CHAPTER V
WHAT THE COURTS ARE LIKE

The courts of Russia, in their present form a result of seventeen years of revolutionary evolution, and a mixture of proletarian ideas with older principles of justice, represent one of the most interesting developments in the country. It has been the aim of Soviet rule that the working class should by its participation in government be able to take part in carrying out the laws of the land. The administration of justice by the proletariat through which “Every representative of the masses, every citizen, must be placed in such conditions that he will be able to take part in discussing the laws of the state, in the choosing of his representatives, and in the carrying out of the laws of the state,” was a principle expressed by Lenin as early as 1918. The policy in political education has moved steadily toward the fulfillment of this plan. The use of jurors and their selection yearly in such a manner as will include a great number in the service is one way in which participation in administering and discussing laws is being carried out. Another is in the use of comradely courts carried on by the people of village or factory, which are later discussed.

The responsibility of the courts in the establishment of strict legality has been increased tremendously by two recent events. The first was the meeting in April, 1934, of the first All-Union Conference of Jurists which made wide recommendations in regard to attaining a higher quality of work on the part of courts, prosecution, and correctional labor institutions. The second act of significance was the reorganization of the OGPU by the formation of the Commissariat of Home Affairs and the transference of all judicial functions to the courts of the land. It takes brief time and space for this last statement, but it would require a good many pages to discuss the full significance of the step, and a number are devoted to it a little later.

As for the work of the All-Union Conference of Jurists, it is of high significance just now when the observance of legality and the establishment of a wide legal consciousness are so important in the relatively advanced stage of socialist construction which the state is entering. Openness must be the observed principle, and secrecy, even though legally judicial, discouraged, if confidence is to be widespread. A government cannot continue turning trials over to secret tribunals outside its judicial system and enjoy a reputation, even among its own loyal masses, of being adequately established. A normality of functions of institutions can go far toward establishing, even if only psychologically at first, a normality of conditions.

Likewise, sentences must be constructive. This was not a new note as will be seen throughout this book. All along the party program had advocated an educational approach to the treatment of criminals, and year by year had strengthened provisions for realizing the fulfillment of its plans. But the emphasis on this problem by so authoritative a body brought it freshly to the attention of the courts.

Note the recommendation of the Conference in this regard. “In order to insure the effectiveness of judicial work, the judges should endeavor to ascertain the economic and social-political results of the verdict rendered by them, being assisted in this work by public opinion organized around the judicial institutions.” The same body placed a responsibility for prevention of crime on its courts. It was not only a duty to pronounce a sentence on a guilty person, but the tribunal must by means of its favorable position discover the reason for the circumstance of the crime. The recommendation ran, “The court, when trying a case, should not only establish the guilty persons but should also disclose those economic and organizational defects and shortcomings which create a favorable atmosphere for criminal actions, signalizing such circumstances to the attention of the Party and Soviet organs by means of special riders. The results of such signalizing should be checked up from time to time.”

Thus, as an important instrument in the accomplishing of the socialist society which is the goal of the people, the court’s function is first to subdue the enemies that would undermine any such progress, and second to aid in giving discipline and control to those of the proletariat themselves who are not strong enough on their own account. Added to that, it is an organ of prevention.

It is not within the purpose of this volume to give a detailed description of the system of courts existing in the country at present, but a brief account is necessary. Before going further it may be well to repeat the reminder that a class distinction is fundamental in administering the criminal law in the USSR. This statement will appear too many times very likely, in relation to various phases of the subject, but it is important. The court as an organ of the state is devoted in its administration of law to carrying out the purpose and policy of the state, and since the class idea is prevalent in the government, it will have to be also in court action. With this explanation we proceed.

There is at the very bottom of the judicial system the People’s Courts.¹ The territory represented by one such has a population of from 20,000 to 100,000. Its jurisdiction may include any case against property or person not carrying a death sentence, although the more serious ones go in actual practice to the higher courts. It has other functions than as a lower court of the first instance. It is a member of the observation commission which supervises the correctional labor policy at the local penitentiary or correctional labor institution. It has an administrative function when the judge, sitting without the jurors in a “business session,” decides whether the evidence gathered in a preliminary investigation is sufficient to warrant court proceedings.

