35.2 The Case of Anatoly Marchenko

No 35 : 31 March 1975

1958 – Anatoly Marchenko, a 20-year-old master driller, was found guilty of participating in a brawl. He was sentenced to eight years’ imprisonment. (Later the case was reviewed and the sentence was changed to two years’ imprisonment.)

1959 – Marchenko escaped from a labour camp in Karaganda [Kazakhstan].

1960 – For trying to cross the border Marchenko (CCE 4.4) was found guilty of treason and sentenced to six years’ imprisonment.

1960-66 – He was in the Mordovian camps and Vladimir Prison.

1967 – Marchenko wrote the book My Testimony. [22]

In December for the first time Marchenko was advised to emigrate from the USSR. Medvedev, a KGB official, told him: “We’ll let you go to any country you like.” He also said: ‘Otherwise we’ll bring you to trial, but not for your book. ”

1968 – Marchenko wrote an open letter to A. Chakovsky about the situation in political labour camps. He wrote open letters on the same subject (CCE 2.6) to the Soviet Red Cross and to certain writers.

26 July – Marchenko wrote a letter about the threat of military intervention in Czechoslovakia. (CCE 3.1 item 1).

29 July – He was arrested, charged with infringement of the passport regulations, and sentenced to one year’s imprisonment (see CCE 3.1, item 1).

1969 – Two months before his sentence was due to expire a case was opened against Marchenko under Article 190-1 of the RSFSR Criminal Code. Marchenko was sentenced to a further two years’ imprisonment (see CCE 10.1).

July 1970 – He was released and sent to live under police surveillance in the settlement of Chuna in Irkutsk Region [Siberia].

1973

August – Marchenko wrote an open letter to the UN about Amalrik’s detention in a labour camp (see CCE 30). Open letter to Willy Brandt on detente.

November – Marchenko’s home in Tarusa [Central District] was searched in connection with “Case No. 24”. Marchenko’s hand-written notes for his diary were confiscated (CCE 30.8).

December – Marchenko received a recommendation emanating from the KGB: “He should emigrate, or it will be the worse for him.”

1974

January – Anatoly Marchenko received an official warning at KGB headquarters in Moscow (see CCE 30).

February – Marchenko signed the “Moscow Appeal” (CCE 32) [to the Vienna conference].

May – The police in Tarusa placed Marchenko under administrative surveillance for a year (CCE 32).

2-7 July – Marchenko joined Academician Andrei Sakharov on hunger-strike (see CCE 32). From the end of August the surveillance became stricter and turned into a form of harassment.

11 October – After a routine refusal by the police to allow him to visit Moscow (to take his sick child there), Marchenko declared that in future he would consider himself free from surveillance.

November-December – Marchenko was fined by a judge on two occasions for breaking the rules of surveillance. (One of these fines was based on false evidence from the police.)

10 December – Marchenko sent a statement to Podgorny [the Soviet “President”] renouncing his Soviet citizenship and announcing his intention of emigrating to the USA (CCE 34).

At the end of December Marchenko was invited to the Department for Visas and Registration (OVIR) in the Kaluga Region and advised to arrange his emigration by means of an invitation from Israel. “If you insist on emigrating to the USA you’ll end up getting sentenced for breaking the rules of surveillance.”

1975

4 January – In Moscow, a local policeman, Trubitsyn, discovered Marchenko in the flat of his wife, Larisa Bogoraz, fined her for infringing the passport regulations and threatened her with expulsion from Moscow.

13 January – Volodin, Chief of Police in Tarusa, informed Marchenko that a criminal case was being brought against him (for breaking the rules of surveillance, Article 198-2 of the RSFSR Criminal Code). A restriction order was imposed on him – he was not to leave his place of residence.

While questioning Larissa Bogoraz Volodin expressed doubts about Marchenko’s mental condition and informed her that he had been recommended for a medical examination. (This subject was not raised again.) He also advised her to make use of an invitation from Israel. “Your husband will be found guilty. Everything depends on you…”

In February the Kaluga OVIR administration began to hurry Marchenko about handing in his emigration documents.

25 February – Anatoly Marchenko handed in incomplete documents.

26 February – A search took place at Marchenko’s house in Tarusa in connection with infringement of the surveillance regulations. Manuscripts and other notes by Marchenko, and manuscripts belonging to L. Bogoraz, were again confiscated. The investigator, Dezhurnaya, did not leave any protocol listing the objects confiscated. Later she said that all the papers had been sent to the KGB and that not one was to be used in the case concerning surveillance.

