08.02.2006
The Specter of Capital Punishment in Russia
№1 2006 January/March

The debate in Russia between the proponents and opponents of the
death penalty resurfaces with every new terrorist act, or with the
Council of Europe’s regular report concerning Moscow’s obligations
with regard to human rights. The Council’s position is based on the
premise that the ban on capital punishment is consistent with
fundamental European values pertaining to the observance of human
rights.

Thus far, the debate has yielded no result. The arguments of the
politicians rarely go further than commonplace reasoning and end up
getting lost in heated emotions. Among the academicians, the
controversy usually boils down to the difference in views between
Immanuel Kant and Albert Camus on this issue: as is known, the
former insisted on the necessity of the death penalty while the
latter regarded it as a manifestation of the government’s
hypocrisy. (Incidentally, my regular work in politics compels me to
side with the author of Reflections on the Guillotine, that is,
Camus, rather than Kant, the author of Metaphysics of Morals.)
References to historical thought provide a certain amount of
consistency and convincingness to the arguments. However, it also
testifies to the fact that Russia lacks modern expert knowledge
about punishment; it has no developed penitentiary science, as is
the case in Europe and the U.S.

RECESSION OR DEFEAT?

According to numerous public opinion polls, about two-thirds of
the Russian population speak in favor of the death penalty. The
majority of the proponents are men above the age of 40 who live in
small or medium-sized towns, have a secondary education and modest
incomes. Opponents of the death penalty are usually under the age
of 40 and have a higher education and above-average income levels.
Importantly, the number of those supporting the abolition of death
penalty has grown considerably in Russia over the last three years.
Fortunately, with all due respect to the first group, Russia’s
future belongs to the latter, which means there are good prospects
that Russia will eventually accept European values.

In 2006, Russia will act as the Chairman of the Committee of
Ministers of the Council of Europe, an organization that demands
that Russia pass a law on the abolition of death penalty. This
chairmanship is an honorary position and the country should prepare
for it. However, in light of certain developments in Russia,
including the failure to voluntarily abolish the death penalty,
there are doubts about Russia’s legitimacy for this high
mission.

In the 1990s, as Russia jettisoned Communism, Moscow sought
technical assistance from international institutions. The Council
of Europe seemed the least obtrusive international organization as
compared to the International Monetary Fund, the World Bank or the
European Bank for Reconstruction and Development, whose “shock
therapies” actually caused the temporary loss of Russia’s economic
sovereignty.

When Russia joined the Council of Europe in February 1996, it
declared its intention to fulfill all the required conditions,
which included the abolition of the death penalty. According to CE
regulations, every member is required to ratify – within three
years from the day of its accession – Protocol No. 6 to the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, which abolishes the death penalty during
peacetime. Today, the Russian Federation remains the only member
state of the Council of Europe whose parliament has not ratified
the abolition of the death penalty.

Russia declared a moratorium on capital punishment and issued a
resolution by the Constitutional Court, which states that no
individual may be sentenced to death today. The Council of Europe
agrees that the death penalty did “recede” in this country,
however, Russia assumed the liability to abolish capital punishment
altogether when it joined this institution.

In 1996, Boris Yeltsin decreed Russia’s ban on capital
punishment. Yeltsin carried out this decision against the will of
the legislative, of which he had no special liking – and with good
reasons. In May 1997, Russia’s permanent representative to the
Council of Europe signed Protocol No. 6. In 1999, the
Constitutional Court decreed that death sentences would not be
handed down until jury courts were introduced in all Russian
territories. This decision by the Constitutional Court was based on
Article 20 of the RF Constitution, which states that a person who
is facing a death sentence is entitled to have his case heard by a
jury. Today, jury courts are in force in all of the Russian regions
except Chechnya. Formally, the death penalty could be reinstated in
Russia as soon as a jury court is introduced in Chechnya.

In the spring of 2001, Russian General Gennady Troshev demanded
that Chechen terrorist leaders be executed in public by shooting.
Several Russian regions also demanded that Moscow reinstate the
death penalty.

In July 2001, President Putin made his first public statement on
this burning issue. He said that he was “against the death penalty
because increasing the severity of the punishment does not help to
extirpate crime.” This statement by the head of state sparked
controversial comments among the State Duma deputies. Soon
thereafter, the State Duma Council rejected a draft bill to remove
capital punishment from the RF Criminal Code that was proposed by
the Union of Right Forces faction. Today, the State Duma has still
not arrived at a consensus on the capital punishment question.

“POINT OF HONOR”

The European community remains perplexed by Russia’s ambiguous
position on the ban of the death penalty, both because of its
unwillingness to fulfill the assumed obligations, and its
predilection for archaic methods of punishment (as compared with
international standards). Reports from the Council of Europe
consistently show displeasure with the protection of human rights
record in Russia. Actually, it took this international institution
35 years before it abolished the death penalty; thus, it is very
sensitive about this subject in other countries. The Council of
Europe and the CE Parliamentary Assembly (PACE) express the general
view of the Europeans: a nation’s ultimate conclusion concerning
the death penalty reflects its degree of liberalization.