In trials the People’s Court is presided over by a judge assisted by two jurors who actually have most of the rights and responsibilities of the judge, and might, therefore, be called co-judges. The judges for the People’s Courts are elected for a one-year term by the local Soviet and may be recalled either by the same body or by the Commissar of Justice for sufficient cause. This provision for impeachability is one of the basic principles of organization of the Soviet courts.

The judges of these lower courts are representatives of the working class for they themselves are of their number. A judge (and, he seemed an adequate one), in a city court of Moscow with whom the writer talked was a baker before he took up his present profession. The qualifications of the office are that in addition to being from among the toilers the judge must have “a record of two years’ responsible work in state or workers’ and peasants’ public trade union, or party organization of the workers, or of three years’ practical work in organs of Soviet justice in the capacity of not less than judicial investigators.” Whether this may be regarded as high fitness or not, it seems to insure the selection of men of fair ability for the job. Perhaps it is that business of recall that makes them so careful, but those whom the writer saw sitting were impressive in their earnestness and efforts to arrive at a constructive sentence.

The jurors, whom we may think of as co-judges, are about 40 per cent. women and 60 per cent. men. These persons are elected by factory committees, Red Army sections, and village Soviets, and a special commission distributes the number to be elected among these various groups in the percentage of 50 per cent. to the first, 15 per cent. to the second, and 35 per cent. to the third. There are no specific qualifications, except the right to vote, but there is the restriction that “A person has no right to be a juror, if he has been expelled from a social or professional organization for a disgraceful offense or conduct, for a period of three years from the day of expulsion. . . .”

The names of the candidates for jurors are posted, and objections, if motivated, may be presented to the election committee. When the list of elected ones is finally sent to the commission, the latter prepares another list of those to serve in the various courts. Each serves for only six days of the year, and during absence from work in the act of performing this duty the worker retains his place and wage of employment.

While there seems to be no specific preparation for the task of a juror beyond the requirement that the judge explain to those who sit with him their rights and duties, there are conferences held and some evening classes which acquaint them better with the work before them.

Before we pass to the consideration of the next step in the Soviet judicature it would perhaps help in getting a clear picture of jurisdiction and procedure to take a look at some of the cases before the People’s Court. A typical day is described from the writer’s notes.

In the first trial we attended in the morning the room used was a small one, perhaps with a capacity for seating forty people altogether. It was on the ground floor of the building, and street cars clanging along their track outside made hearing difficult. On a slightly raised dais underneath a picture of Lenin there was a long plain table covered with a green cloth. Three chairs were placed at the back and one at the end. Three men and a woman, evidently having something to do with the case about to be tried, were already in the court room when we entered. The benches on which we took our places were arranged on either side of the narrow aisle.

Exactly at the hour set for the beginning of court, a door at the back of the room opened and a man, accompanied by two women, entered. The women sat in the outside chairs at the back of the table; the man took the center one. Already the young woman, who had been in the room on our arrival had seated herself at the end of the table. She was the clerk, the man was the judge, the two women the jurors.

The judge was obviously of the toiling classes, as were also the women. The judge, with his short black mustache, his close-cropped hair, his ordinary working clothes consisting of dark suit and blue shirt, ignored us and immediately got to work. The women were perhaps a little more conscious of our presence. The older in particular reached up to push back her hair, a little later smoothed her dress, a simple black cotton one. We noticed that her hands had seen much work. The other woman, about thirty and good looking, turned curious eyes toward us a moment, but finally gave her attention to the men who were seated on the front bench ahead of us.

The judge adjusted his glasses and read from the papers in his hand. The plaintiff had worked faithfully for a school, discharging all his duties as per requirement, but he had not been paid. He was asking for his money.

