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Solzhenitsyn’s Archipelago

Something other

than the truth

By Professor VLADIMIR KUDRYAVTSEV
ig Professor Vladimir N. Kudryavtsev
fie 3 Prominent Soviet expert in the
fe of law. He is director of the Insti:
% of State and Law of the USSR
Cademy of Sciences, vice-president of
€ International Society .for Social
A fense, member of the International
Ssociation of Penal Law.

* ie

rezhenitsyn's book “The Gulag
ie Ipelago” has a subtitle: ‘An ex-
ee In artistic research.” In my
eee research presupposes the. ex-
mentee ishment of facts and docu-
ee ary confirmation of conclusions
areata A researcher, like a witness,
= tell the truth, the whole truth
nothing but the truth.” :
nies Solzhenitsyn’s assertions about
apa of criminal law in the
Union, which he makes in his
the se either not the truth, or not
oe mee truth, or something other
€ truth,
ae @ specialist in criminal law, I
attention to those places in the

00k which Claim, for instance, that the -

eciple of responsibility for guilt is,

8edly not adhered to in the Soviet
ar i ia abolished already at the time
fina, pproletarian revolution” (Quota-
given Ree The Gulag Archipelago”

He see and further in quotes, are
i Tom the Paris edition published
therefa et author’s note.) And that,
aa ee, the court allegedly “does not
is ono. °stablish whether the accused

Builty or not guilty.” .

e

ie aie the flimsiness of these asser-
documen, need ‘only turn’ to historical
sarist Ww In truth, the legislation of
Proletari ussia_ was abolished by the
vember) an revolution in October (No-
U to ‘aati But it is not true that
Code of 22, when the first Criminal
system ue RSFSR was adopted, “no
rally ¢ 9 criminal laws’ existed. Lite-

WoO months after the revolution,
the peer 19, 1917, instructions of
(that ere Commissariat of Justice
Called) how ministries were then
Were ad on the revolutionary tribunal”
Seven ty ried Which contained a list of
diction site of crimes. within the juris-
Said: «+ this judicial body. Further it
Actions i Tevolutionary tribunal for
establish Ndicated in the first section
fo the €s the following punishment
banishm Builty: a fine, imprisonment,

Sification nt... public censure, clas-
; as
€Privatio an enemy of the people,

Tights Se Of some or of all political
nce fa Nfiscation of property, sent-
We ‘see ee ulsor y social labor.” Thus,
88 Clear} at the list of penalties was
list gp», defined and limited as the
Curg ‘peas The word “guilty” oc-
aturall times in the document.
Sibilj y, the principle of respon-
Behera} a guilt was enforced. in the
ulated ‘minal courts too, It was for-
Unc] ae instance, in decrees of the
RSFsp «. People’s Commissars of the
2 On bribery,” «dated May 8,
191g) g, SPeculation” dated July 22,
Os Soviet rom the very first months
“ORnizeg Power, this principle was re-
the activit; 4n obligatory condition for
Tevoluti Ities of the courts, including
nary tribunals.

On : e
Prineipn® Cember 12, 1919, the “guiding
RSrRo ts On criminal
dasic gon Te Adopted. This was the
Courts ae by which the people's
Were ie the revolutionary tribunals
Criminal c " until the adoption of the
Ode in 1922. Even this docu-

Non; that “the very conception of.

law of the.

ment gave sufficiently comprehensive
definitions of the conception of crime,
the conception and aims of punish-
ment, the grounds for, and limits of,
responsiblity of juveniles, rules on
complicity in crime, on necessary de-
fense, on non-imputability on respon-
sibility for preparation of crime and
for attempted crime, the forms of
punishment and conditional punish-
ment. :
“The guiding principles” rejected
the religious-mythical interpretation of
guilt as the sin of a man before a high-

er being. Reflecting the ideas of the |

sociological school of criminal law,
prevalent at that time, Article 10 of
this document read as follows: “. . . In
a class society, crime is caused by the
general order of social relations, in
which the criminal lives. Therefore,
unishment is not retribution for
“guilt,” it is not atonement for guilt.
Being a defensive measure, punish-
ment must be expedient but, at the
same time, absolutely deprived of any
signs of cruelty...”
e
. This, naturally, did not abolish the

principle of personal responsibility of .

