Published in Soviet Communism and the Socialist Vision, ed. Julius Jacobson.
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The following discussion of Russian law was written toward the end of 1963. Rather than update the material, I have added footnotes wherever I thought necessary. Nothing more extensive than this was done for two reasons: first, to update the essay would destroy whatever value it has in a developmental sense, that is, it would destroy the picture of Russian law in theory and practice as it actually was at a given time in history; second, there really is not that much to change. For all the talk about Russia in ferment, there has probably been less change in procedural and substantive law in Russia than in the United States in the past eight years. Of course, there have been some changes. In some areas the law has become more harsh; in others, more relaxed (at least on paper). On the whole, however, the tendency in recent years has been to greater severity. Perhaps the most important examples of added stringency since 1963 can be found in the following legislation: a) The Principles of Corrective-Labor Legislation, drawn up in late 1969 and approved earlier this year by the Supreme Soviet of the USSR, which reduces the categories of convicts elegible for parole after serving half their sentences and sharply increases the number of prisoners who will now have to serve at least two-thirds of their sentence before they can apply for parole, b) The USSR Law on Additions to and Changes in the Principles of Criminal Legislation of the USSR and the Union Republics, which amplify and, in some respects, intensify the severity of the fundamental Principles of Criminal Legislation passed in 1958 which are discussed in the essay. As with the new Principles of Corrective-Labor legislation, it sharply limits a convict’s opportunity for parole, c) In the same period, we are confronted with the Statute on Preventive Detention in Custody which empowers the authorities of Union Republics, under certain circumstances, to hold a person suspected of having committed a crime in preventive-detention cells for 30 days, d) The Decree of the Presidium of the USSR Supreme Soviet On Increased Liability for Hooliganism, issued in 1966, represents an escalation of the permanent war against “antisocial” elements. The Decree divides hooliganism into three subcategories: “petty hooliganism,” plain “hooliganism” and “malicious hooliganism.” The petty hooligan can be imprisoned for 15 days by decision of a judge or police official. He has no right to appeal and cannot correspond, receive messages or parcels or purchase food and is not provided with bedding. The malicious hooligan can be sentenced for up to seven years in prison.
The antihooligan decree is not really a new phenomenon. The campaign began years ago and the new decree merely confirms the analysis provided below.
Khrushchev’s “revelations” at the Twentieth Congress of the Russian Communist party sparked a relatively intense discussion in Party, government and legal circles on the problem of “socialist legality.” Though the exchange had been initiated shortly after Stalin’s death, it assumed the unprecedented form of a limited national debate only after Khrushchev’s 1956 speech. The large-scale – but not total – dissolution of the concentration camps in the period from 1953-1957 is evidence enough to dismiss any foolish notion that this debate was merely the permissive window dressing of a totalitarian regime making wholly insincere gestures to the Russian people. Russia’s rulers genuinely wanted to rid themselves of the excesses of an “unrelieved and self-victimizing system of terror under Stalin. New rules and regulations – i.e., laws – were called for to establish both wider boundaries and more definite guides of conduct within which heads of Party and state could maneuver without the constant paralyzing fear that, for no ostensible reason, they would be dispatched to a concentration camp or to their ancestors. (This relaxation, necessarily codified in new national legislation, could not possibly be restricted to the bureaucratic class alone. Its benefits inevitably filtered down to the masses, though not without pressure from below and reluctance above.)
That the post-Stalin relaxation required new laws does not mean that to measure political changes in Russia from 1953 to 1963 one need only compare Stalin’s laws to Khrushchev’s. Laws and dogmas can be circumvented or flouted with comparative ease in a one-party system. For example, Stalin’s Constitution of 1936, with its promises ranging from an independent judiciary to political rights of national minorities, hardly corresponded to the reality of a regime that was its own judiciary and which threatened entire national minorities with genocide. Nevertheless, even under Stalin, there was some consistency between law and its practice as he sought, paradoxically, to rationalize arbitrary terror via more explicit legislation inspired and embellished by Vyshinsky’s savage “philosophy” of law. Under Stalin, confession was the “Queen of Proof”; the accused was obliged to prove his innocence; a man “probably” guilty was doomed; there was the pernicious “Doctrine of Analogy”; the rights of a defendant and his counsel were reduced to less than nothing by specific provisions of the law; to whisk away people in the dead of night, to arrest without charges, to sentence without trial and to execute without cause were actually all provided for by murderously vague and permissive statutes. Thus, there was a kind of law of lawlessness, a degree of codification of total terror; and its study offered special insights into a system given to the mass murder of its own people.
If the law provided clues to understanding Russia under Stalin, it is even more instructive in assessing Russia under Khrushchev. The reason, it should be obvious, is that the post-Stalin relaxation requires laws which, on the whole, are less stringent, more precise and in greater conformity with the realities of life. Above all, it is Russia’s new criminal legislation, the most significant of all reforms and changes in Russian political life, which sheds most light on what is meant by “the struggle for socialist legality.”
It is now more than ten years since Stalin’s death and much of the debate on “socialist legality” has been resolved. This does not mean that the debate is over or that no new changes will be made – for better or worse – but in 1963 it is possible to examine a new body of national criminal legislation as well as some new laws of Russia’s constituent union-Republics. This is so, largely because of a series of statutes pertaining to criminal law passed by the Supreme Soviet in December 1958.
In one of the statutes, the Principles of Criminal Legislation , there is tersely stated in Article 3 what is perhaps the most significant reform in current legal dogma:
Only persons who are guilty of a crime – that is, who have deliberately or through negligence committed a socially dangerous act specified by criminal law – may be held criminally liable and subject to punishment.
Criminal punishment may be applied only upon sentence of the court.
The concepts embodied in this Article had several purposes explicitly stated in the preliminary debate over the forthcoming legal reforms.
In the first place, it was designed to replace the notorious Doctrine of Analogy. According to this doctrine, if an individual committed a “socially dangerous act” not specified in law, the authorities could inflict the penalty specified for the crime which, in their opinion, most closely resembled the alleged offense committed. Now, with Article 3 of the new Principles, a man is to be convicted of an offense only if it is “specified by criminal law.”
Second, the stipulation that one can be punished only for a specified crime was intended to undercut the odious practice during Stalin’s reign of holding relatives of a criminal legally responsible as accessories to the crime.
Third, by specifying that a criminal can be punished “only upon the sentence of the court” this Article legally repudiates past techniques whereby concentration camps had been filled, not so much by the actions of Russian courts, as by administrative decrees – particularly those of the dreaded Ministry of Internal Affairs, Previously, a Russian citizen could be abducted by the secret police and promptly shipped to Karaganda. Now, so Article 3 formally states, it is necessary to prove that a specific legal provision has been violated – and this is to be determined only by courts of proper jurisdiction – as contrasted to arbitrary actions of administrative state organs.
However, this new legal concept has its loopholes, not only in other criminal legislation, but in the fact that the Republics of the USSR have passed administrative decrees permitting nonjudicial bodies of local citizens to sentence those found guilty of a “parasitic mode of life” to banishment and forced labor, subject to confirmation by public administrative bodies. We will return to these “antiparasite” codes.
One advanced, democratic legal concept is the presumption of a defendant’s innocence. In Stalin’s time just the reverse was the case: the defendant was presumed guilty unless he could prove himself innocent. According to this conception the prosecuting authorities were men of such high civic consciousness that they would not think of pressing charges against an accused if in their preliminary investigation the prosecutor and agents, of investigative bodies were not convinced of the incontrovertible guilt of the accused. The question of presumption of guilt or innocence was one of the most heatedly debated legal concepts. The debate continues because of the ambiguity of Article 14 of the Principles of Criminal Procedure which dodges the problem as follows:
The court, prosecutor, investigator, and person conducting an investigation do not have the right to place the burden of proof on the accused.
This, of course, is an evasion since there is no explicit statement of presumed innocence. Even as an evasion, this Article represents progress over what existed in the past. But it cannot be correctly evaluated – even if abstracted from the limiting context of the Russian political reality – without understanding that it was a concession to appease more liberal elements who had been pressing hard for codifying as an unambiguous maxim of Russian law that a man is innocent until proven guilty.
For example, the Lithuanian deputy B.S. Sharkov who introduced the Statute under discussion to the Supreme Soviet rebuked those who insisted that the presumption-of-innocence concept be legislated:
Efforts to include into our theory and practice obsolete dogmas of bourgeois law, for instance, the presumption of innocence, deeply contradict the essence of Soviet socialist law. The presumption of innocence was proposed to be included in the Principles of Criminal Procedure by using a formula like the following: ‘The defendant shall be considered innocent until his guilt is established by the final court of judgement.’ Perhaps lawyers can understand the meaning of such a complicated formula, but great masses of people could hardly understand it (quoted in W.W. Kulski, The Soviet Regime, 3rd ed., p.453).