There were no attorneys, neither defense nor for the plaintiff. The plaintiff had his witness; he told his story, then summoned his corroborator, who had been excluded as required by law. The school representative told his side. The women jurors, forgetting us by that time, listened attentively, and the older asked frequent questions. The judge too, interrogated often.

It seemed obvious to us that the verdict should favor the man whose wages had been withheld, but it is difficult to tell about court decisions. We waited an instant; the three behind the table conferred so briefly that it was plain there was no dissension. The school was ordered to pay, and was fined five rubles. As simply as that and requiring hardly more time than the telling here, it was finished.

We left the room as the next case was called and went upstairs. A trial of some seriousness was in progress there. The judge sitting appeared of unusual intelligence. He was leaning forward, questioning the man in front of him, and he took no note, apparently, of our entry. One juror was a woman, the other a man. There was the same long table, the clerk at the end, a red cloth (Communist symbol), instead of the green, an especially attractive picture of Lenin, and one of Stalin.

We asked cautiously of one of the spectators what the case was about. A factory director was on trial, accused of criminal negligence by the workmen, because he had been given money to insure the factory against fire some three or four months previously, and had failed to do so, thus imperiling the lives of those who worked there.

But even though there might have been a severe sentence, if the motive was proved sufficiently base, there still were no attorneys, either for the state or defense. The defendant told his story. He had been ill and on vacation, but the matter of insurance would have his immediate attention, he said. He brought in his witnesses; but the workers’ evidence outweighed his. He had been warned, they said, and he had gone carelessly on.

But, said his witness, he had been a good worker. He had managed his factory well. It had done its prescribed quota and more. It was not right nor just that he should suffer for one negligent act.

The verdict was not so simple. The judge and jury retired into the mystery of the consultation room at the back. We sat wondering what sort of penalty, in case guilt was adjudged, would be imposed. Five minutes passed and they returned. The man was held guilty of negligence, and since he had been warned, and since the act was of a serious nature, imperiling the lives of workers and the property of the state, some measure must be used to impress him. He stood quietly, but the fingers of the hand hanging at his side worked nervously. The judge paused a bare moment, shuffled his papers, and then spoke.

For six months the man was to have no political rights and his party connections were to be cut off. But he was to stay in his job; go right on with the work he had done so well, and give up fifteen per cent. of his salary for the six month period. Even the accused seemed to feel that the penalty was just, and there was obvious agreement among those who listened.

So much for the People’s Court, the basic nucleus in the Russian judicial system. Now, for the second step in the judicature. The People’s Court takes care of the great mass of cases, both criminal and civil, and in addition exercises a function of supervision in regard to the village public courts and comradely courts of factories and other state institutions. But this will be discussed later.

Just now we pass to the Regional Court. It is both a court of cassational instance (the form review of a criminal case usually takes in the USSR) and a court of original jurisdiction for more serious cases. Its territory comprises a province or region of three to eleven millions population. It is, first of all, the organ of control of all the courts within its region. It supervises the work of the People’s judges, as well as selects and presents the names of such to the regional executive committees for election.

A word must be said here as to the use of the cassational method. The court of appeals was abolished by the first decree issued by the Soviets on the courts, and in its place was the following provision.² “Complaints from verdicts of the People’s Courts may be lodged by each of the interested parties exclusively on account of formal infringement of the rights and interests of the given party in the conduct of the case or in the judicial examination of the case, and as such constitute cassation complaints, and may not touch upon the substance of the verdict.” Thus the law seems to prevent the right of the court to go into the substance of the case. Such, however, is not actually a fact.

The ruling of the Supreme Court in regard to criminal cassation, in 1924, laid down the general rule for cassation review which is still followed. “The court of criminal cassation, being a cassation court in that it does not go into the substance of the case, at the same time avoids a purely formal bureaucratic approach to the case. While never turning into a court of appeals, it does not hypocritically shut its eyes to the substance; manifest lack of elucidation of the circumstances which should have influenced the verdict, inconsistency of the punishment with the crimes committed, manifest errors and contradictions between the verdict and the undeniable facts of the case, . . .”

