Limitation of Freedom of Speech and of the Press by Penal Law in the Final Decades of the Russian Empire
In the 21st century, it is inappropriate to have to ask whether criticising a political regime or exercising freedom of speech could lead to criminal charges and criminal punishment. In contrast, a hundred years ago the restriction of people’s freedom of speech, especially in relation to political matters, was quite extensive, both in autocratic Russia and elsewhere. The article addresses the legal situation in the Estonian territory of the Russian Empire until 1918, when insubordination to state authority and inciting mutiny were punishable by law. On 17 April 1905, the so-called Freedom Manifesto gave people freedom of speech, and the Fundamental Laws of the Russian Empire entered into force one year later, wherein fundamental rights were enumerated, among them the right to express one’s convictions, both orally and in writing. At the same time, however, restrictions continued to apply to the fundamental rights declared, which at times were very strict in the tsarist state and rendered the space for exercise of those rights extremely narrow.
The article provides an overview of the penal legislation that was applicable within the Estonian territory at the dawn of the 20th century, which set boundaries to freedom of speech and of the press. Considered separately is the case law of the Tallinn Circuit Court pertaining to charges of instigation of mutiny, with the aim of showing how these provisions were applied in judicial practice and the context in which the state restricted people’s fundamental rights. In the Tallinn Circuit Court, it was primarily newspaper editors who were charged with incitement to mutiny, because they allowed the publishing of various calls to action in relation to workers’ movement propaganda and demands for better conditions and rights for workers. At the beginning of the 20th century, class warfare was considered a crime against the state, and the case law demonstrates how the constitutional freedoms of speech and the press were restricted via strict penal-law measures.
basic rights in Russia; insubordination to state authority; mutiny; tsarist Russian penal law; Tallinn County Court; crimes against the state; limitation of freedom of speech and the press; penal codes
At what point does open criticism of governmental power become a crime instead of exercise of freedom of speech and a display of the citizen’s courage? Is criticism a crime only when it is followed by a call to do something to change the current political situation? These questions may seem out of place or even weird in the 21st century, but just a hundred years ago, expressing one’s convictions in either oral or written form was relatively restricted, not only in autocratic Russia but elsewhere too. In the case of several Scandinavian countries, for example, a situation in which criticism levied against the government remained criminalised even in a situation of overall freedom of speech and the press has been identified in connection with monarchist regimes and with the state’s near embodiment in a specific ruler. *1 Patterns manifested in such cases and beyond may be of relevance for many parts of the world where these issues are relevant today – even, to some extent, in societies where they may seem far removed from day-to-day life..
The territory of modern-day Estonia belonged to the Russian Empire in the early years of the 20th century and was subject to regulation by tsarist Russia’s law. Although Russia had already begun a project of modernisation and attempted perfection of its penal law in the first half of the 19th century, *2 this process turned out to be too laborious for the tsarist state. Numerous parallel laws and even entire legal codes regulating penal law were in force simultaneously, and penal law was characterised by extreme disunity even in the final years of the imperial state. *3
This article addresses the legal situation that prevailed in the Estonian territory of the Russian Empire until 1918, when instigating a mutiny and insubordination to state authority remained punishable as offences. On 17 April 1905, Tsar Nicholas II brought into force his so-called Freedom Manifesto *4 , which, among other freedoms, granted the subjects of the Russian autocracy a freedom of speech. On 23 April of the following year, the Fundamental Laws of the Russian Empire were established, the second chapter of which outlined fundamental rights. *5 Among the other fundamental rights declared (the right to private property, choice of one’s occupation and residence, a right to a fair hearing, a right to hold meetings, etc.), Article 37 established a right of all persons to ‘express their convictions orally and in writing, as well as to distribute such convictions in