To take a specific crime:
Vyshinsky demanded that counter-revolutionary intent must mandatorily be sought in all criminal cases linked with shortcomings connected with the harvesting campaign. In his view shortcomings in the harvesting campaign were in many cases caused by the activity of saboteurs, who had to be “rendered harmless.” For example, during the harvesting campaign of 1937 it was revealed that a number of crops had become infested with ticks. This infection was ascribed to the activity of hostile counterrevolutionary elements, and in connection with this a great number of criminal cases were instituted. Many of the indictments linked with tick infection in grain crops were completely unfounded. Yet Vyshinsky demanded that the prosecutors insist on severe punishment in all criminal cases instituted in connection with crops infested with ticks.220
When it came to the actual trial, “he repeatedly maintained that in a criminal trial probability of guilt was perfectly adequate. Instructing prosecutors in the ‘art of identifying saboteurs,’ Vyshinsky maintained that this is achieved not by comprehensive, full and objective evaluation of the evidence gathered in a criminal case, but by so-called ‘political flair.221
And the legal processes were eased by his ruling that “it is pointless to repeat without particular need what has already been established in the preliminary investigation.”222
As a result, we get such extraordinary results as a woman who got ten years under Article 58, Section 10, for saying, after his arrest, that Tukhachevsky was handsome,223 or an artist getting five years for adding to the slogan “Life has become better, life has become more joyfuclass="underline" Stalin” the letter u, changing the meaning of “Life has become better … for Stalin.”224 Failure to inform, treated as complicity, was severely dealt with. In a minor case, only producing a six-year sentence even for the principal, the noninformer got three years under Article 58 (xii).225 Under the same Article, a man was sentenced to three years for “smiling in sympathy” while some drunken dockers at another table in Odessa were telling one another anti-Soviet anecdotes.226 A Tatar woman, originally listed as a Trotskyite, was reallocated as a bourgeois nationalist by the NKVD official concerned, on the grounds that “they’d exceeded the quota for Trotskyites, but were short on nationalists, even though they’d taken all the Tatar writers they could think of.”227 A twenty-year-old mathematician, with no political interests, was sentenced simply because his mother, an old Socialist Revolutionary, was rounded up in 1937. He had actually been born in a Tsarist jail.228
Court procedures were at best formalities. Still, the Supreme Court and its Military Collegium at least required the presence of the accused, though as a leading Bulgarian Communist victim notes of a session of the Collegium which sentenced him, “No prosecutor. No witnesses. No co-accused. No defender.„229
But comparatively few cases were dealt with by a court. Article 8 of the Corrective Labor Codex states, “Persons are directed to corrective labor who have been sentenced thereto by (a) sentence in a court of law; (b) decree of an administrative organ.” This latter was usually the NKVD “Special Board,” as set up by laws of 10 July and 5 November 1934 (replacing the Judicial Collegium of the OGPU).
The Special Board consisted of the Deputy Head of the NKVD, the Plenipotentiary of the NKVD of the RSFSR, the Head of the Main Administration of Militia, and the Head of the Union Republic NKVD where the case had arisen. The Prosecutor-General of the USSR or his deputy was also to participate.230
The Special Board’s sentences were originally limited to five years, but this was either abolished or ignored fairly soon; terms of eight and ten years are soon mentioned. But in any case, while a man who served out a term imposed by a court was often released, one sentenced by the Board was simply resentenced to a further period when his sentence expired. The formalities were completed in Moscow, and the new sentence was announced to the accused in camp by a local representative of the NKVD.
The Special Board was usually given “cases for which the evidence was not sufficient for turning the defendant over to a court.”232 The defendant had no right to defense, and cases were tried in absentia, which—as a Soviet law journal has remarked—“created the preconditions for deliberately passing unjustified, harsh sentences.”233
And if the Criminal Code was interpreted with great elasticity by the courts, even that was found too restrictive for most cases before the Special Board. Article 58 was generally cited as a basis, but the accused were liable under the following heads:
K.R.T.D.
Counter-revolutionary Trotskyite Activity
Usual sentence five to ten years
K.R.D.
Counter-revolutionary Activity
Usual sentence five years or more
K. R. A .
Counter-revolutionary Agitation
Usual sentence five years or more
Ch.S.I.R.
Member of the Family of a Traitor to the Fatherland
Usual sentence five to eight years
P.Sh.
Suspicion of Espionage
Usual sentence eight years
The last an offense perhaps unique in the world’s legal history.
In addition, those in the following categories could be simply labeled by the Prosecutor and sent to camp without even the Special Board routine:
S.O.E.
Socially Dangerous Element
Usual sentence five years
S.V.E.
Socially Harmful Element (that is, common criminals)
Usual sentence five years
234
This power to inflict punishment when there was admittedly no crime was provided for in Article 22 of the “Principles of Criminal Jurisdiction,” given in the Basic Criminal Code, which reads as follows:
Punishment in the form of exile can be applied by a sentence of the State Prosecutor against persons recognized as being socially dangerous, without any criminal proceedings being taken against these persons on charges of committing a specific crime or of a specific offense and, also, even in those cases where these persons are acquitted by a court of the accusation of committing a specific crime.
In early 1937, sentences were still on the light side. A typical K.R.T.D. case is of an electrician arrested at that time, who had formerly known some Trotskyites and in whose room there was found, on his arrest, a copy of the first edition of The History of the Civil War (which, of course, gave many of the facts of Trotsky’s role in the period covered). For this, he got three years.235 Another man, a former Trotskyite, was sentenced to a longer term because he had traveled from Moscow to Leningrad on 1 December 1934.236 Another got three years for possession of a K.R.A. rhyme about Feuchtwanger and Gide.237 For copying Lenin’s Testament, the usual sentence was ten years, under Article 58, Section 10, for anti-Soviet agitation, though sometimes death was imposed.238 A professor of astronomy got five years (K.R.A.) for having objected to his daughter marrying an NKVD man.239 A typical P.Sh. case was of a professor who had been a prisoner of war in Austria in 1915—his sole offense.240 The decree of 14 September 1937241 established what amounted to completely extrajudicial procedures for counter-revolutionary crimes, and sentences grew greater. Moreover, those arrested in 1933 or 1935 were now retried, and the comparatively mild sentences of three or five years of those earlier days were “translated … into the language of 1937.”242