Thus, the Code of Criminal Procedure permits a form of revision on the complaint of the proper parties, which combines the elements of cassation as practiced by the French courts with a method of appeal and together make up the cassation-revision form of investigation.

These complaints may be made by the defendant and his lawyer, the state prosecutor, the plaintiff and his legal representative, or by the legal suitor and his representative. Complaints by any other persons result in the case being handled by judicial supervision.

The form of the complaint follows no standard rule. A peasant may write a few words on a piece of paper, without even setting forth his argument, and the case will pass to the proper cassation court and be completely checked up.

The form of judicial supervision differs somewhat from the cassation method. The latter depends on the action of the parties concerned while the first depends on the intervention of the chairman or prosecutor of the court of the first instance. From this it can be seen that the normal way to have a criminal case reviewed is by the cassation method, on complaint by the interested parties.

We will pass from the work of the Regional Court as a court of cassation or supervision to look at a case which it tries in its capacity as a tribunal of first instance. In cases of appeal there are three judges sitting, but in cases of original jurisdiction there is the one judge and two jurors just as in the lower court. The judges of the Regional Court are elected by the Regional Executive Committee from a list of names presented by the Commissar of Justice. Their term of office is for one year. The qualifications are that in addition to the requirements for a People’s judge, the candidate shall also have served in a judicial capacity in a position not lower than the People’s Court for a period of three years.

On our visit to the regional court we found a somewhat larger room, seating perhaps a hundred persons, but still lacking any formal atmosphere. Its standing capacity was crowded when we arrived. Even the door leading to the corridor was open and filled with men and women. We attempted to look over, but the spectators politely made way for us. We saw, as we edged forward, the usual picture of Lenin, the familiar red cloth on the table. One knew at once by the atmosphere of the room that a case of interest was in process of trial. The judge and jurors were already in their places and the judge was reading the charge which alleged that the four young men and a girl on the front seats in the custody of an officer, had some two weeks before entered and robbed the house of the woman across the aisle from them, and that such robbery was accompanied by the use of a firearm in which the husband was wounded. No murder, however, was done. In that case death could have been the assessed penalty.

Three attorneys for the defendants sat at the side of the room, but as the trial proceeded we noticed how little part they took. The judge questioned the defendants, and got the story almost entirely from them. Witnesses were there and the judge and jurors interrogated them as they came, but they turned again and again to the accused to check up, to give them a chance to verify or deny. The procedure was highly informal. The court sought to find out the truth of the matter, but we soon saw that the inquiry went even beyond that. True to the duty imposed on him in the matter of discovering the reason for the circumstance, the judge pursued his questioning. He wanted to find the motive for such conduct. To discover that he questioned the young criminals on the whole circumstances of their lives, of their social background, without regard to apparent relevancy. Guilt was not in question, but the “measure of social defense” to be applied depended on the whole circumstance of the deed. One of the offenders had run away from his home with his grandmother, from a good job, but he appeared to have been led by the older who admitted that he did not want to work. The girl, defiantly, confessed. The youth, who used the gun, was asked again why he shot the man. He looked down and said he did not know, unless it was because the victim did not raise his hands soon enough. The spectators, jammed to the door and tense, laughed in relief. The judge did not reprove them, but he did not laugh, and the room became quickly silent.

The judge surveyed the defendants with something of sorrow; we were particularly interested in his attitude for he appeared to be concerned that the young people should deliberately choose such a career, and gave occasional words of admonition. But judges and citizens alike in the USSR have faith in what labor of a correctional sort can do for the construction of character. The next day the young offenders were sentenced to institutions where the ruling principle, in accordance with Soviet policy, is to teach them the dignity of work, and how to do some important kind well, and where they will be given certain cultural and political education.

There is next in the system the Supreme Courts of the seven republics—much like our own state Supreme tribunals—which act both as organs of judicial control for all courts of the territory, as courts of appeal for those lower courts subject to their jurisdiction, and as courts of original jurisdiction in more serious cases. The judges of these courts are elected by the Central Executive Committees of the respective republics.