press or any other way’. This was a step forward from the 1905 manifesto, Article 1 of which ‘gave [the Russian concept, даровать, covers also conferring, granting, and bestowing upon] the population irrefutable bases for civil liberties in personal integrity and freedom of conscience, speech, association, and alliances’. At the same time, even the 1906 Fundamental Laws did not provide for absolute freedom of speech and the press; rather, these were set within the ‘boundaries provided by law’. *6 Those boundaries were still very narrow and at times extremely strict in the tsarist empire. One example of the actions that were not permitted is calling the tsar a ‘plumber’, which was considered an offence against the state as an insult to His Majesty and, accordingly, could see the offender sent to perform hard labour for a term as long as 12 years. Nevertheless, such strict sentences were usually rare in practice. Imposing punishments more lenient than the average established extent was quite common practice for the courts. This can be asserted with certainty, verified on the basis of cases heard by the Tallinn County Court *7 , though the practice of local courts-martial may have been different. *8
A new court system had been established with the 1864 Russian court reform *9 , which was extended to the Baltic governorates in November 1889. *10 In the post-reform system, the courts of first instance were peace courts that did not deal with serious offences. In the event of crimes, the court of first instance was a county court. There was one county court for the entire Governorate of Estonia, and it was the above-mentioned one located in Tallinn. *11 Whilst crimes against the state were handled via the courts-martial, these were special courts that had jurisdiction only over servicemen, although in exceptional circumstances their purview encompassed civilians also. *12
The situation that developed in these circumstances is an intriguing one. For a good understanding of it, the article provides an overview of the penal legislation that was valid in the Estonian territory in the early 20th century and imposed boundaries to freedom of speech and the press. Since these boundaries existed mainly in cases of so-called instigation of mutiny, these are the provisions that are analysed more thoroughly in the sections that follow. Separate attention is turned to the case law of the Tallinn County Court with regard to charges of instigation of mutiny, for examination of how these provisions were implemented in practice and to pinpoint the life situations in which the embryonic attempts of the tsarist regime to ensure modern fundamental rights may have fallen victim to the repressive penal legislation and policy of the same regime. We have deliberately left aside the case law of courts-martial and considered only the cases before general courts. The latter should be especially clear indicators of whether and how a state may execute various (legal) policies beyond the special conditions of exceptional circumstances addressed via various particular branches of law.
2. The legislative basis formed
by diverse penal-law acts and codes
There were attempts at compiling a uniform criminal code even in the days of Tsar Alexander I, but, just as the codification attempts of that time remained unfinished *13 , so too did compilation of a coherent criminal code. The next step toward codification of criminal law was taken by Tsar Nicholas I. During his rule, compilation of the Digest of Laws of the Russian Empire (Свод законов Российской империи/Svod zakonov Rossiĭskoĭ imperii) began. This collection of consisted of 15 volumes, with penal-law provisions mostly drawn together in its last, 15th volume. In a pattern continuing from the earlier legislation of Russia, penal provisions were present also in other laws. It should be stressed in this connection that the Digest of Laws was aimed not at establishing new law but at collecting and organising what already existed. *14 In fact, substantial legal reforms and law-related innovations had been unambiguously forbidden by the conservative Tsar Nicholas. The sources, therefore, of the penal-law provisions in the 15th volume was the Conciliar Law Code of 1649 (Sobornoe Ulozhenie), *15 the ukases of Peter I *16 , and numerous individual statutes. Crimes against the state were collated into a chapter in Volume 15 of the Digest of Laws denoted as dealing with crimes against the state in line with ‘the first two clauses’. *17 The Digest of Laws of the Russian Empire was ratified in 1832, and it entered into force on 1 January 1835. Only a decade later, however, it was joined by the Penal Code, officially known as the Code of Criminal and Correctional Penalties (hereinafter ‘CCCP’), which can be considered the first systemised penal code of Russia.
