Law and Human Rights in Russia and the USSR

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Protected by the copyright laws of the United States. Exclusively for use in studying PolS 111 and PolS 216 under the supervision of Prof. Bowen by enrolled students of Mary Baldwin College. Not for citation, quotation or any other use without written permission of the author.

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Outline of this essay:

I. Introductory overview

II. The Ideological foundations of Soviet Law

a. Marx on Law

b. Leninist legal concepts

c. Stalin's influence

III. Some significant differences from Western jurisprudence.

IV. Personnel and Procedures

V. Penal Conditions

VI. Human Rights Activists' Roles in the Transformation of Soviet and Russian Law and Politics

Appendix A: The Life of Andrei Sakharov

Appendix B: The Career of Boris Yeltsin

I. Introduction

This essay depicts the Soviet and post-Soviet Russian legal systems. In August 1991, Soviet politics underwent a fundamental break from the communist-dominated, totalitarian political system that had existed, 1917-91. With the collapse of that political order (December 1991) discontinuity was introduced into both politics and the law. In constructing a new, democratic political order there after 1991, contemporary leaders in most of the post-Soviet republics have labored to eradicate the surviving vestiges of totalitarianism in their institutions and in their political culture. We must appreciate that this is not a small task. As Rome was not built in a day, so with democratic Russia. This chapter depicts the Soviet and post-Soviet Russian legal systems.

Among the key barriers to our understanding are our suppositions about governmental power and law, which radically depart from traditionally Russian ones, as well as from Communists' concepts. Socialized into the Western legal tradition, we expect governments can restrict our freedom only in limited ways that have been permitted by Constitutions and democratically enacted laws. Courts serve as the neutral arbiters that can act to rein in government officers as much as they can set punishments for individual criminals. In our tradition, court precedents from our past guide government action in the present, and limit these contemporary governmental actions. Law exists to protect fundamental rights; and the history of precedent about law both refines and guides its further creation.

This background differs so fundamentally from the Russian legal tradition that the student often is unprepared to understand the concepts, functions and procedures that long guided the law in the 20th century communist nations. This reading introduces the student to some of the ideological underpinnings of the communist conception of law. We will find it to be a set of concepts that cling like sticky residue to the emerging Russian legal and judicial systems. The essay, like our earlier readings, attempts to show how these ideological tenets combined with a particular history that has been the Soviet experience. The interaction of the communist element and the Russian influences molded the law, law enforcement, and penal institutions into the political weapon they became in the USSR. Throughout, the essay emphasizes the many ways in which these dimensions of Soviet law negatively affected the protection of individuals' human rights. Among the many profound barriers still to be overcome in the process of full democratization of the republics of the former USSR in the 1990s, few are as significant as a legal evolution that can truly secure human rights.

II. Ideological foundations

Marx's Views. Communists believe that throughout history law has served as a weapon of domination, used by ruling classes to oppress the other social classes of their era. They depart from the Western view of law as a cumulative, incremental process of refining societal standards and defining mechanisms for protection of individuals' rights. Instead, Communists perceive that rights, no less than criminal acts, are entirely flexible dimensions of life, changing as the requirements of "stages of history" change. As Karl Marx reviewed the "Rights of Man" enunciated after the 1789 French Revolution, he stated: "the so-called rights of man...are nothing but... the rights of egoistic man, of man separated from other men and from the community" (quoted in Donnelly: 73).

The mature Marx remained a firm advocate of this malleable view of the relationship of human rights to the law throughout his productive years. In his 1845 essay "The German Ideology" (first published in 1932), he stated that "morality, religion... have no history, no development. Life is not determined by consciousness, but consciousness by life. The ideas of the ruling class are in every epoch the ruling ideas... Where royal power, aristocracy and the bourgeoisie are contending for mastery,... the doctrine of 'separation of powers' proves to be dominant and is expressed as 'eternal law'." Consistent with this larger theoretic orientation, human rights had no central importance to Marx: everything was contingent on the level of socioeconomic development. Thus, to Marx, a "right can never be higher than the economic structure of society and its cultural development conditioned thereby" (1968: 325).

This is not to say that Marx and, before they seized power, his Russian Communist successors found no tactical advantage in pretending to be concerned with the question of rights, especially, those sought by the working class. In an 1863 letter to Friedrich Engels he elaborated on this point, suggesting that the programme of his First International Working Men's Association "contains reference to rights duties, freedom, justice and truth... [but only] where they could do no harm."

Parenthetically, it is also true that as a young man Marx held more conventionally Western views. In his first published essay he wrote that "Laws are not rules that repress freedom any more than the law of gravity is a law that represses movement... Laws are rather positive lights, general norms, in which freedom has obtained an impersonal, theoretical existence that is independent of any arbitrary individual. Its law book is a people's Bible of freedom." Moreover, Marx-the-agitator certainly took full advantage of the freedoms guaranteed to all in Britain, despite his contempt for these freedoms as objects for principled reflection, let alone public defense.

Nevertheless, the essential Marxian conception is that human destiny is impeded on earth by class societies, not by incorrect laws. To Communists, only the elimination of all economic classes can bring about an era of in which realization of full human potential is possible. Correspondingly, Marx and later Marxists viewed law historically through this same lens: law has been, and will in all class societies continue to be, a weapon by which oppressors dominate over the oppressed.

Lenin's view of Law. Through training as an attorney, Lenin was well versed in the orderly procedures of the Czarist legal system. Prior to his legal training, the young Lenin first had become a revolutionary and a Marxist. It was from the values of these early experiences and not from his formal legal training that Lenin the ruler appears to have drawn greatest guidance. Lenin helped to create a Soviet legal system which followed revolutionary Marxist precepts, not the legal tradition in which he had been trained.

Early in the Bolshevik regime, Lenin set the tone for later developments in the area of Soviet criminal justice. Secret accusations (we can hardly call them trials), guided by the swift knife of the Bolsheviks accusers. Indeed, the very term "prosecutors" was deemed "too bourgeois" until 1922. Rapid justice was the order of the day. No law book or codes directed the actions of revolutionary tribunals: "extrajudicial reprisals" were said not to require such bourgeois baggage. In just the 20 provinces of Central Russia, in just 18 months of 1918-1919, the CHEKA (i.e., the secret police organization created by Lenin) arrested 87,000, broke up 412 "counter-revolutionary organizations," and executed 8,389 detainees. This frenzy simply was not the Russian way: in the worst year of Czarist reactionary repression (1906) only 950 were executed. More strikingly, from 1826 to 1905, only 894 persons were in fact executed by the Russian government. The full and final extent of Bolshevik justice in the early years may never be known, as the chief attorney, N.V. Krylenko found it inconvenient to retain or publish stenographic records of the trials in this early, formative period. His speeches during the more important trials, however, were eventually published for their "educational value." Vanity, it appears, knows no boundaries. Nor does irony: Krylenko later was himself executed as an "enemy of the people."

In 1919, three types of courts were established: People's Courts, circuit courts, and Revolutionary Tribunals. By 1922, even the most casual of the offenses formally posited before any of these could yield a sentence of no less than six months in jail. Throughout the brutal Russian Civil War, "class enemies" were defined loosely as Bolshevik power followed the Red Army into areas formerly in rebellion. There "soft white uncallused hands alone were sufficient" to determine guilt (Solzhenitsyn: 302). According to one Polish émigré to the US, Prof. Arthur Rachwald (Political Science, US Naval Academy), the practice of "showing ones hands" as a form of mitigating evidence in trials ("His hands are callused, clearly a laboring man of the people; forgive him," and vice versa), persisted in communist Poland until the mid 1960s. As Lenin's chief prosecutor stated, "No matter what the individual qualities [of the defendant], only one method of evaluating him is to be applied: evaluation from the point of view of class expediency... A tribunal is an organ of the class struggle of the workers directed against their enemies" (quoted in Solzhenitsyn: 308).

Arbitrary as these criteria may seem for determining specific criminal's guilt, other features of the early legal system were still more capricious. Tribunals' sentences, it seems, could be altered after the trials, if the All Russian Central Committee determined that the individual involved in a particular case deserved a less or more severe sentence. According to Krylenko, the Committee "pardons and punishes at its own discretion without any limitation whatever" since the general task of the Soviets' courts were "at one and the same time both the creator of the law ...and a political weapon" (quoted in Solzhenitsyn: 308).

The limited respite in wholesale terror that the N.E.P. may have represented also was realized in the legal sphere. In the Spring of 1922, Lenin wrote to his People's Commissar of Justice: "I am sending you an outline of a supplementary paragraph for the Criminal Code... The basic concept, I hope, is clear, notwithstanding all the shortcomings of the rough draft: openly to set forth a statute which is both principled and politically truthful (and not just juridically narrow) to supply the motivation for the essence and the justification of terror, its necessity, [and] its limits. The court must not exclude terror. It would be self deception or deceit to promise this, and in order to provide it with a foundation and to legalize it in a principled way, clearly and without hypocrisy, and without embellishment, it is necessary to formulate it as broadly as possible, for only revolutionary righteousness and a revolutionary consciousness will provide the conditions for applying it more or less broadly in practice" (quoted in Solzhenitsyn: 353). More than a little of the shadowy Stalin seems here, too.