On the same evening Marchenko was arrested and sent to the Kaluga investigation prison.

On being arrested Anatoly Marchenko declared an indefinite hunger-strike. He refused to participate in the investigation. His reasons: “I shall be tried under Article 198-2, not for breaking the surveillance regulations but for my civil rights activities and my desire to emigrate to the USA.”

31 March 1975 – City People’s Court, Kaluga

Presiding judge – Levteyev, Chairman of the Kaluga City People’s Court. The trial was held in open court. About 20 of Marchenko’s relatives and friends from Moscow and Tarusa were present, together with a few chance onlookers. The officer in charge stipulated only that bags and briefcases not be brought into the courtroom.

The guard brought in Anatoly Marchenko.

He looked bad; his face was worn and strained, his lips were dry and inflamed. His hands were handcuffed behind his back. As he reached the dock he swayed and the guard caught hold of him to support him. This was the fifth week of his hunger-strike. In the dock, the handcuffs were removed. Smiling wryly, Marchenko said: “See how they’re handling me now.”

Marchenko was wearing a thick sweater and was obviously suffering from the heat.

The Kaluga lawyer Gribkov was present: he had evidently been summoned by the court. The court refused the request made by Marchenko and his wife that the latter should be allowed to take part in the trial as his defence lawyer: “The lawyer Gribkov is present in court, and the defendant can make use of his services.” Marchenko categorically refused to be represented by Gribkov, but the court assigned him to take the case for the defence.

Marchenko refused to take any part in the proceedings as the court had crudely infringed his right to defence. A State lawyer had been forced on him, and he himself had been deprived of the right to conduct his own defence, as all the case materials had been taken away from him: “They have even taken from me my copy of the indictment.”

Judge: There is a note in the file saying that you have been given a copy of the indictment.

Marchenko: But it was taken away from me before I was brought into court. You can see I have nothing with me!

Judge: That’s your own affair.

Marchenko: I reserve my right to make a concluding statement.

The judge continued to address Marchenko on procedural matters in a contemptuous and disdainful tone. On each such occasion Marchenko repeated that he had been deprived of the possibility of defending himself. The court gave no attention to this.

During the interval Larissa Bogoraz and Natalya Kravchenko asked Gribkov to call them as witnesses. They wanted to inform the court that Marchenko had been at home on 7 November [1974]. L. A. Bogoraz made a similar request. The lawyer would not accept their statements.

Gribkov – The defendant refuses my help.

Bogoraz and Kravchenko – But you have been assigned to defend him by the court, you have accepted the case.

Gribkov – The defendant himself will have to ask me to call you as witnesses.

Bogoraz and Kravchenko – But you are bound to use any evidence in favour of the defendant.

Gribkov – Let him ask me himself.

Later, however, Gribkov agreed to accept their statements.

The indictment was read out: Marchenko had been convicted previously on a number of occasions, but has not reformed, has not found permanent employment and has led an anti-social way of life. He was warned about this repeatedly. In May 1974 the police told him to find work within a month.

In May he was also placed under surveillance for a year. Marchenko deliberately disregarded the surveillance restrictions – in October and November 1974 alone he broke the regulations nine times with the intention of avoiding surveillance. During this period he was fined twice by judges for breaking the surveillance regulations: on 7 November he was away from home after 8 o’clock in the evening; on 25 November he failed to turn up for registration. On 9 December he again failed to register. These three infringements of the regulations formed the basis for this case. Marchenko refused to give evidence during the pre-trial investigation, but his guilt is attested by the evidence of witnesses.

The court proceeded to question the witnesses. The Tarusa policeman Kuzikov stated that at 5 o’clock on 7 November 1974 he had seen Marchenko getting on the bus from Tarusa to Serpukhov. In order to check on this infringement of the regulations Kuzikov went to Marchenko’s home with two colleagues. When they rang the bell, a man’s voice replied from behind the door: “The police have no business here.” The policemen then went away.

Judge: Do you know Marchenko’s voice? Was it his voice?

Kuzikov: I know his voice. It wasn’t him.

The policeman Fomenkov, who had accompanied Kuzikov, corroborated his evidence. The policeman Arkhipov stated that Marchenko had not come to register at the police station on 25 November.

