The program “Antykult” on Hromadske Radio, March 28, 2020. Part one. Interview with Ilya Novikov.
What role did lawyers play in the staged Soviet trials of the 1930s? Were defense attorneys successful in securing acquittals in general criminal cases? How did the authorities retaliate against lawyers who defended dissidents? We discuss this in this episode of “Antykult.”
Hryhoriy Pyrlyk (H. P.): Greetings, you are listening to “Antykult,” − a program about the myths and phenomena that outlived the Soviet Union. At the microphone are Hryhoriy Pyrlyk and Dmytro Belobrov, and our sound engineer is Dmytro Smiyan.
Dmytro Belobrov (D. B.): The Soviet lawyer has always been a kind of oxymoron. How can you defend a client if the lawyer is dependent on the state, is not free, and decisions are made not in the courtroom?
H. P.: But the legal profession managed to survive Soviet rule, always teetering on the edge of extinction, and some lawyers even became famous during the political trials of the late USSR period.
D. B.: We will talk about this in more detail with our guests. They are lawyer Ilya Novikov and human rights activist Yevhen Zakharov.
“Reference Bureau”: By the decree of the Council of People’s Commissars of November 24, 1917, “On the Court,” the Soviet government abolished the entire judicial system, including the institutions of private and jury-based legal practice that existed under the tsarist government. They were replaced by Soviet courts, which decided cases guided by revolutionary conscience and proletarian consciousness. All untainted citizens of both sexes who enjoyed civil rights were admitted to the roles of prosecutors and defenders. That is, they were not even required to be lawyers. At a meeting of the Moscow College of Defenders, the country’s chief prosecutor, Andrey Vyshinsky, declared: “The principles of Soviet defense must be the principles of socialist construction.” During the Great Terror, the role of the legal profession was effectively nullified by the existence of the so-called “dvoikas” and “troikas.” Over time, the level of legal culture improved, but in fact, the Soviet government proclaimed: the legal profession − is a relic of the past, because decisions were not made in court.
D. B.: Mr. Novikov, welcome.
Ilya Novikov (I. N.): Hello.
D. B.: You’ve just listened to our “Reference Bureau.” What was correct in it, and where did we make a mistake? I think it’s always like that when we touch upon topics we aren't 100% familiar with, which happens very often. Let's admit it, after all. Because journalists often do that, we make mistakes. So where were we mistaken, or were there any mistakes? If you wanted to add something, what would you add to this story?
I. N.: The history of the legal profession—Russian imperial, then Soviet and post-Soviet—is so complex that even within a brief digest, it’s simply impossible to present a position that would be indisputable in all respects. As for the facts—yes, more or less, that's how it was. We probably need to go back to the fact that on the territory of Ukraine, as I have reported on at several legal conferences, the situation was quite interesting. At one time, two different major systems were present here—the Russian Imperial and the Austro-Hungarian Imperial, and this creates a rather interesting picture.
D. B.: These were two different approaches, am I right?
I. N.: Yes. They were not that different. The thing is, 19th-century Europe, from the point of view of legal approaches, was also quite unified. It was simply considered the norm of decency that any developed, respectable state should have certain institutions. And in this sense, the Russian Empire and the Austro-Hungarian Empire in the second half of the 19th century were not very different from each other, but of course, they differed. And if we are talking about the situation that developed after the First World War, after all these empires had become a thing of the past, Russia had one thing, while the western part of Ukraine had something else. There you had Piłsudski, you had the Polish legal profession, which was very special even within the Warsaw district of Russia. Then, naturally, all this acquired an even more interesting flavor. In short, it’s a fairly colorful patchwork quilt.
If we talk more narrowly about what happened in the Soviet Union in the 1920s and after the 1920s, how the Soviet lawyer felt... Yes, of course, the Soviet lawyer felt very insecure. The classic example that is usually cited to show that a Soviet lawyer was nothing, meant nothing, and could do nothing, is the show trials of the 1930s, especially the Moscow trials. There were not only Moscow trials; there were others across the country—the “Shakhty Trial” and others. But what happened at the Bukharin trials, when a lawyer stands up... By the way, not all defendants there had lawyers. The norm was that a dozen and a half or two dozen people were tried at once, and lawyers defended maybe three or four of them.
H. P.: Can I ask right away, what did that look like? For example, I'm mostly familiar with legal practice from cinema. I watch a movie, and I imagine: this is how a lawyer comes out, this is how they present the defense. How did it happen in the 1930s? Was it the same, or on the contrary, did they come out and say: “These are enemies of the people, look at them. But they want to atone for their guilt.” How did it happen?