Stalin's Role. Josef Stalin was responsible for the further codification and bureaucratization of Marxist-Leninist legal concepts. During the first decade of his rule (1925-35), First Secretary Stalin continued the policies of "revolutionary justice" (above). Marxist-Leninist ideology continued to guide the Party and secret police in their applications of state power to those defined as residue of an earlier era. Thus, a Special Board was designated to identify and sentence to terms in the labor camp system, or Gulag, those it defined as "socially dangerous" (e.g., in 1928-29 the richer peasants dubbed "kulaks"). The proceedings of this board were secret and those incarcerated by its orders were taken into custody without benefit of any trial whatsoever. The term "Gulag" itself was an acronym for the Chief Administrator of Corrective Labor Camps.

In this light, the Great Purge that began after 1934 was, to the Stalinists, not only logical but necessary. Party procedures required members to defend the Party Line (i.e., the principle of "democratic centralism"), yet subdued criticisms of the methods involved in the collectivization also had surfaced within the Party. To rectify these heresies, the Purge (ostensibly) was begun. "Show trials" were held in which leading Bolshevik "conspirators" confessed to implausible crimes. These might be misread as evidence of a new attentiveness to formal, public trials in the USSR; actually, their primary purpose was educational. Much the same educational purpose was advanced by the thousands of "disappearances" of suspects without trial, before, during and after the Purge. Stalinism was not an era in which formal legal rules actually came to replace Leninist patterns.

In the 1936 Constitution the Party made an effort to create the appearance of an orderly, rule-governed legal system. Declaring that socialism had arrived in the USSR, the document appeared to make it more difficult to mount a defense (or a prosecution) based solely on criteria of "class expediency," since the workers' state was declared to now exist. Among its provisions, however, were sections that made the new legalism hardly less dangerous to individuals than had previously been the case. Section 131, for example, stated that "...persons committing crimes against public, socialist property shall be enemies of the people." These crimes, in 1950, included acts such as the one that led to Suzanne Rosenberg's 1950 interrogation, where night after night she was forced to explain her responses to inquisitors who asked: "Did you once go around saying that Moscow toilets were dirty?" (Good: 11).

The Stalin regime also was slow to appreciate the public relations problems created by its unique, some would say "twisted," concept of legalism and rights. At the close of World War II, the nations of the international community for three years debated and refined a United Nations proclamation concerning these issues. In December 1948, the General Assembly of that body received the final compromise report, a "Universal Declaration of Human Rights." When the Universal Declaration was adopted by that body (December 10, 1948), however, the USSR abstained from the vote (Forsythe: 334-335).

III. Differences from Western Legal Ways

During the government of Mikhail Gorbachev, 1985-91, steps were taken designed to create changed conditions in the USSR. These trends touched on the legal system and have accelerated since the dissolution of the USSR in December 1991. However, even in the mid 1990s some significant differences from Western jurisprudence still surrounded the law in Russia. Let us now turn to a non-chronological survey of these key features of its legal order, for the great impact they have had on what Westerners recognize to be their inherent human rights is not readily erased.

Rights long were defined as contingent privileges that the Soviet state granted conditionally to the people. Beginning in 1936, several Constitutions (i.e., 1936; 1977) and myriad provisions of legal codes have described a less arbitrary pattern of law and enforcement in the USSR than existed in the first two revolutionary decades. These theoretical documents misleadingly guide us away from the essence of the legal system in the era 1936-91; accordingly, we should not excessively vest importance in the terms of any new Constitution that may emerge in the coming months. Under all Soviet constitutions many rights were stated to be "guaranteed", but this "guarantee" always was conditioned and rights were subordinated to their use for the development of socialism. Article 125 of the 1976 version of the Amended 1936 Constitution, for example, stated that all rights of Soviet citizens may be exercised only "in conformity with the interests of the working people and for the purpose of strengthening the socialist system." Article 39 of the 1977 Constitution -- the final one used through most of Gorbachev's presidency-- similarly stated "Exercise by citizens of rights and freedoms must not injure the interests of society and the state..."; and Article 50 reiterates this point, saying that rights may be exercised "In conformity with the interests of the working people and for the purpose of strengthening the socialist system..." (quoted in Barry: 373). Thus, under legal dicta fully in force until 1989, only speech that built socialist consciousness was protected; anti-socialist speech could be classified as "counter-revolutionary agitation," not protected speech.

Only in February 1990 did the Party's Central Committee permit the constitutional mandate of a "leading role" for the Communist Party in state and society to be deleted. Only a short time separates us from the removal of that party from actual positions of power (Fall 1991) in government; nearly all of the lower and middle level personnel who still fill the emerging Russian legal system --judges, prosecutors, etc.-- originally were Communist appointees and remained on their jobs.

Under Soviet law ex post facto laws were permitted: that which at one time was legal could later be declared to have been illegal, and punishments were meted out even for fully authorized acts when the whim suited later rulers. (E.g., see the Khudenko case from the 1970s, below). This tradition not only has not been abandoned by post-Communist authorities; its reverse also has plagued the Yeltsin era. Thus, plotters charged for illegal attempts in 1991 and 1993 to overthrow the constitutional governments simply were released from all charges by action of the legislature (Spring 1994).

The larger tradition that unites both communist and post-communist eras is one in which power, much more than law, has guided and continues to guide the actual operations of legal institutions. Under Soviet Communism there existed on its surface an apparently lawful, rule-governed system. But each individual, in practice, carefully had to weigh the consequences of any unusual behavior. Even though a given act may have been lawful, even explicitly authorized by Party officials, that same act later could be defined as anti-Soviet or indicative of the actions of an "enemy of the people." In the USA, Constitutional provisions forbid this sort of an application of ex post facto laws: that which is legal at the time one does it can never, even after passage of specific statutes criminalizing the behavior, be prosecuted. But in the USSR bitter experience showed that the shifting winds of Party dogma could catch the innovator in one age and rebel them a "class enemy" in another. Consider, for example, the status of the upper peasants or kulaks, 1921-32, who went from needed suppliers of food to the revolution to social outcasts and "class enemies" of the Revolution. But the historic legacy of the Soviet people is replete with dozens of cases of enforcement post hoc laws, as well as thousands of instances where categorical crimes based on "objective" characteristics of the offender sweepingly were applied. These de facto patterns tend to affect the spirit of the people, scraping off creative, innovative ideas so as to induce people to choose to conform. These traditions have not be abandoned, either. In the urge to undo the Communists' policies, many of the prosecutions undertaken by the current post-Communist government have attempted to criminalize activity which was fully legal under the Communist system that preceded it. Thus, to lay the foundation for democracy, some of the worrisome traditions in communist jurisprudence carry on, albeit in the service of other masters. Moreover, in several republics, the post-Communist governors and legal authorities themselves are, in fact, the very same individuals who led the final Communist government and legal apparatus there (e.g., Turkmenistan).

The Khudenko case is a case in point, one which shows the depth of social learning that must now be reversed if democracy is to be established in the 1990s. During the First Secretaryship of Leonid Brezhnev (1964-82) an attempt at innovation in farm policy ran aground on the shifting rocks of ideological purity. In the early 1970s, an agronomist named Ivan Khudenko was given permission by the Party to experiment with incentives on his collective farm in Kazakhstan. The Khudenko "link system" tied workers' earnings to the productivity of the large, commonly farmed areas of the collective. The goal appears to have been to tap the energies of the collective farm members in much the same way that their small family gardens increase productivity (even though they only are worked after hours and on weekends). Khudenko was able to reduce by 90% the number of worker needed to farm the collective's land; and was able to increase the gross grain yield of the farm by 300%. The common-sensical, but capitalist, notion that persons work harder for themselves was being applied by Khudenko in order to solve the poor productivity problem of the collective farm. In 1972, however, Khudenko was charged with anti-Soviet activities (even though his experiment had earlier been approved by Party officials), and was sentenced to six years in prison. Two years into the sentence, Khudenko died in captivity.

Soviet officials, 1985-91, appeared to refrain from teaching similar lessons. But, citizens on their own continued to enforce similar lessons outside explicit legal forums. In 1989, the story of a former collective farmer and his neighbors was instructive. It seems that one enterprising man decided to begin marketing eggs and chickens from his rented land, formerly part of a large collective farm. His products met a real need in nearby Moscow and soon his business grew enormously. Indeed, he was well on his way to becoming rich by Soviet standards, until the envy of his neighbors boiled over. One night early in 1990, the man's farm, chickens and delivery van all mysteriously were burned. The barriers to Gorbachev-era perestroika (i.e., "restructuring") proved to be not solely legal/political ones; some grew out of the conformist norms that Soviet law in 70 plus years tattooed onto Russian society.

Moreover, as the Soviet Union has unraveled, the uneven enforcement of law which was typical of the Communist era may be being given even further opportunity to flourish. Even within the specified legal codes of a single Communist era, ample loopholes existed through which wildly arbitrary interpretations by the legal authorities often could be made. The key concept to understand is that for a very long time the Soviet legal system was a tool to educate society in how to live a better communist life, not a neutral instrument of the state to be used to filter out society's guilty from its innocent. In the 1990s, all that seems to have changed is that it is a "democratic life" around which the educational tool of law and courts are consumed. The personnel still in charge of the Russian courts were selected and retained on the basis of their felicity to the earlier "communizing" goal, not on the basis of their service to their clients or any abstract concept of justice. These people, for the most part, remain in place today to teach a "democratization" for which they little have been prepared.

