The Jury’s Out on Juries in Russia (part 5)
The previous part ended with the destruction of the entire pre-Revolutionary legal system, including juries, by the Bolsheviks immediately upon assuming power in November 1917. This final part brings the story up to date.
Partly, it would seem, because he was a failed lawyer (despite having been a brilliant law student), Lenin loathed everything about conventional legal systems, calling them “a blind, subtle instrument of merciless suppression of the exploited, defending the interests of the money-bag”. After the Revolution he laid it down that: “Anybody can act as a judge basing himself on the revolutionary sense of justice of the working classes.”
Within a few months of the Bolshevist coup, the Russian legal system, which had been among the most advanced in Europe, was reduced to such a shambles that even after fifteen years of re-professionalisation, 85% of People’s Court judges had no more than a primary education. As late as 1935, the Procuracy, which was considered the most important part of the system, was so badly resourced that the journal Soviet Justice carried an article about a new “shock” campaign headlined: “A Bicycle for Every Investigator!”
Decree No 1 on 24 November 1917 provided for the complete abolition of the courts, Procuracy, Bar and law schools, and the introduction of Revolutionary Tribunals staffed by lay assessors. They dispensed their own ideas of justice in an atmosphere of complete procedural informality—if those words can be stretched to cover such strange meetings. We have a description of one such trial in Moscow from a New Zealander, Allan Monkhouse, who was accused in early 1918 of stealing British-delivered munitions from the Soviets.
“The Court consisted of one Jewish lawyer, a political agitator and two workmen, one of whom I recognised as an illiterate plumber who had formerly been in my employ. Prisoner, judges and witnesses sat round a rough table with a torn, green-baize cover. The room was full of tobacco smoke. The president, a glass of tea in one hand, and a thick slice of black bread spread with red caviar in the other hand, addressed me with his mouth so full that I could hardly distinguish his words. My case dragged on until the late evening. In those days punishment for crimes of this nature was immediate execution and, though I was entirely innocent of the charges against me, nevertheless my case went badly, and I shall always remember watching the sun set over the Kremlin Towers and thinking to myself that in all probability it was the last time I should see it.”
The legal theory that these courts were based on was aptly summarised as late as 1977 by no less an authority than Kim Philby, the famous English spy. In a lecture he gave to KGB operatives, which is quoted in his wife Rufina’s book, he is reported as saying, “We must always remember that bourgeois law is designed primarily to safeguard the possession and acquisition of property. It therefore involves elaborate safeguards for all sorts of individual skulduggery.” It was to cut through all these “elaborate safeguards” that Revolutionary Courts, and their successor institutions, were developed.
The main theoretician of Soviet law was an aggressive Lithuanian Bolshevik called Evgeniy Pashukanis, who had studied jurisprudence at Munich University before the First World War. Believing that law was only designed to facilitate property transactions, he argued that once Communism was established, law would “wither away”, as Engels had said the state would. He wrote that in the Soviet Union, law was “95% political”, by which he meant that it must be adapted by judges in their courtrooms to the current leadership’s “general line”, even if no law had been passed to give that “line” statutory substance.
This meant abandoning the ancient principle of nullum crimen, nullum poena, sine praevia lege (no crime, no punishment, without previous law). Even when there were laws, the people expected to obey them were not always told of their existence. It was only in the late 1950s that the practice was stopped of trying people in secret for breaches of laws which had been promulgated in secret. Today, the general approach of Pashukanis and his followers is what President Medvedev calls “legal nihilism”.
Part of the reason for this ruthlessness was that the leadership felt the country to be surrounded by enemies, and penetrated by wreckers, spies and what we would today call terrorists, whose alleged plans to destroy Soviet society were taken seriously to the point of paranoia. The result was a further extension of “people’s justice”. Comrade’s Courts were introduced, in which local communities—inhabitants of a block of flats, for example—would get together without any legal personnel or formalities in order to criticise the non-criminal behaviour of one of their number, with the power to extract apologies and small fines.