a man for his actions, the principle of
guilt as‘a ground for criminal respon-
sibility. It was stated in Article 11 and
12 of the “guiding principles” that
when examining a case, the court stu-
dies the criminal’s character, the mot-
ives for his crime; it establishes whe-
ther he realized the harm caused by
him or whether he acted unintention-
ally or “through ignorance and irres-
ponsibleness,” as the document put it,
and: whether, ‘“aforethought, intention
cruelty, malice, perfidy, cunning, or an
action committed in a state of anger,
through negligence or thoughtlessness”
were discovered.

The Criminal Code of 1922 directly
stated that “only those are subject to
punishment who: a) acted intention-
ally, ie., foresaw the results of their
actien and wanted them to take place
or deliberately allowed them to take
place, or b) acted carelessly, i.e., light-
mindedly hoped to avert the results of
their actions or, on the other hand, did
not foresee them although they should
have-foreseen them.” (Article 11). The
principle of responsibility for guilt in
committing a definite crime was fully
expounded also in the Criminal Code
passed in 1926 and 1960. The “Funda-
mental of Criminal Legislation of the
USSR and the Union Republics” (1958)
includes Article 3, “Ground for Crimi-
nal Responsibility,” which reads: “Only
a person guilty of committing a crime,

_ that is, who intentionally or negligen-

tly committed a socially dangerous act
provided for by criminal law, is liable

.to criminal responsibility and punish-

ment. Criminal punishment shall be
applied only by sentence of a court.”
e

The author of the “Archipelago”
ignores all this, Apparently, because,
as he writes, “I never saw, never held
in my hands, could not buy, obtain or
even ask for the Code of Soviet law.
Nevertheless, the author did succeed
in finding a document which has long
ceased to be valid—the ‘““Basic Prin-
ciples of Criminal Legislation of the
USSR and the Union Republics” (1924),
and established that it contained Ar-
ticle 22 which granted the court the
right to pass a sentence of exile or
banishment from the bounds of a cer-

‘tain locality for a term not exceeding

five years on persons whom -the court
finds socially dangerous, as the docu-
ment puts it, “owing to their criminal
activity or connnections with the cri-

“Solzhenitsyn's aim is to distort reali

ty and frighten the ‘reader according to the

best traditions of horror literature,” says professor Kydryavtsev in this critique of
the legal points raised in Gulag Archipelago. Some of the main charges in the

; ' going back as far as the Civil War. Kydryav-
tsev places Soviet law in its historical context and makes several telling points.

book are based on old ,outdated laws,

minal world in the given locality.”
This rule was applied, though rather
rarely, to habitual criminals. Solzhe-
nitsyn, however, arbitrary applies it to
political prisoners. The author also re-

frains from mentioning the following: -

although such an article was for some
time included in subsequent criminal
codes, it was applied more and more
rarely. Finally, in July 1946, a plenary
meeting of the USSR Supreme Court
examined the question of the legality
of this rule and found that Article 22
of the “Basic Principles of Criminal
Legislation”. (1924) contradicted the

“Law on Court Organization of the -

USSR and the Union Republics” (1938)
and should be considered out of date.
The plenary meeting emphasized that
“the court may only pass sentence if
it finds the accused guilty of having
committed a definite crime.” In the
subsequent legislation and legal prac-
tice, this principle was strictly ob-
served, about which, naturally, not a
word is said in the book. On the con-
trary, the impression is created that
even today a man can be condemned
“for his origin” and “for connections
with dangerous persons.”
e