Thus, while there are superficial similarities in appearances between Russian courtrooms and Western ones, these resemblances belie fundamental differences in habits of law interpretation, concepts and practices of law, and expectations of appropriate role performance by the State personnel therein. Moreover, for all the faults of communist legal ways, the very severity and arbitrariness its law enforcement bureaucracies helped produce a social life remarkably free of random violence (other than that fomented by the one party state itself). The public was conditioned to fear not each other but state authorities, and "common crime" was no significant problem. In the years since the collapse of communism, however, organized criminal gangs have coerced their way into control over much of the emerging private economy, street crime has surged as living standards have fallen, and the daily life of ordinary Russians has become perilous (see Hersh; and Sterling). Arbitrary, dangerous neighbors and streets have replaced the predictably arbitrary, dangerous officials of the communist era. Odd as it may seem to Westerners quite accustomed to drive-by shooting reports and to living in armed camps called suburbia, this transition in Russia has produced some nostalgia for restoration of the earlier system.

IV. Personnel and Procedures

The American, indeed, the Western, legal tradition consists of independent, neutral judges who preside over trials to determine the guilt or innocence of individuals in regard to specific criminal acts they are charged by the State with having committed. These trials are governed by precedents established in hundreds of years of the British common law, incorporated and adapted by the USA and most of the British successor states. Procedures of the courts involve strict rules about proper evidence: improperly obtained, or tainted evidence simply is excluded from the decision-making about criminal defendants. In the USA this is called the "exclusionary rule," and is based on interpretations of the 4th Amendment to the US Constitution. Fair trials demand that defendants choose advocates (defense counsel) to protect their interests during their initial questioning by police, to try to discredit State evidence when it ultimately is presented to a court, and to provide the court with mitigating circumstances that tend to explain how criminal intent was not present in the commission of an act (hence no crime was committed). Prosecutors in Western democratic states, on whom the burden of proof rests, present evidence that must convince a jury of the defendants' peers that the defendant did have criminal intent and is, in fact, guilty of the act charged "beyond a reasonable doubt." Only then may defendants be punished.

Under Communism, the Soviet legal model was quite alien to all of these Western traditions about the nature of law. Many features remain unchanged in the emerging democratic Russia. Now, as before, the key legal institution is the Prokuratura, or prosecution. During the Communist era, Prokuratura officials worked in close collaboration with Party and secret police. Prosecutors initiated investigations of suspects in which the whole person, not merely a specific criminal act was, in a Pretrial investigatory phase, investigated. This scope, and this cycle remain in place in post-Communist USSR, though the formal connection of prosecutors to Party officials ended when the Communist Party fell from power (August-September 1991). During the Pretrial stage of investigation a Soviet citizen traditionally was forbidden from consulting with a defense counsel. The Second stage of the criminal justice process remains unchanged since the eclipse of Communist rule. Only in cases where the Prokuratura has determined that an individual is guilty is a defendant brought to formal trial. Only at the trial stage may a defense counsel be used. The purposes of the trial are to assess the degree of guilt of the defendant, and through his/her example, to educate the public regarding "correct" social standards. (Formerly, Communist standards were the measure here). Since the Prokuratura personnel are assigned the responsibilities both of prosecuting individuals and building public respect for the judicial system, evidence they present cannot practically be challenged as "forged" or "phony" without challenging the system itself. Judges in any event would not likely tolerate such impeachments of evidence, since they are not neutral "umpires," but also are advocates of the system. They serve short, five year terms. During the Communist era, judges were subject to removal by the Party at any time during their term. Since 1991, many judges have been fired, which both is serving to purge communists from the judiciary and, conversely, is continuing the tradition of subordinating the judiciary to the will of political leaders. After prosecutors present charges against an accused individual, Soviet judges play a more active role than do judges in US courts. They ask most of the questions directed to the defendant during the trial. In rendering the sentence, their rulings are not shaped by directions from juries, since none exist in the USSR. Two "lay assessors," however, sit with the judges at the front of the courtroom, giving the appearance of a jury-like component to the proceedings as only the judge is required to be trained in the law. These lay assessors can (but rarely do) ask questions; their chief function appears to be to convey to the public the legal system's ways. To serve this educational function, trials for non-political offenses often are held within factories or other workplaces, before a silent audience of citizens. During the Communist era, both members of the Prokuratura and Judges were often Party members; all in these roles were accountable to the Party for the harmony between their job performance and the (often shifting) Party lines. Truly independent prosecution and judiciary, therefore, only now are emerging.

Since the function of Communist-era trials was to determine the "degree of guilt," not the fact of guilt or innocence, defense counselors roles were limited. They could present only mitigating circumstances to respond to the Prokuratura's charges. Thus, the use of a defendant's low record of absenteeism at work, or service to "clean up" campaigns around his apartment building could prove the difference between a long or a minor sentence for even serious crimes of violence (e.g., rape). Defense counsel often proved to be less than vigorous advocates of the defendant's interest, which is not too surprising when one realizes that, under the Communist system, all defense counsel also were paid by the State, not by the defendant. Only a small percent of cases today involve private attorneys.

It is important to recall that in Communist-era Soviet criminal justice, the deeper tradition was that it was not specific criminal acts that were being evaluated so much as the "class character" of the defendant. (E.G., N.V. Krylenko's pithy statement cited above: "A tribunal is an organ of the class struggle of the workers directed at their enemies ...[and must act] from the point of view of the interests of the revolution... having in mind the most desirable results for the masses of workers and peasants...No matter what the individual qualities [of the defendant], only one method of evaluating him is to be applied: evaluation from the point of view of class expediency."). Precedents (i.e., earlier rulings in similar cases), procedures and rules of proper evidence ordinarily were not relevant. Juries of the defendants' peers have never been used in Russia. The Western standard of courtroom proof ("beyond a reasonable doubt") simply has been alien to this process. Moreover, punishment outside of the formal trial process (e.g., uses of torture to achieve "confessions") have at earlier times (i.e., the Lenin and Stalin eras) supplemented formal penal procedures to administer instant "justice."

The most serious crimes in the communist USSR were not crimes against people (e.g., rape, murder, kidnapping) but were economic crimes and other actions against the Party State. In the several eras of Soviet development, each produced a record of economic offenses that continue to baffle the Western mind.

During "War Communism," peasants were declared criminals for withholding grain from the State, reflecting the overall principle that humans exist to serve their class and The Revolution. To take for one's self and family, "a stalk of grain, a cucumber, two small potatoes, a chip of wood, a spool of thread..." (Solzhenitsyn: 88) or anything else led to specific individuals' long term incarceration. Nor were such heinous and explicitly counterrevolutionary acts as enumerated immediately above the full range of crimes under the new Soviet regime. Again, Krylenko's prose is chilling: "During the Civil War not only is any kind of action [against Soviet power] a crime... but the fact of inaction is also criminal" (quoted in Solzhenitsyn: 332). During the relatively more relaxed N.E.P. period, a certain predictability came to the law: legal codes spelling out the offenses finally were issued, for example.

But as Stalin gained power, economic offenses multiplied: in 1927, railroad engineers were accused of trying to destroy the transportation system by overloading train cars. Their punishment: death by firing squad. The next year, however, another group of engineers who protested the doubling of the average loads on trains were also shot: their crime? Trying to "limit" socialist production. "Wrecking" by overworking; "limiting" by under working; amid crimes like these what was the hardworking train engineer to do? Nor were these economic crimes confined to the railroads. Chief engineer at the defense plants in Izhevsk, Nikolai Ladyzensky, was arrested for "limitation theories" in his factories, released when the quality of products declined in the factories, rearrested for "improper use of funds" on safety equipment, and sent to the Gulag. After but one year of dispiriting work as a logger in the Arctic North, Ladyzensky perished (Solzhenitsyn: 45-46).

A redrafted penal code was drawn up in 1961. However, even during "the Thaw" of the Khrushchev years, economic transgressions were most severely punished. A decree of the Presidium of the Supreme Soviet (May 5, 1962) stated: "Plunderers of socialist property, particularly those who were trusted considerable funds or valuables and who misappropriated these valuables, lawlessly gave them to others, or plundered them on a large scale, are prosecuted, severely convicted and sentenced to imprisonment, and in special cases, - to capital punishment" (quoted in Tadevossyan: 5).

As late as the mid 1970s, dissident Andrei Sakharov stated that more than 700 executions then still were occurring per year, for the most part without any publicity. These executions primarily were for economic crimes. Alexandr Yakovlev, a spokesman for the Institute for State and Law (USSR), told the Washington Post in 1987 that the application of the death penalty to economic crimes had by then become considered ineffective and inhumane (Bohlen: 17). However, the 1962 guideline remained technically in effect well into the Gorbachev era and, after the suppression of the 1991 military coup attempt, calls for rapid execution of the conspirators loudly were heard, though all ultimately were freed (1994). The temptation to be guided by the tradition of execution of political opponents appears to die hard.

