With the invasion of Ukraine, the prosecutor of the International Criminal Court in the Hague has announced that he will launch an investigation into events there and President Vladimir Putin’s actions have been widely condemned as involving war crimes or crimes against humanity. Putin, in turn, has sought to justify the invasion as necessary to prevent a genocide and makes reference to “terrorist methods” of Ukraine’s government. What begins with tanks and missiles is likely to end with indictments.
As matters stand, Russia’s government is subject to the European Convention on Human Rights, which safeguards fair trial rights and guards against retrospectivity. But given Russia’s recent record of non-compliance with the judgments of the court – and still more the decision of that court on Monday 1 March to order the Russian state to refrain from military attacks against civilians – it is increasingly likely that Russia will soon be expelled from the Council of Europe or will itself decide to withdraw and denounce the Convention.
If so, Putin’s regime is likely to look harder at the lessons of Russian history in how to use criminal trials for political ends rather than at any human rights instrument. Even when measured against the standards of the time, Stalin’s well known ‘show trials’ were an instrument of propaganda which lacked the most basic notions of fairness[1]. But if the aim is not justice but controlling the narrative, Putin will find much to draw on. The possibility that he will seek to bring politically motivated prosecutions against Ukraine’s president or government leaders thus makes it timely to recall Russia’s historical record in relation to political trials.
Within a few years of the Russian revolution, the Communist Party in Russia was already laying down doctrine about the use of criminal trials as a political tool. In 1922 Lenin encouraged what he called ‘noisy, educative’ trials of 34 members of the Socialist Revolutionary Party – that is, a rival political party to the Bolsheviks. The indictment in the case ran to 117 pages and was printed for both domestic and international distribution as propaganda. However, the charges it contained were based on a hurriedly written penal code which did not come into being until after the offences had allegedly been committed. A press campaign was orchestrated to influence public opinion before the trial began, resulting in demonstrations calling for the brutal punishment of the defendants; and protesters were permitted to address the court to urge that the defendants be sentenced to death. Many of the prosecution witnesses had been threatened that they themselves would face conviction unless they gave evidence useful to the prosecution case. All of the defendants were duly convicted and sentenced to death. The pattern of using such trials as a means of eradicating opposition, irrespective of the facts, was established.
Not all opponents were party-political. The first of Stalin’s major show trials in 1928 was used to drive a wedge between the general workforce and “bourgeois specialists” such as engineers and skilled technical workers. 53 engineers from the mining town of Shakhty, in the Donbas region of Ukraine, were accused of deliberate acts of wrecking or sabotage, framed as acts of class struggle. The OGPU, the secret police, extracted confessions using harsh methods of interrogation, thus establishing a technique perfected in later cases of building prosecutions around admissions and using testimony from one accused to implicate another. Stalin chose as the chief judge Andrei Vyshinsky, a long-standing Bolshevik careerist who was happy to accept orders to secure the desired outcome and was to prove a loyal and ruthless figure in the show trials that followed. Reflecting its primary purpose as an instrument of propaganda, the Shakhty trial took place in Moscow (over 1,000 km from Shakhty) before a crowd of over 2,000 Russians and journalists from around the world; and was filmed and later shown nationwide.
So impressed was Stalin by the performance of Vyshinsky that in the 1930s he asked him to oversee plans for further show trials. The “Industrial Party Trial”, in November 1930, concerned a group of scientists and economists accused of plotting a coup against the regime with foreign powers including France and England. The prosecution relied on the evidence of various decisions they had made in the course of their roles which were characterised, however unreasonably, as “wrecking” the Soviet economy, thus making them scapegoats for wider economic problems. By these means more or less anyone, if necessary, could be demonstrated to be plotting the overthrow of the state by reference to almost any act or decision, however mundane. In his opening speech the prosecutor explained that he was unable to present any ‘hard evidence’ against the defendants because – he claimed – the defendants had destroyed it. Yet each in turn admitted their involvement in a wide-ranging conspiracy now generally recognised to have been wholly non-existent. Further similar trials followed, and in 1935, Vyshinsky was rewarded with promotion to Procurator General of the Soviet Union.
The show trial was a tool deployed to address various problems faced by Stalin. The murder of Sergei Kirov, a prominent political leader, in 1934, was used as an excuse to institute a series of show trials the effect of which was to conduct a purge of Stalin’s old political enemies. Upon learning of the assassination (for which some historians suggest he may himself have been responsible), Stalin issued a decree that investigations into acts of terror “against the functionaries of Soviet power” be concluded within 10 days, that those charged would only receive the indictment 24 hours before their trial, and that they would not be permitted to attend that trial. The decision of the court would be final, with sentence carried out immediately. An increasingly broad range of suspects – including old political enemies such as Zinoviev and Kamenev – were accused of involvement in an ever broadening plot which ultimately resulted in numerous executions and hundreds more being arrested and exiled to Siberia. In 1956 even Khrushchev admitted that the only evidence was confessions obtained through physical pressure, and conceded that there had been ‘glaring violations’ and ‘many entirely innocent persons became victims’. Yet again however, there had been contemporary observers who claimed the trials were fair, and characterised Western criticism of the process as attempts to undermine Communism.
Many of these trials were overseen by Stalin directly, working closely with Vyshinsky not only to select defendants, draft indictments and decide on sentences, but even to make suggestions about what the defendants were to say during their own testimony during trial. The whole process was orchestrated: a carefully selected ‘public’ was trained to respond as required on signal. The notorious article 58 of the Criminal Code – which covered “any other activities deemed detrimental to the interests of the state and people” – was used to prosecute counter-revolutionary acts. The powerful Military Collegium of the Supreme Soviet of the USSR (“MCSS”) tried tens of thousands of cases, sentencing almost 85% of defendants to their deaths. Family members and associates of the defendant were likewise executed. Defence counsel recognised that their principal role was to assist the prosecution case and often did not dispute facts.
In one respect, the success of Stalin’s show trials is perhaps less likely to be repeated. Although there was extensive criticism in the West, Stalin nevertheless managed, aided by the Soviet press, to persuade even liberal foreign onlookers of the guilt of some defendants. Attending one trial, the New York Times correspondent wrote that confessions were true. Now, we might call this “fake news”.
Yet other techniques used to obtain the desired political outcome may well recur. Features of the show trials, which could return, include:
- laws that are drafted widely and applied retrospectively;
- the use of oppressive interrogations;
- instructions being given to investigators and prosecutors by political leaders directly;
- prosecutors who are politicised rather than independent;
- trials before courts which are not impartial;
- denial of open justice;
- denial of attendance of the accused;
- denial of proper defence representation;
- denial to the accused of advance knowledge of the prosecution case;
- reliance at trial on confessions without corroboration;
- emotive and inflammatory language in court;
- denial of a right of appeal;
- efforts to control, manipulate or deceive the media;
- measures to whip up public sentiment, based on the suggested need for strong action against so-called acts of terror against the State.
Contemporaneous onlookers, perhaps seeing what they wanted to see, at times failed to recognise or criticise the injustice which now seems obvious to us. History of course provides other examples of such gross breaches of due process. Such episodes are all worth studying and re-visiting and give us important reminders as to why our freedoms and legal procedures need to be so carefully guarded.
[1] For a magisterial and recent review of the trials see “Stalin’s Soviet Justice: ‘Show’ Trials, War Crimes Trials and Nuremberg”, edited by David M Crowe, Bloomsbury, 2019
