24. Nikita Petrov, ‘Samyi obrazovannyi palach,’ Novaya gazeta. Pravda ‘GULAGa’, no. 12 (33), August 30, 2010 (in Russian), http://www.novayagazeta.ru/data/2010/gulag12/00.html, retrieved September 4, 2011.
25. Romanov, Nights Are Longest There, 55.
26. Politburo decision P64/82, dated September 1938. Document No. 345, in Lubyanka: Stalin i Glavnoe upravlenie gosudarstvennoi bezopasnosti NKVD, 1937–1938, edited by V. N. Khaustov, V. P. Naumov, and N. S. Plotnikova, 554–55 (Moscow: Materik, 2004) (in Russian).
27. Evan Mawdsley, Thunder in the East: The Nazi-Soviet Struggle, 1941–1945 (London: Hodder Arnold, 2005), 67.
28. Politburo decision P67/52, dated January 11, 1938. Document No. 10 in Lubyanka. Stalin i NKVD–NKGB–GUKR ‘SMERSH.’ 1939–1946, edited by V. N. Khaustov, V. P. Naumov, and N. S. Plotnikova, 16–18 (Moscow: Demokratiya, 2006) (in Russian).
29. Note on the NKVD personnel on January 1, 1940. Document No. 21, in A. I. Kokurin and N. V. Petrov, Lubyanka. VCheKa–OGPU–NKVD–NKGB–MGB–MVD–KGB. 1917–1960. Spravochnik (Moscow: Demokratiya, 1997), 258–60 (in Russian).
30. Biography of V. M. Bochkov (1900–1981) in Petrov and Skorkin, Kto rukovodil NKVD, 116.
31. Biography of A. N. Mikheev (1911–1941) in Petrov and Skorkin, Kto rukovodil NKVD, 306.
CHAPTER 3
Laws and Tribunals
The OO and later SMERSH cases were primarily based on Article 58 (and, in part, 59), the special section of the Russian Federation (RSFSR) Criminal Code adopted in December 1926, which described various ‘counter revolutionary’ or ‘state’ crimes.1 These were ‘political crimes’ that existed only in the Soviet legal system and were the only type that the NKVD investigated. Another unique character of the Soviet legal system was that not only a perpetrator of political crimes was punished, but also members of his/her family, especially if it was an OO/SMERSH case. The trials of OO/SMERSH cases were also unique. Military tribunals tried only cases of low-ranking servicemen, while high-ranking military officers were tried by the highest military tribunal, the Military Collegium of the USSR Supreme Court or, if there was no real proof of the crime, by the NKVD Special Board which was an extra-judicial court consisting of the NKVD Commissar and his deputies.
Counter revolutionary Crimes
Article 58 begins with a definition of counter revolutionary crimes, unique to Soviet law:
1. Counter revolutionary Crimes
58.1. Shall be considered counter revolutionary any act directed to the overthrow, subversion, or weakening of the worker-peasant soviets or of governments elected by them on the basis of the Constitution of the USSR and constitutions of the union republics, as well as any act intended to subversion or weakening of the internal security of the USSR and of the basic economic, political, and national gains of the proletarian revolution.
By virtue of the international solidarity of the interests of all toiling masses, such actions are considered counter revolutionary also when directed against any other state of the toiling masses, albeit not a part of the USSR.2
Paragraph 58-2 states that ‘a military revolt or taking power by force’ is punished by death or by declaring the perpetrator ‘an enemy of working people’, depriving him of Soviet citizenship, and confiscating his property. Additionally, riots were punished by imprisonment or death under Article 59, paragraphs 2 and 3. Paragraph 58-6 covers espionage, ‘i.e., transmission, theft, and collection for the purpose of transmission of information that in content is a specially protected state secret to foreign states, to counter revolutionary organizations or to individuals’. Paragraph 58-8 states that ‘committing terrorist acts against representatives of the government or organizations of workers and peasants [in other words, the Communist Party], and participation in such acts’ is punishable by death. Paragraph 58-10 prohibits ‘propaganda and agitation aimed to overthrow, undermine or weaken the Soviet government’. This crime was punishable by death during wartime, and in 1941–42, at the beginning of the Great Patriotic War (as World War II is known in Russia), the number of sentences for ‘anti-Soviet propaganda’ (96,741) reached almost 50 per cent of all convictions for ‘counterrevolutionary’ crimes (199,817).3 However, ‘anti-Soviet propaganda’ in a written form was punished under Article 59-7.