I. N.: If we're talking about cinema, I can recommend a very good late-Soviet film, “Defender Sizov,” based on a novella written by Ilya Zverev back in, I think, the 1950s or 1960s. I won't spoil it, but the plot is something like this: somewhere in the provinces, three “enemies of the people” are sentenced for an attempt to organize sabotage. Their wives find the only lawyer who will take the case. He takes it in the only possible way: he starts proving in various instances, primarily in Moscow, that the very investigators and prosecutors who handled the case are themselves the “enemies of the people.” And the logic of the system is such that it had just reached the point where, according to the directives, it was time to change the current personnel. And so these convicts got lucky, while the investigators, accordingly, did not.
But you have to understand that the repression carried out by the “troikas” did not involve any lawyer, any defender at all. It was truly a conveyor belt that, in principle, did without a hearing as such. Folders were moved from desk to desk, lists were signed, and people were killed or sent to Siberia. As for the trials that did have lawyers, these were either general criminal cases, and surprisingly, things looked quite normal in those cases. That is, according to the memoirs of colleagues who worked in the 1930s in people's courts on, say, petty thefts or common crimes, justice, surprisingly, existed there. Precisely because the state had no particular interest in ensuring that defendants under these articles were convicted at all costs, and courts, and accordingly lawyers, were allowed to work more or less according to the law. A show trial, where some newly exposed group of Trotskyites or Bukharinites is brought to the microphones, always in the presence of the foreign press, and there they really do expose themselves, after which a lawyer stands up and says: “My client is a doctor, an old physician, he has been treating people all his life. Please, spare his life.” The court returns and says: “No, we will not spare it. All to be shot, including your client.”
This tone is truly demonstrative, very telling, something one would think is impossible to argue against. But these things are very indicative as a marker that in predetermined cases, the lawyer indeed played a purely decorative role. But they do not actually reflect how a significant portion of these general criminal cases were structured.
When we were students, it was a revelation to me that the percentage of acquittals in people's courts dropped to zero not in the 1930s, but in the 1950s. It was precisely when the special system with the “troikas,” the special route through which repression was carried out, was eliminated. And repression began, willy-nilly, to go through the people's courts, and that's when the screws were tightened. It was precisely from the 1950s that the situation became normal where a judge, who was tasked with the function of total condemnation that previously went through the “troika,” simply stopped working as a judge. And overall, this picture is still true for Russia today. In Russia, it remains, I would say, 90% the same. That is, the acquittal rate is close to zero, every acquittal is perceived as an emergency, the prosecution must file an appellate protest for every acquittal, and so on.
H. P.: Ilya, I know that you approached the organization “The Last Address. Ukraine,” specifically my co-host Dmytro Belobrov, regarding the installation of memorial plaques for Soviet-repressed lawyers, particularly here, on the territory of Ukraine. Can you give examples of such fates? Under what circumstances and for what reasons could a lawyer be repressed?
I. N.: Actually, I don’t have the impression that lawyers were repressed much differently than other categories of people. It’s just that a campaign to find “enemies” sooner or later reached practically every structural unit of society—every factory, every plant, every institution. Yes, it’s clear that a lawyer probably carried some additional risks. They had more potential situations of conflict with the prosecutor, which could lead to personal scores being settled with them. We understand that the picture of the 1930s repressions is minimally explained by these personal scores. It is explained by the fact that the system simply required a certain number of units, these heads, as cynical as it sounds. And it got them from the most diverse places.
When the idea arose that within the framework of “The Last Address” (which, I think, Dmytro can tell you more about than I can, deals with, in principle, any people for whom it is known where they were taken from, as they say, on their final journey), we, within the Kyiv legal community in this case, decided that we could specifically focus on our colleagues. This is also not a very simple function because there are no separate, verified lists of just lawyers who were repressed in the 1930s. We have to rather selectively look through general lists and try to find specifically lawyers among all the repressed, whose memorial plaques we can handle. The year before last, the first three such memorial signs were hung. There was one lawyer, one legal consultant, and the wife of a lawyer, who was repressed, in fact, along with him. I don’t have the feeling that any of these people were politically significant figures, that they were for some reason particularly interesting or unpleasant to the Soviet authorities. Nothing of the sort. They simply fell under this common steamroller.
H. P.: Ilya, I would like to ask another question regarding the “dvoikas” and “troikas.” Why were they introduced? Couldn't everything have functioned in a more standard mode, where there is just a court, a trial takes place there. It's a sham, but it still proceeds in the form that it exists, without the use of such, so to speak, revolutionary tribunals?
