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Samizdat As a Source for the Study of Soviet Law Since the Mid

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Samizdat As a Source for the Study of Soviet Law Since the Mid ROBERT SHARLET, commentator (Schenectady, N.Y., U.S.A.) Samizdat as a Source for the Study of Soviet Law Since the mid-1960's, samizdat has become an important source for the study of the contemporary Soviet legal system. Among the first major documents on Soviet law to reach the West were the unofficial "transcripts" of the Brodskii trial of 19641 and the Siniavskii-Daniel trial of 1966.2 Brodskii was tried in Leningrad under the RSFSR "anti-parasite" law and administratively exiled to a remote region with compulsory manual labor for a five-year term. Siniavskii and Daniel were convicted of violating Article 70 ("Anti-Soviet Agitation and Propaganda") of the RSFSR Criminal Code and sentenced to seven and five years of detention, respectively. Following the case against the two early safnizdat writers, Soviet criminal law was amended in late 1966 to facilitate the prosecution of dissenters by eliminating the requirement of proving anti-Soviet intent. Dubbed the "Siniavskii-Daniel law" by Harold Berman, the principal amendment to the 1960 RSFSR Criminal Code was Article 190-1: . Circulation of Fabrications Known to Be False Which Defame [the] Soviet State and Social System The systematic circulation in an oral form of fabrications known to be false which defame the Soviet state and social system and, likewise, the prepara- tion or circulation in written, printed or any other form of works of such content shall be punished by deprivation of freedom for a term not exceeding three years, or by correctional tasks for a term not exceeding one year, or by a fine not exceeding 100 rubles.3 As the dissent movement has spread' in the USSR and the regime stepped up its efforts to suppress it, new "cases" have been opened, trials conducted, and administrative repression carried out against the dissidents. This, in turn, has brought forth a seemingly . ! 1. "The Triaf of Iosif Brodsky," trans. Collyer Bowen, New Leader, August 31, 1964, pp. 6-17. For an analysis of the trial, see Samuel Kucherov, The Organs of Soviet Administration of Jus- tice (Leiden, 1970), pp. 212-234. For studies of the "anti-parasite" legislation, see R. Beermann, "The Parasite Law in the Soviet Union," British Journal of Criminology, Vol. 3 (1962), pp. 71-80; and Leon Lipson, "Hosts and Pests: The Fight Against Parasites," Problems of Communism, XIV, 2 (March- April 1965), 72-82. 2. On Trial: The Soviet State versus "Abram Tertz" and "Nikolai Arzhak," trans. & ed. Max Hayward, rev. and enlarged ed. (New York, 1967). For a study of the trial and its context, see John E. Turner, "Artists in Adversity: The Sinyavsky-DanielCase," in Political Trials, ed. Theodore L. Becker (Indianapolis, 1971), ch. vii. On the legal issues of the case, see Harold J. Berman, "The Writer & Soviet Law," New Leader, February 14, 1966, pp. 13-16. 3. The translation is from Soviet Criminal Law and Procedure: The RSFSR Codes, Intro- duction & Analysis by Harold J. Berman; trans. Harold J. Berman and James W. Spindler, 2nd. ed. - (Cambridge,Mass., 1972), pp. 180-181. For a comparative analysis of Article 70 and the newer Article 190-1, see Berman's "Introduction," pp. 81-83. 182 incessant torrent of samizdat materials bearing on Soviet "extralegal history"4 as well as the current administration of justice in the USSR.5 Western specialists have already begun to draw on this rich archive of material, further enhancing its value for the study of Soviet law.6 These various samizdat and secondary sources are helping to bridge the gap between Soviet "law in the books" and Soviet "law in action" and are providing the Western specialist with a rare opportunity to study the less accessible aspects of the criminal justice system including in camera political trials, daily life in the penal system, and unpublished or "secret" legislation. Samizdat