One of the Possibilities for Systematising Soviet Repressions
"The Soviet Union was not a state based on the rule of law and when using legal terminology in reference to the Soviet Union, they should be placed in quotation marks."
State coercion was one of the Soviet Union’s most important means of governance. It was used most intensively during Joseph Stalin’s reign, yet it was important before that and after his death as well.
The use of coercive measures that have restricted people’s rights and freedoms to the greatest degree earn the primary attention of historians: sentencing to death, imprisonment and deportation into exile. The use of such harsh measures is traditionally regulated by penal law.1 Coercive measures were also used outside of the law in the Soviet Union contrary to its own laws, concealing them behind formulations of ‘non-punitive meas- ures’. Evidently for this reason, terms that emphasise punishment a little less and that attempt to define the use of coercive measures a little more comprehensively have been adopted in both historical literature and the drafting of legislation: political, extrajudicial and unlawful repressions, mass repressions, terror, etc.
Upon closer examination, however, these terms prove to be indefinite and difficult to delineate. They are either evaluative and not sufficiently perspicuous to account for all important spheres of ensuring coercion, or they leave out some groups of individuals. Many terms do little more than to split the object in two and do not offer any sort of comprehensive framework for systematising repressions. It is not possible to systematise repressions by using these terms, nor can different groups of repressed persons be differentiated sufficiently clearly.
This is the case even if the aim is to identify the size of groups, for instance. What are the criteria for determining the number of persons who have been repressed for political reasons? Where does the boundary lay separating mass repression from non-mass repression? If judicial re- pressions can be defined by way of institutions referred to as courts, then where did extrajudicial repression begin and end? Were repressions that were not unlawful lawful, etc.? It is difficult, or sometimes even impos- sible, to answer these questions.
This article offers one possibility for systematisation deriving from a legal basis. By law I mean law in the sense of a democratic state based on the rule of law. Law is necessary because by the formal recognition of law, Soviet law was used as a fig leaf to justify and conceal violence that had taken place in the Soviet Union. The article focuses on the most repressive measures of a punitive nature for enforcing coercion.
State Coercive Measures
Soviet legal theory distinguished between three types of state coercive measures: liability measures, preventive measures and obstructive meas- ures.
What differentiated liability measures from the other types of measures was primarily the fact that they were applied post-factum after the offence had been committed. Liability measures were categorised as proprietary (compensation of damages) and punitive. The latter, in turn, were divided up into criminal, administrative, disciplinary and procedural penalties.
The harshness of the penalty was manifested in the losses and restric- tions inflicted upon the offender, in other words what the penalty actually meant for the offender: loss of life (death penalty), loss of personal freedom (loss of liberty), restriction of freedom to choose one’s place of residence (residential penalties), restrictions in the sphere of property (monetary fines and the confiscation of property), etc. The losses and restrictions suffered by the individual from criminal penalties were greater compared to the other penalties.
Preventive measures were applied in the event of the actual and con- crete threat of an attack that would endanger society in order to prevent this threat from becoming reality. For instance, procedural preventive measures to ensure that an offender would turn up at the investigating organ and in court, assigning the offender to compulsory treatment for contagious diseases, etc. belonged to the category of preventive measures. Obstructive measures were applied when the threat to society was be- coming reality and an attack took place. The aim of obstructive measures
was to prevent the attack from being brought to completion.2
Regarding this topic, attention is mainly on criminally punitive li- ability measures, in connection with which the concepts of punishment (penalties) and repression need to be clarified. In the sense of a state based on the rule of law, the concept of punishment can be analysed in various ways.
According to one definition, it consists of a formally judicial aspect, in other words legal consequences prescribed in provisions as punish- ments, and a substantive aspect, in other words forfeiture applied to the convicted offender for an offence, by which the state damages the indi- vidual’s constitutional standing, expresses social-ethical condemnation as a public decision based on values, and forces the individual to bear re- sponsibility for his deed (obliges him to bear the negative consequences or sanctions that accompany his deed).3
According to Soviet theory of crimi- nal law, punishment was a ‘means of state coercion that is one of the meas- ures of legal liability applicable to a convicted offender for committing a criminal offence on the basis of a court verdict. It causes certain losses or restrictions for the convicted offender and in this manner expresses a negative assessment of the criminal offence and the judicial, and thus also the political-moral, condemnation of the convicted offender compatible to the social hazard of the criminal offence committed and the guilt of the offender who committed it.
The aim of punishment is repression for a committed criminal offence, and also the correction and re-education of the convicted offender, and the prevention of the commission of new criminal offences by that same criminal offender and other individuals.’4
Thus there is not much difference between the concept of punishment in the law of a state based on the rule of law and in Soviet law in the sense that both divide the concept of punishment into several parts in terms of legal philosophy: as ‘social-ethical’ or ‘political-moral’ condemnation in terms of aims, along with the prevention of new criminal offences, and ‘restrictions and losses’ or ‘forfeiture’ demonstrating the actual conse- quences of punishment. The concept of repression refers to the content of punishment, that which was referred to as losses and restrictions in Soviet penal law and which has been replaced by the term forfeitures in current Estonian penal law. The greater the forfeitures and the longer they last, the more repressive they are. Thus punishment and repression are not synonyms.5
In a state based on the rule of law, the concept of repression is a part of
the concept of punishment. One can be repressed only for deeds defined as criminal offences in legal provisions using legal liability measures and by court proceeding (leaving aside less repressive disciplinary and other punishments that can be applied extrajudicially).
On the contrary, repres- sion in the Soviet Union went beyond the framework of the concept of punishment and also beyond the law in its meaning in a state based on the rule of law. Forfeitures inherent to punishments also started being ap- plied extrajudicially to individuals who had not committed a punishable deed, to say nothing of shortcomings in defining the deed as a criminal offence. Soviet legal provisions also allowed repression of persons who had not committed any punishable deeds (until 1958), although this was lim- ited to socially hazardous (sotsialno opasnye) individuals.6 Other groups that had committed no punishable deeds were actually also repressed and alongside general group attributes, the reason for repression became the prevention of anti-state activity or activity that did not suit the regime. Thus in the case of the Soviet Union, we can speak of the disappearance of boundaries separating liability measures from the remainder of state coercive measures, punitive from non-punitive measures, and the crimi- nal offence from the sphere outside of it.
The meaning of the concept of repression emphasising the content of punishment helps to eliminate formal barriers deriving from the concept of punishment that considers only measures defined as punishment in legal provisions to be punishment. Thus the concept of repression appli- cable to the Soviet Union includes all measures by which forfeitures were caused that corresponded to criminal punishment. In order to distinguish between punishment and repression, which is also important, let us refer to as punishment only measures defined as punishments in the provisions of Soviet criminal law, and to the act of punishment as the implementation of these measures.
Thus while repression should theoretically be part of the concept of punishment, in the case of the Soviet Union, the situation is the opposite – repression is the general concept and punishment is a partitive concept. The suitability of the word ‘repression’ is also indicated by the fact that it can denote extrajudicial punishment and the application of measures of a punishing nature, since only the activity of institutions defined in legal provisions as courts is categorised as the administration of justice by court trial.
Evidently, it is precisely for these reasons that the word ‘repression’ was
adopted more broadly at the end of the 1980s. Nowadays as well, the con- cept of repression is appropriate in every respect for use in reference to the Soviet Union and it is one of the most important concepts of this article.
The clarification of the concept of repression alone is not enough for systematisation.
The Law of States Based on the Rule of Law versus Soviet Law
One further fundamental question needs to be answered. To what extent is law compatible with Soviet law at all? The Soviet Union was not a state based on the rule of law, which was demonstrated even just by the absence of the separation of powers. Power was concentrated in the hands of a small group of individuals. Those in power had legal provisions drawn up that suited themselves and had them suitably justified in literature on legal theory. These provisions could be adhered to but this was abandoned if it started hampering governance.
Under such conditions, legal concepts also lost their actual meaning. Courts and judges were not independent and did not administer justice, but rather followed the orders from those in power as part of the power apparatus. Law did not have the force of law in the sense of a state based on the rule of law, etc. The distortion of the meaning of the concepts of punishment and criminal offences has already been discussed above.7 Here no particular ‘socialist law’ or Soviet law can be spoken of at all.