Deputy Sharkov, reporter to the Supreme Soviet, who thought that “perhaps lawyers” (but not the “great masses”) could understand the presumption-of-innocence principle, continued his attack on the defeated advocates of this “obsolete dogma” with this concrete example:
Take a case like this: a murderer, a bandit, is caught at the scene of the crime with the goods on him. The investigator and the procurator make a careful investigation in full conformity with the law and establish the guilt of the bandit, though even without that his guilt was evident to everyone. On the basis of the law and the indisputable evidence collected, the investigator and the procurator not only have the right but are obliged in duty to hold the murderer to criminal liability and place him under guard. At the same time, law, the investigator and the procurator would be obliged to consider that bandit innocent ... The absurdity of such a state of affairs from the viewpoint of common sense is beyond dispute.
Everyone can understand this, lawyer and great masses alike.
The same sentiment was voiced by Nikita Khrushchev, speaking at the Fourteenth Congress of the Young Communist League in April 1962:
Some people reason that even if a man has stolen something but has not been caught he cannot be called to account, although many people know him to be a thief. But this kind of morality is characteristic of Bourgeois society, where people say “a man isn’t a thief until he has been caught.” Our principles should be different... We should not wait until he is caught redhanded to indict and try him. (Merle Fainsod, How Russia is Ruled (rev. ed., 1963), p.452)
If the letter of the law does not assume the innocence of the accused  and it is all but denied in life – what of the accused’s defense counsel? If there is one function that a defense counsel should have, by definition, it is to assist his client’s plea of innocence or if a guilty plea is entered to lighten his client’s sentence. This elementary notion is not accepted as self-evident in Russia and, though still debated, remains alien to the spirit and practice of law.
This was adequately demonstrated in the remarks of another reporter to the Supreme Soviet session of December 25, 1958 – D. Rasulov, Chairman of the Commission of Draft Legislation of the Soviet Nationalities. Mr. Rasulov summed up his concept of the role of defense counsel:
Soviet defense counsel must serve the great humane cause of defense of socialist society, law, truth and justice. That is the way to define his course of conduct in the defense of the accused – that is where the task of the defense counsel lies, and not in the defense of illegal chicanery on the part of the accused, which would inevitably grow into defense of a criminal and thus of the crime. (quoted in Leon Lipson, Socialist Legality: The Mountain has Labored, Problems of Communism, March-April 1959)
If one strips this passage of prettified phrases (“the great humane cause of socialist society, law, truth and justice”) similarly used in the era of “violations of socialist legality,” Chairman Rasulov reveals the still-widespread attitude that confuses the role of counsel for the accused with counsel for the prosecution.
Several of the ugliest aspects of criminal procedure In Stalin’s day have heen carried over in less grievous and more covert form.
The writ of habeas corpus remains alien to Russian law. The Principles of Criminal Procedure permit either a prosecutor, the police or an agent of an investigative agency to place under arrest a Russian citizen suspected of a crime that carries a prison sentence. If the arrest is by order of an investigative agency, that arrest must be reported within 24 hours to the prosecutor, but not necessarily to the court – i.e., to the very agency that will act as the arrested person’s adversary in the event of a trial. The prosecutor is then given two days before he is obliged either to release the suspect or “sanction the imprisonment.” Actually the statutes would permit pretrial arrest for a total of nine months without notifying the courts!
A person held for nine months before either being released or having his case brought before the courts would, in all likelihood, be accused of a “state crime,” say “anti-Soviet propaganda and agitation” – a most serious criminal offense. During this preliminary investigation the accused is not entitled to defense counsel. He can be held virtually incommunicado. His longest conversations are with those preparing or investigating the case against him.
Before May 1963, he had to contend mainly with two adversaries – the prosecutor and an agent of an investigatory body. In an April 1963 decree by the Presidium of the Supreme Soviet, the accused could be obliged to contend with a third adversary in preliminary investigations. In that month it was ruled that, “for the purpose of intensifying the fight against crime and further strengthening and expanding democratic principles of Soviet Court procedure,” the accused would now be obliged to submit to investigation by newly created “agencies for Safeguarding Public Order.”
The investigator – i.e., a representative of special administrative bodies – determines the line of investigation. Should the prosecutor feel that no case can be made against the accused, the investigator has the right to appeal this decision to a higher prosecuting authority. The investigator can also appeal the classification of the alleged crime and the scope of the indictment.
Damaging to the rights of a defendant are the relations of the courts to the Procurator General’s office (Attorney General would be the United States equivalent), and of both institutions to the Communist party. According to Article 10 of the Principles of Criminal Procedure, called “Independence of Judges and Their Subordination to the Law,” we read:
In administering justice in criminal cases, judges and people’s assessors are independent and are subordinate only to the law. Judges and peoples’ assessors decide criminal cases on the basis of the law in accordance with socialist legal consciousness and in conditions precluding outside influence on judges.
If this concept corresponded to other legal provisions and to the facts of political life we would be discussing a society undergoing a fundamental democratic transformation, But a moment’s reflection is all it should take to recognize the hypocrisy of Article 10. Can anyone picture any Russian court “precluding the outside influence” of the Communist party since to preclude such outside influence has no meaning unless the courts are privileged to make specific decisions which run counter to or overrule the will of the Party? It will be the heroic magistrate, indeed, who declares a Khrushchevian edict unconstitutional or frees an accused criminal in the face of explicit Party pressures. The truth is that the judiciary is not a whit less free of Party control today than during Stalin’s reign. (Under Stalin, too, the Constitution gave assurance in Article 112 that “judges are independent and only subject to the law.” ) Also (Article 10 notwithstanding), the courts are supervised by the procuracy, i.e., by state prosecutors. This is made explicit in the Constitution and in Article 14 of the more recent (1958) statute on the Principles of Legislation On the Judicial System, which gives to the “USSR Prosecutor General and the prosecutors subordinate to him” the right to “exercise supervision over the legality of and grounds for sentences, judgements and decisions and orders handed down by court agencies and over the carrying out of the sentence.”
A related obstacle to a defendants’ rights resides in the organization of lawyers collegiums which include all defense lawyers. For example, in a statute passed by the Russian Republic in July 1962, “The Russian Republic Ministry of Justice exercises general supervision of the lawyers collegium in the Russian Republic and control over their work.” (The Ministry sees to it, among other things, that lawyers display “moral purity and irreproachable conduct.”)
Thus a state organ – the Ministry of Justice – supervises the activities of the lawyer defending a man accused by the state, and he is tried by judges who are subject to the general supervision of the office of the prosecutor presenting the state case against him.
The inquisitorial character of criminal procedure is further illustrated in Article 21 of the procedural statute which establishes the Rights of the Accused. Here, the accused is told that he has the right to appeal, to know the charge and to offer an explanation, to submit evidence and to petition – all of which is impeccably just. But the same Article also permits him “to familiarize himself with all the materials of the case upon completion of the preliminary investigation.“ The significance of our italicized passage needs no comment. What must be added is a note of pertinent history: the discrepancy between this Article, as passed by the supreme Soviet, and what had been proposed in the draft. The earlier draft version of Article 21 included the right of the accused to receive “a presentation of evidence” during the pretrial examination. This was obviously considered too radical a departure from Stalinist techniques and consequently deleted in the final, adopted version. Article 22, concerned with the Participation of the Defense Counsel in Criminal Procedure, limits his right to defense counsel until after the pretrial arrest and examination is completed. 
Furthermore, when an alleged crime is investigated by the prosecutor’s office, the defense counsel is permitted to enter the case only from the time that the accused is informed of the completion of the preliminary investigation. This is a serious enough denial of an accused’s rights. More pernicious is that when a case has been investigated by the militia the defense counsel is often not allowed to participate in the case until it is heard in court. According to a December 1962 article in a Russian law journal, “the militia agencies now investigate approximately half of all crimes, including those for which the law provides quite severe penalties.”
Both the accused and his counsel are additionally handicapped by the fact that Article 16 of the criminal procedure statute permits the introduction as evidence into open court of all material collected during the pretrial investigation when the suspect, deprived of right to counsel, was at an enormous disadvantage.
Is it any wonder, then, that a court hearing is usually little more than a public, ritualistic affirmation of a pretrial verdict?
The new procedural code offers little protection to the individual, his home and personal correspondence, against administrative incursion. On the contrary, Article 35 permits an inquiry agency or an investigator “with the sanction of a prosecutor” to search a person and his premises, seize mail at postal and telegraph offices. There is no need to go to the courts first. In some “urgent cases” investigative agencies need not even get the prosecutor’s permission to carry on search and seizure of mail.
Article 46 of the procedural code contains the following reform in its first paragraph: “In hearing a case by way of appeal, a court may reduce the penalty set by the court of original jurisdiction or apply a law governing a less serious crime ...”