The next real development came on 15 August 1845, when Tsar Nicholas I signed an ukase *18 for enforcement of the CCCP throughout almost the entire Russian Empire *19 from 1 May 1846. This included the three Baltic provinces: Estonia, Livonia, and Courland. *20 When the court reform of 1864 later established a separate penal code for courts of peace, *21 the associated provisions were removed from the CCCP, which was issued again in 1866 accordingly, in a new redaction. *22 The special committee acting on the orders of Tsar Alexander II concluded not long after this, in 1867, that, in fact, an entirely new penal code would be necessary. *23
In 1881, Alexander III formed a commission *24 to modernise the norms of the CCCP pertaining to crimes against the state. *25 By 1895, that commission had managed to create a draft that covered the whole penal code, not just crimes against the state. Tsar Nicholas II approved the draft on 22 March 1903. *26 The resulting New Penal Code (hereinafter also ‘NPC’) did not take effect immediately; instead, the tsar promised to inform everyone at a future date as to when the New Penal Code would enter into effect. *27
The heightened felt need to reform regulations on offences against the state remained topical even for Alexander III. To understand why, we must take a look at what the NPC contained. Its Chapter 3, on crimes against the state (titled ‘Бунт против верховной власти и преступные деяния против священной особы императора и членов императорского дома’/‘Bunt protiv verhovnoĭ vlasti i prestupnye deianiia protiv sviashchennoĭ osoby imperatora i chlenov imperatorskogo doma’, for ‘mutiny against the highest power and criminal actions against His Imperial Highness and the members of the imperial house’), was the first part of the entire code to be enforced, entering into partial force on 7 June 1904. *28 By the relevant ukase, its articles 99–119, 121, 123, 126–132, and 134 became enforceable. Enforcement of the other articles of this chapter was to be implemented at an undetermined point in the future. These articles were followed in implementation by the parts on crimes against religion, with changes to the provisions of the CCCP, though not all of these parts actually contradicted the provisions of the NPC, on 14 March 1906. *29 Not long after that, amendments (brought into force with the same law) related to smuggling were made, on 27 March 1906. *30 There were then seven modified articles issued that dealt with solicitation of prostitution and trafficking in women, released on 25 December 1909, *31 and two modified articles on copyright infringement, issued on the 20 March 1911 *32 . Things never went much further than this, though: the NPC was never fully implemented. Even when the new provisions from the special part of the code were supposed to be in force in the areas of law decreed as now established, the general part of the NPC was not in force. Hence, the provisions of the general part of the CCCP had to remain valid. At the same time, some of the provisions of the general part of the NPC were to be implemented nonetheless, because the types of punishments and the system established in NPC differed from those under the CCCP.
The implementation act did not set out the precise relationship between the CCCP and NPC provisions or indicate which, if any, provisions of the CCCP should be considered cancelled. The ukase stated only that proceedings for crimes against the state must be based on the valid legislation on judicial hearings. Although the intent behind the preparation of the new code was to harmonise penal provisions, the code’s piecemeal entry into force and the accompanying lack of clear prescriptions caused even more confusion in cases that involved conflict of laws. This situation has been described succinctly and accurately by Jaan Sootak: ‘In a sense, the new code had taken Russia from bad to worse.’ *33 According to Estonian lawyer Karl Grau, however, the New Penal Code was still a huge step forward from the CCCP, in the sense of both legal technical solutions and harmonisation of the penal legislation. Grau concluded that the New Penal Code was clearer, eliminated many of the archaisms, was less strict, and was relatively short. *34 We will next consider whether his assessment could be agreed with in the case of the provisions pertaining to incitement to mutiny.
3. Regulations on inciting to mutiny
in the Russian Empire’s penal codes
The target of a crime against the state was considered to be the security of the state as a whole. For an act to be deemed a crime against the state, this was a compulsory element. Offences committed against a single part of the system of state power or a specific state body without being aimed at damaging the state as a whole were not considered crimes against the state. *35 Therefore, to be punishable as incitement to mutiny, an act had to be directed, first and foremost, at the national integrity and security of the Russian Empire.
