Data from the Russian Federation’s Justice Ministry indicate that in 1980 roughly 94 per cent of defendants in criminal cases were found guilty, and nearly 60 per cent of them were imprisoned. In 1990 these numbers fell to 84 per cent and 40 per cent respectively. According to Fogleson, shifts of this magnitude are rare; and it is difficult to explain the phenomenon exclusively on the basis of the published material and interviews (the criminal justice archives for the late 1970s and early 1980s remain inaccessible). But he later surmises, not without reason, that labour shortages might have had something to do with it – a point we shall return to.
For now, we shall attend to an important discovery by Fogleson relating to the political sphere. In the past, judges had been supervised by party officials and justice ministries, whereas the higher courts essentially exercised their powers of judicial oversight. In the 1970s, the campaign to liberalize criminal justice was not led by the party, which had relinquished interference in this domain. The Justice Ministry was not a driving force either. It was the upper tier of the court system – i.e. the Supreme Court of the USSR and its republican equivalents – that took the initiative in pressing lower courts to ‘de-penalize’ their verdicts and make greater use of non-custodial sentences. To achieve this, it used its appellate or oversight powers, issuing criticisms and organizing training seminars for judges.
The first significant changes occurred in February and March 1977, when the Supreme Soviet ‘decriminalized’ a whole range of minor offences, which were henceforth punished by simple fines or two weeks’ imprisonment (the minimum sentence had hitherto been one year). In cases they did not regard as ‘socially dangerous’, judges could now hand down suspended sentences, as well as penalties of mandatory labour for sentences of less than three years. In 1978 the Supreme Soviet broadened the categories of offences to which fines and non-custodial sentences could apply. Let us note that the arguments in favour of this reduction in penalties for minor offices derived from Soviet criminologists, who questioned the efficacy of short-term imprisonment. One of the most eminent among them argued from 1976 onwards that much of the increase in crime was caused by family break-up, disruption of social ties, lack of integration into broader social networks, and the increasing impact of social benefits. Isolation in prisons would only make things worse. Others, cited by Fogleson, maintained that non-custodial sentences prevented people thinking of themselves as criminals and hence actually becoming such.
Thus, in 1977–8 prominent jurists argued for ‘greater economy in the means of repression’ and changes in criminal law that would make it more effective in helping to realize the system’s general objectives. Others insisted that their findings were scientific and that policy in the late twentieth century should be based on science. Some authors urged a move away from a punitive logic to a utilitarian philosophy: retribution should take second place to the achievement of social goals.
While the Supreme Court pressed lower courts to make greater use of differential sentencing, and to be more exacting about the conduct of criminal inquiries and proof of guilt, the overall results of this policy were a disappointment to its promoters. In November 1984, the Justice Ministry concluded that some judges had not got the message and paid too little heed to the decisions of higher courts. The old policy was certainly more unproblematic and more acceptable to the repressive mentality that persisted widely in lower Soviet courts. Nevertheless, other changes were to follow, for the penal reform front was now broad and mobile.
The legal, judicial and ideological reasoning behind this impulse to break with punitive tendencies was not the whole story. The growing manpower shortage, which we shall discuss in more detail later, was a background factor in the de-penalization endeavour and the debates over it. In the Stalinist system, ‘free labour’ was no such thing, since workers were attached to their workplace by a whole series of legal and economic constraints. The actual situation was attenuated by an almost unstoppable spontaneous mobility of labour, which the authorities nevertheless sought to counter by legal and economic measures, and by campaigns of moral denunciation of shirkers and deserters.
Here we are dealing with a broader phenomenon – a natural development that could not be contained even at the height of Stalinism, and which ended up being legitimated and recognized during the post-Stalinist changes. This is what we might call the ‘de-Stalinization of labour’. Reform of the penal system and the trend towards ‘de-penalizing’ sentences formed part of this broader process. The powerful waves of change that kept sweeping over workplace relations forced penal and social policy to follow suit. The survey of labour legislation and practices that we are about to undertake indicates how, in factories and offices, workers succeeded in acquiring de jure and de facto rights. These rights were written into legal documents, beginning with the labour code.
LABOUR LAW: A HISTORICAL SURVEY
From the very beginning of the Soviet regime, labour laws were a prominent part of the government’s agenda: the eight-hour working day, two weeks’ paid holiday, pensions, unemployment, sickness and disability insurance. On 9 December 1918 the Russian Federation’s labour code was promulgated (but never published). All those between the ages of sixteen and fifty, with the exception of the disabled, had an ‘obligation to work’. The principle of equal pay for equal work was proclaimed and various working conditions were subject to regulation. According to Soviet experts, it was the Civil War of 1918–21 that dictated enlistment of labour in place of voluntary contractual relationships. A new code promulgated on 30 October 1922 came into force on 15 November. The ‘obligation to work’ was replaced by ‘employment procedures’: labour relationships were henceforth based on voluntary agreement. The ‘obligation to work’ was restricted to exceptional situations (natural disasters, urgent public tasks). A separate chapter dealt with collective agreements and individual work contracts. Labour and management could alter the latter, as long as certain key provisions were respected. Collective negotiations were conducted by trade unions; labour disputes were settled by people’s courts; various ad hoc commissions on wages, conciliation bodies, and arbitration tribunals were established. The eight-hour day was maintained and overtime was regulated. In short, the 1922 labour code closely resembled those of Western countries, even if it favoured the state sector.
The transition to national economic planning in 1929 brought with it changes in several provisions. The state was now the sole employer and unions became a component of economic management. From 1934 onwards, they no longer drafted collective agreements, but administered social security and enforced regulations – something that had previously fallen to the powerful Labour Commissariat. In 1933 the latter was abolished: it was supposedly merged with the unions, but they did not possess the same authority as a Commissariat belonging to the government. Compulsory assignment of graduates to workplaces was introduced in 1930 as part of planning procedures. And in 1932, labour control was tightened – a single day’s absence was immediately punishable by dismissal. Nineteen thirty-eight saw a further spate of disciplinary measures: arriving late for work, or leaving early, became an offence. A decree from early 1940 proscribed resignation from a job without the consent of management. Contrariwise, the state could transfer employees at will, without their consent. Collective agreements were formally reintroduced in 1947, but despite having been abolished in 1935 they had actually survived in various guises, indicating their necessity in workplaces. As for wage increases, they became ever more dependent on centralized decisions, with some flexibility permitted at local level. Thus, between 1930 and 1940 most of the 1922 labour code had been rendered obsolete; and the text was no longer published.[11]