Had the new statutes governing the appeal system continued in this spirit, we could point to them as highly significant reforms in Russian criminal law. Under Stalin, a higher court could impose a more severe penalty on the basis of a defendant’s appeal. According to the paragraph quoted above, an appeal from a defendant can earn him either a reduced sentence or a confirmation of the original but not one which is more severe. However, the new code also provides that on a defendant’s appeal, a higher court can remand a case to lower court for a retrial in which the defendant could be charged with a more serious offense and sentenced more severely. Much else that appears on the subject can only lead to the conclusion that reforms in the appeal system are modest compared to what has been retained from the past. Double jeopardy remains a codified principle. It is not only the defendant who has the right to appeal but the prosecution and/or the “injured party” which have similar privileges. This is codified as follows:
A sentence may be rescinded because of the necessity of applying a law governing a more serious crime or because of leniency of penalty only if the prosecutor has lodged a protest on this ground or the injured party has submitted a complaint (Article 46).
Not only may a sentence be increased on the protest of the prosecution or that of the injured party, but it is established in Article 47 that even an acquittal may be rescinded “on the protest of the prosecutor,” thereby forcing a defendant to risk the jeopardy of a court the second time, for the same charge.
Technically, a decision is considered final if the allocated time for an appeal has expired or if the appeal court refuses to rescind the verdict. However, this “final judgement” is not really final for there is still Judicial Supervision whereby a verdict that has entered into legal force can be submitted once again to review upon the protest of the prosecutor, the court chairman or their deputies. A convicted person is not similarly privileged. Under this supervisory system two previous acquittals – the first by the court of original jurisdiction, the second by a court of appeals – – can be reversed if the court finds that a judge misused his authority, that there was false evidence or there is new evidence, or “new circumstances are found” (Article 48 and 49).
The court of judicial review may not only reverse two previous acquittals, it can also set new sentences – either lighter or harsher – if it finds “a discrepancy between the penalty set by the court and the gravity of the crime or the personality of the convicted person.”
During an appeal or judicial review the prosecutor is obliged to participate in the proceedings but the defendant is not permitted to testify on his own behalf except on the special sufferance of the court.
There is a relatively modest improvement from Stalin’s time: the state’s protest of an acquittal on the basis of new evidence under this system of judicial review must be made within “one year from the day of their discovery.” But there is no limit on the lapse of time from the acquittal to the point that the alleged new evidence is unearthed.
One final point here: the Supreme Court of the USSR and those of the union-Republics not only pass on the legality of the action of lower courts, they also pass sentences.
Although the 1958 provisions of the Statute on State Crimes is less harsh than what existed in Stalin’s time, they nonetheless reveal the continuing totalitarian character of Russian society. Article I is concerned with “Especially Dangerous State Crimes.” Here high treason is defined as “an act deliberately committed by a citizen of the USSR to the detriment of the state independence, territorial inviolability, or military might of the USSR: defection to the side of the enemy, espionage, handing over a state or military secret to a foreign state, fleeing abroad or refusal to return to the USSR from abroad, helping a foreign state to carry on hostile activity against the USSR, or conspiracy for the purpose of seizing power...” 
The above crimes are punishable by death! Article 7, labelled “Anti-Soviet Agitation and Propaganda,” outlaws the dissemination “of slanderous fabrication defaming the Soviet State and social system, or the dissemination, production, or keeping the literature of such content for the same purpose.” This crime of “agitation and propaganda” is punishable by imprisonment up to seven years and exile or banishment for a period of two to five years.
This is the legal codification of political dictatorship. It need hardly be argued that the Kremlin could find any anti-Soviet propaganda, agitation or criticism of the social system to be a “slanderous fabrication” or “defamation” and contrary to law. (How would those beguiled by Russia’s new “liberal dynamism” react to the American citadel of world capitalism outlawing all agitation and propaganda that was “slanderous fabrication” aimed at the capitalist “social system”?)
The penalties imposed by this article are stringent enough but given the broadness of its formulations and those in Article I, it is possible, depending on the given inclination and need of the regime in power, that with only the slightest stretching of the point, anyone charged with violation of Article 7 could be prosecuted under Article I, which carries the death penalty. For example, spreading “slanderous fabrications” or “defaming” the Russian social system could be said to be “helping a foreign state to carry on hostile activity against the USSR” – an offense punishable by death.
In Articles 6 and 8 are similar provisions, unique to the Stalinist mode of thought and operation. The earlier one is devoted to “wrecking,” which is described as “an act of commission or omission” designed to undermine industry or a state agency. Conviction on this count carries a penalty of eight to fifteen years in prison. In a similar vein, Article 8 illegalizes “war propaganda.” For this offense – “regardless of the forms in which it is contained” – there is a penalty of three, to eight years.
Article 9 outlaws any organizational activity or the establishment of an organization having the aim of committing any one of the gamut of crimes listed in Articles 1-8, “wrecking,” “anti-Soviet agitation and propaganda,” defection, espionage, etc. – with penalties provided by the previous articles.
Theoretically, Russian law is designed to rehabilitate the criminal. A maximum of persuasion and a minimum of coercion are to be used. So Khrushchev says, and all Russian legal experts nod approvingly. Perhaps Russian courts are heavily infiltrated by evangelists. Otherwise how could judges hope to regenerate those they condemn to death unless it be in a hereafter? And “death by shooting,” often without the right to appeal, is increasingly common in Russian courts.
We have already noted that the statute on state crimes permits the death sentence for social and political crimes. Other 1958 statutes allow the death sentence, except for minors and pregnant women, to be applied in cases of premeditated murder and some cases of banditry, These statutes were inhumane enough but since then a series of grim decrees have extended the applicability of capital punishment – decrees so “barbarous that if all else was just in Russian Law it would remain the most atrocious of any modern legal system. The first of these new decrees, passed by the Presidium of the Supreme Soviet in May 1961, permitted “capital punishment by shooting” for “pilfering of state or public property in especially large amounts.” In July of that year another death-dealing decree determined that “speculation in valuta valuables or banknotes conducted as a business” is punishable by death, as are speculating in foreign currency and “giving or receiving a bribe under aggravating circumstances.” In addition to economic crimes, the same method of persuasion was extended to other offenses. The May 1961 decree allows the death penalty for dangerous convicts who “terrorize prisoners who have taken the path of reform, or who commit attacks on the administration or organize criminal groupings for this purpose or actively participate in such groupings.” (If this were the law in the United States, thousands of prisoners who participated in recent violent outbreaks against prison administrations could be executed.)
On Feburary 12, 1962 the Soviet Presidium ruled that rape committed by a group or by an “especially dangerous recidivist” is henceforth punishable by death. A few days later, the Presidium ruled that merely the attempt to take the life of a People’s Volunteer could be punished by death.
According to the 1958 Principles of Criminal Legislation, where the death penalty is not applied, the maximum penalty for an habitual offender or for committing a serious crime is 15 years “deprivation of freedom.” Exile and banishment, two other forms of punishment, are not to exceed five years.
While prison sentences were lessened, this reform was partially offset by an added harshness of the parole system: it was made more difficult for some prisoners to receive time off for “good behavior.” The remarks of Deputy D.S. Polyansky, Chairman of the Legislative Proposals Committee, speaking before the rubber-stamping session of the Supreme Soviet, reveal the purpose and severity of the new parole system more clearly than the bland legalistic idiom of the new code:
In rejecting excessively long terms of deprivation of freedom, the committee proceeds from the view that the system of commutation should he fundamentally improved or abandoned altogether, so that no one except the court could change the term of punishment set by court sentence. “No indulgences for dangerous criminals” is the people’s demand. And our duty is to meet it.
Proceeding from this, parole can be applied only to those convicted persons who have served at least half their sentence and have shown by exemplary conduct and honest attitude toward work that they have reformed. Persons convicted of grave crimes may be paroled after serving at least two-thirds of the sentence. As for especially dangerous recidivists, this measure should not apply.
Since 1958, parole has become even more inaccessible to those categorized as “dangerous recidivists.”  Also, the punishment of a crime, apart from the extension of the death sentence, has grown more severe in the last five years.
According to Roman Rudenko, Procurator General of the USSR, this is in the best tradition of socialist humanism. In his words, “There cannot be the slightest leniency toward criminals; they must be punished mercilessly – that is the demand of socialist humanism.” While some courts are criticized for being too severe, it is only for the overzealousness with which courts interpret Rudenko’s bizarre “humanism.” A more common complaint against the courts was voiced at the July 1963 plenary session of the Supreme Soviet, against “some courts [which] have recently relaxed their work to combat lawbreaking by minors,” and there was more sweeping criticism of some courts for softness and not showing the necessary “strict and unflinching observance of the requirements of the 12 February 1962 Decree [widening the applicability of the death penalty] ...”
By any democratic concept of law, the order of punishment is relative to the degree of the wilful, conscious intent of a crime. In fact, even where intent exists but insanity can be demonstrated, there is mitigation of punishment.
In Russia’s new criminal legislation some articles acknowledge the importance of establishing intent, and they make allowances for insanity. However, the General Principles of Criminal Legislation dealing with definitions of crime tend to blur distinctions between acts of omission and commission, between negligence and intent, This can be seen in Article 7 of the Principles, which defines a crime as follows:
A crime is recognized to be a socially dangerous act (of commission or omission) specified by criminal law which violates the Soviet social or state system, the socialist system of economy, socialist property or the person or political, labor, property or other rights of citizens, or any other socially dangerous act specified by criminal law which violates the socialist legal system.
