The Writer & Soviet Law

...The word "authority"-in Russian vlast', sometimes translated as "power"-refers to the political foundations of the Soviet state...

...It is quite common for the Soviet press to discuss cases prior to trial or during trial, and to make vigorous assumptions concerning the guilt of the accused before it has been proved in court...

...What rights does he have under Soviet law during the pretrial confinement...

...Judging from Soviet press reports, Sinyavsky and Daniel will be prosecuted for violation of Article 70 of the Criminal Code of the RSFSR, entitled "AntiSoviet propaganda and agitation...

...There was no requirement that any specific crime be committed, and the accused had no right to have counsel or even to be present at the trial...

...Therefore it is open to the accused to disclaim responsibility for any abuses of their writings by others, at least to the extent that they did not actually foresee that such abuses would occur...

...However, as indicated in the answer to the first question, it is ultimately the leadership of the Communist party that determines, through Party declarations and directives, where the line is to be drawn between anti-Soviet statements and what used to be called "Bolshevik self-criticism...

...Soviet legal writers go further, and state that making oral or written attacks, however false they may be, on any individual Soviet leaders is not anti-Soviet agitation or propaganda under Article 70, since "it is impossible to identify the personality of an individual leader with Soviet authority...

...The RSFSR Code of Criminal Procedure states, in Article 18: "The examination of cases in all courts shall be open, except in instances when this contradicts the interests of protecting a state secret...

...Prosecution for criticism, dissatisfaction, or disagreement with particular measures of the cpsu or the Soviet government would be a serious violation of Socialist legality...

...Thus there would seem to be no legal grounds for a secret trial of Sinyavsky and Daniel...

...But, Article 70 requires the showing that they actually intended that this should happen, and not merely that they should have known it...

...As Tertz (allegedly Sinyavsky) wrote in On Socialist Realism, a good author can overcome all external restrictions: "Art is elastic enough to fit into any bed of Procrustes that history presents to it...

...Will the defense have the opportunity to escape responsibility for any changes in the text made by Western translators or editors, and for any political uses which have been made of their writings in the West...

...The three-judge court (one professional judge and two laymen) itself directs the trial, putting questions to the accused and to the witnesses...

...Yet the author of the same monograph states that whether an idea is antiSoviet or not "depends on each particular concrete instance and on a number of other conditions both of the domestic order and of the international situation of the USSR.' It is of some interest that the term "anti-Soviet" in the newer Soviet Codes replaces the older term "counterrevolutionary...

...I believe that the critical issues in the charges against Sinyavsky and Daniel, from the standpoint of Soviet law, are whether they themselves actually believed that their writings were anti-Soviet and whether they actually wanted to weaken Soviet authority...

...Is a distinction made between "anti-Sovietism" and "anti-Stalinism...

...The mere use of obscene language, without a belief that it will unhealthily stimulate sexual desire, is not in itself punishable, and such language may be found in a good many works published within the Soviet Union, including those of Pushkin, Dostoevsky, Solzhenitsyn, and Sholokhov...

...In Soviet history at least half a dozen other writers have privately sent out manuscripts for publication abroad...

...Thus it is possible under Soviet law, in exceptional instances, to confine a man under guard for nine months during the preliminary investigation...

...Presumably the permission of the RSFSR Procurator was obtained to extend the confinement beyond the normal two months...

...No doubt the prosecution will contend that the two writers should have known that their works would be used abroad for anti-Soviet purposes and would weaken Soviet authority...

...Is it in fact illegal for a Soviet writer to publish works abroad without official permission...

...What rights of defense will be open to Sinyavsky and Daniel...

...It is of some interest that Brodsky was not charged with anti-Soviet agitation and propaganda...

...Will they have to prove their innocence or will the burden of proof be upon the prosecution...

...however, the accused is entitled to defense counsel and both his lawyer and the prosecutor also interrogate the accused and the witnesses and make arguments to the court...