During the last phase of neo-Stalinist rule under Brezhnev, even some relatively minor Soviet laws continued to have broad, intimidating effects. In 1966, a section was added to the Soviet penal code (Article 190-1) which banned "systematic spreading... of deliberately false fabrications defaming the Soviet state and social system." In the hands of zealous prosecutors, such an open-ended criminal offense was used to prosecute and jail many literary, journalistic and philosophic critics of even minor failures in the Soviet system. Gorbachev-era Soviet lawmakers, in 1989, did delete section 190-1 from the legal codes and amended the vague statutes against "hooliganism" (i.e., Article 70 of that same penal code) in such a way as to make only acts calling for the violent overthrow of the government illegal (Department of State 1990: 1276). But as the State Department and others (Bohlen: 15) have pointed out, many additional legal statutes remained available for use against dissidents and other non-conformists. Under the emergency conditions likely to emerge in the coming months, such diverse criminal codes may tempt even professed democrats to silence opponents.

Against this backdrop, during the slackening of Communist control in the latter 1980s, violent crime against persons reemerged as a serious problem. With murder rates in major Soviet cities in recent years rivaling those in the US, publics that demand crackdowns on criminals have formed one of the strongest bases of support for strong national leaders, an appeal used widely by post-Communist politicians such as Russian Federation president Boris Yeltsin. Criminal "mafias" linked to corrupt, now-discredited Communist structures now are targeted by journalist exposes and politicians alike. The targets of these campaigns, of course, differ from the targets of Communist-era campaigns of vilification. But the method through which public frustrations are channeled against officially-identified "enemies" eerily resembles the techniques of the recent past. Again, courts are being urged to promptly punish those detrimental to society. The social impact of this 1990s campaign, however, has been quite the opposite of earlier political targeting of "criminals." Quite simply, the campaign against "mafias" of the 1990s has been virtually ineffectual, undermining rather than building confidence in the authorities launching the campaign.

During the Communist era, in addition to the formal judicial process, many levels of "informal justice" existed within the Soviet society. Most of these bureaucracies have been dissolved or are in the process of being unmade. Peoples' Control committees investigated petty crimes, pilferage from workplaces and other minor offenses. Seven million Soviet citizens served on over one million of these committees. Komsomol (Communist Youth) organizations' members worked as "druzhiny," or volunteer police to monitor public places, schools, etc. Their powers included the power to detain and arrest, the power to issue formal reprimands to be placed in a worker's file at her place of employment, and to render opinions about the "attitudes" of people they encounter to authorities and employment supervisors. Though Komsomol was dissolved in September 1991, many of its former leaders have taken up positions of prominence in the new businesses cropping up out of the dust of Communism. It seems the Komsomol itself ran many publishing and other businesses and generously sold these to former leaders (at discounted prices) shortly before the organization dissolved. More problematic from a social control point of view is the fact that, while the "druzhiny" once staffed by Komsomol do-gooders no longer are on the streets to deter crime, regular police and militia budgets also are being slashed. In this context more crime is being met by less available law enforcement personnel. In the old regime, Comrades' Courts tried those referred from these agents when the offenses were of a minor nature (as determined by custom or by the Prokuratura in unusual cases). In these tribunals, no defense counsel or prosecutor was present, though the same presumption of guilt used in formal justice systems was applied. The 300,000 Comrades Courts, which meted out sentences ranging from chastisement, to letters of reprimand, to requirement that a defendant work on weekends to improve the neighborhood, all the way to formal referral for further investigation by the Prokuratura, now are gone. But, in the eyes of average Russians, what has replaced them? To many, the answer is chaos.

V. Penal Conditions

In the final years of the old regime, exiles from the USSR, such as the human rights activist Yuri Orlov (released in 1986), reiterated the long line of documentation that tied conditions in Soviet penal institutions to its historic communist roots. Brutal and de-humanizing conditions in penal and labor camps were a hallmark of Soviet justice since the time of Lenin. Legal code distinctions between "common" and "political" criminals in 1970 were dropped; however, as late as 1990, "political prisoners" still were forced to change their stated views while in custody or they were defined as resisting the purpose of their incarceration. In practice, this meant that political prisoners who stood by their beliefs were nearly always placed into the levels of prisons and work camps that had more severe (work and dietary) regimes, or were sent into grotesque psychiatric hospitals for "reeducation" treatment. A 1990 report by the US Department of State (1276) reported investigations that concluded these uses of psychiatric incarceration continued right down to that year. A few years now have passed, but the personnel who staff Soviet prisons today are not new individuals, but carryovers from that not distant era.

Even in post-revolutionary Russia there are two major types of penal institutions, prisons and "corrective labor colonies." Among Corrective Labor Colonies, during the Communist era there were four types: ordinary, reinforced, strict, and special. Most prisoners were sent to colonies far distant from their home SSR, to minimize contact with visiting families and thus promote "reeducation" of the convict. Re-education typically was meanly done during the Communist era. The largest number of political prisoners, in 1975, were to be found at the Mordvian complex "Zhkh 385," about which Amnesty International reported in 1975 "...the cramped and unhygienic condition of the prisoners' cells, the unhealthy and exhausting nature of the compulsory labor, the meager (sic) and miserable food rations... combined with other deprivations to make it probably the most punitive known corrective labor institution" (101).

Mistreatment of prisoners was so widely practiced as to be indistinguishable from official state policy during the Communist era. The 1975 conditions at Zhkh 385 were not unrepresentative, nor were they particularly shocking, when taken in comparison to the whole of the Communist penal record. Among the 227 individuals whose stories formed part of Solzhenitsyn's epic history we can find enumerated fully thirty-one separate types of torture used in the Lenin and Stalin-era prisons. A complete grisly catalog of this vile phenomena perhaps can be omitted here. But Amnesty International, in 1975, reported that throughout the Soviet penal system, it still was common to deprive detainees of sleep, to repeatedly interrogate, and to subject inmates to dietary restrictions that produced starvation. In several long studies since then, Amnesty has continued to report these patterns. This is, of course, a slightly different situation than that which Solzhenitsyn (and others, e.g., E. Ginzburg) described about the 1940s and 1950s. Other degradations of prisoners common in earlier periods (beatings, rapes), however, did turn up in the underground (i.e., samizdat) accounts of prison life which occasionally made their way out of the USSR as late as the later 1980s.

One astonishing technique of punishment still in use in 1979 was the overfilling of unventilated vans designed to hold no more than 11 prisoners, then allowing them to suffocate in the hot sun. In one incident reported by Amnesty International to have taken place in a labor camp in Kazan in 1979, 17 of 25 inmates so tortured perished.

Overcrowding of prisoners as part of their punishment also appears to have continued into the late 1970s (at least). A 1976 samizdat (i.e., hand typed, unpublished underground) account by Ukrainian Mykola Gandzyuk reported that, after 12 years in prison, he was transferred to a corrective labor camp with 30 others (in a van designed for 8 to 10 passengers), then confined with 80 others in a transit cell designed for 20 inmates. Biologist Ilya Glezer was kept with 25 others in a cell designed to hold 4 during his 6 year imprisonment, 1972-1978, for anti-Soviet agitation.

The epic poet Vladimir Bukovsky described his incarceration as combining the pressure of crowding with that of "a prolonged process of chronic undernourishment... You didn't get out of your bunk too quickly in the mornings, otherwise your head would spin" (cited in Amnesty: 119). Along with sleep deprivation, chronic underfeeding was perhaps the most widespread form of torture systematically practiced during the era of the USSR. The jailed Ukrainian worker and founding member of a repressed Soviet human rights activist group ("Helsinki Watch Committee"), Anatollii Marchenko, in 1976 reported that guards took away from him acorns and dried birch tree buds he had gathered. In December 1986, Marchenko died in Chistopol Prison after a long hunger strike. Soviet officials maintained that the 48 year old died of "a natural and long disease." His wife, Larisa Bogoraz, and friends who attended the funeral reported, however, that upon inspection "there were purple bruises on him" (WP 1986: 45). Women prisoners in Mordovia camp 3, in 1978, reported that the guards did allow them to grow a flower garden, but expressly forbade any vegetables or other food from being grown by the prisoners.

Thus, it is instructive to observe that these ugly legacies of Stalinism proved to be very long-lived, lasting well into the Gorbachev era. In 1989, a French television team, visiting the Perm 35 Prison, discovered many long term political detainees still in custody and complaining about continuing mistreatment. On International Human Rights Day 1989, CBS television broadcast this shocking 40 minute film, with Soviet exile (since 1996 a member of the Israeli cabinet) Natan Sharansky providing additional commentary for the US audience. Some Americans were amazed to discover that many of the prisoners had been Sharansky's fellow political detainees at other prisons, despite 1989 Soviet declarations that all political prisoners had been released. After the 1991 Revolution, again, we were assured that all political prisoners had been freed.1 An Historic comparison: It must be stressed that brutal treatment of prisoners, even dangerous political prisoners, cannot be said to be an aspect of traditional Russian culture carried over into the Soviet Union. Even the assassins of Czar Alexander II (1881) were given a trial and were not shot on the spot, quite unlike the CPSU's treatment of many of Stalin's lesser opponents. Czarist political repression did not transcend the authoritarian state's own rules: when the anarchist Nechayev was tried in the 1870s, his inflammatory "Catechism of the Revolutionary" was published as part of the court record, and half of his co-defendants (against whom the cases were thin) were acquitted. After being jailed, Nechayev received books from visitors and wrote further articles during his confinement. Recall here, too, the conditions of V.I. Lenin's exile in Siberia: he later called his Siberian years the "happiest years of my life." How many men and women in the Gulag in the 1940s, or in Gorbachev's labor camps of the later 1980s could have said as much?