It should be mentioned here that the abolition of capital
punishment is now a worldwide effort that extends far beyond
Europe: according to Amnesty International, 120 countries have
abolished capital punishment either by law or in practice. Death
sentence executions are rare once a country has decided to ban
them: since 1985, only four countries have reinstated the use of
capital punishment. So the trend is obvious – once the death
penalty has been rejected it is rarely reinstated.

Member states of the Council of Europe that have no formal law
against capital punishment are more subject to monitoring
procedures involving the protection of human rights; monitoring is
not as harmless as it might seem. While the CE has no powers to
directly implement sanctions of any kind, a country being monitored
for human rights violations nevertheless risks a tarnished
reputation while losing its ‘soft power.’ Its prestige is damaged,
while support of such a country by other states is considered
inappropriate despite the possible loss of economic and political
benefits.

Today, rumors are rampant among PACE deputies as to why Russia
remains indecisive on the death penalty, while some suggest that
Russia “keeps it in reserve” as a possible way to get rid of
Mikhail Khodorkovsky. These are just rumors; the more important
problem is that Russia’s reluctance to ratify Protocol No. 6 – seen
as the nonobservance of its obligations – may provoke new attacks
by malevolent circles in Europe. In the future, their actions may
go beyond anti-Russian rhetoric and involve concrete measures aimed
to complicate Russia-EU business relations and impede the
implementation of agreements, including those reached during the
last Russia-EU summit.

In January 2006, there may be efforts to invalidate Russia’s
term of presidency in the CE Committee of Ministers. According to
PACE regulations, the rights of national delegations are confirmed
by a vote during the annual January assemblies, and it only
requires 10 PACE deputies to initiate an appeal against Russia’s
validity for presidency; these deputies can be easily found. Under
the circumstances, the voting will most likely be unfavorable for
Russia. Furthermore, the vote results may then be used to not only
invalidate Russia’s presidency in the CE Committee of Ministers but
also its chairmanship of the G-8 in 2006.

The probability of such consequences due to Russia delaying the
ratification of Protocol No. 6 is quite high. The death penalty
issue may be “fastened” to other criticisms of Russia, such as
reports on human rights violations in Chechnya, or the case
involving Moldova’s nationalist Ilie Ilascu who was sentenced to
prison in Transdniestria. One may also expect a new wave of
criticism, as well as increased pressure on Brussels and other
European capitals. For Russia, the formal ratification of a law
abolishing the death penalty may eventually become as critical as
the ratification of the Kyoto Protocol was in the past.

Russia is sensitive about criticism coming from the Europeans
for often it has been invalid, to put it mildly. However, in case
of Protocol No. 6, Russia makes itself unnecessarily vulnerable to
criticism. 

Even if we exclude Russia’s obligation before the Council of
Europe, which, according to the Secretary-General of the Council of
Europe, Terry Davis, has become a “point of honor” for this
country, as well as Russia’s European choice, which, according to
President Putin, “has no alternatives,” there seem to be no good
reasons for maintaining the death penalty. It is merely the
government’s ritual of killing scapegoats for the sake of the
atonement of Philistines’ sins. After all, a good life is not born
of fear and no conscientious scholar would claim that a reduction
in crime is directly related to the executor’s activity.

Maintaining the death penalty does not correspond with the
country’s present course, nor is it in line with its general
liberal tradition.
Remarkably, history shows that when liberalism was replaced by
periods of reaction, the dramatic change would immediately manifest
itself in the authorities’ attitude to the death penalty.

In 1917, the Provisional Government announced amnesty for
political prisoners and abolished capital punishment. However, soon
thereafter court martial was made operational on the fronts. In
1920, the Bolsheviks, too, announced the abolition of death
penalty, but two months later it was again put in force – without
much publicity – in regions where martial law was introduced. The
horrible consequences of this move are well known. In 1947, Joseph
Stalin decided to terminate the use of capital punishment; three
years later, not withstanding a test by the notorious ‘Leningrad
case,’ he reintroduced death sentences. The question is: For what
cases should we reserve the authorities’ right to apply death
penalty?

Some people hold that capital punishment restrains the behavior
of criminals and terrorists. However, the statistics on severe
crimes in countries where the death penalty has been abolished does
not confirm this belief. In Canada, for example, over three severe
crimes were committed per every 100,000 people before the death
penalty was abolished in 1976; after that, the rate consistently
went down and eventually reached less than two serious crimes per
100,000 people in 2003. A UN study conducted from 1988 through 2002
showed that states should not fear an unexpected jump in their
crime rates if they start relying less on capital punishment. The
severity of the punishment for a crime can cause worse crimes.
Furthermore, even if a criminal is executed while ten criminals
remain free, crime rates will certainly not go down. There is only
one alternative to the severity of punishment and that is its
inevitability.