The field referred to as law in the Soviet Union was founded on the
European legal tradition based on Roman law, distorting it and leaving out certain important elements. The positivist, sociological school of criminal law that emerged in Europe in the 18th–19th centuries was the direct model for the Soviet Union’s criminal law.8
The Russian Empire’s criminal law was also founded on European legal tradition, as was that part of the Russian Empire’s criminal law that the Bolsheviks adopted. The singularity of Soviet law was stressed for ideological reasons only in the Soviet Union itself as part of the contrasting of the capitalist and communist forms of government as opposites. In analysing and describing the Soviet legal order from the position of a state based on the rule of law, and using concepts of a state based on the rule of law, the danger arises of identify- ing Soviet law with the law of a state based on the rule of law.
This can be avoided by emphasising the fact that they have been matched up arti- ficially. In order to better illustrate this, I call it the method of equating meanings. This is not a method in the sense of practical usability since it is not a body of specific means for analysis and comparison.
It denotes the fundamental difference between law and Soviet law. The method in- dicates that the identification of Soviet law with law is not done naturally on the grounds of essential similarity, but rather that this is an artificial construct. Identification takes place through formal attributes. Law as a complete and freely developing system provides us with a systematic point of departure and also a system of concepts to cover fields that have been distorted or left out of Soviet law.
Due to the distortion of law, the law of the Soviet Union itself cannot be taken as the point of departure for this. This would mean the approval of distortions. We do not use law, includ- ing concepts of law, so much for explaining the functioning of the field referred to as law in the Soviet Union, but for explaining how this non-law functioned at the state level.
One of the most widespread modes for categorising repressions re-
quires a more comprehensive analysis.
Political and Non-Political Repression?
Let us state right from the outset that politicalness is not a particularly good definition as a basis for systematising the Soviet Union’s repressions. It is an ambiguous term without any clear content and with a vague mean- ing, which is often used regardless of this. There is no generally recognised definition of political repression and it is also unclear why repressions have to be categorised in such a way at all.
The categorisation of criminal offences as political and non-political by employing the word ‘political’ was not used all that often in the Soviet Union’s official bureaucratic usage. Normative usage in criminal law did not recognise this term at all, and it was rarely found in the documents of the system of repression. Abbreviated terms for the description of criminal offences were preferred.
The reason why the concept of political repression is often used in cur- rent historical literature has to be sought elsewhere. The reason for this is quite likely the Soviet Union’s legislation of general application issued at the end of the 1980s and the early 1990s, first and foremost the Russian SFSR law of 1991 ‘Concerning the rehabilitation of victims of political repressions’. This law remains in effect in Russia in amended form to this day.
There is nevertheless no point in seeking a more precise explanation from this law. A passage resembling an explanation is in §1: ‘State means of coercion applied for political motives are recognised as political re- pressions [...].’ That is all. The list that follows includes the harshest types of Soviet punishment and all institutions that have conducted court trials, and is thus too all-inclusive to be considered an explanation of the concept of political repression. The explanation that political repression is a means of coercion of a political nature does not add any further insight into the concept. This legislation leaves the interpretation of political motivation to the courts and the prosecutor’s office. What is and what is not political in the sense of this legislation could only be demonstrated by the practice of applying this legislation.9
If we attempt to somehow interpret political repression, it should definitely include the idea of opposition to the powers that be, but not the idea of acts in opposition to the powers that be, since people in the Soviet Union were also repressed without committing any punishable acts. This alone already limits the possibilities for clear wording. The fact that it is not easy to distinguish opposition to the powers that be from other op- position in the case of the Soviet Union is an even greater obstacle, since the regime recognised only one ideology and totally controlled society.
Thus, for the regime, every act or omission of action was in opposition to the powers that be.
The concept of political repression has two concealed and hitherto undif- ferentiated meanings that people are not aware of.
The meaning of groundless, unfounded, unjustified, wrong, etc. actions, which I henceforth refer to in general as unjustified repression or unjus- tified action. I use this as a temporary, neutral and very general term for explaining other terms in order to avoid using political repression and words with a shade of law.
The Russian Federation’s so-called rehabilitation law expresses this most clearly. It prescribes the nullification of the repression verdicts for some repressed persons in the Soviet Union, in other words their rehabili- tation, and in some cases also the compensation of sufferings. People who are not rehabilitated consequently remain rightly repressed. The concept of political repression is not used in rehabilitation legislation in all of the Soviet Union’s successor states and former dependent states,10 but since they prescribe the nullification of only some repression verdicts or the ascertainment of groups of persons who have suffered due to the Soviet Union’s repressions, the categorisation of repressions as justified and un- justified exists in this legislation as well.11
German legislation is an exception, which places the verdict’s legality at the forefront instead of politicalness: ‘Penal law verdicts handed down in the period from 8 May 1945 to 2 October 1990 in the region mentioned by the German Supreme Court in Article 3 (the region joining the federation) of the unification agreement [of West and East Germany. Author’s remark] are to be declared in violation of the principles of a state based on the rule of law on the basis of the corresponding application and nullified if the verdicts do not conform to the more important principles of freedom of a state based on the rule of law, especially if said verdicts served political objectives. As a rule, this affects punishments in accordance with the fol- lowing acts of law: [...].’12
Thus the objects of the German legislation are all court verdicts during the period and in the territory prescribed in the legislation.
Such clear boundaries are not drawn in historical literature. Consid- eration of repressions as justified / not justified exists implicitly, primar- ily through paying greater attention to certain groups (mass executions, counterrevolutionary crimes, deportations into exile by extrajudicial in- stitutions, etc.) and by dividing repressed persons into ‘criminals’ and ‘politicals’.
John Arch Getty, Gabor Tamas Rittersporn and Viktor Zemskov have written that: ‘From this point of view, the regime’s distinction between “political” and “non-political” offenders is of doubtful relevance. Unless we are prepared to accept broad Stalinist definitions of “counterrevolu- tionary” offences or the equally tendentious Western categorisation of all arrests during Stalin’s time (even those for crimes punishable in any so- ciety) as political, we should devise ways to separate ordinary criminality from genuine opposition to the system as well as from other reasons for which people were subjected to penal repression.’13
Anne Appelbaum argues: ‘If the politicals were not necessarily politi- cal, the vast majority of criminal prisoners were not necessarily criminals either. While there were some professional criminals and, during the war years, some genuine war criminals and Nazi collaborators in the camps, most of the others had been convicted of so-called “ordinary” or non- political crimes that in the other societies would not be considered crimes at all.’14
The simplest approach is to categorise repressions according to the descriptions of criminal offences and general group attributes (of that type). The group of descriptions of criminal offences referred to as counterrev- olutionary crimes in Soviet criminal law are always categorised under the term of political repression. The legal institute of the description of a criminal offence is part of the sphere of substantive law. Leaving aside other definitions and focusing on the counterrevolutionary as the most political of descriptions of criminal offences, it can be asserted that politi- cal repression is also a term primarily from the sphere of substantive law.
These two connotations of political repression highlight two important shortcomings. First, if we recognise the two attributes mentioned at the beginning of this subchapter together (unjustified activity and being part of substantive law) as part of the concept of political repression, all acts that are treated as universal criminal offences, meaning deeds that are considered crimes in all countries, for which a substantive equivalent can be found among counterrevolutionary crimes, should be considered po- litical and thus unjustified. § 232 of the Penal Code of the Republic of Estonia (KarS) (treason) corresponds to the meaning of § 581a and 581b of the 1926 Russian SFSR Criminal Code (betrayal of the homeland), KarS § 231 (violent action directed against the independence and sovereignty of the Republic of Estonia) could correspond to § 582 (armed rebellion), KarS
§ 233, 234, 242–243 correspond to the content of § 586 (espionage), KarS §
237 (terrorism) corresponds to § 588 (terrorism), KarS § 405, 406 (causing explosions and the disturbance and damage of vital systems) partially correspond to § 589 (damaging and destruction of objects of infrastruc- ture), KarS § 255, 256 (criminal association and its organisation) partially reflect the idea of § 5811 (counterrevolutionary crimes in the form of an organisation).