This definition, in principle, of crimes as “socially dangerous acts” is so vague that it simply does not lend itself to any precise implementation in specific criminal statutes which can adequately distinguish between crimes of omission and commission. It falls, then, to the none-too-tender mercies of the courts and parajudicial organizations to substitute their will for the imprecision of the law, always fitting their interpretations of crime to the ruling Party’s fluid political concerns of what constitutes a more or less grave social danger. Since “social dangers” are infinite in number, and therefore impossible to detail, the Party’s frequent admonition to the courts to consider the personality of the offender, to seek to reform rather than punish (this appeal is usually confined to obviously minor offenses) has a hollow ring.
A related issue is found in Article 15 of the Criminal Principles where it is stated that “punishment for preparing to commit a crime or for attempting to commit a crime is prescribed by law stipulating responsibility for the given crime.” By a more humane concept of law, a man might be punished if found guilty of preparing or conspiring or attempting to commit murder. But the order of punishment could not be the same as if an overt act of murder took place. However in Russia, as the law makes clear, men can be – and often are – shot if found guilty of plotting or attempting a murder that never materialized. This is suggestive of a quintessential totalitarian concept which equates preparations of acts with overt performance. Where preparation to rob or kill can be tantamount to the act of robbery or murder, then thought and speech can be made the equivalent of overt acts and failure to support the regime through omission or negligence can be viewed as an overt act against the regime.
The severity with which negligence is handled is typified by Article 13 of the Law on State Crimes which permits the courts to sentence a man to eight years in prison for losing a state secret due to not following regulations for handling such documents, i.e., negligence. According to Article 24 of the law establishing liability for military crimes, a recurring case of a “negligent attitude toward duty” can earn the careless soul 10 years imprisonment if there are grave consequences; in wartime such negligence is punishable by death.
One recent example of punishment prescribed for criminal negligence is the decree on Criminal Liability for Criminal Negligence in the Use or Maintenance of Farm Machinery, which makes one guilty of an “uneconomical and negligent attitude toward tractors” and the like liable to one year in prison or corrective labor for the first offense and up to three years for further offenses. This is the stuff of which “socialist legality” is made.
A legal manifestation of a totalitarian state, ruled less by laws than by the ubiquitous Party, is its treatment of the State as though it were a person – and a person with privileged status. To malign an individual is a crime; to abuse the State is a more serious crime. To assault an individual is an offense but to assault the State politically is intolerable. We have already seen this in the special statute covering state crimes but it has also been expressed in the Principles of Criminal Law in two sections: in Article 13 dealing with “Necessary Defense” and Article 14 captioned “Extreme Necessity.” The first of those two articles reads:
An act which has the attributes of an act stipulated in criminal law but which was committed in the course of necessary defense, that is, while defending the interests of the Soviet state, public interests or the person or rights of the defender of another person from a socially dangerous violator, is not a crime if the limits of necessary defense were not exceeded. A clear discrepancy between the defense and the nature and danger of the violation is considered to be exceeding the limits of necessary defense.
If one can push through this underbrush of jargon he will be rewarded with the following principle: if a man bloodies someone’s nose, not just in defense of his own person but “while defending the interests of the Soviet State,” he has not necessarily committed a crime. All that has to be established to make this otherwise criminal act legal is to show that there has been “no discrepancy between the defense and the nature of the violation.” But what is the gravity of smashing someone’s nose compared to the heroic defense of the interests of the Soviet State from the verbal assaults of a “socially dangerous person”?
Article 14 – on “Extreme Necessity” – is substantially the same as the above except that here it is not even obligatory to prove “necessary defense” to legitimize an otherwise criminal act. To pursue the example of our friend with the bloodied nose: should he arrive at this painful condition because our vigilant and prescient Communist here simply foresaw the villain’s intended antisocial acts, and took manly measures to avert this danger to the Soviet State, he would hardly be charged with assault. All that he would have to prove is that there was no time to warn the proper authorities and in “extreme necessity” therefore, he personally imposed Communist justice. 
No Jury System. Whatever defects there may be in the jury system it is inestimably more advanced, tolerant and considerate of the rights of the defendant than is the inquisitorial nature of Russian justice.
One of the reforms sought by the more liberal of Russian legalists was the introduction of the jury system. That has been denied. In place of a jury, verdicts in criminal cases are rendered by a judge and two “peoples’ assessors.” These assessors are local judges “elected” at a general meeting of a specified district for a two-year term (formerly it was for a longer period) with the exact procedure of election established by each union-Republic. They rotate their services, each one serving approximately two weeks out of the year. No special knowledge of law is required.
In Russian court procedure the three judges (i.e., the judge and two peoples’ assessors) act as judge and jury; they are permitted to participate in proceedings as an adversary of the defendant, berating or cross-examining him and then passing sentence. A majority is all that is needed.
Military Courts. Any liberal, humane philosophy of law must deny the right of a military court to try a civilian. Any proponent of this liberal philosophy would have a tough, uphill struggle in Russia. There, where Khrushchev is preparing the more advanced stage of Communism and complete democracy, the Decree on Military Courts (Article 9) gives such courts the right to try civilians on espionage charges. Article 11 extends the jurisdiction of military courts to all civilians involved in civil or criminal cases in areas where there are no general courts.
According to Article 12, a man accused of any number of crimes, only one of which is an offense that falls in the military jurisdiction, is tried on all counts by the military tribunal. According to the same article, all members of a civilian gang engaged in a variety of criminal acts must face the wrath of a military tribunal if only one of its members committed a crime within the jurisdiction of a military court.
Thus far, we have restricted our discussion of “socialist legality” to legal provisions. It is impossible, however, to gauge the legal temper of any society by reviewing codes whose dispassionate, technical idiom tends to obfuscate the meaning of the law itself. To the average person confronted with the jargon of legalese, the meretricious and the meritorious might seem to merge and overlap into one confusing jumble. And the Russians are past masters exercising a judicious use of judicial language in their legal documents; as they arc, more broadly, experts in the art of linguistic camouflage. Vyshinsky’s Doctrines of Analogy and Confession as the Queen of Proof were the legal counterparts of Vyshinsky the inquisitor, torturer and legal assassin presiding over the mass murder trials of the 1930s. However, the Doctrines were doctrines, which is a lofty term; “analogy” is an educative word, and to describe a theory of evidence as the “Queen of Proof” seems harmless enough. The world had to await the purge trials to understand these concepts fully.
Similarly, our discussion thus far might give one the erroneous impression that all that is at stake here are technical legal quibbles. To find out the real meaning of the law, to get a less guarded picture of the state of law in Russia, one is obliged to observe the law as a living process.
One might think, from all the loose talk about “democratization” and “socialist legality,” that capital punishment is seldom, if ever, applied. The truth is that in the last few years alone hundreds of Russians have been shot to death. How many it is difficult to say, but we know that approximately 175 people – about 60% being Jews – have been executed for economic crimes since the May 4, 1961 Decree. A random sampling of death sentences for economic crimes:
- February 1963: Two leaders of a ring accused of swindling the public for their own profit in the baking of meat and vegetable filled pies are sentenced to “death by shooting” by the Sverdlovsk Province Court. (They were accused of using less than the required shortening in the pies – 4 instead of 6 ozs. – and using the difference for their own gain.)
- March 1963: Pravda reports four men sentenced to death for speculation in the selling of old rags and old paper.
- August 1963: The director of a machine building plant sentenced to death as a bribetaker. “He only took large bills.”
- August 1963: “Rabbi B. Gavrilov moved to Pyatigorsk from Samarkand” for the purposes of speculation, a Caucasian paper writes. He and two confederates engaged in all sorts of shady deals including melting down “dust and filings for plate and dental bridges” for speculative purposes. The Rabbi and his two friends were sentenced “to the supreme penalty – death by shooting.”
A single issue of the daily paper of the Kazakh Republic Communist Party, reports 10 separate but concurrent instances of trials and trials-in-preparation of people accused of economic crimes. In one case, “the criminals have been arrested, and the investigation of the case continues.” (But if the investigation “continues” how does the Party paper know that the suspects are “criminals”?) In another case, “the culprits have been arrested and will come to trial in the near future.” (But if the trial is to be in the future then how does the Party paper know that the accused are “culprits”?)
An example of non-economic crimes bringing the death sentence is the recent case of five boys, mostly in their late teens, sentenced to death for rape. Another, in June of 1962, involved two young Armenians who unsuccessfully tried to seize a plane in flight to flee to the West. The plane crashed, the pilot was injured, “the traitors to the homeland” caught, condemned to death, and the Court ruled that the “sentence is final and not subject to appeal.”
Ex-post facto “justice” is theoretically eliminated in the letter of Russia’s new laws. But not in life. Take, for example, the 1961 case of two men, found guilty of speculating and sentenced to 15 years deprivation of freedom. The USSR Procurator General found this sentence too lenient. He appealed to the Russian Republic Supreme Court. The Supreme Court – surprise! – upheld the Procurator General and the “light” penalty was changed to more suitable punishment to fit the crime – death by shooting from which “there can be no appeal.”