Paragraph 58-11 allows the investigator to consider ‘any organizational activity’ or ‘participation in an organization created to prepare or commit’ crimes covered by Article 58 as a plot, which led to the discovery of numerous supposed ‘military plots’ before and during the Great Patriotic War. Finally, paragraph 58-14 introduces punishment for sabotage, described as ‘conscious negligence of duties aimed to weaken the government’s power’. On the whole, there were 14 paragraphs in Article 58 and five paragraphs in Article 59 that described ‘counterrevolutionary’ or ‘political’ crimes. Later, in 1951, four more paragraphs were included in Article 58.
In July 1934, simultaneously with the creation of the NKVD, paragraph 58-1 (treason against the Motherland) was divided into four parts, 58-1a–d, which were widely used until Stalin’s death in 1953.4 Paragraph 58-1a detailed the crime of treason: ‘Actions USSR citizens commit to the detriment of the military might of the USSR… to wit: espionage, disclosure of a military or state secret, going over to the enemy, flight, or crossing the border.’ While paragraph 58-1b declared: ‘Commission of the same crimes by servicemen is punishable by the highest measure of criminal punishment—shooting, with confiscation of all property.’ Paragraph 58-1b was most frequently used by military counterintelligence just before and during the war because it covers a wide spectrum of vaguely described ‘political crimes’, including espionage and ‘going over to the enemy’. Although paragraph 6 in Article 58 already covered espionage, from 1934 onwards, paragraph 58-1b was applied to military ‘spies’, while 58-6 was used for charging civilians (58-6/I) and foreigners (58-6/II). Paragraph 58-1d stated that a serviceman who did not report to the authorities upon learning of a treasonous plan or the fact of treason was punished by ten years of imprisonment in labor camps.
Paragraph 58-1c was the most outrageous. It legalized the practice of using family members as hostages to prevent servicemen from becoming traitors. Now family members who knew about a treasonous plan were punished by a 5-to-10-year imprisonment and confiscation of property, and even adult family members who knew nothing of any alleged plan (i.e., who were completely innocent), were punished by exile into distant areas and were deprived of the right to vote. Following the text of this paragraph, such family members started to be called chsiry, an abbreviation from chleny sem’i izmennika Rodiny or ‘family members of a traitor against the Motherland’.
Although the total number of persecuted chsiry remains unknown, one of the NKVD reports to Stalin mentions that in 1937–38, ‘according to the incomplete data, more than 18,000 wives of the arrested traitors were repressed [i.e., arrested and sentenced], including more than 3,000 in Moscow and approximately 1,500 in Leningrad’.5 Small children classified as chsiry were kept in specially organized orphanages.6 Conditions in these orphanages were terrible. Anna Belova, arrested as a chsir (her husband, Komandarm Ivan Belov, commander of the Belorussian Military District, was executed in 1938), recalled that when her mother tried to find her three-year-old granddaughter in an NKVD orphanage, she was told: ‘Klementina had died of hunger… We do not bury enemies’ offspring… Do you see that trench? Go there, there are many of them. Dig out the bones; possibly, you’ll identify those of your kid.’7 In 1937–38, the NKVD sent 22,427 children of the ‘enemies of the people’ younger than fifteen years to orphanages.8
After the child-survivors reached fifteen, they were tried and usually sentenced to imprisonment in labor camps or even executed. Legally this became possible due to the decree issued just before the war, on May 31, 1941.9 It stated that children could be criminally charged after they reached fourteen years. However, in December 1941 deputy USSR chief prosecutor Grigorii Safonov suggested that children sentence
d as spies or terrorists be executed after they reached sixteen years.10
For instance, on July 6, 1941, the Military Collegium under Ulrikh’s chairmanship sentenced four teenagers to death (the future executions had been pre-approved by the Politburo). The teenagers were a son and nephews of Nestor Lakoba, Chairman of the government of the Autonomous Republic of Abkhazia (part of Georgia), poisoned in December 1936 by Lavrentii Beria, at the time first secretary of the Georgian Communist Party’s Central Committee. From 1937 until 1941, they were kept in Moscow prisons. On July 27–28, 1941, they were shot.11
Adult children of traitors and other ‘enemies of the people’ were also frequently imprisoned as ‘socially dangerous elements’ or SOE (an acronym of the Russian term), defined as ‘persons connected with the especially important criminals’ (Articles 7 and 35); in other words, people who did not commit any crime at all, although their relatives supposedly did. In August 1940, the Politburo ordered the Military Collegium to send materials on relatives of military defectors to other countries for their immediate arrest and punishment.12 The new draconian measures against the family members of military traitors were introduced in June 1941 and July 1942.