The absurdity of such an approach is obvious and demonstrates that the concept of political repression cannot consist simultaneously of a point of departure in substantive law and the additional meaning of unjusti- fied activity. Secondly, taking only the political motive into consideration discounts other motives. Yet should repression carried out under other motives be considered justified just because it is not political?
Although the political nature of the motive is difficult to explicate, nobody would probably argue too strenuously against the USSR Supreme Soviet enact- ment of 26 June 1940 ‘Concerning the transition to an eight-hour work- day, seven-day work week and prohibition of workers and employees from leaving enterprises and institutions of their own accord’ as an example of non-political repression. This enactment allowed leaving work of one’s own accord to be punished by imprisonment for two to four months. Leaving work of one’s own accord in and of itself cannot be hazardous to society, and the seriousness of the deed does not fit the harshness of the punishment at all.
It is difficult to characterise punishment by way of this enactment as justified action. The need to define this disappears altogether if it is assessed from the position of a state based on the rule of law.
The fact that the simultaneous existence of several attributes allowing categorisation as being unjustified was inherent to a large number of Stalin-era repressions may contribute to the search for repressions carried out unjustifiably from among repressions as a whole: extrajudiciality; the absence of a crime; contradiction of Soviet laws; crimes against human- ity and war crimes; etc. Unjustifiability is obvious in such cases and its identification does not require any particular effort.
For this reason, it is natural that historians pay greater attention to them and relegate to the background repressions that do not manifest attributes of unjustified re- pression as clearly (for instance, the assemblages of crimes in the special section of the 1926 RSFSR Criminal Code, which were not categorised under § 58, 59, 122–137 and 193).
It would be easy to categorise persons among them who had been
punished for so-called classical crimes such as theft, murder, rape, etc. as ‘criminals’ according to the formal descriptions of criminal offences. These crimes were no doubt actually committed as well, yet in a legal sense, a person cannot be referred to as a criminal offender before his guilt has been proven and the court has handed down a verdict of conviction. Yet this was the weakest point of the Soviet Union’s legal system.
The institutional part of state government referred to as the Soviet Un- ion’s law enforcement authorities was incapable of guaranteeing honest and impartial administration of justice. This did not apply to only certain groups of crimes, it applied in general to all crimes. For this reason, we can never be certain that the guilt of persons convicted in the Soviet Un- ion had actually been proven, and the search for the unjustified part of the Soviet Union’s repressions is a dead end. In a legal sense, not a single case of repression was justified.
The Soviet Union’s legal system can only be analysed and described as not being based on the rule of law, and if we wish to provide an orderly, systematic overview of the Soviet Union’s repressions, criteria must be used for this according to which all repres- sions could be described, not only a certain part of them.
Present day rehabilitation laws should also be regarded as decisions
by which only a certain part of repression verdicts that did not measure up to the principles of a state based on the rule of law are nullified and partial compensation for sufferings is determined. These laws cannot be taken into consideration as models for categorising repressions as justified and unjustified.
Politicalness can admittedly be used to define repressions, but under the condition that it does not have the additional meaning of unjustified action and that the grounds for the definition are explained. In identi- fying politicalness with opposition to the state, it is better to limit this identification to individual cases with clear attributes of opposition to the state.
Such examples would be repressions of representatives of po- litical forces that lost in the power struggle against the Bolsheviks (the socialist-revolutionaries, the Mensheviks, etc.) or repressions motivated by the power struggle among the Bolsheviks themselves (Lev Kamenev, Grigori Zinovev, Lavrentiy Beria). Punishments imposed according to counterrevolutionary categories of crime can be referred to as political repressions, but it is difficult to understand the advantages of using this classification. It is inferior to the concept of counterrevolutionary crime in terms of its capacity to delineate.
Thus the mode of systematising that categorises repressions as politi-
cal and non-political, and also as justified and unjustified, falls by the wayside. The next chapter offers a different possibility for systematisation.
The Soviet Union’s System of Repression
As is inherent for a state that is not based on the rule of law, the Soviet Union was to a great extent run by way of secret ad hoc decisions that did not even always have to be in writing or in harmony with the Soviet Union’s legal provisions, nor did they have to form a logical whole to- gether with other decisions in their particular field (for instance special banishment15). It was not necessary to pay attention to contradictions between acts of legislation, terminological imprecision, or the absence of regulation in some fields of activity, since this did not directly interfere with the governance of the state.
When rigid, centralised administration is added to this, it is no wonder that the result was a rather complicated system with abundant exceptions that was manifested even in all manner of official designations preceded by the qualificatory adjective ‘special’. It is even difficult to assess which was the rule in the Soviet Union, regular- ity or exceptionality.
Any description of the Soviet Union’s system of repression that aspires to comprehensiveness has to take these circumstances into consideration. The description of the system needs more attributes in order to establish the categories judicial / non-judicial, mass / non-mass, or even political / non-political. First and foremost, such attributes are required that most clearly set apart the similarities and differences between repressions.
The centre of gravity in explaining the system of repression is indicated in the diagram (see the adjacent diagram). The following portion of the ar- ticle explains the diagram and for this reason is in some places in a laconic style dominated by keywords. The diagram shows in a simplified way how the system functioned. The detailed listing of all the full-tones and grey tones of repressions can make it difficult to comprehend the description of the system. For this reason, the description touches on only the most important attributes.
The most important attributes of repressions are divided into four levels. The most important of them, the normativity level, is the last since under- standing it requires familiarity with the first three levels.
The first level can conditionally be designated as the stage of prepara- tion for repression. Naturally, treating this as a separate stage is also con- ditional. The preparation of repressions was not an independent, clearly defined field, rather it derived from the secretive and to a great extent informal administration of the Soviet Union. At the same time, this stage occupied an important place in the chain of individual stages of repres- sion. At this stage, the groups of people subject to repression, the duration of repression, etc. were determined, card files and lists were drawn up to the point where Stalin himself decided on the life or death of specific people. Everything that followed was more or less a formality.
This stage can certainly also be divided up into separate parts: operational work of investigative organs, the decision-making mechanism that originated from decisions made by the Communist Party in the overall chain of com- mand, Stalin’s direct orders, the informal part that was not put in writing, etc. The detailed analysis of this level is not the topic of this article.
The second level indicates repression on an individual and group basis. Persons to whom four attributes generally applied simultaneously were counted among individually repressed persons: 1) an act was commit- ted, 2) investigation proceedings were formulated in accordance with the provisions for criminal proceedings, 3) the descriptions of the criminal offence prescribed in the provisions were used to formulate the repression,
A separate verdict was handed down for each individual. As an excep- tion, the first point did not apply to socially hazardous persons repressed without having committed a punishable act, who could be repressed with- out committing a punishable act.
In the case of group-based repression, the opposite of these four con- ditions applied. The opening of account-observation files on persons sent into banishment, who comprised the majority of persons repressed on the basis of belonging to a group, and group-based repression can additionally be qualified as repression carried out according to simplified procedure or as expedited repression because unlike individual repression, it was not necessary to carry out separate procedural acts in the case of group- based repression in order to achieve its ultimate objective, in other words the transfer of people to their destinations (primarily into banishment).
I use the categorisation ‘group-based’ in place of the rather widespread term ‘mass’. The topic of this article would require the differentiation of mass from non-mass and the numerical expression of the difference be- tween them. This, however, would not be possible because ‘mass’ (in the meaning of large numbers) is a word with a vague meaning. In group- based systematisation, the determination of the size of the group is un- necessary.
Seven attributes of penal law are placed on the third level and are, in turn, distributed among formal law, substantive law and executive law based on the three-pillar theory of penal law: 1) pre-trial investigation (investigation), 2) judicial investigation (the institution that formulated the repression verdict), 3) description of the criminal offence (the formal reason for repression), 4) category of punishment (category of repression),
Term of punishment (term), 6) type of penal institution (type of deten- tion involving deprivation of liberty), 7) category of banishment. This list of attributes can naturally be extended. Restriction of freedom that does not involve imprisonment can be added (loss of rights, forced labour without imprisonment, etc.), deprivation of liberty in penal institutions can be divided up into different parts according to regimen, etc. The designations of attributes used in the diagram are in parentheses.