...Once a person has been indicted, he may be released pending trial but he may also be continued confinement under guard "if there exists sufficient basis for supposing that [he] will hide from the court, or hinder the establishment of the truth in a criminal case, or will engage in criminal activity The RSFSR Code of Criminal Procedure lists a great many rights of the accused during the preliminary investigation, which is supposed to be conducted fairly and impartially...

...In addition, a recent Soviet monograph states it is not anti-Soviet agitation or propaganda "to criticize particular measures taken by the Communist party of the Soviet Union or the Soviet government...

...Therefore the whole world is watching, or should be watching, the trials of Sinyavsky and Daniel to determine their genuineness...

...Is it sufficient grounds for a mistrial...

...They could also play a role in reducing the sentence...

...But if no announcement is made of when and where the trial will be held, and if selected people are invited to attend and fill the courtroom, it is possible that general knowledge of the course of the trial may be limited to what appears in the Soviet press...

...was abolished in September 1953, and today all crimes are subject to trial only by a court...

...Do Sinyavsky and Daniel have a right to a public trial...

...It has been suggested in the Soviet press that the writings of Sinyavsky and Daniel contain pornography...

...Under the 1960 RSFSR Code of Criminal Procedure, a person may be detained by the police for 24 hours before being turned over to the procuracy, which may detain him for another 48 hours before initiating a criminal case...

...But, the fact that the manuscripts were circulated abroad will undoubtedly be taken into account as an aggravating circumstance, justifying a harsher penalty (within the limits set by Article 70...

...However, they are faced with the difficulty that if they do not admit their guilt they are subject to a heavier sentence, since Article 38 of the Criminal Code states that in assigning punishment the court may treat "sincere repentance" of the accused as a circumstance that mitigates responsibility...

...Article 70 states: "Agitation or propaganda carried on for the purpose of subverting or weakening Soviet authority or of committing particular, especially dangerous crimes against the state, or circulating for the same purpose slanderous fabrications which defame the Soviet state and social system, or circulating or preparing or keeping, for the same purpose, literature of such content, shall be punished by deprivation of freedom for a term of six months to seven years, with or without additional exile for a term of two to five years, or by exile for a term of two to five years...

...indeed, Stalin has been denounced, and continues to be denounced, by the Soviet leadership, in the Soviet press, and in scholarly journals...

...How long may a person be confined before formal charges are brought against him and before he is brought to trial...

...The fact that Article 70, the law under which they will apparently be prosecuted, is much broader than would be permissible under American Constitutional standards is not the most critical fact...

...Indeed, in the Soviet context, where the press has an official character (Izvestia, for example, is published by the Presidium of the Supreme Soviet of the USSR, and Pravda is published by the Central Committee of the Communist party of the Soviet Union), attacks on accused persons in the press cannot help but have serious consequences...

...Article 228 of the RSFSR Criminal Code states that to make or circulate or advertise pornographic writings shall be punished by deprivation of freedom for a term not exceeding three years or by a fine not exceeding 100 rubles...

...A recent Soviet treatise on Soviet criminal law defines pornographic writings as "coarsely naturalistic, obscene, cynically portraying sex life, prepared for the purpose of unhealthy stimulation of sexual desire...

...The case against the two writers will presumably consist of excerpts from what they have published abroad...

...He is not required to prove his innocence...

...Such matters could play a role in showing the absence of any purpose to subvert or weaken Soviet authority...

...but "anti-Soviet" has no precise meaning, and "slanderous fabrications which defame the Soviet state and social system" could be construed to include any utterances that go beyond the limits of criticism established by the Communist party leadership...

...However, Soviet literature as a whole will undoubtedly be affected by what happens in this case (or these cases, since presumably the two men will be tried separately, unless they acted jointly), if only because Soviet publishers will read the trials, and what is said about them in the press and elsewhere, for guidance in defining the limits of published criticism of Soviet life and possibly even the limits of departure from approved literary standards...

