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Analysis & Opinion
06.11.09 Will Russia Bring Back Capital Punishment?
Introduced by Vladimir Frolov

Contributors: Vladimir Belaeff, Stephen Blank, Ethan Burger

Russia’s Supreme Court has filed a petition with the country’s Constitutional Court asking for a ruling on whether Russia should continue with its self-imposed moratorium on capital punishment. Russia has maintained a moratorium on capital punishment since 1999, when the Constitutional Court ruled that the death penalty should be suspended until trials by an independent jury become available in every region of Russia. Does Russia really need to reintroduce capital punishment? Why are the Russian public and political parties so strongly in favor of this cruel measure?

In January of 2010 Chechnya will introduce jury trials, making it the last federation subject to introduce this regime. This effectively eliminates the legal preconditions for a countrywide moratorium on capital punishment.

Abandoning capital punishment by 1999 was a condition Russia had to fulfill in order to join the Council of Europe and its institutions. Russia also signed (but failed to ratify) the Sixth Protocol to the European Convention on Human Rights, which explicitly bans capital punishment. Reintroduction of capital punishment will put Russia on the brink of expulsion from the Council of Europe, the oldest European institution.

Today, Russian public opinion is split on whether the country needs to reintroduce capital punishment. Opinion polls show that a strong majority of Russians (63 to 70 percent) favor capital punishment and even want to expand it to a wider range of crimes. However, Russians are increasingly skeptical about the court system, with barely 38 percent saying that the courts are unbiased in their decisions, while over 45 percent do not trust the police.

The Kremlin is equally uncertain about how to proceed. While he was still president, Prime Minister Vladimir Putin always spoke out against capital punishment, while President Dmitry Medvedev has not made his feelings on the matter quite clear yet.

Russia’s political parties, from United Russia to the Communist Party, strongly favor the reintroduction of capital punishment, with only a handful of liberal politicians speaking in support of the current moratorium.

It is most likely that the Kremlin will seek to postpone making any decisions on this issue, sensing serious political repercussions both at home and abroad. Evidence on whether capital punishment is a strong deterrent for criminals considering serious crimes is hazy, while evidence of mistakes being made in court decisions is much stronger.
Capital punishment is banned in Europe, while the United States maintains it for some federal crimes like terrorism, and certain states administer capital punishment for less serious crimes. It is widely practiced in China, where it is even used to fight corruption by government officials.

Does Russia really need to reintroduce capital punishment? Why are the Russian public and political parties so strongly in favor of this cruel measure? Is it an issue where Russia could still “join Europe,” or should it follow the American and Chinese models? Will capital punishment become a serious political issue for the Russian election cycle in 2012? Why is Vladimir Putin, the KGB hardliner and a man of the past, according to the Obama administration, against capital punishment?

Ethan S. Burger, Adjunct Professor, Georgetown University Law Center, Washington, DC:

There is no need for Russia to reinstate capital punishment since it already has an equivalent. Throughout most of the world, prisons are not pleasant places. The conditions in Russian prisons are particularly harsh.
The risk of contracting HIV or tuberculosis when in prison for a long period of time is great. Furthermore, one might be killed by another prisoner. There are very few NGOs, civil liberty lawyers and journalists concerned with the issue of prisoners' rights.

Russia is a member of the Council of Europe (COE). Although certain members of Russian society may regret it, the country is a party to the COE's European Convention on Human Rights. Consequently, Russia is obliged to abide by the final judgments of the European Court on Human Rights. In recent years, more cases have been brought against Russia in the ECHR than any other country—evidence of the shortcomings of the Russian criminal justice system.
Article 15(4) of the Russian Constitution stipulates that "[t]he commonly recognized principles and norms of international law and the international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply." Consequently, Russia could not reinstate capital punishment without violating its COE obligations.

In any event, Russian law enforcement does not have a particularly outstanding record in apprehending murder suspects. Another issue that cannot be overlooked is that Russian citizens frequently change their testimony out of fear. According to Paul Goble, “even though Russia has a witness protection program, one out of four witnesses in Russian trials changes his story when called to the stand, fearful that criminals will retaliate – yet another obstacle on Russia’s road to a law-based society. Many countries have long recognized the need to provide protection to witnesses, and in 1985, the UN General Assembly passed a resolution calling on countries without such programs to set them up. Russia did not do so until January 2005, but to date, only about 5,000 people are being protected under its terms.” This is a universal problem most often associated with guilty parties being acquitted, and most people are understandably reluctant to testify against members of organized criminal groups.