The fourth level categorises repressions as normative and non-nor- mative. In states based on the rule of law, legal provision is one of the most important and utilised general terms in drafting legislation. In other words, it is the written behavioural guideline or rule of any particular piece of legislation. Still, all legislation does not contain provisions and thus is not legislation of general application. From the standpoint of this article, four attributes of legal provisions need to be highlighted.
‘Legislation of general application, or general legislation, is aimed at establishing objective law. It contains generally binding behavioural rules, or legal provisions. The inclusion of legal provisions in legislation is the first criterion for differentiating legislation of general application from legislation that is not of general application. The existence of legal provi- sions gives legislation of general application general meaning: it applies to an undefined circle of individuals and is subject to implementation an undefined number of times, for which reason it is also known as general legal legislation. [...]
Legislation that is not of general application, in other words an indi- vidual act, is the kind of legislation that provides subjective rights (that belong to the given subject) and places obligations on a specific subject or a precisely defined circle of subjects. For this reason, this is also known as legislation of specific application. Such legislation does not contain legal provisions, rather it applies legal provisions, obliging a specific individual to behave in a specific way, for which reason they are by their nature acts for applying law. For instance, court verdicts, directives, decisions for honouring or pardoning a person, and other such acts pertaining to an individual subject are legislation that is not of general application, in other words individual acts.
Different state organs establish legislation. Each state organ has its ju- risdiction depending on its functions, its place in the state apparatus, and the extent of its jurisdiction. By virtue of this, legislation of different state organs has different legal force. [...]
Legislation of general application forms a hierarchical system in every country, the highest-ranking act of which is law. Law is legislation of gen- eral application that the highest-ranking representative body (parliament) of state authority has adopted or which is the direct expression of the will of the people (by way of referendum). The highest-ranking legal force of law derives from the position of parliament, the state organ that passes legislation, in the system of state organs. Parliament, which bears different designations in different countries [...], is the state’s highest-ranking organ of legislative power and the representative organ of the people. For this reason, legislation of general application established by parliament – laws
– has the highest-ranking legal force in relation to the legislation of other state organs. All other legislation has to conform to the law. By fulfilling this requirement, the primacy of law is safeguarded.’16
Considering the distinctiveness of the regime that ruled the Soviet Un- ion, the principle of notification, or disclosure, rises to second place in importance after the criterion of comparing the general and the individual in assessing normativity:
‘What is not disclosed is not law. [...] This applies to all material laws, that is to legislation that contains legal provisions. Thus notification (dis- closure) is the prerequisite and condition not only of the legality of a law, but also of legal existence. Official and unofficial disclosure has to be dif- ferentiated. Unofficial disclosure has quite a significant role in the expla- nation of laws, information of citizens and shaping their legal awareness. Here the following possibilities can be named:
- publications of laws and their collections;
- brochures, books, periodicals [...], radio and television prepared by ministries and other institutions;
- explanations and advice of lawyers.
Official notification takes place in a publication prescribed by law and only the texts of laws published in such a publication have legal meaning.’17
The state of being written.
Internal orderliness and clarity of wording.
The requirement of disclosing legal provisions applied in the Soviet Union as well.18 Laws as the most important provisions were public, but they could be amended by secret decisions, or secret acts could be issued that were not referred to as laws but had the force of law.19 Considering the fact that the greater portion of the governance of the Soviet Union was secret, the condition of publicness provides an opportunity for systematisation. I call those repressions normative that broadly speaking were formalised in conformity to provisions.
There is no point in interpreting the normativity of repressions as the fulfilment of legal provisions, meaning their substantive, actual obser- vance because this was not expected of the Soviet Union’s legal system. The legal system had to formulate a certain portion of repressions more or less in conformity to provisions, and even that much was not required regarding other repressions. Since substantively speaking, it was not nec- essary to observe laws, ignoring formulation requirements also could not in any way affect the end result of repression.
For instance, while the ab- sence of some particular piece of evidence in a criminal case can lead to the acquittal of the accused in a state based on the rule of law, then the absence of such ‘details’ did not become an obstacle to the imposition of penalties in the Soviet Union. Even a properly formulated criminal case could actually have been fabricated. Regarding the Soviet Union, proper formulation is an indication more of the diligence of the person who drew up the documents and of the supervisors who checked his work. This does not prove the guilt of the penalised person. For this reason, it was suf- ficient if repressions broadly conformed to the provisions, which means that repressions can be categorised as normative primarily if five condi- tions are fulfilled:
- Repression contained the stage of investigation, and provisions of crimi- nal procedure were used to formulate this in writing: laws from 1924 and 1958 that formed the foundation for criminal procedure in the Soviet Union and its union republics (Osnovy sudoproizvodstva Soiuza SSR i soi- uznykh respublik)20, codes for criminal proceedings);
- Institutions (courts, tribunals) that had the right to apply repression as prescribed by legal provisions formally handed down repression verdicts: in constitutions, in fundamental laws from 1924 on the court administra- tion of the Soviet Union and its union republics (Osnovy sudoustroistva Soiuza SSR i soiuznykh respublik), from 1938 on the court administration of the Soviet Union, its union republics and autonomous republics (Os- novy sudoustroistva Soiuza SSR i soiuznykh respublik) and from 1958 on court administration legislation applying to the Soviet Union, its union republics and autonomous republics (Osnovy zakonodatelstva o sudou- stroistve Soiuza SSR, soiuznykh i avtonomnykh respublik)21;
- 2.1. the justification for repression (description of the crime, social hazard) was drawn from the provisions of the material part of criminal law: the fundamental laws from 1924 and 1958 on criminal legislation of the Soviet Union and its union republics (respectively Osnovnye nachala ugolovnogo zakonodatelstva Soiuza SSR i soiuznykh respublik and Osnovy ugolovnogo zakonodatel’stva Soiuza SSR i soiuznyh respublik)22, criminal codes, public individual acts of criminal law;
- 2.2. the category of repression (punishment) was stated in writing in the provisions of the material part of criminal law;
- 2.3. the extent of repression did not exceed the limits set by the provisions of the material part of criminal law.
These correspond to what was known in the Soviet Union as punishment pursuant to criminal procedure, or repression. Normative repression nev- ertheless cannot be defined as only repression pursuant to criminal proce- dure. Repression pursuant to criminal procedure admittedly occupies the most important place regarding normative repression, but the meaning of normative repression is broader. Repressions applied on the basis of non- criminal legal provisions, yet listed in the provisions of criminal law as punishments are also categorised as normative repression. The deprivation of certain population groups of voting rights (lishentsy) on the basis of
§ 65 of the Russian SFSR Constitution of 1918 can be considered as such. Deprivation of voting rights was also a criminal punishment (§ 40 of the RSFSR Criminal Code of 1922).23 Deprivation of voting rights by way of the constitution was the application of repression based on provisions, but not repression pursuant to criminal procedure. Both can be considered as repression due to the same designations.
Thus non-normative repressions are those based on acts that did not conform to the criteria of the concept of legal provision, primarily the principle of publicness.
Normativity and non-normativity could also be referred to as public and non-public repressions, but in such a case the connection to the Soviet Union’s legislation is not so clear. This would also not be quite correct since even in the case of normative repression, most of the procedure of repression remained hidden from society. Only the provisions were public. The poor normative technique, in other words terminological impreci- sion and poor wording, of the Soviet Union’s legal provisions and more broadly of the acts that formed the basis for repression merits attention.
This is more noticeable in the non-normative acts regarding repression and in the provisions of criminal law that were in effect until the end of the 1950s. Examples that can be pointed out are the vague definition of counterrevolutionary crime; social hazardousness, which was not defined and the meaning of which is quite difficult to ascertain even in retrospect; the concept of rehabilitation, which was never given an adequate explana- tion; the numerous corrections that were made in the 1920s and 1930s in the statute regulating war tribunals, as a result of which differentiating provisions that were in effect from those that were not in effect became quite difficult at times, etc.24
Returning to the categorisation of repressions as being normative and non-normative – this appears to have been as follows.