Added to the horror of this story and more to the immediate point is that the legal basis for changing the sentence was the new decrees on economic crimes passed by the Presidium after the alleged crimes were committed.
In the press, the vulgarity, the hysteria, the brutality and the disregard of civilized concepts of justice can be found in letters to the editor, feature articles, editorials and accounts of criminal trials.
For example, while the formal texts concerning the right of a defendant to counsel are bad enough, studying them might not induce more than a yawn. They hardly prepare one for the more declamatory language of articles and letters appearing in the press denouncing defense lawyers as the bane of “socialism.” Take a letter in Pravda signed by Karasov, a “Hero of Socialist Labor.”
It is not time in cases of gangsterism, murder and hooliganism to dispense with the service of paid lawyers who often try to prove that black is white and who “earn” their fees by expending the ardor of their eloquence in shielding patently vicious criminals? We must without fail, and more frequently than we do now, organize show trials and attract the attention of the wide public to them.
... any contemptible person who raises his hand against a Soviet citizen must be destroyed.[emphasis added]
Whoever thinks this is just the cultural lag of an isolated, indignant worker, enraged at the sedate pleas of some legalists who would like to see defense lawyers admitted to the human race, is naive or ill-informed. Mr. Karasov represents the lynch mentality of Russian justice as it is, not merely as it is fuzzied up in legal texts.
Our typical “Hero of Socialist Labor” has his distinguished counterparts. Take the no-less-typical letter from a professor who sports the Honored Badge of Science. “No mercy for hooligans, the wreckers of human society” is his anguished plea. “They must be destroyed like rats and bedbugs. Unfortunately, however, there are some people who appeal for humaneness, resembling those Tolstoyans who didn’t dare ‘take the life’ of a flea or cockroach.”
In the letter from the “Hero of Socialist Labor” there is the appeal for more “public show trials.” That such trials continue to exist in the land of “socialist legality” may come as a shock to many. It shouldn’t. Public show trials – that is, trials where the defendant is found guilty in advance, no defense counsel in any intelligible sense of the term is permitted, and the accused’s fate is held up as a warning to all – are common and integral elements of Russian justice.
Scores of public show trials have been held recently in Russia. One Moscow spectacular was performed in a public stadium before an audience of 2,000 jurors! This was the “trial” of five young “moral degenerates.” Under the circumstances, one should hardly be surprised that the wages of their degeneracy was that they “be banished from Moscow and made to atone for their sins ... through labor in harsh conditions.” The period of atonement, it was later decided, would take five years.
These court spectacles are also travelling road shows. A March 1959 Party-State decree “requires institutions of internal affairs, agencies of the prosecutors office, justice agencies and the courts to intensify the struggle against antisocial phenomena and to conduct public trials of malicious violators of public order directly at enterprises, construction projects and state and collective farms.”
Where court authorities are brought directly into factories and collectives all semblance of legal rights for the defendant vanishes. An acquittal would make the show as irrelevant as a gladiators’ arena without victims.
A particularly chilling “show trial” was announced in the October 20, 1963 issue of Izvestia under the head, “There Will Be No Mercy for Thieves!” It concerned an alleged ring of criminals led by two Jews, Shakerman and Koifman. Following is a summary of the Izvestia story:
Shakerman was recently widowed, but immediately after the period of mourning he started to shop around for a new wife. He set his lustful sights on the wife of a friend and relative and accomplished his objective. He had a new wife. To try to appease his forsaken friend and relative he gave him a sizeable sum of money. (These Jews, you know, think that money can buy anything.) The relative was not appeased. He informed the authorities that Shakerman was involved in some shady manipulations. (But Shakerman’s Jewish friend and relative did not mention receiving money for his former wife. There is no limit to the perfidy and deceitfulness of these money-loving Jews.) The relative’s information led to an investigation which proved, according to Izvestia, that Shakerman, a former doctor, together with a colleague and fellow-Jew, Roifnan, were heading a vast complex of embezzlers, thieves, speculators, bribe-givers, etc. – all the things that merit death in the land of “socialist legality.” Among other alleged activities Izvestia claims that the gang operated an illegal knitgoods enterprise installed in a psycho-neurological clinic with a production therapy workshop. The anti-Semitic undertones and overtones of this case are neither more nor less glaring than in so many other recent similar incidents. This charge of anti-Semitism is more substantiated than disproven by Izvestia’s disclaimer that “we mention the Jewish surnames of people who were in this gang because we do not deign to pay attention to the malicious slander that the Western press stirs up from time to time.”
But Russian anti-Semitism, the prevalence of which has been so brutally revealed by the economic trials, is not the subject of this essay. More to the point at the moment is that for these alleged crimes the newspaper Izvestia is demanding the death sentence. Not only does it demand such cruel punishment for people who have not even had the benefit of trial but it demands that the forthcoming “trial” of the criminals be “a public show trial that is widely publicized.” To make it a real national spectacle Izvestia proposes that none other than the Procurator General of the USSR, Roman Rudenko, prosecute the case. Only worldwide protest could inhibit the Russian authorities from carrying out Izvestia’s pretrial death verdict.
Another terrifying demonstration of Stalinist justice was yet to be revealed. On the heels of Izvestia’s exposé and judgment of the Shakerman-Roifman “gang,” an article in the October 30 issue of the Russian Republic newspaper, Sovetskaya Rossiya, published a demand by the Soviet Supreme Court for “public” trials of economic criminals to be given “wide publicity” in the press. Reflect for a moment. This is not a demand by the Party, or a prosecutor or the press or an individual. Here the demand for show trials is made by a court of justice – the Soviet Supreme Court at that.
Criminal cases of any importance are, as a rule, decided in advance. A man is accused of a serious crime and there follows a flood of letters and petitions to the press, denouncing the “criminal” and demanding his head. The trial may not have even begun. That is a detail, for where there is trial by press, court proceedings are a formality.
Some of the most important features of Russian justice are to be found in the presumably non-criminal decrees known as anti-parasite laws and in extralegal institutions – Comrade Courts, People’s Guards, Neighborhood Committees, euphemistically categorized as measures of public influence and heralded as milestones in democratization.
One of the earliest of the anti-parasite laws was introduced to the Azerbaijan Supreme Soviet in the summer of 1957 and passed the following year. The law On Intensifying the Struggle against Anti-social Parasitical Elements avowed that “there should be no parasitic idlers in Soviet society” and promised that those able-bodied citizens found guilty of an anti-social parasitic way of life may be sentenced to “exile by public sentence for a term of two to five years, with obligatory engagement in work at the place of exile.”
All that was necessary for the law’s execution was that a “street committee” in the cities, or a village soviet in rural areas, convene a meeting of residents in designated areas to pass judgment on a suspected “anti-social parasite.” If a majority of the residents attended the meeting it was legal, and a majority of those present could, in open vote, pass “a public sentence of exile.” Once the sentence was confirmed by a district of the city soviet, it took immediate effect with no recourse of appeal.
This vigilante law, passed in nine of the smaller union-Republics between 1957-1960, was so reminiscent of the arbitrary justice during the era of the “cult of personality” that it apparently met with resistance from more liberal elements within the legal profession, postponing its extension to the larger Republics. But resistance wilted before the clearly expressed determination of the Party to extend the anti-parasite laws. In May 1961 the Presidium of the Russian Republic Supreme Soviet passed its decree On Intensifying the Struggle Against Persons Who Avoid Socially Useful Work and Lead an Antisocial Parasitic Way of Life.
The decree begins with the ceremonious but always startling news that “under the leadership of the Communist party, our country has entered the period of the full-scale building of communism.” Of course the Soviet people are “working with enthusiasm ... and respecting the rules of socialist society.” However, in the countryside and in the cities “there are still individuals who are stubbornly opposed to work.” These antisocial elements either refuse to work at all except in “forbidden business, private enterprise, speculation and begging” and the like, or else they do have jobs but only “for appearance’s sake” as they engage in such skullduggery as “home brewing” and “undermining labor discipline.” This parasitism is usually “accompanied by drunkenness, moral degradation and violation of the rules of socialist society.”
To intensify the struggle against “anti-social parasitic elements,” the Republic Supreme Soviet resolved that able-bodied adults who avoid socially useful work altogether, derive unearned income from speculation, etc., or generally “commit other anti-social acts” that permit them to live parasitically, are subject upon the order of a People’s Court to deportation for a period of two to five years with “mandatory enlistment in work” at the place of exile. The court’s decision “is not subject to appeal.”
The other category of parasites – those who do have jobs but do not labor at them honestly – are subject to the “same measure of influence” except that they can be prescribed by either the court or a “public sentence” handed down by people working in the accused’s shop, organization or collective. A “public sentence” is subject to the approval of the district (city) soviet executive committee “whose decision is final.”
Orders for deportation by the courts or public sentence are carried out by militia agencies.