Incitement to mutiny could take place in various ways and for any of various purposes, and the offence had to be qualified on that basis. In the CCCP, incitement to mutiny was dealt with in Article 251. Under Article 251 (1) of the CCCP, there were punishments in place for people who disseminated written or printed advertisements, pictures or other works when the aim of said activity was to incite a mutiny or insubordination to state power. The sentence was stripping the person of all class rights and sending him for 8–10 years of hard labour in a stockade. Article 251 (2) of the CCCP laid down the same punishment for people who maliciously spread works inciting to mutiny or insubordination to state power, took part in that crime, or gave ill-intentioned public speeches inciting to mutiny or insubordination. Then, Article 251 (3) specified punishments for people compiling, showing, or advertising the works referred to in Article 251 (1) in the absence of ill intent. A case of this nature was defined as still expressing intention to incite a mutiny but was to be punished instead by imprisonment in a stockade for anywhere from a year and four months to two years and eight months, together with deprivation of certain class rights under the terms of Article 50 of the CCCP *36 . The specifications continued with Article 251 (4), on sentencing of a person in possession of anti-state advertisements, works, or pictures whose activity did not indicate malicious dissemination when it was not proved that the materials were possessed by consent of the government. In situations of this sort, a court could impose a sentence of detention for seven days to three months. After the sentence was served, the person remained under police surveillance for 1−3 years. Similar provisions were made in articles 129 and 130 of the NPC, with the former establishing a sentence for people who, in a public act of speech, read or performed works (including presenting or making drawings), distributed them, or submitted them for public display when the aim was incitement to actions, of various types, against the state. This article of the NPC listed six conditions under which the deed could be qualified:
1) incitement to mutiny or treason;
2) incitement to overthrowing the regime;
3) incitement to subordination to the law, regulation system, or legal power;
4) incitement to commit a serious crime, except in the cases specified in items 1−3, above;
5) inciting an official to violate his military duties; and
6) incitement of hostility between social classes or between superiors and subordinates.
The punishment for violations of types 1 and 2 was deportation, that for violations of types 3 and 4 was a sentence of up to three years in a reformatory, violators under item 5 were to be sent to a reformatory, and violations of type 6 earned the person committing them a prison sentence.
In addition, Article 129 of the NPC articulated two aggravating circumstances: 1) incitement to use a method potentially dangerous to many people and 2) commission of a serious crime as a result of the incitement. When one of these conditions was met in cases covered by item 1 or 2 above, the sentence changed: the offender was sentenced to up to eight years’ hard labour. In contrast, when one of the aggravating conditions existed in cases falling under item 3, 4, or 6, the offender was to remain at a reformatory indefinitely.
The elements necessary for an act to be deemed incitement to mutiny under Article 129 were considered present even when the person intended to commit the act but had no specific objective therein. First and foremost, this meant that the person distributing the material had to have understood that this material was prohibited by law, even if not necessarily planning or wishing for particular consequences. The Governing Senate *37 stated that material inciting to anti-state offences was criminal propaganda. *38 On 16 October 1906, the Governing Senate concluded that works referred to in Article 129 of the NPC need not have been actually created by the offender. The elements necessary for existence of the crime were deemed present also when the problematic text was rewritten from somewhere else and later published. In all cases, however, it was important to ascertain whether the person was aware of the unlawfulness of the text’s content. *39
Article 130 of the NPC, in turn, set out penalties for acts committed non-publicly. According to Article 130 (1), it was possible to charge a person who non-publicly disseminated teachings or views that instigated:
1) mutiny or treasonous activity;
2) overthrow of the regime;
3) insubordination to the law, regulations, or legal power; or
4) commission of a serious crime, except with regard to the deeds specified in items 1−3.
For someone to be charged with dissemination of these teachings and views, it was important that it have taken place among farmers, servicemen, workers, or people who did not mentally resist such opinions and whose incitement might have been dangerous to the state. Although at first sight the list above is a closed and exhaustive one, the provision leaves enough room for interpretation that one could consider it to encompass parts of society not directly mentioned. In further terms, the article’s Section 2 provided for two aggravating circumstances:
1) the instigation encouraged use of a method that posed a threat to many people and
2) a serious crime was committed as a result thereof.
The NPC also established the elements for existence of an offence in circumstances wherein the act was not carried out in full. By Article 132 (1) of the NPC, a person could be sent to a stockade for up to three years when having prepared the works or pictures referred to in Article 128 or 129 with the intention of distributing or publicly displaying them but not having carried through on the latter. The same sentence applied, under Article 132 (2) of the NPC, when the works and pictures referred to in Article 132 (1) were copied, stored, and transported to a foreign country yet did not end up getting disseminated or publicly displayed. In principle, Article 132 could be seen as laying out the defining elements of an attempted offence.
In comparison to the CCCP, the NPC contained more legal provisions regulating crimes against the state. This may have been due to the historical context: the NPC came at a tense time in the history of the Russian Empire, when the revolutionary movement was gaining momentum *40 and a need was found for updating and supplementing legal terms that address crimes against the state. Accordingly, the NPC contained numerous new legal provisions that had not been present in the CCCP; in addition to the provisions on incitement to mutiny already presented, it specified punishments for organising and participating in various illegal public gatherings (addressed in articles 120–125). Thus, the penal law also set in place extremely narrow and strict limits to the constitutionally declared right of assembly. On the other hand, the descriptions of elements constituting an offence were more detailed in the NPC than in the CCCP and hence contributed to ensuring legal certainty. Also, the sentences listed in the NPC were more lenient than the ones in the CCCP.