That was social control; political control was advanced by measures like the one which Nikolai Krylenko, Commissar of Justice, proposed in 1927, namely preventative detention. He drafted an amendment to the Criminal Code which would provide for the imprisonment of those “who had not committed any crime at all but, because of their connections with criminal surroundings or because of their past activity, they give reason to expect that they could commit some crime.” This precisely echoed the Tsarist practice from the 1880s onwards (see part 3: George Kennan). Though Krylenko’s proposal was not implemented, many would say that it became the unarticulated principle behind the Great Terror a decade on.
We in the West have sometimes adopted a similar approach, for example with Guantanamo Bay. In Britain, when Control Orders were introduced in 2005, the government proposed house-arrest without trial for suspected terrorists, people who had not been convicted of any offence. They would be confined to their homes without knowing the charges against them or the evidence for those charges. Echoing Krylenko, the then Home Secretary, Charles Clarke, said, “There are serious people and serious organisations trying to destroy our society.”
In 1936 Stalin introduced a new Constitution, which conferred extravagant rights, often beyond those customary in advanced democracies. At the same time, he proceeded to terrorise or kill anyone who tried to assert those rights. It was only after he had died, and his reputation been partially buried by Nikita Khrushchev with his widely-circulated “secret” speech denouncing the “cult of personality” in February 1956, that Soviet law began to come alive again.
It went through many subtle changes, but no fundamental ones, before 1988 when, at the Nineteenth Party Conference, Mikhail Gorbachev publicly repudiated the principle that law must be subordinate to politics. Though today it is still, in unacknowledged practice, subordinate to politics in most important aspects of public life, it is rarely so in private, or ordinary criminal, litigation. Before describing the ambiguities of the situation today, it is worth pausing to consider the public involvement in justice when Communism was at its most self-confident, that is roughly the five years after Sputnik but before the Cuban missile crisis. What was the best the old system could offer its citizens in court?
In 1962 a young American legal scholar, George Feifer, came to Moscow to study Soviet law. He spent much of his time touring the city’s courts discovering how justice operated at ground level, which he described in a fascinating book, called Justice in Moscow. Before getting down to specifics, Feifer noted: “Many of the lawyers are maimed—an arm missing, a leg, an eye. The number of crutches, black gloves, flapping sleeves and twisting scars at courtroom tables stand out even in Moscow where one gets accustomed to seeing middle-aged men with missing parts. These men went to war as boys, and afterwards, as cripples fit only for paperwork, they entered the law.”
With Revolutionary Tribunals long gone, there were three levels below the Supreme Court: the lowest was the Comrade Courts, which still had the informal procedure and non-criminal remit that they had been given in the 1920s; above them were the People’s Court where most crime was tried; and finally the City Court which was for state crimes and the like, plus appeals from the People’s Courts. Procedure in the latter two was similar, though still informal by Western standards. The judge, the procurator and the advocate were the only professionals involved.
Juries did not exist, of course, so Feifer posed the question: “Who makes law in Russia? Trial by whom? The men flanking the judge at every trial are ‘lay assessors’, direct representatives of the People, workers. They are elected by the trade unions at their factories and offices to sit two weeks a year for two years.” These lay assessors were supposed to enjoy equal status with the judge, but in practice they usually followed his or (more usually) her lead. Feifer noted that judges almost always followed the trend of whatever campaign the Party was publicising at the time. Political control of the courts, though loose, was effective.
The charm and fascination of Feifer’s book lies in the verbatim accounts of the many trials he observed. The wild agitation and self-pity of the young Georgian accused of having kissed a girl against her will is balanced by the fatalistic resignation of many of the Russian accused. “At the worst moment, Kondakov, still calm and awkward, still somehow impervious to his misfortune, looks at the windows. [He gets] a year for stealing a pair of galoshes from the factory where he works. His wife rushes to him and kisses him before he is led away.”