...Although there have been cases of anti-Soviet agitation and propaganda in the Soviet courts in recent years (e.g., some persons who openly opposed the Soviet actions in Hungary in 1956 were prosecuted for what was then called "counter-revolutionary" agitation and propaganda), I have seen no reports of such cases involving prosecutions of authors...

...The investigator's "conclusion to indict" must be passed on by the Procurator before it goes to an administrative session of the court, which determines whether to issue it or to dismiss it...

...Should we expect more such trials...

...The fact that literature in the Soviet Union is published by state organizations, with the approval of committees specially appointed to review each work in advance, offers a certain protection against the kinds of charges that have been made against these two writers...

...It is not a crime under Soviet law to send a manuscript abroad for publication without official permission, although it may be a disciplinary offense, punishable by an administrative fine, if the regulations of the organization for which the writer works require the granting of such permission...

...At that point he is "an accused," and charges must be presented to him, although in exceptional cases they need not be presented for 10 days...

...Below we have posed a series of questions on the legal as pects of the case to Harvard Law Professor Harold J. Berman, whose latest book, Soviet Criminal Law and Procedure will be published next week by Harvard University Press, The Writer & Soviet Law What crimes did Andrei Sinyavsky and Yuli Daniel allegedly commit and under what laws have they been charged...

...They cite, in that connection, official Party denunciations of the "cult of personality"-which is the Soviet term for "Stalinism...

...In addition, a closed judicial examination shall be permitted in cases of crimes of persons who have not attained the age of 16 years, cases of sexual crimes, or other cases for the purpose of preventing the divulgence of information about intimate aspects of the lives of persons participating in the case...

...Incidentally, Soviet jurists have privately criticized the decision in the Brodsky case from a legal point of view, since Brodsky was in fact working -that is, in addition to writing his own (unpublished) poems he was translating poetry for publicationand was not living on non-labor income...

...The emphasis now is less on the achievements of the Revolution than on the authority and power of the state...

...The evidence gathered in the preliminary investigation must be presented to the court, and no inference of guilt can be drawn from the mere fact of the indictment...

...The Soviet Constitution specifically grants freedom of speech only within the limits imposed by "the interests of the working class" and by the policy of "strengthening the socialist system...

...Evtushenko was publicly reprimanded, but there was no suggestion of bringing criminal charges against him...

...Two years ago the Soviet poet, Iosif Brodsky, was sentenced under the "anti-parasite" law, under which persons who refuse to do socially useful work, live on non-labor income, and lead a parasitic way of life are subject to "resettlement" in another locality for two to five years [See "The Trial of Iosif Brodsky: A Transcript," NL, August 31, 1964...

...What is most critical is the observance of the requirement that there be convincing proof of a direct intent-a special purpose-knowingly to defame the Soviet system and to weaken Soviet authority...

...As this issue goes to press the cases of Andrei Sinyavsky and Yuli Daniel, charged with publishing anti-Soviet works in the West under the pseudonyms Abram Tertz and Nikolai Arzhak, respectively, are reaching a climax...

...In American terms, we can say that under Soviet law the accused is presumed to be innocent until proved guilty...

...Sinyavsky and Daniel have been subjected to attacks in the Soviet press prior to the trial...

...At this point, the accused is presented with all the evidence against him gathered in the preliminary investigation and is informed of his right to counsel, who may then examine the materials of the preliminary investigation, may ask that other witnesses be called, and may otherwise challenge the investigator's "conclusion to indict...

...Under Article 77 of the Code an acknowledgement of guilt by die accused may not serve as a basis of conviction unless it is confirmed by the entire evidence in the case...

...In exceptional instances it may be prolonged for an additional three months by the USSR Procurator General...

...Before an indictment is issued, a preliminary investigation is conducted, during which the accused may be confined under guard, normally up to two months but with permission of the RSFSR Procurator "by reason of the special complexity of the case" this period may be prolonged up to six months from the first day of confinement...