I. N.: Revolutionary tribunals are also somewhat of an atavism. Revolutionary tribunals existed in the very early stages. In fact, many things, including the criminal process and the Soviet legal profession, returned not exactly to the norm, but to some more or less normal-looking appearance against the backdrop of the NEP, in the 1920s, at the end of the 1920s. And even with the strictest directives, even though by that time almost all judges were already part of the party organization, or if not, they were otherwise under control, even so, adherence to even elementary formalities (bringing the person to the session, opening the session, reading some minimal set of documents, having the court stand up and go to deliberate, return, etc.) absolutely did not allow for a conveyor-belt method of work. That is, even at full capacity, even if the staffs of people's courts had been increased to the maximum, it would still not have allowed for the repression of people by the hundreds daily. But the pace that was set, starting perhaps from 1934-1935, was precisely about such mass, conveyor-belt repression, hundreds of people. No courts working according to the Code of Criminal Procedure could cope with this. The “dvoikas” and “troikas” were a measure that was probably necessary from the point of view of the people who devised all this.
D. B.: Regarding the transition from the Stalinist to the Khrushchev era. I recall the case of Yan Rokotov, where Khrushchev effectively intervened in the process. Initially, he was given, I think, seven years for currency speculation, then Khrushchev intervened and said that was not enough and the case needed to be brought to a harsher conclusion. In your opinion, what changes began during the Khrushchev Thaw, if they began at all? Or was it, in fact, the same Stalinist model, just a milder version?
I. N.: No, it was not, of course, the Stalinist model. In general, it’s a very difficult and ungrateful task to judge the changes in how the system as a whole works based on such individual, very high-profile cases, that is, very significant, noticeable ones, and so on. Because every such case inevitably lives by its own individual laws. How many such cases could there actually have been in the Soviet Union in which Khrushchev personally intervened? Probably a few, maybe dozens, but no more. This does not define the face of the system.
The face of the system is defined by the repressive load placed on which bodies, precisely what I have already partially mentioned. After the elimination of this emergency mechanism that allowed for repressions in a conveyor-belt mode, when every criminal verdict had to go through a criminal court, two things emerged. It turned out that, on the one hand, there seemed to be more order. And yes, we lawyers are undoubtedly very inclined, let's say, when recalling past cases, to remember achievements rather than failures. Therefore, in the memoirs of Soviet lawyers who worked in the 1950s-1960s, you will read about cases where they managed to... Acquittals are rare, but there were acquittals. They managed, for example, to have a case returned for further investigation and then have it closed, to achieve a commutation or reduction of sentence, to have a person returned from a closed psychiatric institution, and so on. You will find more such cases than their average proportion was, probably. But a colossal downside, which, again, has survived to our days, is that since the court became the sole source of repression, it became infected with the idea that it needed to work in a tight linkage with the prosecutor's and investigative apparatus. And the interests of this prosecutor's and investigative apparatus—namely, the absence of scandal, the absence of acquittals, which would mean that the investigators and prosecutors worked incorrectly or, worse, with malicious intent, etc.—are taken very sensitively by the judges.
That is, a typical situation we have today, and this began precisely under Khrushchev, in the 1950s, is that a judge, seeing a case brought to him with insufficient evidence or no evidence at all, still thinks and calculates: “What will happen if I issue an acquittal in this case? The prosecutor will probably complain. The verdict will be overturned. And if the verdict is overturned, then my personal record will show a negative statistic, that one more of my verdicts has been overturned. Do I need this?” And often an acquittal is masked by a lenient sentence. I can give you any number of such examples, even from recent years in Russian practice.
H. P.: And in Ukrainian practice (since you are now working in Ukraine as a lawyer), from what you know, is the situation the same, or are there differences?
I. N.: No, it is much better. Despite Ukraine and Russia starting more or less from the same point, in the time since 1991, they have moved in slightly different directions. Not diametrically opposite, but different. And lest anyone think I am overly praising the Ukrainian judicial system, I would say that it is largely free from the main vices of the Soviet and post-Soviet Russian judicial model.
In Russia and the Soviet Union, the state believed it controlled judges wholesale. That is, a situation where a judge would start to dig in their heels would have been extremely surprising (such things happened, of course, but very rarely). When they would start doing what was not expected of them. In Ukraine, such things happen. And I don’t want to say that everything is perfect and that lawyers always succeed in being heard when they have something to say to the judges. But, at least in Ukraine, it is much easier to work as a lawyer—I have something to compare it with—than in Russia, and the effectiveness is much higher. At least they cannot ignore us or listen to us, as they say, with their ears already closed, knowing in advance that none of our arguments will have an effect. They listen to us, they don't always hear us, but as a rule, they listen. This, of course, makes a world of difference.
H. P.: When, in Soviet times, can we say that lawyers were transforming or had transformed into full-fledged participants in judicial processes? When they weren't playing a role choreographed for them, but could genuinely influence decision-making?