As for terrorism, shahids have never feared death while the
instigators of terrorist acts are rarely caught. Moreover, life
imprisonment in extremely rigid Russian conditions (with prisoners
kept on “mourn bread and grief water”) hardly yields to the death
penalty.

Some argue that the care of lifers in prison is a heavy burden
on the budget and tax payers are against it. Needless to say, such
reasoning is very dangerous since it may also imply that the
maintenance of courts is also costly and should be replaced by
“administrative procedures.” It also follows from this logic that
general elections are all too expensive.

Incidentally, the Criminal Code of the Russian Federation has no
direct provisions for capital punishment for terrorism. Should the
death penalty be reinstated, it will be applied to cases of
premeditated murder; encroachment on the life of state officials,
judges, prosecutors, policemen; genocide, etc. But since Russia has
not ratified Protocol No. 6, criminals and even terrorists hiding
in Europe are not extradited to this country.

Moralists claim that the death penalty creates a sort of balance
in society: if someone kills a person, the individual who committed
the crime will also be killed. But this means that society must be
able to “weigh” the lives of the murderer and the victim. Are there
scales on Earth to weigh human lives? Some say that Russia is not
ready yet to abolish the death penalty because its people’s
awareness of law is very low. It seems unlikely that the citizens
from Uzbekistan, for example, one of the 120 abolitionist countries
that plans to abolish the death penalty in 2008, have a higher
level of awareness of law than the Russians.

Another problem with capital punishment is wrongful deaths. As
long as capital punishment persists, innocent people will continue
to be executed because dramatic mistakes are possible even in the
well-developed judiciary systems. Once a subject of the law has
been executed there is no way of correcting the horrible mistake.
From 1973 through 2005, more than 120 U.S. wrongfully condemned
prisoners that were sentenced to death were released from custody.
It is clear that in all these cases the judges cared more about
sacrificing the person’s life than establishing his guilt.

CONVICTION VS RESPONSIBILITY

The weightiest argument in favor of the death sentence
transpires from the so-called people’s will – after each execution
they feel sort of purged. And of course, there is never a lack of
people ready to “add wood to the pile.”

There is some apprehension that after the ratification of
Protocol No. 6, the ruling United Russia party may lose the support
of the people. However, if every political decision were made from
the point of view “What would people say?” no reforms would be
possible. After all, United Russia and the government did have
political will to abolish privileges and carry out the monetization
reform. Against the background of the recently implemented
unpopular laws there is no reason for fearing a loss of the
electorate; as the saying goes, as well be hanged for a sheep as
for a lamb, especially as the Russian president has spoken in favor
of abolishing the death penalty. I believe that the ratification of
Protocol No. 6 will not cause any social upheavals as capital
punishment has not been applied for nearly ten years now.

Nevertheless, the will of the Russian people is bewildering.
They have no trust in punitive bodies yet two-thirds of the
population want the death penalty, that is, they are ready to
entrust to these bodies the right to decide who must live and who
must die. The average Russian seems to be more inclined to act on
his conviction rather than on the rational assessment of possible
consequences. For instance, he may be convinced that Russia should
terminate its membership in the Council of Europe for the sake of
reinstating the death penalty, while forgetting that in that case
he and his compatriots will lose the opportunity to apply to the
European Court of Human Rights in Strasbourg. As Max Weber would
say, a citizen relies on an “ethics of conviction,” while a
politician relies on an “ethics of responsibility.” It is the
latter that politicians should be guided by.

Incidentally, the Council of Europe regards Russia’s abolition
of capital punishment not as its obligation to European
institutions but to its own people. The success of the country’s
modernization (the necessity of which nobody doubts) also depends
on the degree to which it involves the social/moral sphere, besides
the economic one. All abolitionist countries put an end to capital
punishment from the perspective of an “ethics of responsibility,”
that is, the authorities’ political will. The abolition of the
death penalty in Russia will correspond with its European choice,
which, by the way, was made possible by the government’s remarkable
political will.

Recent social studies show that when Russians speak about Europe
they tend to use positive words like: prosperity, humanism,
culture, comfort, security, civilization, freedom, discipline, and
democracy. With reference to their own country, they speak more of
crisis, violence, moral degradation, and even extinction and
oppression. It may seem that the respondents to the poll were
embittered homeless cosmopolitans. But this is false: these same
self-critical respondents’ perceptions about Russia also mentioned
positive characteristics, such as patriotism, high morals, culture
and mutual help. This means that the Russian people’s positive
attitude toward Europe and its values does not replace their love
for their nation’s “special character.”

There is still hope that the militant adherents of Russia’s
“special character” will not shut the window to Europe.