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.)[147]
The second main characteristic of our political courts is the lack of ambiguity in their work, which is to say predetermined verdicts.[148] 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)[149]
• For contacts with dangerous persons[150] (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 disenfranchisement[151] (manpower for three Five-Year Plans). The directive of 1949: everyone gets twenty-five.[152]
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?”
148
4. That same collection edited by A. Y. Vyshinsky,
149
5. In the Republic of South Africa, terror has gone to such lengths in recent years that every suspicious (SDE—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?
150
6. This is something we hadn’t known, something the newspaper
151
7. 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!”
152
8. Thus it was that a real spy (Schultz, in Berlin, in 1948) could get ten years, and someone who had never been a spy, Gunther Waschkau, got twenty-five. Because he was in the wave of 1949.