating him is to be applied: evaluation from the point of view of class expediency“
(Page 308)
A.S. leads the reader through some of the early trials. One of these concerns the trial of a high ranking Chekist (the Cheka being the early state police) who was accused (and almost certainly guilty of) a high degree of corruption, living a lavish lifestyle afforded by his near limitless power to arrest and release people at will, in the still early revolutionary environment of Russia in those days. This case was perhaps a reaction by the leadership against the the increasingly visible corruption of the Chekists, and the need to find a few scapegoats to show that something was being done, while allowing the Cheka itself to continue intact.
There are trials against leaders of the Orthodox church (which has been resistant to the confiscation of church property), and the so called ‘intelligentsia’ (ie. university professors, scientists, authors etc).
Chapter 9 – The Law Becomes a Man
A.S. continues his review of various cases, this time focused on the later period following 1920.
1921 was the most difficult of all the four winters of the Civil War; nothing was left for fuel, and trains simply couldn’t get to the next station; and there were cold and famine in the capitals, and a wave of strikes in the factories – strikes which, incidentally, have been completely wiped out of our history books by now. Who was to blame? That was a famous question: Who is to blame?
Well, obviously, not the Over-All Leadership. And not even the local leadership. That was important. If the Communist leaders did not have a correct grasp of the business at hand, then it was the engineers who were supposed to “outline for them the correct approach to the problem”. Those who had worked out the calculations were to blame, those who had re-figured the calculations, which consisted of how to produce food and heat with zeros. Those to blame weren’t the ones who compelled but the ones who calculated!
If there was no coal, firewood or petroleum, it was because the engineers had brought about a mixed-up, chaotic situation. And it was their own fault that they hadn’t resisted the urgent telephonograms from Rykov and the government – and had issued and allotted fuels outside the scope of the plan.
The engineers were to blame for everything. But the proletarian court was not merciless with them. Their sentences were lenient. Of course, an inner hostility to those cursed engineers remains in proletarian hearts – but one can’t get along without them; everything goes to rack and ruin. . . . The engineers are to blame, but not out of malice on their part; it’s simply because they are inept; they aren’t able to do any better; under capitalism, they hadn’t learned to work, or else they were simply egotists and bribe-takers.
And so at the beginning of the reconstruction period, a surprising tendency toward leniency could be observed in regard to the engineers.
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We learn about the case of the suicide of engineer Oldenborger. Here was a man who had worked for thirty years in the Moscow water-supply system and had become its chief engineer back at the beginning of the century. He had never married and had no children, his whole life had consisted of dedication to running that one water-supply system. When his colleagues went on strike in answer to the Bolshevik coup d’état and invited him to take part in the strike with them, his reply was “On the operational side, please forgive me, I am not on strike . . . In everything else, I-well, yes, I am on strike”. He needed to dash off to repair a broken pipe.
Lenin had instructed that “to keep watch over the bourgeois specialists we need a watchdog – the RKI – the Workers’ and Peasants’ Inspection”.
And they began by assigning two such watchdogs to Oldenborger on a full-time basis. One of them, a swindler and a former clerk in the water system, had been fired for “improper conduct” and had entered the service of the RKI and then got promoted to the Central People’s Commissariat. From that height, he had returned to check up on his former chief and take hearty vengeance on the man who had wronged him.
Then of course, the local Party committee wasn’t dozing either. And Communists were put in charge of the water system. “Only workers are to hold the top positions; there are to be only Communists at leadership level”
And so they all immediately began to order the chief engineer about, to supervise him, to give him instructions, and to shift the engineering personnel around without his knowledge. . . They started bringing inspection commissions into the water-supply system, but the commissions found that everything was in good order . . The RKI men refused to be satisfied with this, and they kept pouring in report after report. They put what obstacles in his way that they could; they prevented wasteful boiler repairs and replacing the wooden tanks with concrete ones. Despite all this, the operation of the water-supply system not only didn’t improve, but deteriorated.
What was particularly offensive to the “hereditary proletarian psychology” of the RKI and trade unions was that the majority of the workers at the pumping stations “had been infected with petty-bourgeois psychology” and, unable to recognize Oldenborger’s sabotage, had come to his defense.
(Pages 336-338)
The harassment of Oldenborger continued for some time, he was kept under constant investigation, continually summoned before a multitude of commissions and sub-commissions, they kept giving him assignments that were to be urgently carried out. They opened up a case against him with the Cheka. Ultimately, Oldenborger committed suicide. His primary harassers were brought to trial, and got off with one year in jail.
Around this time there was an incredible famine developing in the Volga region of Russia. In order to try to solve this problem, the authorities decided to let the Orthodox church feed the peasants. To have permitted any direct help to go straight from the church into the mouths of those who were starving would have undermined the dictatorship of the proletariat – so the funds needed to be confiscated and turned over directly to the state treasury. If the church refused, they could be blamed for the famine – and if they agreed, the church’s resources would be cleaned out. The church resisted this order.