If a person was arrested under Article 58, but there were no incriminating materials apart from reports from secret informers about that person’s anti-Soviet conversations, Article 19 of the Criminal Code allowed the investigator to still apply Article 58. Article 19 stated that ‘an intent [sic] to commit a crime… is punished as the crime itself’. As a result, the arrestee was accused ‘through Article 19’, as the phrasing went, of the intent to commit a counter revolutionary crime. Some Chekists even considered themselves more sophisticated than their German analogue, the Gestapo. In 1944, Lev Vlodzimersky, head of the NKGB Investigation Department, bragged to a prisoner: ‘The Gestapo men are poor imitators of us.’13
The Soviets had big plans for Article 58. In 1940, an NKVD interrogator told Menachem Begin, the arrested Polish citizen and the future prime minister of Israel: ‘Section 58 applies to everyone in the world… It is only a question of when he will get to us, or we to him.’14 After the Red Army entered Eastern Europe in 1944, SMERSH began to make wide use of Article 58 against foreign citizens. Mostly they were accused of espionage (58-6) or ‘assisting the world bourgeoisie’ (58-4).
Military Tribunals
OO/SMERSH cases were tried under Articles 58 and 59 by military tribunals, which existed within the Red Army at the district (in the wartime, a military district was called a front), corps, brigade, and divisional levels, and within the NKVD troops.15 In the Red Navy there were fleet, flotilla and base tribunals. Tribunals were part of, to use the awkward official term, ‘the three-element system of the punishment organs’—OO/SMERSH, a military prosecutor, and a military tribunal.16 From 1926 to June 1939, military tribunals were subordinated to the Military Collegium only, and from June 1939–1946, to both the Military Collegium and the USSR Justice Commissariat.17
The Military Collegium, which had oversight over all military tribunals, was one of three collegia (Civil, Criminal and Miltary) of the USSR Supreme Court.18 The Supreme Court’s chairman, I. T. Golyakov, served from 1938 to 1948, a long term of service in those days. However, V. V. Ulrikh, who played an important role during the Great Terror, served as head of the Military Collegium from 1926–1948, one of the very few high level Communist officials to enjoy such a long tenure. The Military Collegium consisted of the following departments between 1939 and 1946:
First Department, Oversight of Trials (evaluation of death sentences from lower tribunals)
Second Department, Military Tribunals of the Red Army
Third Department, Military Tribunals of the NKVD Troops19
Fourth Department, Military Tribunals of the Navy
Appellate Section (appeals from the districts/fronts)
Archival-Statistics Section
Secret Ciphering Section
General Section
Commandant’s Office (Komendatura), in charge of prisoners and executions.
The Directorate of Military Tribunals, which was responsible for the day-to-day operations of the military tribunals, was part of the Justice Commissariat (headed by N. M. Rychkov from 1938–1948).20 This directorate was also responsible for the education of military jurists through their Military-Judicial Academy. Yevlampii Zeidin headed the Directorate from 1940-1948, which, during this time, was comprised of the following departments:
Personnel Department
Department of Military Tribunals of the Red Army
Department of Military Tribunals of the Navy
Department of Military Tribunals of the NKVD Troops
Section of Military Tribunals of Transportation
Statistics Section
Military-Judicial Academy (from 1939), education of military jurists for Military Tribunals and prosecutors’ offices.
