And then, finally, there was the very expansive category:
ChS—Member of a Family (of a person convicted under one of the foregoing “letter” categories)
It has to be remembered that these categories were not applied uniformly and equally among different groups and in different years. But, as with the articles of the Code and the sections in special decrees, they broke out in sudden epidemics.
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 inter-prison 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 train-load 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 t^at 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.