This 1963 decree differed in several respects from the earlier anti-parasite laws passed by smaller Republics which have since been amended to conform with the Russian Republic’s law. It is now necessary for agencies of the militia or the prosecutor’s office to investigate a person charged with parasitism. If the charges are upheld, then a period of time is permitted the “parasite” to turn to the path of righteous labor to avoid being brought to trial before a court or a collective.
These changes represent a softening of the earlier parasite laws which denied all procedural rights to the accused. Nevertheless, as these are considered administrative decrees, the accused is still denied many of the limited procedural gains promised in the 1958 Statutes on Criminal Procedure. The new decree does not mention the right to a defense counsel and specifically denies the right of appeal. While the earlier decrees were even more stringent, they were the law only in smaller Republics with a small percentage of the national population. The present anti-parasite laws are nationwide, and perhaps the most serious retrogressive step in Russian legality in the post-Stalin period.
This throwback to Stalin’s technique recreates the quasi-legal basis for mass deportations to labor camps. This is not a theoretical possibility because thousands upon thousands of Russians have been recently sent into exile with “mandatory enlistment at work” for two to five years on the strength of the anti-parasite laws, with the average sentence closer to the maximum five year period.
How many thousands have been deported is impossible to estimate. But the evidence is that the number is huge. An article by law professor Harold J. Berman (well respected in Russian legal circles and hardly an overmilitant critic of Russia’s reformed legal system) in the Harvard Law Review (May 1963) suggests that there were at least 10,000 people accused under the anti-parasite decree in Moscow alone, 2,000 of whom were sent into exile. This information was supplied to Berman by no less an authority than the Minister of Justice. Considering the nature of Berman’s source it is reasonable to assume that both the number of accused and percentage banished were even higher. Also, this information was supplied to Berman in May of 1962, only one year after the decree took effect. Is there any reason to believe, given the intensified press campaign against “parasites,” that the annual rate of accusations and deportations declined in the following year? And is there any reason to doubt that the provinces have been as vigilant as Moscow, especially if one recalls that the smaller Republics passed even harsher antiparasite laws several years before the larger Republics? 
Comrade Courts are not a wholly new phenomenon. They functioned off and on, mainly to discipline labor, until 1940. But the present Comrade Courts, reintroduced in many smaller Republics in 1957 and in the Russian Republic four years later, are far broader in scope than their antecedents, as can be seen in the Model Statutes on Comrade Courts passed by the Supreme Soviet in October 1959 (translated in Current Digest of the Soviet Press, November 25, 1959).
According to the Model’s first article, “Comrade Courts are elected public agencies charged with actively contributing to the inculcation in citizens of a spirit of a Communist attitude toward labor and socialist property and the observance of the rules of socialist behavior ...”
Where these courts are to be set up is established in Article 2: “Comrade Courts shall be set up at enterprises, institutions, organizations and higher and specialized secondary schools by decision of a general meeting of the workers and employers or of the students.” In addition, “Rural comrade courts and comrade courts at collective farms, producers’ cooperatives, housing bureaus, apartment house managements and street committees shall be set up.” The next article determines that “those who receive a majority vote of more than half of those present at the meeting” are elected to the court. Those elected, “by open vote,” choose the chairman, vice-chairman and secretary of the court. The courts report to the electors at least once a year.
Articles 5 and 6 specify the kind of cases to be heard. They include charges against a worker for “poor quality work, allowing defective output, or idle time resulting from a worker’s unconscientious attitude toward his duties.” Other chargeable offenses are violations of “labor discipline” including absence from work without a good excuse, lateness to work or leaving work before the end of the working day. Other cases heard include “the shirking of socially useful labor and leading a parasitic life,” using abusive language, petty hooliganism (when a first offense), “foul language” and “petty arrogance.”
Cases are to be heard at places of work or residence.
The “corrective measures” in the Model range from forcing apologies, issuing warnings and public censure, to more severe forms of punishment such as 100-ruble fines, ordering compensation up to 500 rubles  for alleged damage, “suggesting” to the plant manager that a worker be dismissed or demoted for three months and suggesting to the People’s Court that the guilty party be evicted from his apartment. Finally, should the Comrade Court feel that a more serious penalty is called for involving an offense beyond its jurisdiction, it will have the right to turn over all relevant documents to the higher court.
Article 16 stipulates that “The decision of a comrade court shall be final and not subject to appeal” although trade unions or local Soviets can ask for a rehearing. However, as Comrade Courts are under the direction of the local trade union committee or soviet (Article 19) it will be a rare instance when someone found guilty of “petty arrogance” or “poor quality work” finds his champion there.
In the Russian Republic, by a decree of the Presidium of the Republic Supreme Soviet in October 1963, the number and role of Comrade Courts were extended. It is no longer necessary for a collective to have at least 50 persons before a Comrade Court can be established, and an additional number of minor infractions of correct behavior were itemized – including “high handed acts” – that could lead the violator to a confrontation with a Comrade Court. This expansion of the jurisdiction of Comrade Courts in the Russian Republic will undoubtedly become the model for the smaller Republics.
One ostensible reason for extending the role of Comrade Courts is to relieve the regular People’s Court of its heavy load and to soften the punitive nature of Russian justice. However, there are many boastful admissions in the Russian press that workers would rather confront a regular People’s Court than risk the wrath of a Comrade Court. This is understandable, since an accused brought before a Comrade Court has few legal rights, is invariably found guilty or painfully humiliated and is tried by individuals with whom he is in close physical proximity and therefore in a position to harass him on or off his job. Far better then, many Russian workers feel, to take your chances before a more anonymous People’s Court than be humbled by kangaroo courts whose job it is to probe and publicly review the most private corners of one’s life, be it work quotas, family relations, style of dress, etc.
The personnel of the Courts is usually described in glowing terms; they are conscientious, stern but understanding comrades, eternally vigilant in their patriarchal supervision of their fellow workers or neighbors. In the words of one Izvestia correspondent: “a person who has broken the everyday laws of soviet life or those of the production line must answer before a stern but just comrade court.” In a totalitarian society there are many “everyday laws” that can be broken, be it on the production line or in “soviet life” in general. Consequently the Comrade Courts have a busy time of it.
The Comrade Court is not only concerned with labor discipline and quality control techniques. It watches the worker at work, it acts as a court of human relations, it supervises the personal habits of all. As the Izvestia correspondents wrote, “It fights for Communist morals in everyday life and on the production line.”
The Comrade Court system has its recognized excesses, too – incidents bordering on lunacy. For example, take the trial of a student before a Comrade Court consisting of his fellow students.
The accused is a student named Talis B. He has been charged with such offenses as stealing a ball, a girl’s ribbon, a chess set and a sandwich. Found guilty, student Talis B. was expelled from the school by the court with the approval of the school director.
What we have not mentioned, however, is that Talis B. was eight years old, his court consisted of other second grade children and chairman of the court was all of ten years old! (This “case” was ridiculed, in Izvestia. It was an excess. The question remains, though, how it is possible for such “excesses” to be manifested in the land that is approaching the final stages of Communism?)
By October 1963 there were nearly 200,000 Comrade Courts to discipline labor and defend everyday laws of Soviet life. 
In March 1959, the Communist Party and the Council of Ministers issued a decree, On the Participation by the Working People in Safeguarding Public Order, which ordered the formation of “voluntary detachments” of People’s Volunteers (Druzhiny). These detachments, which have their own local apparatus independent of the militia, have the duty to “stop violations of public order and restrain violators mainly through persuasion and warnings,” and more broadly, to counter “those individuals in our Soviet society who do not observe the norms of public behaviour.”
An article in Izvestia, of June 2, 1963, reports 130,000 People’s Volunteer detachments with 5,500,000 Druzhinniki patrolling major Russian enterprises, farms, cities and towns. These figures reveal not only the importance attached to People’s Volunteers but one vigilante for every 30 Russians is no less suggestive of a huge and increasing number of Russians defying Party “norms of public behavior.”
A politically offensive remark, a drink too many, a carelessly tossed cigarette, a gaudy dress, a skirt too short or trousers too long or some similar evidence of “petty hooliganism” is offense enough for a People’s Volunteer to bring the “hooligan” to headquarters for a little bit of persuasion. From there the offender can either be released or hauled before a Comrade Court or a regular People’s Court.
The Druzhiny have attracted some of the worst elements in Russian life – the servile, the venal, the sadistic (mainly young Communist hooligans). That one method of persuasion includes beating with clubs, fists and feet, sometimes with fatal consequences, is widely known. Complaints of such excesses have even found their way into the Russian press. For example, a writer from Leningrad reported, more than a year after the Druzhiny was organized, that “young communist street patrols were literally hunting down young men wearing brightly colored shirts and young women wearing slacks. They ripped or slashed the shirts. The same fate befell the slacks.” Moreover, “the method of knocking in someone’s teeth is not ... the best educational method” and “to chop off a girl’s hair ... is sheer violence.”
That such actions are neither isolated instances nor to be reported in the past tense is evidenced by the continuing accounts of similar atrocities. Two Izvestia correspondents discussing the Druzhiny last year conceded that “not only in Leningrad but also in Moscow, Kiev and Minsk, people’s volunteers at times act out of conviction that in the struggle against violators all means are fair.” While “this does not mean that people’s volunteers must fight hooligans with kid gloves” it does mean that “shaving someone’s head for ‘immaturity’ is not the way.”