Regardless of the confusion and multiplicity of the sources of penal law, judges needed to do their everyday work and administer justice. This paper is not the first one to address how the Tallinn County Court handled the legislative situation described above that obtained after the partial entry into force of the NPC. Previous studies have indicated that the judges handling cases of crimes against religion looked to both the CCCP and the NPC, opting for whichever provision entailed a stricter sentence. *41 In respect of offences related to insults to His Majesty, however, the courts found sources only in the provisions of the NPC, and the sentences were relatively lenient. *42
4. Judgements of the Tallinn County Court
in cases related to incitement to mutiny
We will now examine the decisions of the Tallinn County Court in cases related to incitement to mutiny in more detail. In the time of the validity of the NPC, from 1904 until the tsarist empire came to an end in 1917 *43 , the Tallinn County Court made six decisions on cases related to incitement to mutiny. In addition, the records of two minors accused of such crimes reached this court.
The revolutionary events of 1905 *44 awakened the political masses and stirred populist movements. In Estonia, the weakening of the empire was utilised by local political figures who used the ideologically oriented newspapers of people who had political mainstream leanings – Teataja, Postimees, and Uudised. *45 Konstantin Päts, editor-in-chief of the Tallinn-based paper Teataja, initiated a campaign of memoranda with his editorial board to demand autonomy for Estonia of a similar nature to what Finland already enjoyed as a part of the Russian Empire. Regrettably, the aspirations for local autonomy did not spark something greater, and in December 1905 the central authorities launched an attack. Päts’s newspaper was closed down, and Estonian leading political figures were in danger of being arrested. *46 Päts and other central figures of local politics found out about the arrest plan and hence had a chance to escape, heading abroad. *47 While in exile in Switzerland, they happened to find out by way of a Russian newspaper that a court-martial had sentenced Päts to death for his rebellious activities. This decision had been taken by Major-General Vladimir Bezobrazov in a court-martial of the punitive troop, but no official documents on the events have been preserved. They were lost, fell victim to accidental fire, or were deliberately destroyed. *48 As alluded to above, in addition to the NPC and still partially valid CCCP, the 1868 Military Penal Code was still in force. *49 As a rule, courts-martial had the jurisdiction to settle cases under the Military Penal Code when the accused was a serviceman. However, by way of exception, also a private person could end up subject to trial by court-martial if having committed the alleged offence in a territory affected by a state of war or state of emergency. Indeed, a state of war or of emergency was not an unusual situation in the tsarist empire or, for that matter, in the Republic of Estonia that followed, as a legal heritage of empire. *50 Undermining the national integrity of the Russian Empire by demands for autonomy of provinces had to be deemed a crime serious enough to be heard in court-martial without the presence of the accused. The above-mentioned court-martial decision meant that Päts needed to hide longer from the Russian police authorities, and in 1907 he left Switzerland not for Estonia but for the Grand Duchy of Finland, which had the advantage for him of being near Estonia and close to the capital of the empire. He spent the next three years there. During that time, utter confusion arose around the death sentence – it turned out that the court-martial had exceeded its authority and that many documents had been either lost or destroyed in fire. The only remaining document in evidence against Päts was a letter and appeal by Tallinn workers’ representatives that had been published in Teataja *51 , which the prosecutor’s office had concluded contained expressions inciting to mutiny. However, publishing such writings was grounds for not a death sentence but a significantly more lenient punishment, in fact. *52 Under the NPC *53 , incitement to mutiny could have led to exile or a prison sentence. Since there was no longer so significant a sentence keeping Päts away from Estonia, he voluntarily went to Tallinn to stand before an investigator in 1909. *54 The Tallinn County Court took up the case of Päts and Teataja, wherein Päts as editor-in-chief of the newspaper was accused of enabling publishing of articles, poems, and advertisements related to the ‘Estonia meeting’ *55 and a description *56 of the bloodbath of 16 October 1905. *57 The most serious accusation was a censor’s complaint regarding a call for a strike by representatives of workers in Tallinn *58 . On 10 December 1905, the Court of Appeal of St Petersburg had decided to seize issue 263 of Teataja and stop the publication of the newspaper until the court could pass judgement in consideration of ‘the extraordinary relevance of the criminal activity’. *59
