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Role of the Judiciary CHAPTER 7 Role of the Judiciary I. SoviET CoNCEPT oF THE JumciARY 1. Administration of Justice Before 1922 and by Non­ judicial Bodies A soviet judicial system was first established only with the advent of the New Economic Policy in 1922.1 Previously, the people's courts, which were designed to take the place of all the prerevolutionary courts, which had been abolished en bloc,8 were under constant re­ organization. According to the soviet writers, out of five decrees on the judicial organization announced in the course of one year ( 1917-1918), three were not even enforced and two later decrees were enforced only to a limited extent.3 The courts tried chiefly minor offenses and occasionally divorces, while the major part 1 The R.S.F.S.R. Judiciary Act of October 31, 1923 (R.S.F.S.R. Laws 1923, text 902). In 1924, the federal basic principles of the judicial organi­ zation were adopted (U.S.S.R. Laws 1924, text 203) and, in conformity with these, the R.S.F.S.R. Judiciary Act of November 19, 1926 (R.S.F.S.R. Laws, text 624), which remained in force until 1938, was enacted. 2 R.S.F.S.R. Laws 1917-1918, text 50. 3 Decree No. 1 on the Courts of November 24, 1917 (R.S.F.S.R. Laws 1917-1918, text 50) was carried out only to a certain extent. Similar de­ crees, Nos. 2 and 3, issued in February and July, 1918 (id., text 420, num­ bered in the reprint ed. 347, and text 589), as well as the Instruction on Organization and Functioning of the People's Courts of July 23, 1918; (id., text 597), were never enforced, according to Krylenko, The Judiciary of the R.S.F.S.R. (in Russian 1923) 60, 62. Two later Statutes on the Peo­ ple's Courts, viz., of November 30, 1918 (id., text 889) and of October 21, 1920 (id. 1920. text 407), and the Statute on Local Agencies of the Com­ missariat for Justice of August 21, 1920 (Krylenko, op. cit. 265) were car­ ried out only to a limited extent. 233 234 GENERAL SURVEY of criminal jurisdiction was absorbed by so-called revo­ lutionary tribunals and the Cheka, both institutions pro­ ceeding without the guidance of any definite substantive or adjective law.4 (a) Cheka. "Cheka" is a coined word made out of the beginning letters of the Russian equivalent for "Extraordinary Commission" ( Chrezvychainaya Kom­ issiya, abridged C hrezvychayka). By Cheka is meant the Extraordinary Commission for the Combat of Counterrevolution, Sabotage, and Breach of Duty by Officials (full name in Russian, C hrezvychaynaya Komissiya po borbe s kontr-revolutsiey, sabotajem i prestupleniyami po doljnosti), which came into being in December, 1917, as a commission attached to the Coun­ cil of People's Commissars. The word Vecheka or Vchk designates the central, all-Russian (Vserossiys­ kaya) Cheka, as distinct from the local chekas, ex­ traordinary commissions of the local soviets. No official decree establishing this institution was ever made pub­ lic.5 In fact, it enjoyed an unlimited power of penal prosecution. Krylenko, former Commissar for Justice, characterized the Cheka's activities as follows: The Cheka established a de facto method of deciding cases without judicial procedure. In a number of places, the Cheka assumed not only the right of final decision but also the right of control over the court. Its activities had the char­ acter of tremendously merciless repression and complete secrecy as to what occurred within its walls. Final decisions over life and death with no appeal from them . were passed . with no rules settling the jurisdiction or pro­ cedure.6 4 See infra, notes 8-10. 5 Twenty Years, Vchk-Ogpu-Nkvd (in Russian 1938) 10, note 1. The "statute" on Cheka was promulgated on November 2, 1918 (R.S.F.S.R. Laws 1917-1918, text 842), but its jurisdiction remained undefined. 6 Krylenko, The Judiciary of the R.S.F.S.R. (in Russian 1923) 97, 322- 323. ROLE OF THE JUDICIARY 235 Latsis, oneof the leaders of the Cheka, wrote in his survey of its activities: Not being a judicial body, the Cheka's acts are of an admin­ istrative character. It does not judge the enemy but strikes. The most extreme measure is shooting. The second is isolation in concentration camps. The third measure is confiscation of property. The counter· revolutionaries are active in all spheres of life. Conse­ quently, there is no sphere of life in which the Cheka does not work. It looks after military matters, food supply, education . etc. In its activities, the Cheka has endeavored to produce such an impression on the people that the mere men­ tion of the name Cheka would destroy the desire to sabotage, to extort, and to plot.7 (b) Revohttionary tribtmals. Revolutionary tribunals existed apart from the people's courts. Some of them were connected with the Cheka, others were not; but all of them had an indefinite jurisdiction over major crimes. "In the jurisdiction of the [revolutionary] tribunals," said Krylenko, "complete liberty of repression was ad­ vocated, while sentencing to death by shooting was a matter of everyday practice." 