VI. Human Rights Activists and the Transformation of Soviet Law

Despite all the weight of Soviet law, despite generations of fear induced by Gulags and torture, some among these people retained the capacity to act in the moment of decisive crisis, August 1991. They rose up and said no to further dictatorship. How are we to understand this? From what well did this water to extinguish the fire of communism come? This segment of the essay argues that the leadership of unique individuals, joined eventually into a movement that embodied hopes of large numbers of common people, and was the key catalyst that enabled the Soviet and Russian peoples to grow to be able to act in this manner.

The epitaph of communism was written by those the system treated most poorly. Communism was intolerant of human individuality and administered especially harsh treatment to those unique social gems of every age, the gadflies, the critics, those who hear "a different drum." They were sent away, censored, silenced, forced not to dance, to sing, to play their music, to recite their poems. Official art, official thought would be enough for a socialist people. But it was not. Why? Let us first survey the range of types of individuals we in the West collectively refer to as the dissident movement in the USSR, for it is they --not Mikhail Gorbachev, nor "reform" elements of his Communist Party-- who ultimately led Russia and the Soviets to freedom.

Generalized dissatisfaction with Soviet life first became visible during the Khrushchev administration as a byproduct of what came to be known as "the Thaw," or a melting away of rigid artistic censorship. Initially, it was in the intelligencia that a critical perspective on "socialist development" emerged. This phase of dissent lacked any central organization, was focused as much on the stifling of aesthetics as the stifling of politics and was many faceted. But the restoration of neo-Stalinist controls under Brezhnev (1964) prompted some to begin a quest to coordinate information about the repression, and publicize it internally and abroad. It was from this nucleus that the Soviet human rights movement emerged, but it is fair to say that until the later 1980s other critics also played important roles in undermining the system by disseminating less sweeping criticisms than those of the human rights movement.

Many critical voices arose. As late as the mid 1970s and early 1980s, not all internal critics of the Soviet system would be considered advocates of Western-style concepts of law, democracy, or human rights. Nationalists among the Great Russians advocated a return to an authoritarian, Russian state. In the late 1970s, ethnic nationalists elsewhere in the Soviet Union advanced other visions of autonomy consistent with their cultural traditions (see Yanov). Literary critics (e.g., Pasternak, Solzhenitsyn) of the modern USSR denounced industrial society, Marxism and other aspects of modernity as pernicious imports from the West. Solzhenitsyn, for example, lived an uncomfortable exile in Vermont, USA after he was expelled from the USSR in 1974. He denounced the licentiousness and decadence of the West nearly as strongly as he railed against the Soviet dictatorship. The (so-called) Socialist Opposition, of which the brothers Medvedev represented the highest intellectual expression, sought by and large to articulate a reform agenda designed to improve, not replace, the Communist system. During most of his career, Russian President (1990-99) and 1991 Revolutionary hero Boris Yeltsin championed this line of thought: for example, he carefully avoided calling for an end to one party government while touring the U.S. in September 1989. (For an interesting glimpse of Yeltsin's self image, see his 1990 autobiography, cited below; a biographical timeline also appears below as Appendix II). A fourth group of dissidents, the Human Rights Movement, proved to be the critical factor in the movement for democracy and will now receive more detailed analysis.

Human Rights Dissenters: Dissenters who advocated a more open Soviet society, and reforms in the direction of a Western model of government and politics, became most visible in the West through the person of Nobel laureate and honored physicist Andrei Sakharov. Sakharov's impeccably patriotic credentials permitted him an audience within the USSR, and ultimately beyond it, that far exceeded that of all other advocates of democracy. But, though Sakharov was the best known of the human rights advocates, he in fact represented a relatively widespread anti-dictatorial tendency evolving in the Soviet academic and intellectual communities for many years. Especially in the performing and creative arts communities, but also in every profession, educated independent thinkers read avidly the experiences of one another, and the ideals of democracy known elsewhere in the world. Jefferson, Lincoln and other Americans were studied and argued in small groups half a world away. Many other Soviet dissenters expressed similar criticisms from such diverse bases in Soviet society as the Armed forces (i.e., General P. Grigorenko), the creative and expressive arts, and the nationalist movement in Ukraine (Marchenko).

The contemporary democratic political parties in post revolutionary Russia began as a loose movement for greater recognition of human rights by the totalitarian Communist system. In our times, the human rights movement traces its roots to the 1967 trial of poet Vladimir Bukovsky. Bukovsky had organized a demonstration on behalf of others who were arrested for protesting the 1966 jailing of Alexander Ginzburg, Yuli Daniel and others. Bukovsky was arrested, jailed and ultimately sent into exile. In publicizing Bukovsky's actions, the grandson of a Soviet foreign minister, Pavel Litvinov, set down the reasons for this protest down on paper. By passing around copies of his objections through circles of fellow thinkers, a human rights underground of writings, called "samizdat," was begun.2 Samizdat writings were typewritten and were duplicated using carbon paper. This low level technology was primitive, but it usefully provided a means to reproduce a handful of copies of written materials. Access to more sophisticated forms of duplication (dittograph, mimeograph, printing presses,, and later photocopying machines) all were tightly restricted by censors who followed strict Party guidelines on what was, and what was not, permitted to be published (Lifshitz-Losev).

Much that circulated through samizdat consisted of poems, short stories and other literature deemed unfit for publication, either by censors or by authors' voluntary self-censorship. But samizdat networks also began to perform a news-gathering function. Through such clandestine means, groups of Soviet citizens, especially intellectuals, came to be steadily informed of political trials in a more timely way than was previously available. Thus, in 1968, when Ginzburg was given a long jail term, hundreds of Soviet offices and newspapers were flooded by protests from these well informed citizens, who were perhaps emboldened by a then contemporary public relations campaign that played up the supposed existence of "socialist legality;" a claim that was clearly being violated by the use of secret agents to convict Ginzburg. By mid 1968, an informal journal, Chronicle of Current Affairs, kept upward to 2000 readers up-to-date on related developments. Literary samizdat appeared and a citizens' human rights committee was formed about this time as well. All of these developments betrayed a reality quite different from that perceived by then KGB chief Yuri Andropov, "the number of dissidents is steadily decreasing" (Guardian 1977: 13).

In 1970, Sakharov and Valery Chalidze formed the "Committee for Human Rights." It sought to monitor authorities' compliance with Soviet law. While authorities initially were reluctant to arrest the highly decorated leader (i.e., Sakharov, father of the Soviet hydrogen bomb project), the June 1972 arrest of Piotr Yakir signaled an end to official toleration of the dissidents. Yakir was the son of a prominent Communist who had been victimized by Stalin in the 1930s and had himself served 15 years in labor camps before being allowed to lecture on his experiences as a free man during the Khrushchev "thaw." Under pressure, Yakir appears to have betrayed many in the underground and a swift roundup of dissidents in 1972-3 occurred. In light of these official actions, Sakharov became increasingly more public in his criticisms of the system, telling Swedish television (July 1973) that the USSR was "the most pretentious society" and had become beset by officials' "criminality, ...alienation; our society is ...extremely un-free." In the fall of that year, he wrote an open letter to the US Congress urging them to pass trade sanctions against the USSR in order to bring pressure for change. These US laws, called the "Jackson-Vanik Amendments," were in fact enacted, helping to sour progress toward relaxation in Soviet-US tensions known as "detente."

After Helsinki (1975). The 1975 ratification of the Final Act of the Conference on Security and Cooperation in Europe (CSCE), commonly known as the Helsinki Treaty, precipitated a new stage in the development of the Soviet human rights movement. (For text, see Stokes: 160-162). Its key section was entitled "Respect for Human Rights and Fundamental Freedoms Including the Freedom of Thought, Conscience, Religion or Belief." The document demanded signatory states recognize human rights accorded all humans in other fundamental documents of international organizations, including Charter of the United Nations (1945), the Universal Declaration of Human Rights (1948), and related Covenants. A follow-up agreement on implementation of the Helsinki Treaty, the 1980 Madrid Concluding Document, reiterated specific human rights which the Soviet Union claimed to honor but in practice did not (e.g., rights to speech and association). By requiring the USSR to respect the Universal Declaration, Helsinki demanded it respect other rights that were not even legally acknowledged by the USSR, e.g. the right to emigrate.

Yet, the USSR government had signed the document, perhaps anticipating little domestic repercussions. However, modern technologies, principally the international radio transmissions of the BBC, Radio Liberty, and the Voice of America, made this fact and the content of the treaty well known within the USSR. Within the USSR, dissidents seized this legal pretext to organize anew, and within weeks of the 1975 agreement, a Helsinki Watch Committee had been formed in Moscow to monitor Soviet compliance. Other Watch Committees were formed in the Ukraine, Georgia, Armenia and Lithuania. The leader of the Moscow group, Yuri Orlov (a physicist), was jailed within a year for anti-Soviet agitation. Kept in deplorable conditions on a near-starvation diet, Orlov remained incarcerated until his December 1986 expulsion to the USA. Another of the group's leaders, Dr. Sakharov, in January 1980 was confined to the sealed city of Gorky, where he remained under continuous surveillance in a form of house arrest until January 1987. By Fall 1982, the Watch Committees were suffering such severe repression that, at the behest of the authorities, the Moscow Chapter was forced to announce its own disbanding. In late 1985, an American human rights group monitoring these and related events reported that 51 of the original Moscow Helsinki activists were in jail or exile. (Details on individual cases are enumerated in Amnesty International, "Where Are They Now?...", below).