L. N. Starukhina, head of the city’s gas board (Marchenko’s last place of employment), gave the defendant a favourable character reference: he had never refused any work and worked well. She was asked about her conversation with Marchenko on the day before 7 November. Starukhina replied that she intended to ask Marchenko to be on duty the next day and had asked him about his plans. He answered undecidedly (“Perhaps I might go to Moscow, or some guests might come to see us.”) He did not complain about being assigned work: “If you have to be on duty, then duty it is.”

Trubitsyn, the district policeman from Moscow, stated that he had seen Marchenko in Moscow on the 7th, 8th and 9th – by himself, and with his wife, and with a child. Trubitsyn embroidered his testimony with imaginary details.

Dmitry Cheremninov, Anatoly Marchenko’s neighbour, testified that at 7 o’clock on the 11th he had invited Marchenko to his home, but the latter had excused himself as he had guests at his own home – his wife’s parents. They did not meet again that day, or the next.

Conversations in the corridor during the interval:

– It’s impossible to watch. They’re beating a defenceless man…

– This is not a trial but a deliberate act of revenge,

– Perhaps we should all get up and leave, what do you think? As a protest, I mean…

– But what about Tolya? [i.e. Marchenko]

An unknown citizen of Kaluga:

“What are they trying him for? Downstairs there are two cars, one full of cops. We’ve never seen anything like it here.”

*

Some men in civilian clothes try to lead away a member of the public, without showing any identification, and demand to see the contents of his pockets.

*

Witness Kuzikov to witness Trubitsyn:

“We should each have taken 150 roubles – then we could have made our conversations sound even better.”

*

Sakharov and Vera Lashkova tried to pass Marchenko some water. The guard and the officer in charge of the court refused to allow this: “Let him ask us – we’ll give him some.”

Sakharov explained to the officer in charge that, during a hunger-strike, a person’s mouth tends to dry up constantly.

“It’s not allowed.”

After the interval the officer in charge gave Marchenko back the papers that were taken away from him in the prison.

The judge proposed to Marchenko that he make a statement. (Evidently Marchenko thought he was being invited to make his closing statement.)

Anatoly Marchenko’s Speech

Marchenko: This indictment speaks of my anti-social activities; the case file includes matters which have nothing to do with surveillance. The case evidence includes the texts of foreign radio-broadcasts. Other papers confiscated from me during searches carried out by the KGB were my draft manuscripts, which the KGB’s “journalism experts’ feel I could use for writing anti- Soviet works. After a search back in January 1974 I was summoned to KGB headquarters and there a so-called “warning” was read to me, which must figure in the case-evidence as an aggravating circumstance…

Judge: Please keep within the framework of the indictment…

Marchenko: I am keeping to the point, all this is included in the case file and in the indictment. My anti-social activities, about which I was warned by the KGB, consists of My Testimony and my other works published in the West concerning the situation of Soviet political prisoners, who are here brazenly called common criminals. I have spent not just one year in the company of political prisoners, I have seen how artists, writers and scientists are forced to do unskilled labour…

Judge: The court warns you for the second time. Do not use your position to insult Soviet authority.

Marchenko: I appealed not only to the West, but also to public opinion in our own country: I appealed to the Soviet Red Cross. I received the answers: It has always been like this and will remain so in future.” This was what our public officials said. But it is my activities that is called anti-social. I spoke out on behalf of people who were living in inhuman conditions, who do not have the opportunity to speak out for themselves.

Further, after 1971 my anti-social activities consisted of my signature on letters written on behalf of V. Bukovsky and L. Plyushch, and my own letter on behalf of Amalrik. This is what is meant by my anti-social activities – nothing more.

I shall now concentrate on the surveillance I was subjected to. The indictment alleges that the surveillance was imposed on the basis of a character reference supplied by a corrective institution: “He has not yet reformed.” According to the law, surveillance can be imposed only if a prisoner has broken the regulations for prisoners many times. I did not infringe the regulations in camp, or rather I infringed them only once, and even that was taken off the record when I was released. Two weeks before my term of imprisonment was due to end, the camp regime supervisor told me that no infringement of the regulations would be put on my record and that no surveillance would be ordered for me. However, a couple of days later I was taken out of the camp and imprisoned, and then, on the day of my release, I was taken into a room where some types in civilian clothes told me I was to be released – and put under surveillance. I was taken under guard to Chuna and placed under surveillance. I then wrote to the Irkutsk Region Prosecutor’s Office, but all my appeals remained unanswered.