8 The tribunals were "not bound by anything in the selection of punishment" and by no judicial procedure 9 and were instructed to be guided "exclusively by the circumstances of the case and the revolutionary con­ science." 10 (c) Gpu-Ogptt. With the advent of the more lib­ eral New Economic Policy, the people's courts and the revolutionary tribunals were fused into a new judicial 7 Latsis, Extraordinary Commission for the Combat of Counterrevolution (in Russian 1921) 8, 15, 23, 24. 8 Krylenko, op. cit. 205. 9 Decree of February 17, 1919, R.S.F.S.R. Laws 1919, text 130, Section 4; id., text 132, Section 1; id. 1920, text 115, Section 1. 10 R.S.F.S.R. Laws 1919, text 504, Sections 1, 3; id., text 543, Section 33; id., text 132, Section 25; id. 1920, text 115, Section 29. 236 GENERAL SURVEY system, but the imposition of punishment in a non­ judicial procedure did not come to an end. "The Courts," stated Lenin, "shall not do away with terror­ ism; to promise such a thing would mean to cheat either ourselves or other people." He considered this state­ ment to be "a frank and fundamental, a politically true (and not a legalistically narrow-minded) statement." 11 Thus up to the present time imposition of heavy penal­ ties by nonjudicial bodies is a part of the soviet penal system. However, the institution charged with such matters underwent several changes. The revision of the statutes on the Cheka was or­ dered on December 30, 1921,12 and the Cheka was abol­ ished on February 6, 1922/3 but its functions were as­ signed to a newly created Gpu ( Gosudarstvennoe Po­ liticheslwe U pravlenie, State Political Administration), a department of the R.S.F.S.R. Commissariat for the In­ terior. When, in 1923, the Soviet Union (U.S.S.R.) was formed, a federal Ogpu ( "0" stands for obye­ dinennoe-federai) was created.14 In fact, the R.S.F.S.R. Cheka was reorganized into the R.S.F.S.R. Gpu, and the latter was transformed into a federal institution-the Ogpu. The head of the Cheka, Dzerziu­ ski, became the head of the Gpu and, later, of the Ogpu. Several statutes on the Cheka, Gpu, and Ogpu failed to set up any definite limitation to the power of this institution to deal with offenses and impose punish­ ments.15 The unlimited power of the Ogpu of putting to 11 Lenin, 27 Collected Works (Russian 2d ed. 1929-1932) 296. 12 R.S.F.S.R. Laws 1922, text 22. 13 I d., text 160. 14 U.S.S.R. Constitution 1923, Section 61; Decree of November 15, 1923; (1923) Messenger (Vestnik) of the Central Executive Committee No. 8, text 225. 15 Re Cheka, see R.S.F.S.R. Laws 1917-1918, text 842; id. 1919, texts 130, 301, 504; id. 1920, texts 115, 190, 214, 370; re GPU and Ogpu, see ROLE OF THE JUDICIARY 2.37 death was neither stated nor denied until an e:c post facto authentic interpretation of a previous law on March 14, 1923, sanctioned such activities of the Ogpu.16 Three days before the date of this interpretation, a death sen­ tence, rendered by the Ogpu in the case of thirty-six persons, was officially promulgated.17 In connection with the Five-Year Plan, the Ogpu developed a new policy, viz., the employment of convict labor on a large scale. Persons sentenced by the Ogpu and by courts to imprisonment for three years and over were confined in "correctional labor camps" managed by the Ogpu.18 The decree concerning the amnesty to those convicted to such camps and engaged in the construc­ tion of the Belomorsk Canal after its completion may offer an idea of the number of such convicts. Amnesty was granted to a total of 72,000 persons, of whom 12,- R.S.F.S.R. Laws 1922, texts 42 (which was never carried out), 160, 646, 844; (1923) Messenger (Vestnik) text 225. 16 U.S.S.R. Laws 1933, text 108. 17 Izvestiia, March 12, 1933, No. 70. This is the text of the announce~ ment, which is the only public record in the case: . From the Ogpu : By virtue of the Resolution of the Central Executive Committee of the U.S.S.R. of November 15, 1923, the judicial collegium o! the Ogpu, after deliberations on March 11, 1933, upon the case of the pris­ oner employees in the government service under the People's Commissariat for Agriculture and for the State Farming, who descended from bourgeoisie and nobility and were accused of the counterrevolutionary subversive activi~ ties in agriculture occurring in various districts of the Ukraine, the North Caucasus, and White Russia- · Resolved.
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