At the top of the judicial system is the Supreme Court of the USSR. It is, of course, the organ of highest judicial supervision, and in its various branches acts as a court of appeals of all cases from various lower tribunals. The Military Section reviews the cases appealed from the military tribunals, the Transport Section performs the same function for those appealed from the railroad courts. Its judges are elected by the Central Executive Committee of the USSR for a term of one year, and they must have had at least three years’ service as judge of the People’s Court.

In original jurisdiction this court has only the most important cases in the Union. The Code of Criminal Procedure specifies: “The Judicial Department of the Supreme Court as a court of first instance, shall take jurisdiction (1) over cases of exceptional importance, when sent to it for trial by the presidium of the All-Russian Central Executive Committee, the Presidium of the Supreme Court, as well as cases offered for adjudication by the People’s Commissar of Justice, the Prosecutor of the Republic [now, the Attorney General] or the chairman of the State Political Bureau (OGPU). The Supreme Court has the right to accept for its adjudication or transfer for adjudication to any provincial court at its discretion cases offered for its adjudication by the prosecutor of the republic or Chairman of the OGPU. (2) Over cases involving offenses in office committed by members of the All-Russian Central Executive Committee, the people’s commissars and members of the Collegiums of People’s Commissariats, members of the Supreme Court, the assistant prosecutors of the Republic. (3) Over cases of alleged offenses in office on the part of the provincial prosecutors and their assistants, the members of the presidium of the provincial executive committee, heads of its departments, chairmen or deputy chairmen of the provincial court.” All cases enumerated in this paragraph may be accepted by the Supreme Court for its adjudication or transferred by it to a provincial court depending on the importance of the case.³ In several of these cases jurisdiction is not mandatory and may be transferred to other appropriate courts.

One of the cases tried by it and familiar to most Americans was the Metropolitan-Vickers case of two years ago, in which a certain group of Englishmen was accused of sabotage. But to continue the method used in discussing the lower courts, let us again consider a case. The following was appealed from the Siberian Regional Court, and does not present the human elements of cases of the first instance, yet it has its interesting points.

The building itself is a scant two blocks from the spot where Lenin lies in his red granite tomb. There was a militiaman inside the entrance who directed us upstairs to the proper room. Another officer was in the hall but he only looked at us curiously as we went by. It is the highest court of the land, and we were impressed by the informality of the approach.

Three judges presided in the room which presented a more formal appearance than those of the courts visited previously. An armed guard stood at the door leading out into the room at the back. Across the aisle from us sat three lawyers, the defense counsel. At the end of the table was the prosecuting attorney, a woman of some thirty years, who seemed competent and determined. Above the judges the usual portrait of Lenin looked down upon us. As we entered two young Russian women got up from the benches at the front to make way for us. They were the wives of the two condemned men whose case was on appeal.

The judges themselves, all men, were impressive in their dignity, and seemed intelligent and capable. They were dressed simply in ordinary street clothes, the dark shirt of one was open at the throat. One of them, not the chairman, read the charge in the original case. Two men had been condemned to die for murder and robbery. One, the manager of a fur factory, had stolen money to the amount of 7,500 rubles from the factory, and he and a companion, in a boat with a third, were crossing a lake. The third had a sum of money in his possession. While they stopped on the shore of the lake the first two sent the third for wood, and as he returned, they waylaid him and clubbed him to death. The Siberian Regional Court had sentenced the men to be shot.

After the reading, one of the defense attorneys spoke at length. In Russia there is no death sentence for murder, but for robbery in which murder occurs such a penalty is attached. The counsel, realizing that weight of evidence was against him, tried to separate the crime into two distinct acts. It was his one chance. The murder had been motivated by other causes, he said, and robbery followed as an afterthought. He contended also that the stick with which the man was killed did not constitute a weapon.

Of course, his argument did not hold and in addition the prosecutor pointed out that the one man had already stolen money from the state, which act in itself might carry the death penalty. The judges retired and we discussed the case while we waited. The defense attorney, who had spoken, walked up and down the aisle. The two wives were quietly huddled in seats farther back. A bell sounded, the court returned, and the chairman or presiding judge read the decision allowing the sentence to stand.