When two years later in Tarusa I was told I would be put under surveillance, it was again with reference to infringements of the regulations in camp. The case evidence includes no character reference from the camp, so at the end of the pre-trial investigation I made a request that a reference should be obtained from the camp. My request was refused. This surveillance was not imposed by the Tarusa police but by the KGB it came after the November 1973 search (the search warrant was signed by KGB General Volkov, the search concerned “Case No. 24”, about A Chronicle of Current Events), and after the official Warning given to me by the KGB in Moscow.

When the surveillance order was imposed on me they told me that I had not been working for a long time. Up to that time I had been out of work for one month and 23 days; I had not been dismissed from work, but had lost my job because the fuel consumption season was coming to an end. (I was a stoker.) Nevertheless I was warned that I must obtain employment, not before the surveillance order was imposed, but a few days after; so the surveillance was not the result of my unemployment but rather the other way around.

I then wrote a statement about the illegality of the surveillance and sent it to the West; I did not bother to complain to our Prosecutor’s Office as I no longer hoped for any reaction from the Soviet authorities.

Although I considered the surveillance order unlawful I tried to observe it. I did not wish to come into conflict with the Criminal Code, nor did I wish to give anyone an excuse to put me inside again; I was thinking of my family. So I submitted to the surveillance order and observed its rules. Neither the pre-trial investigation nor this court has paid any attention to the fact that I observed the surveillance rules until 11 October and ceased to do so only when I became convinced of their deliberately harassing nature. Since the end of summer all of my requests connected with my family concerns have been refused. I asked to be allowed to meet my aged and also illiterate mother on the station platform in Moscow – this was refused. My request to visit my sick child in Moscow was also refused. I was not allowed to see my old mother off at the station. When my son became ill and there was some fear that he had scarlet fever I asked to be allowed to take him to Moscow, as there was no children’s doctor in Tarusa at that time. For four days Police Chief Volodin kept putting me off: “Come tomorrow, come after lunch”; but on the fourth day he openly said that he had not received any answer to my request. It is interesting to ask who exactly it is who must answer such a request? After all, the law states that the police are in charge of surveillance. I went there again. The deputy police chief informed me my request had been refused. It was then that I told him I refused to observe the rules of surveillance any longer, and I took my wife and sick child to Moscow. After this stupid episode, I considered myself free of the surveillance order. I made a statement that I had been placed outside the law in my own country. This statement was addressed to world public opinion. One man, alone, finds it difficult to stand up against a gang of thugs, but it is even harder to defend oneself against gangsters who call themselves the State. I do not repent of my action. I love freedom, but if I live in a State where my concern for my family and my parents, and my love and concern for my child are considered criminal, then I prefer a prison cell. Where else would I be put on trial for such actions? I was given the choice of renouncing my family or becoming a lawbreaker!

The judge interrupts Marchenko.

Marchenko: The so-called disciplined Soviet man would, in my position, have gone home after receiving the refusal of his request, would probably have got drunk and cursed the Soviet regime, but he would have obeyed the order. It seems that they want to transform me into that kind of Soviet man (at this point he pointed to witness Trubitsyn), a wet rag that can be made to do anything. But I have already renounced such a doubtful vocation. On 10 December I sent a statement to Podgorny renouncing my Soviet citizenship.

Of course, this decision is… well… a capitulation to the all powerful KGB. Over a year ago I was given a message from the KGB, warning me to leave the country or it would be the worse for me.

The judge interrupts him again.

Marchenko: And so I decided to emigrate to the USA. I was informed that if I insisted on emigration to the USA, I would be locked up, and that I should travel there via Israel. This trial is merely a fulfilment of that threat.

I don’t want to dwell on the 7 November episode. After I announced in October that I did not intend to comply with the surveillance, I took no notice of its regulations. I am referring to this episode only to show how this case has been fabricated by the police.

So on 7 November I was at home. We had guests from Moscow with us, in particular my wife’s parents and Natalya Kravchenko. At about nine o’clock Kuzikov rang the doorbell. I opened the door on the chain and asked: “Who is it?” Kuzikov said: “Anatoly Tikhonovich, don’t be afraid, it’s the police.” I replied: “The police have no business here”, and slammed the door. Kuzikov now states he saw me leaving for Tarusa. Why then did he not even come up to me and make sure it was me? In October, when I was taking my family back, he thought nothing of chasing after the bus in a motor-car as far as Serpukhov! But on a holiday, when I am totally forbidden to leave my place of residence, he was somehow quite contented with what he saw and, supposedly, let me leave.