On 4 February 1910, Päts was interrogated. *60 He was accused of enabling distribution of materials inciting to mutiny and insubordination to the legislative authority. He as the editor was accused also for publishing issue 263 of Teataja on 5 December 1905, which included a letter of the workers’ representatives to the editorial board. According to the accusation, the letter called for overthrow of the government, extraordinary summoning of the Parliament (State Duma), and not paying state taxes. According to the statement of charges, the case involved two distinct offences: incitement to overthrowing of the government and incitement to non-payment of state taxes. In addition, Päts was accused of publishing Teataja’s issue 257, with an article that featured workers’ demands for calling of an extraordinary meeting of Tallinn workers’ representatives and, in connection with that, turning Russia into a democratic republic. *61 The article contained, in addition, a threat that the proletariat of Tallinn, in solidarity with the proletariat of the entirety of Russia, would take ‘all possible measures’ until all traitors and others acting against the interests of the people ‘are overthrown, together with the autocracy that has reached its natural end’. *62
Hence, Päts was accused firstly of public distribution of materials inciting to overthrow of the regime under Article 129 (1) 1) of the NPC. Under that article, Päts was accused of distributing or publicly displaying drawings or other works that incite rebellious or treasonous activity that was punishable by exile. The description of the elements necessary for this offence was the same as what was valid under Article 251 (1) of the CCCP, but the punishment dictated by the CCCP would have been stripping of all class rights and 8–10 years of hard labour in a stockade. On a normative level, the NPC had brought more lenient sentences.
For that offence, the court sentenced Päts to indefinite exile under Article 17 *63 of the NPC. Since the court found mitigating circumstances connected with Päts’s activities, this was replaced with one year of imprisonment. *64 Regrettably, the court did not specify the nature of the mitigating circumstances. It is possible that some role was played by Päts’s own proactive steps and voluntarily surrendering himself to the investigator.
The judgement specified the second offence of Päts also: incitement to non-compliance with the law under Article 129 (1) 3) of the NPC. The relevant terms were set out in Article 129 (1) 3) of the NPC, which established a sentence of up to three years at a reformatory. The exact meaning of such a sentence was specified in Article 18 of the NPC. *65 Since the court identified mitigating circumstances in Päts’s activities in connection with this offence too, the sentence was replaced by three months of imprisonment.
As to the extraordinary call for a meeting of workers’ representatives that had been published in 1905 in issue 257 of Teataja, the court found no evidence supporting the contention that Päts was responsible for publishing the material, and he was acquitted under Article 5 *66 of the CCCP. In this case, there was not an arbitrary choice between two penal codes. The general part of the NPC was not in force. Therefore, the judges needed to refer to the general provisions of the CCCP when sentencing offenders and to the special provisions of the NPC that articulated the elements constituting the relevant offences.
The court based its determination of the sentence on Article 5 of the CCCP and Article 60 of the NPC *67 , thereby concluding that the punishment should be an aggregate one and that the stricter sentence shall prevail. In this case, a one-year term in a stockade became nine months of solitary confinement. When the sentence was imprisonment in the stockade, the offenders did not have to work while imprisoned, while labour was among the additional obligations in cases of solitary confinement.
The judgement in the case of Päts and the reasoning laid out for the court’s decision were relatively thorough, which may have been due to the fact that the accused was highly active politically and formerly editor of the newspaper Teataja. It is worth mentioning explicitly that the Tallinn County Court did not take into consideration the decision of the court-martial, on account of the paucity of evidence in its decision, and issued a significantly more lenient decision than had the court-martial.