1. Normative repression could be preceded by a preparatory stage, but not in all cases. Investigative agencies could launch investigations (see the arrows pointing to the right on the diagram) without any lengthy prepara- tion as well, for instance activated by some particular event. As a general rule, efforts were made to formulate investigation, meaning arrest, inter- rogation and putting the accused on trial, in accordance with the rules of criminal procedure, which, however, does not indicate a person’s actual guilt because guilt could always be fabricated. This was used extensively in the Soviet Union. The court was always stipulated in provisions as the institution that formulated repression verdicts: the Supreme Court of the Soviet Union, the courts of the Soviet republics, various tribunals, etc. The formal reason for repression was formulated according to the descriptions of crime stipulated in the provisions of criminal law.
Most of these were contained in codified form in criminal codes, while a small portion of them were established as acts separate from criminal codes. Punishment by court verdict on the basis of general attributes not stipulated in provisions denotes repression on the basis of social hazardousness in the diagram. This was an exception. Repression according to attributes not stipulated in provisions was inherent to primarily non-normative repression. Instead of categorising descriptions of crimes as ‘political’ and ‘criminal’, I have categorised them as particularly important to the regime and remainder of crimes. This does not aspire to precise delineation. I denote descriptions of crimes to which the regime paid greater attention as belonging to the first category.
These were primarily crimes against the state, including counterrevolutionary crimes, but I retain the option of also including trials held as part of some particular campaign, which meant paying greater attention to certain descriptions of crimes from time to time. Campaigns were ordinarily associated with fulfilling some sort of other objectives beyond criminal law, like collectivisation or industrialisation, for instance.25 It should not be forgotten that the legal system was one of the levers used for governing the state in the Soviet Union.
Only punishments were used as a type of repression in norma- tive repression. The term of punishment was limited, but only within the framework of one criminal case. A person who had become an enemy of the regime could be repressed again for essentially the same reason, even though the stated reason was formally different. Towards the end of Stalin’s life, the term of lifelong repression started being shaped by automatically sending persons who belonged to certain categories into banishment after their release from penal institutions.
Types of penal institutions and their regimens and banishment penalties were stipulated in the provi- sions. Deportation and forced banishment (see the arrows pointing to the left on the diagram) were treated as independent punishments and as additional punishments to be applied after the punishment of imprison- ment (imprisonment was also imposed as a separate punishment; this is not indicated separately on the diagram). Extrajudicial institutions also had the right to apply deportation and forced banishment. Such cases are designated as non-normative repression.
2. Non-normative repression was divided into two categories, a) individual and b) group-based repression.
- The attributes of individual non-normative repression overlap to a great extent with individual normative repression. The differences emerge most clearly in the institution that formulated the repression verdict. In the case of non-normative repression, some extrajudicial institution handed down the verdict: the Special Board (Osoboe Soveshchanie), which operated permanently, dvoikas (dvoika) and troikas (troika) formed on an ad hoc basis, general meetings of villages or of collective farmers, or other such bodies. General meetings were given the right to deport (actually to send people into special banishment) in 1948 with the aim of combat- ing shirkers (this did not extend to Estonia, Latvia and Lithuania). As for individual normative repression, formulation in accordance with the provisions for the formal reason, type and term of repression was also inherent to individual non-normative repression. This meant a temporally limited term of punishment.
A change took place after the Second World War (in 1948) when temporally unlimited measures of a punitive nature started being applied to certain groups of penalised persons. These groups were especially haz- ardous anti-state criminals (punished for more serious crimes including counterrevolutionary crimes) who had been sent into special forced ban- ishment after serving their sentences, and persons who were sent into special banishment after serving their sentences to join their families who had previously been sent into special banishment. The former of these two modes of repression was adopted in 1948, and the other was adopted in 1952.
Persons sent into special banishment for up to 8 years by a village gen- eral meeting or a general meeting of collective farmers were individually non-normatively repressed special settlers with temporal limitations.26 People could also be repressed under the guise of measures that were seemingly non-repressive. This was done as individual non-normative re- pression in the form of sending the person who was subject to repression to a psycho-neurological hospital for compulsory treatment (for instance,
§26 of the Russian SFSR Criminal Code of 1926). Compulsory treatment was a means of treatment, prevention or obstruction. In the Soviet Union, however, it was used as a liability measure of a punitive nature. It was used, for instance, in the Soviet Union after Stalin’s death (evidently also earlier but there is less information about this) on so-called dissidents and persons who had tried to escape abroad. Compared to persons similarly repressed non-normatively on a group basis (mobilised or interned per- sons, etc.), repression in the form of compulsory treatment was more like a punishment because a deed formed the basis for applying repression. The term of compulsory treatment could be limited or unlimited (to recall the fate of the President of the Republic of Estonia Konstantin Päts).
Forcibly sending people for treatment was permitted by provisions and thus was not contrary to provisions in and of itself. It became non-nor- mative due to its use for punitive purposes contrary to its stated purpose. Repression in the form of compulsory treatment could be accompanied by a forfeiture that was inherent only to this form of repression, namely the deliberate damaging of a person’s health by forcing them to take un- necessary medications.
All repressions do not conform to a clear division between individ- ual and group-based repression. Special forced settlers, sent into special banishment after imprisonment on the basis of the USSR Supreme Soviet Presidium enactment of 11 March 1952, and the shooting of 210 prisoners imprisoned in the course of the ‘Great Terror’ of 1937 in a special prison in the Solovets Islands on the basis of one decision (in the form of a list) handed down by a Special Troika of the NKVD Leningrad oblast, have in common the distinction of having been punished a second time for the same thing.27
If we leave out those special forced settlers who were released before 1948 and concerning whom the Special Board handed down a verdict to send them into special forced banishment, almost all of the attributes of individual repression were missing from the second repression of the remainder of repressed persons, for which reason they would be categorised as group-based repressed persons. In the diagram, however, they are nevertheless categorised under individual repression since the first repression provided the reason for the second repression and was individual. This circumstance set them apart from group-based repressed persons, the vast majority of whom had been sent directly into banishment in the course of mass operations, and this banishment did not depend on any previous punishment. It is possible that there were even more groups that did not fit neatly into the categorisation of individual and group-based repression.
- Group-based repression was the field of repressions that conformed the least to provisions. It did not have an investigation stage; generally speaking, a court or an organ resembling a court (the Special Board, a troika, etc.) did not hand down a verdict which had at least some sort of individual nature due to the necessary elements of the offence contained in it (excluding exceptions, for instance the shootings according to lists from the time of the Great Terror); the grounds for the repression were not so much a particular deed as the attributes of a group. The circle of persons subject to group-based repression was determined during the prepara- tion stage of repression. The substantive repression verdict was handed down at that same stage. The institutions that formulated the repression verdict were predominantly organs of executive power, the USSR Council of Ministers and its predecessor, and during the war the State Defence Committee.28 At least four group-based measures of a punitive nature can be discerned in total: special banishment, mobilisation, internment and imprisonment of POWs. Special banishment was a completely repressive measure. It had no non-repressive aspect, unlike mobilisation and intern- ment, which were used for their stated purpose, although people were also repressed under the guise of these measures. The term of repression was unlimited for the greater portion of special settlers who belonged to the category of group-based non-normatively repressed persons. The so-called Vlassovites, Soviet citizens who had belonged to the ranks of the Germany Army and who were sent into special banishment for 6 years in 1945, were an example of special settlers with a temporally limited term.
The deportation of Soviet citizens of German nationality within the
Soviet Union during the Second World War, and the deportation of Ger- mans who were citizens of foreign countries to the Soviet Union at the end of the war and after the war are the clearest examples of repression un- der the aegis of mobilisation and internment. The forfeitures resembling punishments caused to those persons are indicative of repression: forced departure from their permanent place of residence and being forced to live in a new place of residence, labour obligations, restriction of freedom of movement, the establishment of the internal rules of Soviet prison camps, including making feeding dependent on the productivity of work, etc.29
Leaving aside the coercion to leave one’s permanent place of residence, the remaining forfeitures were also inherent to prisoners of war taken by the Soviet Union in the course of the Second World War. The factor of time is important in their case. While considering imprisonment during the war as repression could still be debatable because taking prisoners was a step that was forced on the Soviet Union, and only living conditions and labour obligations compared to the Soviet Union’s so-called ordinary imprison- ment could be taken into consideration as a gauge of repression, then the continuation of imprisonment lasting for years after the end of the war as the reason for keeping people in prison is a clear attribute of repression.