...On the other hand, the language of Article 70 emphasizes the requirement that such agitation or propaganda or defamatory statements be carried on or circulated (or, in the form of literature, merely kept) "for the purpose of subverting or weakening Soviet authority," and this has been interpreted by Soviet jurists and Soviet courts to require proof that the accused understood the anti-Soviet character of the utterances he made and desired to cause harm to the Soviet state...

...Under Soviet law the accused cannot be found guilty unless his guilt is proved in the course of the trial...

...Therefore there is little reason to suppose that other Soviet authors now need to fear prosecution, unless there are others who have sent their manuscripts abroad...

...And the very substantial law reform movement since Stalin's death-despite some setbacks, as in the Brodsky case-is the surest safeguard against a return to Stalinist arbitrariness and terror...

...Even if Sinyavsky and Daniel admit their guilt, under Soviet (as under Continental European) criminal procedure the case against them must be proved...

...As a matter of law, however, the Soviet court is supposed to decide the case solely on the basis of the evidence presented in the trial, and the mere fact of press comment is not itself a ground for mistrial...

...Precisely how is the term "anti-Soviet" understood in the Soviet courts...

...In other words, as far as works published in the Soviet Union are concerned, a considerable number of people pass on the question-prior to publication-of whether a manuscript contains anti-Soviet statements...

...If this requirement is not observed or if its observance is obscured by pressure on the accused to forgo a vigorous defense, then repercussions will be felt not only in the arts but throughout Soviet life...

...The Special Board of the M.V.D...

...Any abuses of such rights, however, may be appealed only to the Procurator...

...Will this prejudice the case...

...Have there been other Soviet cases similar to this which would affect the decision...

...To denounce Stalin in the Soviet Union is certainly no longer in itself anti-Soviet...

...During this time the person being confined is not entitled to counsel, and indeed he may be held incommunicado, until the investigator has drawn up a "conclusion to indict...

...Article 39 of the Criminal Code lists as a circumstance aggravating responsibility "the causing of grave consequences by the crime...

...On page 17 we present a critique by regular contributor Andrew Field of the latest story by Tertz to be published in the West...

...A recent example is that of Evgeny Evtushenko's "A Precocious Autobiography...

...Once the indictment is issued by the court, the case goes to trial and the evidence on which the indictment is based must be proved in court...

...How is pornography defined under Soviet law and is it a punishable offense...

...Another aggravating circumstance which is listed is "commission of the crime for mercenary or other base motives...

...But law defines the bed in which not only the artist but the whole society lies...

...The presentation of such charges is not, however, an indictment in our sense...

...Apart from the fate of the two writers in question, how important will this case be for the future of Soviet literature and law...

...The terms "agitation" and "propaganda" are understood to refer to the circulation of ideas among a large number and a small number of people, respectively...

...Under Stalin, disaffected writers were sometimes sent to labor camps in a secret administrative procedure of the Special Board of the M.V.D...

...Thus, for example, a person's disagreement with the Virgin Lands program, criticism of the foreign policy of the USSR, disapproval of aid to other countries on the part of the USSR, etc., cannot be a basis for criminal prosecution...

...The Code itself does not define pornography...

...Yet the potential impact of the trial, or trials, upon the future of Soviet law is probably even more important than its potential impact on the future of Soviet literature...

...Of course the conviction of these two men will be a powerful deterrent to those who would like to send their manuscripts abroad because they would not be acceptable to Soviet publishers...

...If they confess their guilt, what significance will this have...

...Judging from Soviet press reports, Sinyavsky and Daniel were confined under guard during a preliminary investigation for over four months...

...The language of this provision is extremely broad and vague with respect to the kinds of statements that are prohibited...

...Some Soviet jurists have criticized this practice as being prejudicial to the proper decision of cases...

...Will the previous personal record of the two writers, their honorable war service, their professional positions, recommendations and other similar matters play any role in the trial...