A crime against the state was considered to exist also in a situation in which someone publicly distributed a work that incited hostility between social classes or between superiors and subordinates. One of the cases heard by the Tallinn County Court started with a notice *68 published by one of the mouthpieces of the working-class labour movement, *69 the newspaper Kiir. There was no author stated in the text, and the editor of the newspaper, A. Hanson, was held liable. On 30 January 1914, the Tallinn County Court issued a decision *70 that the text incited hostility between superiors and subordinates. The following statements were deemed to have indicated the above: ‘The Waldorf factory found a way of improving conditions for the workers, thanks to which the work day is now 18−36 hours long’; ‘The Waldorf factory is known for its occupational accidents that generally take place during overtime’; that ‘the more cultured and aware workers are trying to find a way to get rid of the overtime work, while the management hold on to it tightly because this is a matter of life and death’ and that said managers ‘want to complete all the tasks during overtime, regardless of the blood and sweat, as long as the percentages produced by the capital would not go down’; that ‘such torturing of human beings is in the flesh and blood [i.e., the very marrow] of the management’; that those ‘who found out the names of the workers who refused overtime […] imposed on them illegal fines in the amount of 50 kopecks for going home at the right time’; and that ‘hopes and prayers have let the workers down, so they are forced to seek other possibilities for defending their rights’. The accusation stated that pointing out the workers’ rights or directing attention to the inhumane treatment of the employees incites hostility and could bring about a mutiny among the workers. The court agreed; it considered publication of these statements sufficient to constitute the elements of the offence in question and sentenced Hanson, as the editor of Kiir, to five months in prison under Article 129 (1) 6) of the NPC.
The court did not, however, just punish Hanson. By its decision of 14 August of the same year *71 , publishing of the newspaper Kiir was forbidden under Article 129 (1) 2) and 6) of the NPC. The Tallinn County Court justified this mainly with the argument that the newspaper had repeatedly violated Russian legislation, *72 it had displayed an anti-government attitude, and the continuous dissemination of that paper could dispose the people against the state. In addition, the activity of the newspaper was geared toward inciting hostility between classes or between superiors and subordinates. While Article 251 of the CCCP had already presented a similar offence, it did not separately refer to incitement of hostility between national groups or between superiors and subordinates. Certain social developments had taken place in the Russian Empire between 1845 and 1903 that allowed for emergence of stratification into classes, nations, etc. on new bases in addition to the societal order solely based on estate. The compilers of the NPC took these developments into account.
After Kiir was shut down, a new newspaper emerged that was similar to it, Narva Kiir: Marxistic Newspaper of Working People. That too would not remain untouched by the state’s penal power. On 13 March 1914, the Tallinn County Court made a decision *73 by which the editor of the newspaper, Aleksander Puusepp, was found guilty in publishing the article on hard conditions for workers at Vladivostok in issue 4 on 25 September 1913. *74 The court found that the article incited hostility because it contained comments that ‘the superiors keep mowing the last hairs from the workers’ backs’, ‘the superiors used lies to lure people to work’, and ‘the workers afterwards had to thank the tsar for the crumbs falling from the table’. The court found that this possessed the defining elements of incitement to mutiny and, accordingly, sentenced the editor to four months in prison under Article 129 (1) 6) of the NPC.
The next editor of Narva Kiir, Jakob Friedrichsmann, too was found guilty of incitement to mutiny, on 28 May 1914. *75 The court decided that the article ‘Proletariaadi piiri tähendusest’ [‘On the Meaning of Limits to the Proletariat’] incited workers to resist their superiors. Friedrichsmann himself, in contrast, considered the text not to be unlawful; he held that it simply pointed out the hardships related to overtime work and the fact that superiors were unable to understand the difficult situation of the workers. In addition, the text mentioned unjustifiably low salaries of workmen and suggested that they could join together in a common organisation so as to resolve these issues. The court qualified this offence as incitement of hostility between superiors and subordinates under Article 129 (6) of the NPC and sentenced Friedrichsmann to a prison term of two months.
It is worth mentioning, however, that not all accusations of crimes against the state or incitement to mutiny ended in a guilty verdict. On 28 January 1909, the Tallinn County Court found that *76 printing 1,000 copies of a pamphlet titled ‘Rahwa poliitika’ [‘Policy of the People’] in Estonian did not automatically constitute an offence against the state, although the accuser contended that the pamphlet contained a call for insubordination to the state power. In addition, it was claimed to have contained incitement to overthrow the Russian regime and violent seizing of power. The pamphlet was never published, because the police were able to seize it first. Having familiarised itself with the pamphlet, the court found the accuser’s interpretation to be incorrect and concluded that the content of the material was not in actuality anti-state. According to the court, the message of the pamphlet was that workers need to take action not only for freedom but also for political power.