In the same way, the rules of Soviet
criminal legislation on responsibility
for preparatory criminal activity are
“explained” in Solzhenitsyn’s bopk.
Our law, like the criminal legislation
in most other countries, too, knows
two forms of such activity: prepaia-
tion for a crime and an attempt to com-
mit it. Yet, Solzhenitsyn arbitrarily
alleges that there is such a thing as
responsibility for the mere intention of
committing a crime. A letter from the
People’s Commissariat of Justice and
the Supreme Court of the RSFR to the
courts of the Republic on the enforce-
ment of the Criminal Code of 1926 even
at that time pointed out the following:
“The bare thought, the bare intent of
committing a crime, not expressed in
concrete actions, is not a crime and
does not call for the use of social de-

fense measures.” Solzhenitsyn also

fails to quote this. -

Further the authog of the “Archipe-
lago” frightens his readers by telling
them that under Soviet laws, punish-
ment allegedly knows no bounds, that
any term of imprisonment can be
given, provided it is “not less” than
three years, for instance. Here he re-
fers to Article 58(12) of the Criminal
Code of 1926. Is this reference cor-
rect? Yes and no. This Article envi-
saged punishment ‘for covering up and
abetting counter-revolutionary crimes
by imprisonment for a term of not less
than one year, and for. failure to re-
port such crimes, by -;‘imprisonment
for a term of up to one year.”

©

To understand the meaning of. this

Article, we must bear in mind that the
1926 Code included a general part
which contained Article 28, reading:
“Imprisonment is established .for a
term from one day to not more than
10 years.” The general part extends
to ‘the whole Code. Thus, if the Article
said “not less than three years,” that
implied the possibility of passing a
sentence for a term ranging from three
to 10 years, (and naturally, not more).

Later, the minimum term of impri-
sonment (one day) was raised to one
year. This did not mean, however, as the
author asserts, that more severe sent-
ences began to be passed. The mean-
ing of the change was, on the contra-
ry, that those who had committed less
dangerous crimes should not be sent
to places of imprisonment. It is note-
worthy that even in 1918 a Decree of -
the Council of People’s Commissars
“On the Court,” laid down that “Im-
prisonment for a term of up to three

‘months wherever compulsory social

labor is organized, must be enforced
without guard.”

Solzhenitsyn’s aim is to distort re-
ality and frighten the reader, accord-

_ ing to the best canons of horror litera-

ture. Therefore, he recalls that there
were “horrible” sentences: “until the
end-of the Civil War,” or without es-
tablishment of any definite terms alto-
gether. Were sentences “until the end
of the Civil War” passed in the im-
mediate years after. the Revolution?
Yes, they were and to judge by “The
Gulag Archipelago,” those prisoners
are apparently still languishing in dis-
mal dungeons.
6

Besides horror fiction there are, for-
tunately, historical documents. Article
4 of the Decree of the All-Russian Cen-
tral Executive Committee of November
6, 1920 “On Amnesty on the Occasion
of the Third Anniversary of the Octo-
ber Revolution” (this was already the
sixth amnesty in the course of three
years of Soviet power). reads: “To in-
struct the appropriate organizations to
revise the lists of those sentenced un-
til the end of the Civil War and to re-
lease them from prison or establish a
definite term of imprisonment, not ex-
ceeding, however, five years from the
moment of imprisonment.” Thus we see
that the so-called indefinite sentences
were wholly done ‘away with while the
Civil War was still in progress, i.e.,
more than 50 years ago.

I have dealt here only with a few
places in the book where questions of
law are discussed. If I were to com-.
ment on all the incorrect, incomplete
or false references to Soviet laws made
by Solzhenitsyn, I would have to write
a book no shorter than “The Gulag
Archipelago.” But for this I have nei-
ther the time nor .the inclination.

PACIFIC TRIBUNE—FRIDAY, MARCH 22, 1974—PAGE 9