Like compulsory treatment, mobilisation, internment and imprison-
ment of POWs are categorised as non-normative repressions due to their use for purposes other than their stated original purposes. Special banish- ment, however, is not even possible to define as being normative since it was an utterly secret measure.
The Problem of Differentiating Repression from Non-Repression
The problem of differentiating between repression and non-repression could not arise in a state based on the rule of law since state compulsion is not the primary means for administering society, punishments and the procedures for their application are set in writing in legal provisions, and these procedures are also followed. Thus, it is possible to delineate repres- sion on the basis of formal attributes.
This problem, however, arises in the case of the Soviet Union because coercion was of great importance in the administration of the state. It was perhaps greater under Stalin’s rule, but it continued to occupy an important place after his death as well, which makes the determination of varying severities of coercion topical.
Since repression was not limited to punishments that were set in writing in legal provisions, and since re- pression was also concealed behind non-repressive measures as well, there were no clear formal attributes for defining repression, and it is quite diffi- cult to draw the boundary between repressive coercion and the remainder of state coercion. This is also the case if forfeitures are taken as the point of departure.
If the ban on leaving the Soviet Union without permission is inter- preted as coercion to live in the Soviet Union, then this would be classified as an obstructive measure and could thus be considered a non-repressive means of coercion. Alongside this there is also coercion that cannot be delineated so easily. The passport system established in 1933 made regis- tration in one’s permanent place of residence mandatory, which essentially meant the obligation to live in that place. Getting a job and enrolling in an educational institution, along with changing jobs and schools, were also connected to registration of permanent residence.
Violation of the passport regimen, meaning living without registering in places (primar- ily cities) where registration was required, was a punishable offence. All Soviet citizens were not issued with passports, yet it was not possible to change one’s place of residence without a passport. In this way, part of the Soviet Union’s population was tied to its current place of residence. Owning a passport did not yet automatically mean permission to change one’s place of residence, but a passport at least provided the legal opportunity to do so. Persons without passports had the right to leave their place of residence only temporarily.
The forfeitures caused by not issuing passports corresponded to the forfeitures of the criminal penalty known as forced banishment, which in the same way meant the obligation to live in one particular place.30 If the criterion of the act committed had been taken into consideration in the Soviet Union, the forfeitures of forced banishment could be treated as forfeitures caused by a crime and thus they could be differentiated from the forfeitures of the passport regimen. Yet since deportation could be applied without the commission of a punishable deed (on the basis of hazardousness to society) and even without a court verdict (by decision of the Special Board), the existence of a crime or a court ver- dict cannot be used as a criterion of delineation.
There admittedly are possibilities for differentiating between forced banishment and persons who were not issued passports. Forced settlers had to register regularly at the local militia (Soviet police force) precinct and they were forced to leave their permanent place of residence. Such circumstances can be considered as supplementary forfeitures, but is that enough to consider persons who were not issued passports as not having been repressed? The existence of forfeitures inherent only to forced ban- ishment does not alter the fact that they also shared in common forfeitures that corresponded to punishment.
I leave the question unanswered of whether it is possible in the case of the Soviet Union to draw a precise boundary between repressive coercion and other coercion by the state. This would require working through a larger amount of factual material and more thorough analysis than is possible within the framework of this article. I will limit myself to making note of the problem and the recognition that drawing a clear boundary could prove to be impossible. It may only be possible to present the Soviet Union’s state coercion as a series of measures proceeding from harsher to milder where there is no clear point of transition.
Changes in the System of Repression brought by De-Stalinisation
The greater portion of the non-normative part of the system of repression was liquidated in the course of de-Stalinisation. The Special Board was done away with, along with the special banishment and special forced banishment categories of exile. Group-based repression was stopped com- pletely.
As a result of this, the total number of repressed persons and the relative proportion of extrajudicial repression dropped significantly; new fundamental legislation went into effect in criminal law; the importance of state coercion in state governance decreased; the likelihood of falling victim to repression for trivial reasons decreased, which helped to reduce the atmosphere of fear, etc., but the fundamental principles of state gov- ernance remained the same and the justice system did not become more lawful. It was more a transformation of the system that took place through de-Stalinisation. The tunic was exchanged for the suit jacket. Greater at- tention started being paid to the formulation of repressions.
Repressions with so obvious non-normative attributes such as Stalin-era repressions by decision of the Special Board or mass deportations were avoided. Repression became more normative, in other words it conformed more to existing provisions. Substantively unlawful repressions were adapted with better provisions than before. The most vivid example of this was the application of compulsory treatment with punitive aims. In order to schematically depict the system of repression that emerged after de- Stalinisation, the box denoting Stalin, the part representing group-based repression, and the arrows indicating non-normative punishment (excluding compulsory treatment) have to be removed from the diagram.
The quality of legal provisions was improved. The outmoded analogy of law and the permission of repression without a punishable deed having been committed (on the basis of hazardousness to society) disappeared from the Soviet Union’s legal theory and legal provisions. The standard language of legal provisions improved, which was manifested, for instance, by the replacement of the vaguely worded Stalin-era concept of counterrevolutionary crimes with the concept of especially hazardous state crimes, and by improvement in the wording of the descriptions of crimes that belonged to this category.
The qualification of the employees of law enforcement organs improved, which is indicated by improvement in the quality of language usage and formulation of investigation files and documents in general associated with repression (changes can be noticed earlier already, but this was not characteristic of Stalin’s reign as a whole).31 The fact that the Soviet Union became slightly more open to the rest of the world, and that the theme of human rights, which became topical after the Second World War, made its way into the provisions of international law may have had its effect on improving lawfulness in the Soviet Union. The domestic legal system had to at least externally conform to those provisions of interna- tional law in order to ward off international pressure.
While it is relatively easy to define groups among Stalin-era repressions with clear attributes of unjustified repression, and the number of persons in those groups was relatively large, then those attributes and also the number of people who belonged to those groups decreased significantly after de-Stalinisation.
As a matter of fact, only two descriptions of crimes with clear attributes of unjustified repression can be named: anti-Soviet agitation and propaganda (§68 of the Estonian SSR Criminal Code), dis- semination of knowingly false fabrications denigrating the Soviet political system or social order (§1941 of the Estonian SSR Criminal Code), and perhaps as a third, violation of the law separating church from state and schools from church (§137 of the ESSR Criminal Code). Primarily the two former categorisations of crime were used to punish dissidents, or they were convicted of hooliganism instead (§195 of the ESSR Criminal Code).
Punishment could be masked by sending the individuals in question for compulsory treatment. Since compulsory treatment was also used for its originally stated purpose, punishment by way of compulsory treatment can be identified only by examining individual cases. The problem emerges here that it is not necessarily always possible to differentiate between punishment and an actual need for treatment.
Research of the Soviet Union’s repressions after de-Stalinisation has to rely more on individual cases and on drawing conclusions and mak- ing generalisations based on them due to the increase in normativity and the decrease in repressions with clear attributes of unjustified repression.
The clarification of concepts is important in systematising Soviet repressions. One of the most important is the concept of repression. This is a legal concept that refers to the content of a punishment, what punishment actually entails for a person. In the case of the Soviet Union, it is important to focus on the substantive meaning of punishment since measures resembling punishments were also applied in the Soviet Union without formally referring to them as punishments. The concept of repression helps to tie measures resembling punishments to actual punishments due to their substantive similarity.
Thus all measures that substantively corresponded to Soviet criminal punishments can be considered as repression. No clear distinction can be drawn between repressive and non-repressive measures due to the large proportion of state coercion in the governance of the Soviet Union because the weight of means backing up coercion differed and the repressive nature of all means cannot be clearly defined.