Thus, the release of Orlov, Sakharov, Anatoliy (Natan) Sharansky and other prominent dissidents by the Gorbachev government in 1986-87 represented a slackening in the pace of Soviet repression of human rights activists. By 1989, Gorbachev appears to have sought the assistance of the social forces behind the human rights movement in his struggle to open-up and democratize Soviet government and society, at least to a limited extent. Sakharov was permitted to visit the US, a gesture which continued the trend toward glasnost on the question of human rights. His election to the Chamber of Deputies (1988) represented a high point in Soviet recognition of a legitimate opposition in Soviet history. From his position of great public stature and moral credibility, Sakharov defied Gorbachev's apparent expectations and began to demand full democratization and the end of Communist Party monopoly rule in the USSR. The death in December 1989, of this author of a new (proposed) democratic constitution of free republics to replace the USSR was a deep blow to these aspirations.

Clearly, Gorbachev had made some of the many needed changes. Many steps pointed toward granting a place in national debate for the type of choices that the human rights movement advocated. But if change flowed from the struggle to restructure Soviet society made by Party first secretary and President Mikhail Gorbachev (1985-91), some things had not changed. If we return to the issues of most immediate importance to the human rights crusaders --decent treatment of political, and all, detainees-- the ambiguous legacy of Gorbachev is made more clear.

In the fall of 1988, West German Chancellor Kohl indicated that Soviet officials had promised him that "all" political prisoners would be released by the end of 1988. US news reports quantified the meaning of this utterance by pointing to a figure of some 200 believed political prisoners there. They, and we, should have known better. U.S. official Kenneth Adelman (former Director of the Arms Control and Disarmament Agency) when referring to the then recent releases, in a January 22, 1987 speech before the Chicago Bar Association, stated: "this is just the tip of the iceberg. Literally thousands of political prisoners remain. Right now, according to our best estimates, there are between 4,000 and 10,000 prisoners of conscience in the Soviet Union... About one third of the 4,000 to 10,000 are being persecuted for their religious practices or convictions" (WP 1987: 26). No complete accounting ever was given of the disposition of these cases.

Eyes have been cast aside for reasons of political expediency before. Throughout the later 1980s, the indispensable (yet now long gone) Gorbachev Government's assurances about the final release of political prisoners went virtually unquestioned. But some dared still to look. In Fall 1990, US scholar Joshua Muravchik (16) visited a Soviet women's prison where, at first blush, everything appeared fine. But as he departed, one final and remote building was visited. There he found a room cooled to no more than 40 degrees, entirely empty save two buckets (one for water, one for wastes), and two poor women whose fate was to be confined there for punishment. The bitter cold already was upon these two: their sole garments were thin, sleeveless smocks. Without a chair, a bed, or any other rudimentary necessities (i.e., no toilet) these two would spend 15 days for their crime: They had exchanged food or cigarettes with other prisoners.  The confinement of so many on account of their beliefs, their continued officially-sanctioned malnourishment, exposure to cold, to beatings and severe labor, and the longstanding policy of harassment of their families for much too long has been the Soviet, and perhaps the Russian, way. Brutality appeared in the past to be an essential element of the Soviet system of criminal justice; its personnel have remained on the job. Sweet promises heard from contemporary Russia cannot overcome our informed memory. Until the final and complete opening of the Russian and post-Soviet prisons, continuing skepticism is the best informed perspective.  To follow these conditions in a detailed way, consult yearly reports by Human Rights Watch, Amnesty International, and the U.S. Department of State; for an overview, consult Freedom House.

Shortly before Muravchik's visit, President Gorbachev slackened in his will to carry democratization to its logical conclusion: the full end of the Communist dictatorship. By December of that year dissident forces within the Party that had embraced Sakharov's, and the human rights movement's, agenda had broken free from the CPSU entirely. Russian leader Boris Yeltsin turned in his membership (see Appendix II for a more linear review of his career). Former Georgian Communist Party First Secretary and Gorbachev Foreign Minister Andre Shevardnadze also resigned (December 1990), warning of an imminent military coup to reestablish orthodox communism. Outside the Party, Nationalist movements in the republics challenged central communist authorities in virtually every European and Caucasian republic. Anti-communist political organizations had organized throughout Russia. Labor unrest also had become widespread.

The Failed Coup of 1991

In this context, the unity of the Party no longer was assured; without it repression became a more precarious option. Gorbachev's control over the Party was challenged at a Party meeting in June 1991 and, while the leader held on, the Party's deeper commitment to a principled relaxation of repression and further democratization was in grave doubt. Both courses of reform challenged the foundations of Marxism-Leninism; the key organs of that ideology (the Army, the KGB, and the hard-line elements of the Party) retained the capacity to act. Ultimately, the defeat of their attempted seizure of power by military coup (August 19-22, 1991) hinged on the wider embrace throughout Soviet society of the values of democracy advocated by the human rights movement, much more so that on the limited Party-given pseudo-openness known as glasnost.

The conflict that led to the coup of 1991 had long been brewing. For several years, much evidence pointed toward division within the Politburo and the Central Committee over public glasnost and related penal reform policies. In November 1987, Boris Yeltsin, Moscow Party chief and (then) a Gorbachev supporter, was forced from his important position after making a speech to the Central Committee highly critical of conservatives' resistance to economic restructuring (or "perestroika"). Soon thereafter, Yeltsin also was removed from the Politburo (February 1988). The flamboyant Yeltsin, however, refused to pass into political oblivion and, in 1989, won a seat in the Soviet Chamber of Deputies, polling over five million votes (85 percent of the votes cast) in a Moscow constituency in which he contested the official Party nominee. In 1990, Yeltsin became Chairman of the Russian Federation's Parliament; in effect, the executive of the largest of the Soviet component republics. Advocating rapid and immediate transformation of the Soviet economy to a market system within 500 days, the establishment of an independent judiciary, and the complete end of the Communist monopoly of power, he resigned the Party. During 1990-91, democratic forces in the new national legislature, the Chamber of Deputies, increasingly echoed these objectives and in-roads were made between them and the emerging anti-communist leadership of Russia, led by Yeltsin. But these forces were besieged.

The man responsible for Yeltsin's 1987 setback, conservative traditional communist Yegor Ligachev, during 1987-90 continued to lead the formidable anti-reform forces. By early 1988, Ligachev frequently was publishing sharp criticisms of Gorbachev's general policies of "glasnost" in the arts, focusing some of his harshest criticisms on Soviet rock music and other manifestations of "bourgeois morals" (WP 1988: 15). Though Ligachev was given a less prominent Party post (dealing with Agriculture), he was retained as a member of the Gorbachev's key Party grouping, the Politburo. During late 1990 and the winter of 1991, this anti-Gorbachev group in the Politburo of the Central Committee of the CPSU appeared ascendant, dispatching Black Beret KGB anti-terrorist forces to attempt to subdue an assertive Lithuanian SSR government (January 1991), undermining Gorbachev's control over the Party meeting of Summer 1991, and forcing the president to appoint many orthodox Communists to positions of leadership in Party, government, military and secret police. Ligachev and his allies were known as Soviet "conservatives;" that is, they claimed to represent the traditional Communist approach to social and economic problems.

Communist conservatives tried to derail the emergence of Yeltsin as a non-communist rival again in 1991. In March of that critical year, conservatives mounted an effort to impeach him as Chairman of the Russian Parliament, but the attempt failed. This set the stage for the first truly democratic election of the Gorbachev era, the June 1991 balloting for the Russian Presidency. Yeltsin's victory in that election was remarkable for the snubbing of Party conservatives that voters embraced: i.e., his platform was explicitly anti-Communist.

It is now clear that the legitimate basis for public resistance to the August 1991 Communist Coup attempt was established through that June 1991 election. But the idea that it is necessary to have a popular democratic mandate in order to lead, that idea grew out of the human rights movement's persistent demands that Soviet Russia reform itself, obey its own laws and treaties it had signed. These very Jeffersonian premises, that government rests on the consent of the governed, ultimately had power far beyond that apparent in the long-jailed critics' mere words. Indeed, much of the authority which the Yeltsin Government wielded to effect the dismantling of the Communist system derived from these two new foundations of Russian democracy: the elected (Yeltsin) presidency and the popular revolution of August 1991, when the people resisted the coup. Both of these bases of legitimacy of the new Russian democratic system derive directly from the premises of the Soviet human rights movement, and Sakharov's thought which was at its heart.

Thus, the Conservatives and traditional Communists both legally and illegally, tried but failed to reassert control in 1991. But the extent to which their grip on penal institutions fully has been surrendered remains in some dispute, for hard evidence on progress there has remained elusive throughout the Gorbachev and Yeltsin years. This telling measure of true democratization thus remains still to be taken, for officials' assurances simply cannot suffice.