For people who would like to see a film that provides an excellent argument against the death penalty, I recommend Errol Morris' A Thin Blue Line and Norman Jewison's In the Heat of the Night. In my view, the old Russian system of internal exile (and hard labor, when appropriate), is a better model than capital punishment.

Vladimir Belaeff, President, Global Society Institute, Inc., San Francisco, CA:

Frolov’s reference to the current application of the death penalty in the United States requires clarification. Criminal punishment in principle is defined by jurisdiction – federal, the 50 individual states, and the capital (the city of Washington, coterminous with the District of Columbia). Of these jurisdictions, roughly three quarters have the death penalty in their statutes, and two thirds have performed executions since 1976. Abolition of the death penalty in the United States is complicated because over 50 diverse criminal law systems must be changed, and each is controlled separately – this requires tens of separate processes.

Now, a couple of historical notes. On November 2, 1792, an advocate of women’s rights (which were not included in the revolutionary “Declaration of the Rights of Man”), Olympe de Gouges, was guillotined in Paris by the Jacobins “for opposition to the death penalty.” Several decades earlier, in the period between 1741 and 1762, Russia’s Empress Elizabeth (the daughter of Peter the Great) introduced a moratorium on the death penalty in Russia, which lasted during her entire reign. This initiative by an autocratic monarch of Russia stands in contrast with the practices of its time (and of our present) and with the behavior of the ideological ancestors of the world’s social democrats and revolutionaries – the French Jacobins.

Elizabeth’s (and de Gouges’) opposition to the death penalty was based on moral and procedural considerations (including the irreversibility of this punishment in cases of miscarriage of justice – an issue that is now at the forefront of discussion in the United States, thanks to modern forensic science, which has overturned many convictions of prisoners on death row.)

Russia is emerging from a period of decades of rule by a political party which proudly and accurately considered itself a modern descendant of the Jacobins, using and emulating Jacobin symbols and procedures (Vladimir Lenin’s “Red Terror.”) One of the consequences of this misrule is the remaining, broad disregard for legal systems. Many centuries of legal experience and education, rooted in the common European heritage of the Codex Justiniani (and further back in time) were abolished in 1917. Only in the past few decades did Russia start the development of genuine jurisprudence and a culture of legal justice. This process is hampered by rampant corruption, which undermines the fundamental principle of equal application of laws in all subject cases (not to be confused with equality before the law, which is a germane but different matter).

Given the current situation in Russia, with crime and corruption widespread (for example, the recent series of criminal acts by law-enforcement personnel) the political and social pressure for a return to capital punishment is both understandable and forceful. Other societies, when subjected to far lesser criminal pressure (America, for instance) respond with nearly universal support for capital punishment.

Yet the aspects of capital punishment that influenced the moratorium of Her Imperial Majesty Elizaveta Petrovna are even more evident in Russia 250 years later. Maybe the Russians should consider the example of their Empress, at least until such a time as Russia’s justice system is more robust and cleaner, and there is a more firmly rooted culture of law in the country. One is sure that Russia is on a path to that happier condition and one sincerely wishes that such a time shall arrive for Russia in the not too distant future.

Professor Stephen Blank, the U.S. Army War College, Carlyle Barracks, PA:

I think (though I cannot be certain) that the public attachment to capital punishment is a vestige of yearning for a strong state and order, and a misplaced belief that it will deter serious crime. Apart from the serious political repercussions of adopting capital punishment outlined in Frolov's introduction, I think that in a system of justice so corrupted by so many factors, it would be a horrible mistake to introduce it lest it be not only abused, but also that serious mistakes and convictions of innocents occur.

Although I personally do not oppose its use for specific serious crimes, the record in the United States (which has an incomparably freer and more sophisticated judiciary and legal system) shows serious cases of mistakes or abuse. Capital punishment must be used only where the facts of a case are rigorously and impartially verified and with the strictest imaginable legal safeguards for the accused. Otherwise serious miscarriages of justice, which are routine in Russia, will occur. For that reason, I hope Moscow decides to stay within the European system.
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