Cases of incitement to mutiny by minors were quite similar in their content. On 27 October 1904, the Tallinn County Court discussed the criminal matter of 16-year-old N. Deškin, who had distributed pamphlets criticising the state power and Tsar Alexander III. *77 The summary of charges mentioned, in addition, two other young men: M. Kalinin and V. Alekseejev. These two men whom Deškin had met were mentioned as people with whom the witness for the prosecutor’s office had met but on whom there were no procedural documents on record. Deškin’s record included an analysis of his comprehension abilities. This stated that the young man had a vocational education, he had worked for three years as a writer at a correctional institution, and his relatives had stated that he is quite educated and mature for his age. Deškin was sent for a medical examination, but, regrettably, the records contain no documentation of the experts’ findings or of the court’s decision.
A prosecutor’s statement of charges from 15 February 1907 reveals that 16-year-old Julius Davidov Grüntal was accused of possessing illegal literature that had been found in a search of his flat in Tallinn. *78 The young man claimed that the literature was not his. For some reason, the decision made mention of the fact that the father of the accused was 53 years old when the youngster was born, mentally unstable, and inclined to alcoholism. It was also deemed necessary to characterise the young man’s state of health – he had nephritis and jaundice. The prosecution found that the accused had the necessary mental capacity and accused him of creating materials with the aim of inciting to mutiny, though without having a chance to spread them, relying in its arguments on Article 132 (1) of the NPC. The young man was sent for expert evaluation, but in this case too there are no documents attesting to the results of the evaluation or to the court’s decision.
Fundamental rights enshrined in the Constitution or similar acts of legislation do not have much value if they cannot be enforced by the courts or if they simultaneously are considerably restricted by other legislation. The sword of penal power is especially sharp and may decisively slice through the protection of fundamental rights. This is precisely the example provided by the Russian Empire in its final decades: on the one hand, the freedom of speech and of the press had been established in Fundamental Laws (1906) as being in force, yet the penal law valid at the same time specified strict punishments for incitement to mutiny. Although the New Penal Code (1903) was more lenient than the old code had been, it contained new sets of constituent elements for an offence, based on the structure of an industrialising society under modernising influences. Hence, the putative guarantees notwithstanding, it was possible to deem actions not directed against the monarch or the regime to be incitement to mutiny.
In addition to the circumstances described above, this article has addressed cases before the Tallinn County Court of the Estonian governorate. Incitement to mutiny was exactly what editors of newspapers were charged with, yet in no case had their actions been aimed directly against the monarch or the monarchy. All of the court cases examined in this article had to do with workers’ movement propaganda and demands for better work conditions and rights for workers. Although plants and factories were not state institutions, the workers’ class struggle was still considered a crime against the state. The case law of the Tallinn County Court is a perfect example of how penal law enabled forcing the constitutionally declared freedom of speech and press into extremely tight boundaries by punishing the ones who actually dared to exercise these freedoms. While this piece has analysed the case law of only the Tallinn County Court, it should be remembered that in a state of emergency the court-martial too had a right to make decisions on freedom of speech and the press. Therefore, it cannot be ruled out that even more people than might be suggested by the foregoing discussion were found guilty in the Estonian governorate for asserting their fundamental rights during the era considered here.
Remarkably, there was not a single case in the body of Tallinn County Court case law in which the accusation was based on, for instance, Estonia’s strivings for autonomy. This may be considered unsurprising, though, since the contemporary approach to penal law necessitated attacking the state as a whole or its integrity if one was to be considered guilty of a crime against the state, and the idea of Estonian autonomy was already widely discussed in those times. However, the jurisdiction of courts-martial cannot be ruled out in this connection either.
With the scope we selected – restricted to analysis of only the case law of a general court – the phenomena described above are clearly evident. Although studying the penal-law practice of the Russian Empire necessitates examining the court-martial case law also if one is to get the full picture, it is beyond doubt that said field paid even less attention to fundamental rights.