has become a particularly valuable source on Soviet law because one of the main strategies of dissenters in the USSR has been to demand the implementation of the individual's constitutional and statutory rights and, when suppressed for doing so, to 4. See, in order of publication in English translation, Eugenia Semyonovna Ginzburg, Journey into the Whirlwind,trans. Paul Stevenson & Max Hayward (New York, 1967); Nadezhda Mandelstam, Hope Against Hope, trans. Max Hayward (New York, 1970); Roy A. Medvedev, Let History Judge: The Origins and Consequences of Stalinism, trans. Colleen Taylor; eds. David Joravsky & Georges Haupt (New York, 1971); A. Solzhenitsyn, Arkhipelag GULag, 1918-1956, Chasti I-II (Paris, 1973) forthcoming in English translation, June 1974; and a review article of the latter, Robert Sharlet, "GULag: A Chronicle of Soviet Extralegal History," Problems of Communism, XXIII, 3 (May-June 1974).. 5. See Andrei Amalrik, Involuntary Journey to Siberia, trans. Manya Harari & Max Hayward (New York, 1970); Ferment in the Ukraine: Documents by V. Chornovil,L Kandyba, L. Lukyanenko, V. Moroz and others, ed. Michael Browne (New York, 1971); In Quest of Justice: Protest and Dissent in the Soviet Union Today, ed. Abraham Brumberg (New York, 1970) and the original special issuesof Problems of Commtinism,XVII, 4 & 5 (July-August& September-October 1968) which contain some additional documents not published in the book; "The Case of Vladimir Bukovsky," Survey, Vol. 18, No. 2(83) (Spring 1972), pp. 123-160; ViacheslavChornovil, The Chornovil Papers, Introduction by Frederick C. Barghoorn (Toronto, 1968); Pavel M. Litvinov, The Demonstration in Pushkin Square: The Trial Records with Commentary and an Open Letter, trans. Manya Harari (London, 1969); The Trial of the Four: A Collection of Materialson the Caseof Galanskov,Ginzburg, Dobrovolsky Fr Lash- kova, 1967-68, comp. Pavel M. Litvinov, trans. Janet Sapiets, ed. Pdter Reddaway (New York, 1972); Anatoly Marchenko, My Testimony, trans. Michael Scammell (New York, 1969); Roy A. Medvedev, De la democratie socialiste, trans. Sybil Gcoffroy (Paris, 1972), esp. ch. viii (an English trans. from the Russian Kniga o sotsialisticheskoi demokratii is in progress); Zhores A. Medvedev and Roy A. Medvedev, AQuestion of Madness: Repression by Psychiatry in the Soviet Union, trans. Ellen de Kadt (New York, 1971); Zhores A. Medvedev, The MedvedevPapers, trans. Vera Rich (New York, 1971); Andrei Sakharov, Sakharov Speaks (New York, 1974); Samizdat I: La Voix de 1'opposition com- muniste en U.R.S.S. (Paris, 1969) (a special issue of La Verite, No. 546, [November 1969]); and Samizdat: Voices of the Soviet Opposition, cd. George Saunders (New York, 1974). In addition, samizdat documents in translation continue to appear in Survey,New York Reviewof Books, and the New York Times. , 6. See, for example, Ren6 Beermann, "The 1970-71 Soviet Trials of Zionists: Some Legal Aspects," Soviet Jewish Affairs, (Vol. 11 No. 2 (Novcmber 1971), pp. 3-24; Robert Conquest, The Great Terror, rev. ed. (London, 1971); George Ginsburgs, "Soviet Law and the Emigration of Soviet Jews," Soviet Jewish Affairs, Vol. 3, No. 1 (Spring 1973), pp. 3-19; WilliamKorey, The Soviet Cage: Anti-Semitismin Russia (New York, 1973), esp. chs. iii, viii, and xi-xiii; Peter Reddaway, "Freedom of Worship and the Law," in In Quest of Justice, pp. 62-75; Uncensored Russia: Protest and Dissent in the Soviet Union ("The Unofficial Moscow Journal .9 Chronicle of Current Events") ed., trans. and with a commentary by Peter Rcddaway (New York, 1972); Konstantyn Sawczuk, "Opposition in the Ukraine: Seven versus the Regime," Survey, Vol. 20, No. 1(90) (Winter 1974), pp. 36-46; Sharlet, "Soviet Extralegal History" Problems of Communism; and Stcphen Weiner, "Socialist Legality on Trial," in /n Quest of Justice, pp. 39-51. See also F.J.M. Feldbrugge,"Samizdat," in Encyclopediaof Soviet Law, cd. F.J.M. Fcldbruggc (Dobbs Ferry, N.Y., 1973), II, 598-599, .
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