The inclusion of law and legal concepts in the discussion is inevitably accompanied by the need to answer the question: to what extent can law be relied on at all in researching Soviet repressions or the history of the Soviet Union? Regardless of the existence of a field called law, the Soviet Union was not a state based on the rule of law and when using legal terminology in reference to the Soviet Union, they should be placed in quotation marks. This article suggests the method of equating meanings as a solution.
According to this approach, the analysis of the Soviet Union and its legal system is admittedly carried out from the standpoint of a state based on the rule of law, but this does not mean the identification of Soviet law with the law of a state based on the rule of law. Law deriving from a state based on the rule of law has an ancillary role. This helps to explain the functioning of the Soviet Union as a state not based on the rule of law. This method also stresses the difference between these two legal systems and their artificial and formal correlation. Figuratively speaking, the method helps to justify using these legal terms without quotation marks.
The concept of legal provisions and the theory of the three pillars of penal law form the basis for systematising the Soviet Union’s repressions. Repressions carried out according to Soviet legal provisions were normative and those carried out according to other acts of legislation were non- normative. The most important criterion for differentiating a normative act from a non-normative act is the public accessibility of the act.
When the preparation stage of repressions is added to the three pillars of penal law, material penal law, procedural law and executive law, a four-level background system, so to speak, is formed, by way of which one type of repression can be divided into different stages. This categorisation provides a uniform basis for comparing different types of repression and also makes it possible to show those attributes that were differentiated from one another.
This mode of systematisation applies primarily to the Stalin-era Soviet Union. Although it can also be extended to the Soviet Union after Stalin’s death, this is nevertheless not as representative because as a result of de- Stalinisation, the Soviet Union’s legal system started externally becoming more like a state based on the rule of law, and it is more difficult to retro- spectively identify repressions that did not measure up to legal provisions.
Separate attention was directed in the article to the concept of political repression that has been used relatively abundantly in historical literature, and to the categorisation tied to this concept of repressions as being justified and not justified.
It is complicated to define the concept of political repression. One of the reasons for this may be that the concept is given the additional meaning of unjustified activity. The concept of repression derives from law and thus the justification of repressions should also be assessed from this basis. From the standpoint of legality in its meaning as understood in states based on the rule of law, however, the categorisation of Soviet repressions as justified and unjustified is pointless because the Soviet Union was not a state based on the rule of law.
In the legal sense, all of the Soviet Union’s repressions were unjustified. All modes of repression admittedly cannot be clearly categorised using the means suggested in the article for systematising Soviet repressions, yet this approach at least provides some kind of framework for obtaining an overview of repressions. It should be regarded as one means for describ- ing the system, not as an exact reflection of the system.
The Soviet Union’s system of repression was not planned from the very beginning to take this form, rather it evolved over a long period of time under the conditions of a state not based on the rule of law, often also caused by political interests of the moment, with its many exceptions that deviated from its general scheme. It is most likely impossible to provide a simple, clear-cut overview of the Soviet Union’s system of repression that at the same time includes all exceptions.
Source: published in the Proceedings of the Estonian Institute of Historical Memory 1 (2018).
* First published: Aivar Niglas, ‘Üks NSV Liidu repressioonide süstematiseeri- mise võimalusi’, Tuna: ajalookultuuri ajakiri, no. 4 (2011): 61–78.
1 The term ‘penal law’ is used in Estonia’s current legal system. This field was referred to as ‘criminal law’ in the Soviet Union. These terms are used as syn- onyms in this article.
2 Ilmar Rebane, Nõukogude kriminaalõigus, 2, Õpetus karistusest: üldosa [So- viet Criminal Law. General Part. Doctrine of Punishment] (Tartu: Tartu Riiklik Ülikool, 1974), 17–21, 26.
3 Jaan Sootak, Sanktsiooniõigus: karistusõiguslikud sanktsioonid ja nende ko- haldamine [Penal Law] (Tallinn: Juura, 2007), 74.
4 Rebane, Nõukogude kriminaalõigus, 3.
5 Ibid., 26–27.
6 Mostly representatives of the ‘exploitative classes’ belonged to the category of ‘socially hazardous’ persons: bankers, politicians, nobles, prison guards, po- licemen, the owners of enterprises in the era of the Russian Empire, etc., after the end of the New Economic Policy (NEP) entrepreneurs from the NEP era as well. This coincided partially with the group of persons deprived of voting rights by the constitution in the 1920s (the so-called lishentsy, the deprived, who can be included among those who were repressed normatively but without having committed any punishable deed. When new territories were captured, represen- tatives of the ‘exploitative classes’ in those areas also became potential objects of repression. ‘Socially hazardous element’ (sotsial’no-opasnyi element) was the most widely used term alongside which ‘element hazardous to society’ (obshchest- venno opasnyi element) was also used, primarily in legal provisions. The criteria of hazardousness to society were not set out in these provisions. There is also no evidence that they were prescribed in some other source. No criminal offence had to be committed previously in order to be declared hazardous to society. The court had the right to declare persons hazardous to society and to send them into exile even in the event of a court verdict of acquittal.
7 The concepts of punishment and criminal offence already started approach- ing their classical meanings in Soviet legal theory during Stalin’s rule and ac- quired them after new fundamental laws (statutes) of criminal law went into effect in 1958. This nevertheless does not change the nature of the problem.
8 Jaan Sootak, Veritasust kriminaalteraapiani: käsitlusi kriminaalõiguse aja- loost [From Blood Feud to Criminal Therapy: Considerations from the History of Criminal Law], (Tallinn: Juura, 1998), 254–255.
9 This legislation has two further important shortcomings: 1) it rules out the re- habilitation of persons punished for certain criminal offences ‘on the grounds of sufficient evidence’ even if these persons were repressed extrajudicially (§4). Such instances of repression would be null and void from the standpoint of law and would not even require a separate rehabilitation decision; 2) among others, per- sons punished for ‘war crimes, crimes against peace, crimes against humanity, and crimes against the administration of justice’ are not subject to rehabilitation. This seemingly is a just provision, but in today’s Russia, where the prosecution of persons who have committed the listed crimes in the Soviet Union is avoided, this legislation contributes to avoiding responsibility. The proper assessment of the Soviet Union’s repressions inherent to a state based on the rule of law would require the nullification of all unlawful repression verdicts, regardless of the con- tent of the charges, and the initiation of new criminal cases. The nullification of the verdicts of persons punished for the above-mentioned crimes, however, and the initiation of new criminal cases would place on the agenda the need to launch investigations regarding persons suspected of committing similar crimes that were not punished during the existence of the Soviet Union.
10 By rehabilitation legislation, I mean legislation in a very general sense that has been adopted to nullify ‘Soviet era’ repression verdicts so that I can avoid writing out the full titles of these acts of legislation. The word ‘rehabilitation’ started be- ing used in the Soviet Union in the meaning of nullifying repression verdicts and is used in this way to this day in the former Soviet Union’s successor states and dependent states. The influentiality of ‘Soviet law’ nevertheless differs. Rehabilitation is used in Estonia and, due to the effect of the German Democratic Republic (GDR), in present day Germany as well, primarily in reference to the nullification of repression verdicts from the time of the Soviet Union and the GDR. The term is used to a small extent in Estonian law in the criminal procedure code (§199 and 274). Present day Russian law, however, has fully adopted this term and treats rehabilitation as an institute of criminal trial law.