The case illustrated also the speed with which trials are completed after the crime is known. The murder of the man had occurred in October of 1933, but the body was not discovered until the latter part of June of 1934. There was no certainty of the third man’s death until that time as the other two had steadfastly maintained that he had left them. But less than one month after the discovery of the body, the two men had been tried and condemned to death. That was on July 19, and it was on August 9th that we heard the Supreme Court uphold the sentence. That is probably one of the main reasons why such deeds do not flourish there.

There is still to mention the village public courts and the comradely courts of factories and various institutions. These occupy a special place in the judicial system and were therefore not mentioned except in passing in the beginning of the chapter. They are under the supervision of the People’s Courts, and are for the purpose of interesting the large masses of people in handling such violations of laws as occur in factory or village. Among such problems would be disorganization of production in factory, on the farm, or in offices, as well as drunkenness, indolence, etc.

These courts are of, by, and for the people. There may be some little matter of form separating the masses from the formal courts, but they handle these among themselves. At a meeting of the workers of a given village a chairman and not less than ten members are elected to sit as a court. The factory conference follows the same plan, and elects a chairman, one or more substitutes, and not less than ten members, the exact number to be decided upon, from among the shockworkers of the factory or office.

The People’s Court, functioning as a supervisor of these organs, may decide that a case is outside their competency, and take it from them or cancel the decision in a case that is considered not to have been within their jurisdiction, but the decision given in cases which are considered to be proper to them is final and subject to no appeal.

A friend who was a spectator of the proceedings related the following case to the writer. A man had been drunk and had beaten his wife, not injuring her but outraging the village. In the presence of a large group of interested neighbors, the court assembled and tried him and decided that he must go forth from the apartment where he lived with his family and shift for himself as best he could. He did not deserve the shelter the home afforded him. There was no appeal. He left.

What are more definitely the types of cases handled by the comradely courts which, like the village public courts are free from any formal judicial rules?

The following is quoted from a lecture delivered by S. Golunsky of the Commissariat of Justice.

“The comradely courts examine cases:

(a) of violation of labor discipline, to wit: repeated late-coming for work, staying away from work, reporting for work in a drunken condition;

(b) of systematic neglectful attitude to socialist property (machines, tools, materials, premises, etc.);

(c) of turning out misfits above the allowed limit;

(d) of insults either by word of mouth or in writing, or action (spreading false derogatory stories about individuals), and inflicting blows without bodily injury;

(e) of thefts from factory and office by workers upon the territory of the enterprise, as well as of materials and tools belonging to the enterprise to the value of not more than 50 rubles;

(f) of Hooliganism that is not subject to criminal prosecution, and other behavior which does not correspond with the requirements of public decency and reflects the negative sides of social life.”

From the same source is taken the following list of penalties imposed.

“The following penalties may be imposed by the comradely courts:

(a) public warning;

(b) public censure with announcement in the wallnewspaper or in general press;

(c) a fine of not more than 10 rubles for the benefit of public organizations (Chemical Defense Society, Children’s Friends, etc.) ;

(d) reparation of damage caused to property, if not in excess of 50 rubles;

(e) raising the question before the administration of discharging the culprit;

(f) raising the question before the trade union of expelling a member from the union for a stated period.”

Examination of the cases must take place not later than five days from the time of registration of the complaint.

As a closing paragraph I set down the basic principles of organization of the Soviet Courts. It summarizes what has gone before.

(a) administration of justice exclusively by toilers;

(b) election of judges and accountability before the electors;

(c) impeachability of judges, the latter being independent from any local or personal influences but most intimately bound up with their class and called upon to carry out the policy of their class;

(d) collegiate trial of judicial cases, as a rule, by a body of three people with an assured majority to the people’s jurors, and

(e) participation of jurors in trial and judgment upon equal terms with the state judges, both in regard to fact and in regard to law, i.e., in the full scope of the rights of the state judge.

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