The regime has apparently been unsuccessful in containing resistance to the Druzhiny. In 1961, the Armenian Communist Party reprimanded the Chairman and Vice-Chairman of that Republic’s Supreme Court for “underestimating the social and political significance of cases of murder and violence against people’s volunteers.” More telling than the reported physical violence is the candid admission that the threat is not confined to a few allegedly criminal elements but is a problem of “social and political significance,” i.e., the violence is a manifestation of wider and deeper popular resentment. By 1962, popular hostility and acts of violence had become so serious that on February 12 of that year the USSR Supreme Soviet passed a decree which makes anyone “insulting a member of the People’s Volunteers in the course of fulfilling his duty” liable to six months in jail or one year of corrective labor. If insults are “accompanied by violence or the threat of use of violence” then penalties are raised to up to five years in jail. An attempt on the life of a druzhinnik “in the presence of aggravating circumstances” can result in the death sentence. Clearly enough, these harsh and cruel penalties are the Kremlin’s response to the growth of mass hostility to the guardians of the proprieties of private manners and social behavior.
This decree could hardly be expected to persuade the Russian people of the benevolence of the paramilitia. And it even failed as a deterrent to violent forms of resistance. More than a year later, in July 1963, Pravda reported that a plenary session of the USSR Supreme Soviet was obliged to discuss “serious shortcomings that attest to certain court officials’ underestimation of the social danger of attempts on the life, health and dignity of militia workers and people’s volunteers by criminal and other anti-social elements.” (Again, the source of the trouble comes not only from “criminal” types but other, broadly defined, “anti-social elements.” ) The plenum, Pravda notes, “called the attention of the courts ... to the need for strict and unflinching observance of the requirements of the February 12, 1962, decree of the Presidium of the USSR Supreme Soviet” permitting capital punishment.
Before discussing the role of Comrade Courts and People’s Volunteers we should make clear what they emphatically are not.
They are not evidence of a society bursting the bonds of its totalitarian past and groping, hesitatingly and in a dialectically self-contradictory manner, as some apologists would have it, toward political freedom.
They are not symptomatic of a dictator “encouraging the people themselves, the rank and file, to participate in the running of the country” as Edward Crankshaw would have readers of his Khrushchev’s Russia believe.
They are certainly not proof that “persuasion and education [are] becoming the principal method of regulating the life of Soviet society,” as Khrushchev announced at the twenty-second Congress of the Communist Party. Our conviction is bolstered by Khrushchev himself, who, in the very next breath, emphasized that education and persuasion “do not imply relaxed supervision of strict observance of Soviet law, labor discipline and moral behavior.” (Equally certain was that delegates to the Congress were “persuaded” enough to approve all his remarks and the new Party program unanimously, and “educated” enough to greet Nikita Sergeyevich with loud, tumultuous, thunderous applause.)
Now, had Russian law, in statutes and in life, grown less stringent in the past five years and had the sovereignty of the Communist party declined as the role of Comrade Courts and People’s Volunteers was enhanced, then one might speak with some verisimilitude of the transfer of power to broader, more representative popular institutions. However, the law remains bitter and its practice cruel. Democracy is outlawed. Legal rights are more for the state than the accused. Thousands are being sent into exile under the arbitrary Parasite Laws. There are increasingly harsh penalties for crime. The rate of executions in Russia (of cases we know of) is about five times what it is in the United States. Men sentenced to death are sometimes denied the right to appeal. Men sentenced to long jail terms have been shot to death on the appeal of the prosecutor. Is it conceivable that those responsible for the modern world’s most uncivilized legal system and customs are ‘’encouraging the people to rule themselves” via Comrade Courts and People’s Guards?
If the “organizations of public influence” were to become, in Khrushchev’s words, “the principal method of regulating the life of Soviet society,” power would be gradually transferred from the Communist party, the only political party permitted by law, to broader, self-regulating mass organizations, whose policies are self-determined and not subordinate to any political party. Would that this were so!
But the Communist party is surrendering none of its authority and is to grow stronger under communism, according to latest Party dogma. In fact, it is the Party drive to absorb many of the functions of, or direct control over, state and administrative institutions which is largely responsible for the existence of Comrade Courts, People’s Volunteers and Party-State Control agencies. Khrushchev was only speaking the truth when he said that “our Party will continue to follow the course of handing over an ever larger number of government functions to mass organizations.” But the government in Russia governs less than the Party, and the Party apparatus has always looked upon governmental institutions, which have their own bureaucracies and their own ambitions, as possible sources of friction. The best way to prevent friction is to eliminate its source, accounting for the Party drive to undercut state ministries, decentralize governmental agencies and to absorb or more easily supervise their operations. How the agencies of public influence fit into this scheme of things is simple enough. The Comrade Courts with their expanding area of competence have taken over many of the functions of the regular courts, and the People’s Volunteers have become a virtual army of para-police paralleling the activities of the regular militia, thereby tending to displace the functions of several powerful Republic and USSR governmental bureaucracies. While the new public agencies weaken the authority of existing ministries, they are organizations without any national apparatus and with few full-time functionaries; they have mainly volunteer workers. This clearly delimits the possibilities of special bureaucracies arising within the new coercive institutions. Furthermore, given the local nature of their operations, they are more easily subjected to the “guidance” of local units of the Communist party.
To the extent that new public agencies have tightened the Party grip on Russia, they represent a retreat from “liberalization” since, in the context of “de-Stalinization,” conflicts engendered by competing centers of power afford a far greater chance for liberal change than the consolidation of all authority in the hands of the Party. (Tighter Party control of the whole judicial process can also be seen in the following figures based on Russian sources and supplied by Harold Berman: in the 1949 elections to the judiciary, 47% of the candidates were Party members; in 1957, 93.9% of the People’s Judges elected were Communist party members.)
There are additional reasons for Party sponsorship of public agencies, itemized in summary fashion below.
In the past half-decade Russia has become a vertical society. Everything is soaring: rockets, spacemen, industrial indices, parasitism and death sentences. At least, almost everything, one exception being the standard of living which remains horizontal, perhaps on a lower plane than any European nation, with no prospect of anything more than a slight perpendicular tilt.
Whatever pride the Russian people take in their scientists and engineers, there inevitably grows the realization that nuclear achievements are made at the expense of wage rates, that astronomical industrial growth statistics are indigestible as food for body or soul, and that vehicles in space do not provide space in which to live. Emboldened by the relaxation of terror, the resentment of the Russian people over their conditions of life and embitterment over poverty in the midst of huge expenditures for armaments and capital goods industries, have taken overt forms that were not so freely risked under Stalin. “Violations of labor discipline” in factories have become infinite in their variety while the peasant shows an increasingly flagrant disregard for the collective’s production goals as he tends his own small private plot.
Indiscipline is not confined to worker and peasant. The intellectual, far from becoming docilely grateful to the Party for relieving the country of many of Staling excesses, is now more venturesome, even truculent and defiant. Among the youth, there is the impossible-to-hide conflict of generations: the contempt youngsters show for the Party bureaucrat in their efforts to escape the asphyxiating puritanism and philistinism of “Communist morality.”
The repression of these “antisocial manifestations” provides an added and more obvious function of parasite laws and the ubiquitous agencies of popular control. In this view, these laws and agencies are not steps to loosen the social fabric of totalitarianism or to promote popular self-rule, as some Kremlinologists would have it, but are designed to stifle dissent and to brake the liberal impetus provided by the earlier weakening of the special instruments and techniques of Stalin’s terror.
One specific target of the expanding network of public agencies and the parasite laws worthy of special notice is stealing. The most recent spectacular case concerns a Moscow “gang” (most of whom are clearly identified as Jews ) accused of embezzling operations involving 52 factories, artels and collective farms and stealing a total of three million rubles from the state. In another recent case, several leaders of the Kirghizan Republic were condemned to death for stealing more than 30 million rubles. (This “gang of thieves” involved 50 high Republic government and Party officials.) In Sverdlovsk, 100 pounds of gold were cached by a “large band of gold thieves.” A clerk in a Stavropol kolkhoz reputedly stole 500,000 rubles. A group of enterprising economic officials in Moscow are accused of having stolen “900 looms from the state and sold them.” The head of the Moscow Oblast Economic Council Section for Distribution of Equipment performed his duties on the basis of the most generous giver, and in four years he sold on the side 50 motor cranes, 12 tower cranes, 11 electric welding machines and several mechanical trench-diggers and loaders.
Komsomolskaya Pravda reports in an article called Thieves’ Town that an entire community was built next to the site of a Siberian metallurgical plant out of stolen material: “foundation blocks and panels of reinforced concrete, slag blocks and rails, drainpipes and preconstructed buildings,” etc., were all stolen to construct the settlement. This is apparently not an isolated case since the paper concedes that despite efforts to curtail such activities with the assistance of the people’s volunteers, “thieves’ towns spring up in the old way.” The same paper admits that stealing and embezzlement are common to entire all-Union or Republic organizations, from functionaries atop down to regional and local subordinates. In some factories, managers and their entire staffs have been replaced as many as five times – they all turned out to be thieves.