From the distance of a half-century, it is easy to reproach the Patriarch. Of course, the leaders of the Christian church ought not to have been distracted by wondering whether other resources might not be available to the Soviet government, and who it was who had driven the Volga to famine in the first place.
… In Petrograd things seemed to be working out peacefully . . . Veniamin announced: “The Orthodox Church is prepared to give everything to help the starving” … “In Smolny they agreed that the church vessels and ikon coverings would be melted down into ingots in the presence of the believers” …
Again things were getting fouled up with some kind of compromise! The noxious fumes of Christianity were poisoning the revolutionary will. That kind of unity and that way of handing over the valuables were not what the starving people of the Volga needed! The spineless membership of the Petrograd Pomgol was changed. The newspapers began to howl about the “evil pastors” and “princes of the church” and the representatives of the church were told: “We don’t need your donations! And there won’t be any negotiations with you! Everything belongs to the government – and the government will take whatever it considers necessary” And so forcible requisitions, accompanied by strife, began in Petrograd, as they did everywhere else. And this provided the legal basis for initiating trials of the clergy
(Pages 345-346)
During the following trial, 5 priests were sentenced to be shot and the Patriarch was removed from office and taken to the Donskoi Monastery and kept there in strict incarceration. In another trial against the church A.S. includes some interesting details pointing to the peril of defense lawyers and witnesses acting against the government case:
The tribunal roared out a threat to arrest Bobrishchev-Pushkin – the principal defense lawyer – and this was already so in accord with the spirit of the times, and the threat was so real that Bobrishchev-Pushkin made haste to hand over his gold watch and his billfold to lawyer Gurovich. And right then and there the tribunal actually ordered the imprisonment of a witness, Professor Yegorov, because of his testimony on behalf of the Metropolitan
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One of the major trials in 1922 was that of the SR’s (Socialist Revolutionaries), for which the Criminal Code needed to be finalized. A.S. includes the text of a letter sent by Lenin on May 17, 1922. The document is especially important because it was one of Lenin’s last directives on earth, and is a revealing view of his political testament [emphasis is mine]
Comrade Kursky!
As a sequel to our conversation, I am sending you an outline of a supplementary paragraph for the Criminal Code . . . the basic concept, I hope, is clear, notwithstanding all the shortcomings of the rough draft: openly to set forth a statute which is both principled and politically truthful (and not just juridically narrow) to supply the motivation for the essence and the justification of terror, its necessity, its limits.
The court must not exclude terror. It would be self-deception or deceit to promise this, and in order to provide it with a foundation and to legalize it in a principled way, clearly and without hypocrisy and without embellishment, it is necessary to formulate it as broadly as possible, for only revolutionary righteousness and a revolutionary conscience will provide the conditions for applying it more or less broadly in practice
With Communist Greetings, LENIN
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In Lenin’s review of the criminal code, Lenin added 6 more articles requiring execution by shooting in addition to the 6 that originally called for execution. Once such crime he included as a capital offense was ” . . . propaganda or agitation, or participation in an organization, or assistance (objectively assisting or being capable of assisting) . . . organizations or persons whose activity has the character . . .”.
The SR’s had been one of the competing revolutionary parties alongside the Bolsheviks, and having come out on the losing side were now destroyed. They were tried for a variety of treasons, including their initial armed resistance to the October seizure of power. There was the inconvenient fact that an amnesty specifically for the SR’s had been declared in 1919 in exchange for their support in the Civil War, and that most of their ‘crimes’ dated from 1918 and earlier. But Krylenko was able to determine that the SR’s were engaged in terrorism, which was not covered by the 1919 amnesty. And so “evidence” was compiled of this terrorism, primarily in the form of dubious witness testimony.
Krylenko makes heavy use of the new Criminal Code
And especially new and important was the fact that we did not draw the distinction between methods and means the old Tsarist Code had drawn. Such distinctions had no influence either on the classification of the charges or on the penalties imposed! For us, intent and action were identical! A resolution had been passed – we would try them for that. And whether it “was carried out or not had no essential significance”
(Page 364)
There was, of course, “only one possible verdict – execution – for every last one of them!” But Krylenko qualifies this generously. Because this case is being watched by the whole world, the prosecutor’s demand “does not constitute a directive to the court” which the latter would be “obliged to accept immediately for consideration or decision”.
What a fine court, too, that requires such an explanation! And, indeed, the tribunal did demonstrate its daring in the sentences it imposed: it did not hand down the death penalty for “every last one of them”, but for fourteen only. Most of the rest got prison and camp sentences . . . and just remember, reader, remember: All the the courts of the Republic watch what the Supreme Tribunal does. It provides them with guidelines. . . As to how many more would now be railroaded in the provinces, you can figure that out for yourself.
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A.S. concludes this chapter, wondering why the ruling Party members were then surprised when they themselves were caught up in Stalin’s purge of 1937. All the foundations of lawlessness had been laid – first by the extrajudicial reprisals of the Cheka, and then by these early trials and this young Code. When expediency had been enshrined as the most important aspect of their legal system rather than justice.