11 This is nevertheless not an all-encompassing generalisation because it was not possible for me to peruse the content of the laws in the Soviet Union’s former dependent states (with the exception of the German Federal Republic legislation concerning the German Democratic Republic) due to the language barrier. For Estonia’s legislation (Persons Repressed by Occupying Powers Act, Riigi Teataja
[State Gazette], henceforth RT I 2003, 88, 589). As a matter of fact, these are not actually rehabilitation laws since their aim is not to nullify the Soviet Union’s repression verdicts. This legislation ascertains (as one objective) groups of per- sons who have suffered at the hands of the Communist and National Socialist regimes. The Latvian and Lithuanian laws define the concept of repression for political reasons by way of listing the groups of persons with this status. The concept itself is not defined. The Estonian law does not use the concept of po- litical repression. At the same time, the ‘Extrajudicially repressed and ground- lessly convicted persons act’ adopted on 19 February 1992 and its amendment legislation adopted on 23 November 1993 remain in effect in Estonia (RT 1992, 7, 103; 1993, 76, 1128). This legislation also does not use the concept of political repression but sets the nullification of the Soviet Union’s repression verdicts as its objective. The legislation also lists the sections of the Russian SFSR and the Estonian SSR criminal codes that are subject to nullification. Compared to the law adopted in 2004, the legislation from 1992 and 1993 is farther from the idea of the state based on the rule of law because the Republic of Estonia as a state based on the rule of law, which considers its incorporation into the Soviet Union to be null and void, need not take the obligation upon itself of nullifying the repression verdicts of the Soviet Union as a state that was not based on the rule of law. The laws of other former Soviet republics are strongly influenced by the Russian Federation’s rehabilitation legislation (which is essentially the Russian SFSR rehabilitation law of 1991) and hence they set as their aim the nullifica- tion of the Soviet Union’s repression verdicts based on the political reasons for those repressions. The texts of these laws are published in the collection: Sbornik zakonodatel’nykh i normativnykh aktov o reabilitatsii zhertv politicheskikh repres- sii. Tom II (Kursk: General’naia Prokuratura RF, 1999), 108–122.
12 Gesetz über die Rehabilitierung und Entschädigung von Opfern rechtsstaats- widriger Strafverfolgungsmaßnahmen im Beitrittsgebiet (Strafrechtliches Reha- bilitierungsgesetz – StrRehaG), 29 October 1992, http://www.gesetze-im-internet. de/strrehag/BJNR118140992.html, 1 June 2018.
13 J. Arch Getty, Gabor T. Rittersporn, Viktor Zemskov, ‘Victims of the Soviet Penal System in the Pre-war Years: a First Approach on the Basis of Archival Evidence’, – American Historical Review, October (1993): 1033.
14 Anne Applebaum, Gulag: a history of the Soviet camps (London: Lane, 2003), 272.
15 I use the word ‘banishment’ as a general term for all categories of exile. There were four categories of exile and their designations are translated as follows: vysylka – deportation, ssylka – forced banishment, ssylka na poselenie – special forced banishment, spetsposelenie – special banishment. I also include in the lat- ter category groups in reference to which the following designations were used: trudposelenie – labour banishment, trudpereselenie – labour resettlement, and spetspereselenie – special resettlement. See further: Aivar Niglas, ‘Release ahead of time of Estonian citizens and residents repressed for political reasons by the Soviet authorities and their rehabilitation from 1953 to the 1960s’, – Estonia since 1944: reports of the Estonian International Commission for the Investigation of Crimes Against Humanity, compiled by Peeter Kaasik et al., eds. Toomas Hiio, Meelis Maripuu and Indrek Paavle (Tallinn, Estonian Foundation for the Inves- tigation of Crimes Against Humanity, 2009), 462–467.
16 Advig Kiris et al., Õigusõpetus: õpik [The Teaching of Law: a Textbook] (Tal- linn: Külim, 2009), 66–67.
17 Kalle Merusk et al., Õigusriigi printsiip ja normitehnika [The Principle of a State Based on Law and Norm Technique] (Tartu: Eesti Üiguskeskus, 1999), 18.
18 See the 1936 Constitution of the Soviet Union, § 40 and the 1977 Constitution of the Soviet Union, § 116.
19 The USSR Supreme Soviet Presidium directive issued on 25 February 1961, which was not published in the official publication Vedomosti Verkhovnogo Soveta SSSR, gave the Estonian SSR Supreme Court permission by way of exception to not apply § 6 (The laws in effect at the time when the deed was committed deter- mine the criminality and punishability of the deed, laws eliminating punishabil- ity or reducing the penalty have retroactive effect, laws establishing punishability or increasing the penalty do not have retroactive effect.) and § 41 (Regulated expiration deadlines for criminal prosecution. The maximum period for bring- ing criminal charges was ten years. After that the crime expired. The expiration deadline was extended if the person committed a new crime or concealed himself from investigation or the court. The court decided on the application of expira- tion in cases of crimes for which the death penalty was prescribed. If the court did not consider it possible to apply expiration and proceeded to deliberate the case, the death penalty could not be applied and it had to be replaced by impris- onment.) of the law stating the foundations for criminal legislation in the Soviet Union and its union republics in the case against Ain-Ervin Meri, Ralf Gerrets and Jaan Viik. This made it possible to sentence them to death (Investigation file of Ain-Ervin Mere, Ralf Gerrets and Jaan Viik, RA, ERAF.129SM.1.28653, vol. 19., 503, 517–525). The same kind of legal practice was also used to sentence con- victed ‘war criminals’ to death in the Estonian SSR in the early 1960s. The Soviet Union enacted this legal practice at the legal provision level on 4 March 1965 with the USSR Supreme Soviet Presidium enactment ‘Concerning the punishment of persons guilty of crimes against peace and humankind, and war crimes regard- less of the time when the crime was committed’.
20 Sobranie zakonov i rasporiazhenii Raboche-Krestianskogo Pravitel’stva SSSR, 1924, 24, 206; Vedomosti Verkhovnogo Soveta SSSR, 1959, 1.
21 Sobranie zakonov 1924, 23, 203; Vedomosti Verhovnogo Soveta 1938, 11; Ve- domosti Verkhovnogo Soveta 1959, 1.
22 Sobranie zakonov 1924, 24, 205; Vedomosti Verkhovnogo Soveta 1959, 1.
23 Sobranie uzakonenii i rasporiazhenii Rabochego i Krestianskogo Pravitel’stva. 1918, 51, 582; 1922, 15, 153.
24 Istoriia zakonodatel’stva SSSR i RSFSR po ugolovnomu protsessu i organizatsii suda i prokuratury. Sbornik dokumentov (Moscow: Gosiurizdat, 1955), 377–382.
25 Piter Solomon, Sovetskaia iustitsiia pri Staline [Soviet Criminal Justice Under Stalin] (Moscow: ROSSPEN, 2008), 78–102, 127-–137.
26 Istoriia stalinskogo GULAGa: konets 1920-kh–pervaia polovina 1950-kh godov: sobranie dokumentov v 7 t., Tom 1, Massovye repressii v SSSR, comp. I. A. Ziuzina, eds. N. Vert, S. V. Mironenko (Moscow: ROSSPEN, 2004), 572–574.
27 Leningradskii martirolog 1937–1938: kniga pamiati zhertv politicheskikh repressii, Vol. I, ed. A. Ia. Razumov (Sankt-Peterburg: Izdatel’stvo Rossiiskoi natsional’noi biblioteki, 1996), illustration 82.
28 Hilda Sabbo, Võimatu vaikida [Impossible to Remain Silent], vol. II (Tallinn: Hilda Sabbo, 1996), 1226–1248; Reabilitatsiia: kak eto bylo: dokumenty Prezidi- uma TsK KPSS i drugie materialy, Tom I, Mart 1953 – fevral’ 1956, comp. A. N. Artizov et al. (Moscow: Mezhdunarodnyi fond Demokratiia, 2000), 99–102.
29 Nakazannyi narod: repressii protiv rossiiskikh nemtsev, ed. I. L. Shcherba- kova (Moscow: Zven’ia, 1999), 133–136; Pavel Polian, Ne po svoei vole...: istoriia i geografiia prinuditel’nykh migratsii v SSSR (Moscow: O.G.I - Memorial, 2001), 191–194, 221–223, 234.
30 Indrek Paavle, ‘Ebaühtlane ühtne süsteem. Sovetliku passisüsteemi kujun- emine, regulatsioon ja rakendamine Eesti NSV-s’ [A Non-uniform Uniform Sys- tem. The Development, Regulation and Implementation of the Soviet Passport System in the Estonian SSR], Tuna, no. 4 (2010): 46–47, 52.
31 See for instance the reports of state security organs provided by Oleg Mo- zokhin, which became more orderly starting from the end of the 1940s and the comparability of data from different years improved, see: Oleg Mozokhin, Pravo na repressii: vnesudebnye polnomochiia organov gosudarstvennoi bezopasnosti (1918–1953) (Moscow; Zhukovski: Kuchkovo pole, 2006), 246–465.