The organizational residue of the human rights movement in the USSR, 1966-91, endures as democratic Russia struggles to emerge. As always was the case with such a disparate, scattered cause, the organizational remnants have continued to have many foci. "Memorial" is an organization dedicated to investigation of the crimes buried in the Soviet state's past and punishment of the guilty. Others debate the timeliness of such initiatives (see Gellner). Nationalist political movements, an outgrowth in part of SSR-based human rights "Watch" committees of the 1970s, long demanded autonomy from the USSR and quickly assumed positions of leadership in the independent national republics of Latvia, Lithuania, and Estonia. There and in Russia, human rights activists spearheaded legislative efforts to enact legal reforms to end the residue of the Gulag. Other human rights movements continue to advocate religious and ethnic rights within nascent ruling and opposition political parties now evolving within the republics. In short, the once repressed and prisoner-rights focused human rights movement has become more heterogeneous as totalitarian controls ebbed under Gorbachev, and were overthrown in August 1991.

Even after several years of post-Communist rule in Russia, given the sordid record of legal and penal institutions described here, contemporary reports of human rights problems cannot quickly be dismissed. In January 1994, Memorial and the U.S.-based Helsinki Watch organization reported that human rights conditions again were deteriorating (Hiatt 1994: 20). According to these reputable groups, one million Russian prisoners as late as 1994 continued to be subjected to torture, malnourishment, and other rights violations. Abuse of the rights of Russian ethnic refugees fleeing from political chaos in the "near abroad" of the now-independent republics of the former USSR also appears to be continuing in democratic Russia. "State secrets," a blanket codeword that covered up under a veil of secrecy many human rights violations during the Soviet era, remain another troubling area of modern state violation of human rights. Especially noteworthy in this regard was the case of scientist Vil Mirzayanov, who in 1994 was charged with giving away "state secrets" for confirming that Russian programs to develop chemical weapons have continued into the mid-1990s, an allegation contrary to the pose of the Yeltsin Administration. Mirzayanov's 1994 trial was held in secret, for violation of laws that themselves remained secret; both of these aspects of the case were in clear violation of international norms to which Yeltsin committed Russia to adhere.  Similar cases continued to chill dissent well into the first decade of the new millennium.

Conclusion. The very assumptions behind the brutal Soviet system of penology-- the creation of a "New" type of Soviet person-- grew directly from the Communist theory of history. This theory built endless prisons which may now finally be being de-populated of their innocents. Communist theory legitimized one party rule and a host of other durable structures including highly politicized courts and penal institutions. These associated structures have been challenged incompletely even in Russia; in some of the emerging independent republics of the former USSR one party rule remains de facto if not de jure. Until those who followed Marxist-Leninist guidance are retired throughout the Russian judicial system, until that Party fully has been eradicated from Russian state bureaucracies, official observance of the human rights of Russian and other post-Soviet citizens (in and out of prison) will continue to be endangered. The rights of Soviets no longer rest on the whim of apparently enlightened individual Communist leaders (e.g., Gorbachev). But, an institutionalized system committed to the dignity of the individual before the state also has not fully emerged.

The tanks of August 1991, and the anti-democratic Moscow mobs of September-October 1993, each might have succeeded in restoring hard-line communism. The optimistic student of Russian and Soviet history should be chastened by the historic record now before us. Respites of apparent enlightenment and progress have punctuated the experience of these peoples for brief periods in the past (e.g., the N.E.P., or the Khrushchev "thaw"). Never before has Communist rule been broken, but neither did these "reform" episodes prove to be durable. Chastened by historical memory, we must conclude that contemporary improvement in the protection of the human rights of Russians and other former Soviet peoples, in the longer run, is likely to remain contingent on larger forces that run deeper through society and state.

Appendix I: Biography of Andrei Sakharov

A brief biographical survey of Sakharov's life would include the following key elements: On May 21, 1921 Sakharov was born in a Moscow maternity hospital. His mother, the former Ekaterina Sofiano, descended from the officer class of the Czarist Army and was a practicing Christian. His father, Dmitri Sakharov, was a physicist, an author of several texts and other books that popularized science, and an amateur pianist. He was descended from a liberal family. Andrei had one younger brother, Georgy. Both parents embraced the Revolution and Sakharov recalled that Russian nationalism was viewed negatively within his home; "I do not recall a single derogatory remark about other nationalities..." (Memoirs: 24).

1920s and 1930s: Sakharov's early childhood was pleasant, made prosperous due to the income derived from his father's books. He was tutored in science by his father and was a superior student. His playmates were from many ethnic backgrounds and he became close with a Jewish neighbor boy, Grisha. The bubble of security later would burst. In 1935, an Uncle (Ivan) was arrested, exiled, rearrested and died of malnutrition in the Krasnoyarsk prison (in 1943). Also in the 1930s, an aunt's husband was arrested and shot; and a brother of his mother, Uncle Konstantin, died during interrogation by the secret police (1937). In 1941, a German bomb destroyed the building that had been formerly been Sakharov's boyhood home.

1942: Sakharov was graduated from Moscow University. After working first as an engineer, in 1945 he joined a secret research team headed by physicist Igor Tamm. Their task concerned military applications of nuclear energy.

1949: The first Soviet atomic bomb successfully was exploded. Sakharov focused on a further project: the development of the Soviet hydrogen bomb. After his ideas proved successful (1953), Sakharov was elected to the Soviet Academy of Sciences in 1953, winning additional honors including the Order of Socialist Labor, the nation's highest award for civilians. In 1955, he again was declared to be a "Hero of Socialist Labor" and was also awarded the Lenin Prize for his work on the Soviet nuclear weapons program.

1957: Sakharov first urged that atmospheric tests of nuclear weapons be stopped, due to public health dangers from radioactivity. In 1962, an urgent further plea in this vein by him, made directly to Communist leader Nikita Khrushchev, failed.

1966: Human rights activists who insisted that Soviet laws be followed to the letter were joined in protests outside the trial of Yuri Daniel by Sakharov.

1968: Sakharov penned a long letter published in the West. It called for an end to the arms race, and cooperation between communist and democratic governments. Subsequently, he lost his research position.

1970: In a letter to the Central Committee of the CPSU, Sakharov warned that the USSR rapidly would soon fall behind in the second industrial revolution if its society continued to develop without basic freedoms being respected. He was ignored.

1972: Sakharov embarked on a hunger strike during US President Nixon's visit to Moscow so to call attention to the dangers inherent in detente (i.e., a U.S. policy of relaxation of East-West tensions) when the totalitarian essence of the USSR had not been eliminated.

1973: Sakharov's denunciations of totalitarian controls were broadcast back to the USSR over foreign radio.

1975: The Nobel Peace Prize was awarded to Sakharov; wife Yelena Bonner was permitted to receive the prize in Norway, but Sakharov was denied the right to travel abroad with her.

1975-80: Many of the associates Sakharov and Bonner worked with in the human rights movement were harassed, arrested, and exiled.

January 1980-December 1986: Sakharov was arrested and banished to the closed city of Gorky where he was not permitted access to reporters or other human rights activists (other than Bonner). Here Bonner penned her memoir Alone Together. During a hunger strike Sakharov imposed upon himself to call attention to continuing human rights violations in the USSR, physicians brutally forced fed him with tubes rammed into his esophagus.

December 23, 1986: Sakharov returned to Moscow after Gorbachev personally ended his punishment by exile.

1989: Sakharov was elected delegate to the first semi-democratically elected parliament in the USSR, the Congress of the Peoples' Deputies. His speeches became rallying points for the democratic forces there.

December 1989: After writing a draft Constitution for a new democratic state to replace the USSR, Sakharov died.

Appendix II: The Career of Boris Yeltsin

Yeltsin's biography and his policy achievements also may prove to be of some interest. A chart of the highlights follows here:

1931: Boris Yeltsin was born February 1, 1931 in then Sverdlovsk (now Yekaterinburg), Russia, an industrial city in the Ural mountains. He graduated from the local polytechnic college with a degree in engineering in 1955, and joined the CPSU in 1961. After 1968, he worked full time for the CPSU.

1976: Yeltsin was made first secretary of the Sverdlovsk District Central Committee of the CPSU, where he served until 1985.

1985: Gorbachev brought Yeltsin to Moscow to work for the Party on construction projects, but soon appointed Yeltsin First Secretary of the Central Committee of the Moscow CPSU. Here he launched anti-corruption campaigns against the Party.

March 1986: Yeltsin was made candidate member of the Politburo of the CPSU of the USSR.

October 1987: After criticizing in the Central Committee Yegor Ligachev and other hard-line conservatives (who opposed Gorbachev proposals for reform), Gorbachev removed Yeltsin from his Party leadership positions.

1989: Party nominations for Gorbachev's new legislature, the Congress of People's Deputies, excluded Yeltsin. More than fifty localities, however, nominated him as an independent candidate. In Moscow, Yeltsin was elected to the Congress with 89 percent of the votes cast. Within that body, Yeltsin helped organize the first opposition proto-party, the Inter-Regional Group.

1990: In May, Yeltsin was elected chairman of the Congress of People's Deputies, and in so doing he began to be referred to as President of the Russian Federation. On July 12, in a dramatic gesture at the 28th Congress of the CPSU, Yeltsin publicly turned in his membership card amid the assembly, and marched alone out of the hall, thus quitting the CPSU of which he had for 29 years been a member. Gorbachev used this Party meeting to attempt to separate Party leaders and government leaders, and to place his own supporters into control over each.

December 20, 1990: Foreign Minister Eduard Shevardnadze, a moderate and a Gorbachev supporter, resigned, warning of an imminent return to dictatorship. Repression soon was begun in Lithuania and Latvia (January 1991), as KGB Black Beret forces used armed force there.