Trubitsyn is lying brazenly. I have never got into an argument with him: I haven’t spoken to him at all and have never even greeted him. Why has the court not questioned my wife’s neighbours in Moscow? After all, it’s impossible not to notice a family with a child in a communal apartment, where there’s a communal kitchen, toilet, bathroom and hallway.

On the 8th, we were visited by the Ottens, our friends from Tarusa, but no one has bothered to question them either.

When I was fined I did not hear what it was for, nor did I want to hear. Later, my wife found out. Immediately, back in December, she appealed to the procurator about it. But not one of the witnesses was summoned. Do you call this a trial? It’s nothing but a kangaroo court.

Marchenko sat down. His speech was applauded in the courtroom.

The defence lawyer asked that the witnesses L. Bogoraz, I. A. Bogoraz and N. Kravchenko be called. The court refused this request on the grounds that these people had hitherto been present in the courtroom.

Marchenko seemed somewhat distressed during the delivery of his closing statement. Marchenko delivered the final words sitting down, saying he was not in any state to stand any longer.

Marchenko: I have already said everything. This trial is the settling of accounts with me that the KGB have been promising me for a long time. However, I regret nothing. I do not regret that I was born in this country, that I was born a Russian. But, thinking of my two-year-old son’s future, I appeal to all the people in the world and ask anyone who can to help me and my wife and son to emigrate from the USSR.

The judges retired to prepare their verdict. However a few minutes later the public was asked to return to the courtroom.

Judge: We had forgotten, the defending counsel has still not made his closing speech. We shall proceed to the pleas by both sides.

Defence lawyer Gribkov: My client has refused to discuss the case with me. But from his statement in court I understand that he disputes the events of 7 November, We have heard evidence from witnesses. Kuzikov’s evidence does not prove that Marchenko was away from home. Marchenko himself states categorically that he was at home and refers to witnesses of this. My opinion is that Marchenko was evidently at home. As for the two other infringements of the regulations, he does not deny these.

I think that in deciding the question of punishment you should take into account the lack of proof concerning the first infringement of the regulations. And also Marchenko’s positive qualities should be taken into account. Judge: Defendant Marchenko, do you wish to add anything?

Marchenko: I shall continue my hunger strike, and insist on an exit visa to the USA.

While the judges were considering the verdict, friends of Marchenko went up to Gribkov: “If you dispute the first infringement of regulations, you should ask for an acquittal! You’re a lawyer, don’t you know the law?”

Gribkov: I’ve done all I could and more! I know everything but you don’t understand anything…

The verdict repeated what was stated in the indictment. The 7 November incident was considered proved; the defendant’s guilt had been demonstrated by all the witnesses, except Cheremninov. Because he was a family man (Marchenko supports a two-year-old child) the court found it possible to apply Article 43 of the RSFSR Criminal Code [extenuating circumstances] and instead of punishing him with  imprisonment as stipulated in Article 198-2 sentenced him to 4 years in exile. Marchenko was to be sent to his place of exile under guard.

After the sentence was read out Tatyana Khodorovich stated: “As a protest against this unjust trial I declare a hunger strike in sympathy with Anatoly Marchenko.”

A Legal Commentary

In refusing to recognize the surveillance imposed on him, Marchenko violated the procedures for protesting against decisions and orders of the authorities: if he considered the imposition of surveillance and the way it was practised to be unlawful, he was required to write a complaint to the prosecutor’s office. A. Ginzburg did this and received no answer at all to his complaints. [24]

However a declaration of refusal to observe surveillance rules is not a crime under Article 198-2 and cannot serve as grounds for a criminal charge under this Article. Even a large number of infringements of surveillance regulations would not be sufficient to do so. A criminal charge can only be brought in the following circumstances: two infringements of the rules or limitations of surveillance must be analysed by a judge and on this basis an order of administrative punishment issued; these violations must have been committed with the goal of avoiding surveillance. Criminal charges could then be brought if the person under surveillance committed a further infringement of the regulations.

The court is obliged in the first place to establish whether the imposition of surveillance was lawful – in this case, this question was not even touched on, although there are grounds for regarding the surveillance as unlawful. Secondly, the court should have considered whether the terms of the surveillance order corresponded to the law – in particular, whether the surveillance restrictions established were arbitrary in nature and whether the manner of surveillance was contrary to the law. The law requires that the surveillance order take into account the family position of the person under surveillance.

Naturally the infringements of surveillance regulations charged against the defendant should have been investigated from every angle; in this case not only did the court not discuss the reasons for the infringements, but even the evidence of an infringement on 7 November remained unproved.

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