I. N.: Generally speaking, a lawyer always had the opportunity to influence something. The difference is that a lawyer who wished to use this opportunity systematically, frequently, or in a case particularly sensitive to the authorities, would, of course, be risking their personal safety. As an example, we can take the story of the group of lawyers who defended Soviet dissidents. There were three very prominent figures: Boris Zolotukhin, Sofya Kallistratova, and Dina Kaminskaya. And all of them, one way or another, were forced to step away from this work. Precisely because they allowed themselves to conduct the defense not in the way one would normally expect from an ordinary lawyer... What would be expected? That the lawyer would stand up and say something very neutral. That yes, of course, my client is accused of spreading slander against the Soviet government, this is all very bad, wrong. But let's, comrades, take into account, say, age, merits, and so on, and be lenient somehow. That was normal. What was not normal (although, of course, this is exactly what a real defender should have done) was to discuss whether there was any slander against the Soviet government at all? Why is slander against the Soviet government criminalized? What kind of government is it that can be slandered simply by listing facts? And so on, and so forth. Such a tactic, of course, is possible for a lawyer, since they are given the floor at a trial, any lawyer, in principle, can say such a thing. But you need to understand (and they did understand) that you can't say such things too many times. If not the first time, then the second time, organizational conclusions will be drawn. You would either be expelled from the bar altogether, or, since the assignment of lawyers to cases was handled by the bodies of the lawyers' colleges, which also reported along party lines, such a lawyer would simply not be assigned to cases sensitive to the administration.
D. B.: And finally, in our first block, I would like to ask a question. You have repeatedly said that you consider Henry Markovich Reznik, the legendary Soviet and later − Russian lawyer, to be your teacher. He had a quote in “Novaya Gazeta” recently: “When a lawyer enters a fixed case, politically or corruptly motivated, he realizes that everything is predetermined. But the defense itself does not lose its significance.” Could you comment on this phrase and also add what he considered most important in a Soviet lawyer, what he thought was most important?
I. N.: As it happens, with Henry Markovich, despite my immense respect for him, we have somewhat diverged in our views over the past couple of years on what the legal profession in Russia should be today. Because the legal profession in Russia today faces many of the same problems. We face questions of our survival as a corporation and the preservation of some of our basic values. Henry Markovich believes, as I understand his position, that it is better to survive now, and then deal with restoring some legacy later. Well, or he believes that things are not so bad. I believe things are quite bad, and that surviving physically as an organization, without insisting that we must do what we believe is right to do, makes no sense at all.
In the context of what you are talking about, I would say this: a defense generally consists of different things, and it largely depends on the person we are defending. Some people, and probably most people who find themselves in such a tight spot, want their suffering to be minimized. They ask the lawyer to do something to help them. If they could be sentenced to ten years, they want it to be not ten, but five, or perhaps a suspended sentence, or maybe a fine. And then, of course, we work along that line. And in that case, for a lawyer to say something that further irritates the administration or causes conflict with the prosecutor is dangerous from the point of view of the client's interests. But precisely in political cases, there are often situations where the client agrees, it is also important to them, that certain important, principled things should be said out loud. And a person cannot always say them themselves. And in this case, a lawyer is very important, first, as a means of communication with the outside world. We must not forget that before trial, people usually spend many months in pre-trial detention, and often the lawyer is their only link to the outside world. Because at best they can watch TV, but on TV they won't say anything important for them, on TV they won't hear from their relatives, about the state of their affairs, etc. But when the time for trial comes—yes, there are important things that must be said out loud for the future, for history, as you wish, for contemporaries, for like-minded people. And yes, lawyers in this case, of course, can be indispensable.
The last thing I will probably say is—there is a quote that our investigators—Russian, and probably Soviet ones too—are very fond of. A quote from Lenin, that a lawyer is “intellectual scum that often plays dirty,” and therefore he must be “kept on a tight rein.” But this is a quote that is probably projected as if Lenin, when he came to power, concluded that the legal profession should be kept on a tight rein. In fact, it was said much earlier. It was written in a letter to his comrades when Lenin was still fighting and was himself in tsarist prisons. And it referred to the idea that if you are engaged in a political struggle, you should not let your lawyer soften your conditions. You must shut him up, push him aside, stand in the dock and state some important party theses. Therefore, the lawyers who defended the Bolsheviks, and the Mensheviks, and the SRs, naturally, worked on the basis of ensuring the mildest possible sentence or the mildest conditions for their client. Therefore, in such cases, it also happens that the objective interests of the person, the interest in spending as little time in prison as possible, contradict what he wants for himself. In such a situation, the lawyer willy-nilly has to adapt, because it is always the client, the client himself, who decides everything.
H. P.: Thank you. I'll remind our listeners that our guest was Ilya Novikov, a lawyer.
The second part of the “Antykult” program – an interview with Yevhen Zakharov.
Audio recording of the program