Once, in the Comrades’ Court, he saw a wild argument between two babushki over a 28 kopek electricity bill for a communal flat. That was only the start. “After ranting about the floors, the screams shifted to cleaning rags and cooking smells, while the chairman followed from side to side as if at a tennis match.” When she tries to calm things down, the allegations are only compounded: preventing a son from studying, taking washing from the line when wet, obstructing use of the kitchen after 11 p.m. when it should be 12. The chairman simply cannot get the two sides onto the issue of the electricity bill. After three hours everyone is exhausted, and the chairman orders halving of the bill, 14 kopeks each. The three hundred spectators seem to approve, and the two protagonists “look at each other with shy, tentative smiles.”
And then there was the case of the man who went to court to get his wife to return the winter coat she had kept as a “hostage” after he left her for another woman; and the snappily- Westernised youths who taunted and harassed the fussy old lady in the detsky sad, and set fire to her hat. The stories are endless and make absorbing reading. In most cases, the public gallery was so vocal as to become almost a part in the proceedings. To say that public opinion was absent from the judicial process in the Soviet Union would be inaccurate, even though it had no formal role beyond the ineffective presence of the lay assessors.
On the other hand, Feifer notes, “The one thing most clear from a year’s stay in Moscow is the utter absence of ‘public’ or ‘community’ apart from the Party.” Possibly that was why, after the bloom had gone off the Communist rose and perestroika had become the campaign of the hour, one of the most forcefully articulated proposals for law reform was the re-introduction of juries. The model was to be the reforms of 1864 (see part 2).
In 1993, juries returned to Russia for cases concerning crimes for which the court could hand down sentences of death or prison terms of more than ten years. The method of operation is not dissimilar to that in the late nineteenth century and comparable with British and American practice, even though it differs in many details. The reforms were enthusiastically received, but unfortunately the effect has been negligible, due to the right enshrined in the law that the state can appeal acquittals.
A lawyer friend of mine who was finishing her studies around the time the new procedure was being introduced was told by one of her lecturers that there was no point in devoting too much time to mastering the jury system since the state would appeal 50% of acquittals and get them overturned. “And she was right,” my friend says wearily today. “Or nearly right. In fact that figure is not 50% but 80%. Russian juries are meaningless. In any case, the main problem is not the law, but the people operating it, especially the judges and the prokoratura. They still think as Soviet lawyers.”
If law reflects society then this is a fact of profound significance for anyone who hopes for the development of the Rule of Law in Russia on the sort of basis that was presaged in England by Magna Carta. But, as in Britain, if you look back to the twentieth century, it is not hard to see the nineteenth century in the background, and so on further and further back. Who today has not experienced something like the last case Feifer watched in the People’s Court half a century ago? A factory worker had walked out at lunch-time with a small electric motor.
“On the basis of what, the judge asked okhranik, a tattered, bearded grandfather, did he permit valuable objects to leave the gate? On the basis of documents. What documents? He didn’t know. Laughter in court. Who signs the transfer papers? He didn’t remember. Why, then, is he stationed at the gate? To open and close it. Belly laughter. But mightn’t he just as well leave it open altogether? No, for then he would be out of a job. Pandemonium. Then why did he sit there? That was his job. What was his job, what exactly was he supposed to do there? He wasn’t sure. Didn’t he know he was supposed to prevent theft? Sure, but everyone at the factory steals anyway. The judge grows purple. ‘You are incredible, simply incredible, a figure out of Chekhov.’”
I started this account of Russian law with its medieval beginnings, and it is appropriate to end there. In trying to explain the long-term, underlying passivity of Russians in the face of the law, a passivity which is one of the main reasons why it neither develops nor commands the respect of the people, Feifer asks what has caused the paralysis. This is his answer: “It is not the knout or the thumbscrew so much as the enormous power and lethargy of the administrative bureaucracy in a country where the tradition of protection for the individual is still feeble. This is not Stalin’s doing, so much as Nichols I’s and Peter the Great’s, and even the Mongols’.”