A special cause for Party grief and vigilance is the peasant who will expropriate whatever he can – due less to an innate acquisitive instinct than an average annual income of around $500 a year. Not only spades, shovels, rakes and milk-pails disappear; crops, too, vanish. At a Communist party plenum in 1961 Khrushchev reported that in the Ukraine “half of the cultivated maize was pilfered and plundered as it stood.” If there has been any change since then, it has been an increase in agricultural thefts. Party activists and People’s Volunteers have been organized in special squads to patrol the fields spending “difficult, sleepless [nights], no easier than a soldier’s duties ... making the rounds, night watches.” Grain is stolen in the fields, and bread stolen in the towns. Sovetskaya Rossiya (November 17, 1963) gives an account of 21 bread thieves who stole 11,330 leaves of bread in seven months. 
Thus it is to curtail the incalculable financial drain on the state and the even greater social threat to a ruling totalitarian party from such a massive breakdown of “social discipline” that we find another major motivation for the public control agencies and parasite laws. 
The working day in Russia has been reduced. People have more free time. A democratic society would welcome this added opportunity for people to relax, think, read, write, experiment in the arts and letters, resist some ideas and advance others. Not in Russia. There, and this is the trademark of a totalitarian society, free time is considered fraught with danger. Leisure begets not culture, but vice – unless it is controlled and policed by the Party-State. One theoretician, writing in the Party’s philosophical journal, formulates the dangers of free time this way:
The community must be increasingly concerned with organizing the leisure of the working people and the youth. Where this matter is allowed to drift, all sorts of unpleasantries may arise. We must not forget about the tenacity of the survivals of capitalism, about the penetration of corrupting ideology among some channels in our midst.
To control “unpleasantries” born of free time, it is not enough to harp on the theme in the press. The Party does not rule through exhortations. Here, it is as agencies of time and thought control that we find another reason for Comrade Courts and People’s Volunteers. Their organization on house and neighborhood levels facilitates this assignment, as the shock troops of philistinism, to root out old and newly arisen symptoms of “corrupting ideologies” among the working people and youth.
Another function of these agencies concerns the Party’s need to project a more popular image and build a broader base for itself. With the reduction of rule by terror, the Party is obliged to show greater concern for public opinion. It must appear stern, but benevolent, and this is reflected in its ideology and even in Party nomenclature for organs of repression. Kangaroo courts are Comrade Courts; posses and vigilantes are People’s Volunteers. They are not to coerce, but to persuade and re-educate. They are “prophylactic” forms of “popular justice” to protect the many from the few remaining “loafers,” “parasites,” “hooligans,” “drunkards,” “degenerates,” “swindlers,” “speculators,” “embezzlers,” “petty thieves,” “ideologically corrupted,” etc. More to the point, however, is that the agencies of “social control” involve millions of people enjoying some degree or other of special status as Druzhinniki, pseudo court officials or other species of Party watchmen, who are thereby indebted to the Party. Their numerical weight becomes a significant mass social base for the ruling Party.
A more general explanation for quasilegal public control agencies and parasite laws is their usefulness to the Communist party as “checks and balances” against the Party’s own reduction of terror. In the post-Stalin legal reforms, a number of extreme manifestations of arbitrary justice were formally removed from legal statutes. But arbitrariness cannot be dispensed with by a Party which does not rely on any democratic consensus for its power. Since the Party neither wants to return to all the methods employed by Stalin nor can it divest itself of arbitrary rule, it has found one way of circumventing legal restrictions: reliance on parasite laws and public control agencies which are not formal judicial bodies.
As law reflects social divisions and conflict it follows that where the law grows more severe, conflicts remain or become more intense. How is it possible, then, for Russia to be entering the final stages of Communism, which presupposes a final resolution of class struggles (not to mention a higher living standard than any bourgeois country), when its system of law, in the past five years, has extended the right of the Party-State to execute people and deprive them of liberty? Khrushchev’s claim of imminent Communism, as the law grows more punitive, smacks of Stalin’s theoretic contribution that as Russia attains the higher reaches of socialism, the class struggle grows ever sharper.
Nevertheless, recent retrogressive steps should not blind one to the considerable overall differences in legal concepts and practices between Russia today and Russia under Stalin. Mass deportations, mass frame-up trials, mass murder on a Stalin-scale are no longer typical of Russian justice. However, eliminating the excesses of Stalin’s irrational terror is hardly proof of “socialist legality” or democratization. For what could socialist legality mean other than that the law is imbued with the rational, democratic and humane values of socialism? To be socialist, legality must mean that political freedom becomes a cardinal principle of law. Socialist jurisprudence would absorb, extend and consistently apply the best features of “bourgeois” substantive and procedural law. And as an advance over more primitive justice, socialist criminal law – in the statutes and as a living process – would be directed toward the rehabilitation of criminals; capital punishment would be frowned upon as a hideous relic of ancient times; and, generally, the punitive “eye for an eye” code would be a historic curio of the Scriptural Canons.
Socialist legality, then, implies all that is still denied in the letter or practice of Russian law.
Russia is not governed by an ill-defined social caste that will melt before the demands of some mystical historical process drawing it out of Stalinist primitivism, beyond the limited reforms of Khrushchevism and into the realm of socialist freedom. The Kremlin rulers are neither men of whim nor helpless creatures to be shunted aside by teleological winds blowing from the pages of apologists for totalitarianism. They are men of purpose, with their own sense of history, with an ideology. They hold a distinct, unique relation, as a hardened social class, to the means of production – they own and control the nationalized economy through their control of the State via the rule of the Communist party. Their source of power, self-Interest and self-consciousness impose relatively clear limits to legal (and other) reforms with the Party-State.
That is why, whatever legal reforms may yet occur in Russian law within the framework of a one-party dictatorship political democracy will always be outlawed, and it is unrealistic to anticipate fundamental procedural reforms which protect the rights of the individual against the authority of the Party-State.
1. All national statutes qoted can be found in English translations in the Current Digest of the Soviet Press, Vol.XI, Nos.4 and 5, published by the Joint Committee on Slavic Studies, New York, unless otherwise footnoted. Emphases have been added.
2. In recent years legal theory has moved in the direction of presumption of innocence. Article 77 of the Russian Republic Criminal Procedures Code now makes more explicit that a defendant’s confession must have other supportive evidence before proof of guilt is established. But it remains, nonetheless, a formal legal concession. The Russian press is replete with incidents indicating that an accused is in an enormous disadvantage once charged with a crime.
3. There has been a modest improvement in the rights of the accused. In August 1970 the USSR Supreme Soviet Presidium revised Article 22 so that defense counsel must participate in the case from the moment a charge is made when the accused is a minor or cannot defend himself because of mental or physical handicaps; the defense counsel can participate in a trial from the time a charge is presented, on a ruling by the prosecutor. Only in cases involving possible capital punishment is the defense counsel obliged to enter the case when the preliminary investigation is completed.
4. In January 1960, the Supreme Soviet amended this article so that a person who has ties with a foreign power but has not actually committed a criminal act in her behalf will not be held criminally responsible if he voluntarily informs a responsible agency of this association.
5. As already noted, the recent Corrective-Labor Legislation still further restricts the opportunity for parole.
6. “Necessary defense” and “extreme necessity” are other areas which have been marked by retrogressive change in the past eight years. The press is filled with exhortations to ordinary citizens and members of control agencies to pummel or otherwise abuse suspected hooligans. The law permitting these attacks on those engaged in, or seemingly about to engage in “hooligan” behavior has been reinforced in various decrees, particularly those of 1966 “On Increased Liability for Hooliganism.”
7. In 1970, legislation was passed by a number of Union Republics winch, on balance, provides tor harsher administrative and criminal punishment of vagrants, beggars and against those leading “a parasitic way of life” and whose who “avoid socially useful labor.”
8. This is in old currency. The corresponding figures in the new, devalued currency are 10 and 50 rubles. The latter fine is more than two weeks pay for the average Russian worker.
9. According to an article in Izvestia, August 1, 1970 (trans. In CDSP, Vol.XX, No.32), there are still approximately 200,000 Comrade Courts m the USSR.
10. The probability is that for anti-Semitic reasons the amounts allegedly stolen by Jewish defendants in the wave of economic crimes are highly exaggerated.
11. Simple arithmetic shows that each “thief” stole an average of two loaves of bread a day. Whether this was done for profit or personal consumption is hard to say. For these crimes one salesgirl and a foreman received six-year prison sentences; the others were sentenced up to five years.
12. There is no evidence that the problem of theft has been eased since the above was written. On the contrary, there is every reason to believe that it has been aggravated. Along with the rise of thefts there has also been a rise in the number of decrees and directives for “intensifying the struggle against thefts of state and public property, violations of state and labor discipline, bribe-taking and other violations of the law.”
Last updated: 21 February 2010