March 1991: A Gorbachev-authored referendum received 76 percent support for continuation of the 15 republic federation that was the USSR; six republics, however, refused to participate in the voting. A Draft Union Treaty altering relationships between the republics and the central USSR authorities, passed by the Congress in Dec. 1990, continued to be a focus of tension between traditional Communists (who opposed it) and republican movements (who favored a more radical solution: full independence). Ratification of this treaty by the 15 constituent republics was set for August.

Spring and Summer 1991: Labor unrest spread throughout industrial USSR. In Russia, Yeltsin declared Russian authority over strike-plagued industries. June: Yeltsin banned CPSU activities inside all workplaces in Russia.

June 12, 1991: The first popularly elected Russian President ever, Boris Yeltsin, received nearly 60 percent of votes cast; Vice President Aleksandr Rutskoi also was elected at this time. Prior to and after this, Lithuania, Latvia, Estonia, and Georgia held referenda in which large majorities voted for independence.

July 1991: With Yeltsin's support, Ruslan Khasbulatov was elected Speaker of the Parliament, in the Congress of People's Deputies.

August 19, 1991: On the eve of the signing of the Union Treaty, hard line Communists arrested President Gorbachev and attempted a coup d'etat to reestablish the Communist dictatorship over all of the USSR. After two tense days of resistance championed by Yeltsin, Red Army troops sent to arrest Russian President Yeltsin turned sides, and joined Yeltsin's call for popular support for the democratic process and opposition to the Communists' coup. The coup-makers were arrested and Gorbachev returned to Moscow. Under strong pressure from Yeltsin and the Russian parliament, after delay Gorbachev resigned as General Secretary of the CPSU and ordered seizure of CPSU property.

Fall 1991: Non-Russian republics declared independence and held elections that brought to power non-Communist governments. November: Yeltsin banned all CPSU activities in Russia. December: Ukraine voted for independence (90%+), but selected ex-Communist Leonid Kravchuk as president over more radical nationalists of the Rukh movement.

December 25, 1991: Gorbachev resigned as President of the USSR, the Russian flag was raised over the Kremlin, and the USSR formally ceased to exist.

January 2, 1992: Yeltsin government announced the end of price controls: within weeks, prices rise by 350 percent; in six months inflation reached 1000 percent. Vice President Rutskoi began to lead parliamentary resistance to rapid economic change to a capitalist system. Popular support for these polices eroded as unemployment --unheard of in the communist era-- soared: 13.6 percent (1990), 14.9 percent (1991), 16.1 percent (1992; WP: 1994: 42), and predicted to be 18 percent by the end of 1994 (Hockstader 1994a: 36).

January 23, 1992: Yeltsin signed a decree permitting Russians freely to engage in commerce, ending the state-run economic system of the old USSR.

June 1992: Yeltsin signed major nuclear arms reduction treaty with US President George Bush.

July: Yeltsin's Government for the first time permitted the value of the ruble to be set by the free market, not by the Central Bank. Over the next eighteen months the value of the ruble would slide from one to the US dollar (July 1992) to 1564 to each US dollar (February 1994).

December 1992: Much of the criticism of Yeltsin-era economic policy focused on Yegor Gaidar, chief economic advocate of rapid change and acting Prime Minister of Russia in 1992 until he was forced to resign (December 1992). Gaidar, however, continued informally to advise Yeltsin after losing the post. Victor Chernomyrdin, a veteran technocrat, was appointed prime minister. But inflation continued to roar: the 1992 annual rate (1414 percent) only was halved to 773 percent in 1993, Chernomyrdin's first year (WP 1993: 26).

March 20, 1993: Due to conflict between Presidency and Congress over pace and form of reforms, Yeltsin declared "Special Form of Administration," a step just short of martial law which permitted rule by decree. Opponents in the Congress began efforts to remove him as president.

April 25, 1993: To demonstrate support for reform, Yeltsin held a series of referenda in Russia: 58 percent voted their confidence in his continuation as President; 52.9 percent voted their continued support for the economic policies pursued by his administration.

Sept. 21 - October 4, 1993: Rutskoi and Khasbulatov mobilized supporters to arm themselves within the Congress, closed off the building, and called for resistance to the Yeltsin Government, which they called illegal. Their supporters mounted at first street demonstrations, then attacks throughout Moscow on public buildings, television stations. After some days of chaos, Defense Minister Pavel Grachev rallied Russian Army troops to the support of the Yeltsin Government, and laid the Congress to siege. Casualty reports eventually confirmed that 144 died, and 878 had been wounded, before order was restored, with the Yeltsin Government triumphant and Rutskoi et.al. under arrest (Current History 1994: 47).

October: By decree, Yeltsin declared it legal for individuals to engage in the buying and selling of land. However, this additional move toward establishing a capitalist system came long after popular enthusiasm for the overall project had waned. Russian gross national product under his administration had steadily declined: down 18 percent in 1991; down 20 percent in 1992, and by year's end of 1993, down a further 12 percent. After more than two years of post-communist rule, the total Russian economy was half as large as in 1990, the final full year of communist rule (WP 1994: 42).

December 12, 1993: Elections held for the all-Russian Parliament were a setback for Yeltsin and for parties favoring transition to a capitalist system. The Liberal Democrats, a neo-fascist group originally organized in 1990 by Vladimir Zhirinovsky with KGB help, finished first (23 percent); the former rulers, the Communists, finished second; and parties backing Yeltsin were a distant third. The campaign preceding the vote also skated close to the edge of democratic norms: opposition parties' access time on the mass media was limited, and some newspapers were censored. (E.g., Pravda was closed for several days after the Fall 1993 coup attempt). In a simultaneous act of tentative support for Yeltsin, voters also approved a new constitution for Russia which included strong executive powers for the presidency. Shortly thereafter, more key pro-reform advisors were removed from the Yeltsin cabinet.

January 1994: Economic instability continued: inflation rate for that month was 22 percent, or an annual rate of nearly 300 percent. Signaling the government's response to the December elections, P.M. Chernomyrdin declared that the "era of market romanticism" was over.

March 1994: The newly elected Congress promptly exercised powers of amnesty granted to it under the new Constitution, and by a vote of 253 to 67, ordered the release of Rutskoi, Khasbulatov (and others under indictment for the Fall 1993 uprising), and ordered release of all leading convicts jailed in the August 1991 aborted Communist coup. Reluctantly, Yeltsin complied and the leaders of the anti-democratic forces were released.

May 1994: Economic crises continued. The State Duma (legislature) agreed to pass the budget submitted by the Yeltsin-Chernomyrdin Administration, a $104 billion budget with a deficit of a staggering $38 billion (Hockstader 1994a: 36). State financial aid to the indigent, and many other things, were reduced. According to the Institute of World Economy in Kiel, Germany, in 1994, 26.3 million Russian citizens (17.7 percent) lacked sufficient income to buy adequate food, up from 21.6 million in 1993 (The Week in Germany 1994: 5).

July 1994: In a move interpreted to be a gesture of conciliation toward extreme nationalists, Yeltsin paid a highly publicized visit to a Moscow art exhibition by Ilya Glazunov. Glazunov's paintings "would be considered ... racist and hate-monger[ing]," glorifying ethnic Russians and vilifying blacks, Jews and other minorities (Hockstader 1994b: 21).

December 1994: Yeltsin authorized the Russian Army to use military means to subdue a breakaway nationalist government in the Autonomous Chechen Republic, a part of the Russian Federation. By late February 1995, 24,000 had been killed there. All major pro-democratic political parties opposed this operation.

January 1995: Yeltsin's popularity fell to 8 percent in public opinion polls.

July 1995: Yeltsin was hospitalized for two weeks with heart problems.

July 1996: Yeltsin was re-elected Russian President, defeating Communist G. Zyuganov 53.82% to 40.31%.

August 1998: Russian Economy collapses after Russia defaults on international loans.

December 31, 1999: Yeltsin resigns as President, leaving office three months early. His last prime minister, Vladimir Putin, becomes Acting President.

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Footnotes

2. Surprising as it may seem, the writings of Yuli Daniel which led to his trial, these protests and, ultimately, to the growth of the Soviet human rights movement, do not appear to have been well known to the KGB. U.S. Prof. Albert Todd (Queens College) and Soviet poet Yevgeny Yevtushenko have confirmed that it was U.S. intelligence that betrayed Daniel to the Soviet authorities. Apparently, the objective was to create an incident in which there would be a Soviet citizen suffering at the hands of his own government. This could then be used by U.S. intelligence and diplomats worldwide to respond to the then (1966-7) growing criticism of the U.S. policy in Vietnam. The trial of Daniel indeed did provide the U.S. with such an incident. Long buried in the most secret of places, this story traces its more bizarre turns to no less an authority that U.S. Senator Robert Kennedy, who told Yevtushenko the amazing details in a Manhattan apartment, in the bathroom with the shower running (so that, if the room were bugged, the message might be garbled). Thus, there is a grain of truth to the Soviet allegation that U.S. intelligence long tried to manipulate the Soviet human rights situation to serve the interests, not only of the Soviet detainees, but of U.S. foreign policy. See: Dusko Doder, "U.S. Betrayed Two Soviets, Interpreter Confirms," Washington Post (February 21, 1987): p.10; a Time magazine story about Yevtushenko, also in February 1987, also reported these same startling facts.