From January 1940 till the German invasion, the NKVD district military tribunals heard all political cases investigated by the OOs.21After the beginning of the Great Patriotic War, the divisional tribunals attached to the fighting troops heard most of the cases. Tribunals at the army level heard cases of commanders with the rank of major and above, as well as of battalion commanders and officers of the regimental or battalion staffs. Front tribunals considered cases of high-ranking commanders and generals, as well as the most important cases of low-ranking perpetrators.
Each military tribunal consisted of three officers and a secretary who recorded the minutes of the hearing. The chairman was always a military jurist, and until 1942, two members of divisional tribunals were also military jurists, but later, the members were chosen from officers of the same division.22 Therefore, the chair was, in fact, a judge.
Typically, a hearing was conducted with numerous violations of the Criminal-Procedure Code of the Russian Federation. M. Delagrammatik, former secretary of a corps tribunal at the Southern Front, describes:
Commonly, a copy of the indictment was not given to the defendant 24 hours before the trial as it should have been done according to law, but the indictment was simply read to him, usually during the day of the court trial. The defendant was shown and not given, according to law, a printed form that stated: ‘The indictment was announced to me’ (a date). This was a flagrant violation of the law. Most frequently, witnesses were not called up to the hearing because they supposedly were in fighting detachments, and only their testimonies were read.23
According to Soviet legal procedure, the defendant had the right not to testify against himself. However, the judges usually asked the defendant to testify because sincere admission of guilt by the defendant would supposedly help him. In fact, the judges needed this admission to pronounce the defendant being guilty.
The defendant was not told that there was no time restriction for his final statement. Deceptively, when giving the defendant his last chance to speak, the judge only said: ‘What do you ask from the court?’ This was a clear violation of the defendant’s rights.
The presence of a jurist as a chairman did not guarantee a fair court procedure. Delagrammatik explains: ‘Military judges had poor legal knowledge; they were poorly educated or even lacked education. The judges and prosecutors with the background of party functionaries were especially ignorant and semi-literate. This affected the quality of the pre-trial investigation and of a court trial, and as a result, justice suffered.’
Dual Function of Prosecutors
The role of Soviet prosecutors differed from that in the common law system of Britain and the United States. In general, the Soviet legal system followed continental criminal procedures in which prosecutors are not actively involved in prosecuting cases in courts. Prosecutors and defense representatives were not present at hearings in military tribunals. The military prosecutors’ role was investigation of criminal cases in the army, navy, and NKVD troops, and legal oversight of the OOs. The crimes they investigated were mostly covered by Article 193, the military part of the Crimin
al Code.
In 1941, Article 193 included 31 paragraphs.24 For instance, 193-7 described desertion as ‘an unauthorized leaving of a position for more than 24 hours’, while 193-10a introduced a one-year imprisonment for escaping draft during the wartime, and 193-12 covered self-inflicted injury. Four paragraphs, 193-17b (negligence or abuse of power by a commander), 193-20a (surrender of troops or a destruction of fortifications or a battleship by a commander), 193-21a (not following orders from superiors by a commander), and 193-22 (intentional leaving of a battlefield), required the death penalty. Paragraph 193-23, which also required the death penalty, applied specifically to the navy: ‘A commander leaving a sinking military vessel, who has not fulfilled his duties to the end, is punished by the highest measure of social defense [death].’ To such crimes as rape or embezzlement, prosecutors applied the ‘usual’, not military, articles of the Criminal Code.
Military prosecutor offices were attached to military tribunals. During the war, an Army Prosecutor had two assistants, two military investigators and several technical office workers.25 At the divisional level, there was a prosecutor and an investigator. A platoon of Red Army men was attached to each prosecutor’s office at the divisional and army levels to guard the arrestees and people under investigation.
Military prosecutors had their own vertical structure. District (front) military prosecutors reported to the Chief Military Prosecutor, who reported to the chief USSR Prosecutor, Bochkov (after November 1943, that position was filled by Konstantin Gorshenin), and needed his approval to appoint military prosecutors. The USSR Prosecutor appointed all front level prosecutors. Therefore, from 1940 to 1943 Bochkov oversaw the whole system of military prosecution and, through him, the NKVD maintained control.
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