There is one more qualification. The OSO did not claim to be handing down a sentence. It did not sentence a person but, instead, imposed an administrative penalty. And that was the whole thing in a nutshell. Therefore it was, of course, natural for it to have juridical independence!
But even though they did not claim that the administrative penalty was a court sentence, it could be up to twenty-five years and include:
Deprivation of titles, ranks, and decorations
Confiscation of all property
Imprisonment
Deprivation of the right to correspond
Thus a person could disappear from the face of the earth with the help of the OSO even more reliably than under the terms of some primitive court sentence.
The OSO enjoyed another important advantage in that its penalty could not be appealed. There was nowhere to appeal to. There was no appeals jurisdiction above it, and no jurisdiction beneath it. It was subordinate only to the Minister of Internal Affairs, to Stalin, and to Satan.
Another big advantage the OSO had was speed. This speed was limited only by the technology of typewriting.
And, last but not least, not only did the OSO not have to confront the accused face to face, which lessened the burden on interprison transport: it didn’t even have to have his photograph. At a time when the prisons were badly overcrowded, this was a great additional advantage because the prisoner did not have to take up space on the prison floor, or eat free bread once his interrogation had been completed. He could be sent off to camp immediately and put to honest work. The copy of the sentence could be read to him much later.
It used to be that in favorable conditions the prisoners were unloaded from freight cars at their destinations. And they were made to kneel down right there, next to the tracks—as a precaution against attempted escape. But it looked as if they were praying to the OSO. And then and there their sentences were read out to them. It could also happen differently. In 1938 those who arrived at Perebory on prisoner transports did not know either their Code articles or their sentences, but the clerk who met them knew, and he looked them up on the list: SVE—Socially Harmful Element—five years. That was during the time when there was an urgent need for many hands to work on the Moscow-Volga Canal.
Others worked in the camps for months without knowing their sentences. After this, as I. Dobryak reported, they were solemnly lined up—and not just on any old day, but on May 1, 1938, when the red flags were flying—and the Stalino Province Troika’s sentences were announced. (This would indicate that the OSO did get decentralized in times of heavy load.) These sentences were from ten to twenty years apiece. And in that same year, my former camp foreman, Sinebryukhov, was sent off with a whole trainload of unsentenced prisoners from Chelyabinsk to Cherepovets. Months passed and the zeks worked away. And then one rest day in winter (Note the days? Another advantage of the OSO), when the frost was cracking, they were driven out into the courtyard and lined up. A newly arrived lieutenant appeared and introduced himself as having come to inform them of their OSO penalties. But he turned out to be a decent sort because he squinted at their thin footwear and at the sun’s rays in the steaming frost and said:
“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? Disssperse!”
* * *
But in view of the frankly mechanical operation of the Special Board, why have any courts at all? Why use a horsecar when there’s a noiseless modern streetcar available, which no one can jump out of? Is it a matter of keeping the judges well fed?
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 audi
ence, but it consists of interrogators. For example, they used to attend the Leningrad Province Court during the day to find out how their “protégés” 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.4 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)5
For contacts with dangerous persons6 (Here’s scope for you! Who is “dangerous” and what “contacts” consist of only the judge can say.)
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 disenfranchisement7 (manpower for three Five-Year Plans). The directive of 1949: everyone gets twenty-five.8
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.”9
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.)10
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? Naïvely, 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.11 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-la, 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 . . .”
The Gulag Archipelago, Volume 1 Page 33
