Belarus is the only country in Europe where death penalty is still applied. At the same time, the Parliament has been discussing this issue for a long time but no decision has been taken yet. Is our society ready for abolition of capital punishment and when can we expect any concrete steps from the Parliament in this direction? These were the issues discussed in TUT.BY studio within the framework of  ‘Letter of the Law’ program  by Denis Aleinikov, “Argument”  Law Group senior partner, and Nickolay Samoseiko, the Chairman of the House of Representatives Standing Commission on Legal Issues of the National Assembly of Belarus.

To create the basis for our discussion, I’d like to ask you what articles of our Penal Code  deal with capital punishment?

Presently, the relevant articles of the Penal Code are as follows: part 2, i. 122, ‘Unleashing of War or Aggressive Warfare’, part 2, i. 124, ‘Killing of a Foreign Citizen’, i. 126 ‘International Terrorism’, i. 127 ‘Genocide’, i. 128 ‘Crimes Against Safety of Mankind’, i. 134. ‘Usage of Weapons of Mass Destruction’, part 3, i. 135 ‘Violation of Rules and Conventions of Warfare    Relating to Killing of People’, part 3, i. 139 ‘Killing in Aggravating Circumstances’, part 3, i. 357 ‘Terrorism Entailing Killing’, part 2, i. 356 ‘High Treason Entailing Killing’, part 3, i. 357 ‘Conspiracy and Other Activities Aimed at Seizure of State Power Entailing Loss of Life’, i. 359 ‘Act of Terrorism’, part 2, i. 360 ‘Subversion’ i. 362 ‘Killing of Servicemen of Internal Affairs Bodies Who Perform Official Duties on the Protection of Public Order’.

Of these fourteen items, twelve can be applied in peacetime and two remaining ones - only in wartime. In practice, since 1961 death sentences were passed in most cases only for killing in aggravating circumstances. Since 1981 capital punishment was applied only for killing in aggravating circumstances. 

How often are death sentences passed according to the statistics?

We have relevant data since 1961. In that year the number of persons sentenced to death by courts according to verdicts that came into force, were 43. Later on, this figure decreased by approximately 10 – 15 persons per year.  If we take, as starting points, the years when independence of Belarus was declared, when the President was elected, and the referendum was held, then, in 1997, after the referendum death sentences were passed on 46 persons, and in 1998 on 47 persons.  After that the number of death sentences sharply decreased and in 2008 only two persons were sentenced to death, and in 2009 – also two persons. Therefore, the number of death sentences decreased 23 times.    

What may be the reason of such sharp decrease of this penalty?

First of all, this happened due to the fact that in 1997 life imprisonment was adopted as an alternative to death sentence.

Today one of the main arguments of opponents of death penalty is the possibility of a judicial error which in case of capital punishment can not be corrected.  Were there any cases of judicial errors relating to death sentences in the history of Belarus as a sovereign state or in the history of the BSSR?  

There were no such cases in jurisdiction of Belarus as a sovereign state. In the history of the BSSR there was one case disgraceful for the then judiciary system when a certain Gennady Mikhasevich, accused of a number of serial murders with rapes, was sentenced to death in 1987. But earlier, in 1971 – 1984 for his crimes 14 persons were sentenced as well, and among then one was sentenced to death.

Belarus is a European state, it is situated between Russia and Europe. What about capital punishment in Europe? 

Capital punishment is abolished in all 46 countries, Belarus is the 47th. On adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms dated November, 4, 1950, European countries started moving towards abolition of capital punishment. Subsequently, all European countries ratified Protocol No. 6 of the Convention  dated April, 28, 1983 which envisages abolition of capital punishment in peacetime. Most countries also ratified Protocol No 13, which envisages abolition of capital punishment also in wartime.

What is the general trend in the world as regards capital punishment?

Presently, 86 countries including the USA, China, Japan still have capital punishment. Out of 192 member states of the UN, 95 countries  have abolished death penalty completely, nine countries have preserved it only for the most grievous offences. 35 countries keep capital punishment in their legislation buy do not apply it in practice. That means 139 member states of the UN have abolished death penalty one way or another.

In Africa, of 53 states 15 countries have abolished death penalty completely, 23 do not apply it in practice. Since 2003 only the USA apply capital punishment on the American continent (both in  North and South America), but the USA are gradually moving towards abolition of capital punishment. The most cases of application of death penalty are observed in China, Iran, Saudi Arabia, among the UN member states – in Belarus and the USA. So, in 2008, 93% of all death penalties were applied in five countries.     

What can you say about the situation in the former Soviet Republics?

At the moment of the breakup of the Soviet Union, all its republics had capital punishment.  Later on, Armenia, Azerbaijan, Georgia, Kyrgyzstan,  Moldova, Turkmenistan, Ukraine and Uzbekistan have legislatively abolished death penalty. In Tajikistan and Russia as well as in the  unrecognized Trans-Dniester Region, Abknazia,  North Ossetia moratotium on execution of death penalties was declared. 

What is the present situation in Russia? More than 10 years ago moratorium was declared  there, and at the end of the last year discussions on the status of  the given punishment started again.

Death sentences are not passed and are not executed in Russia since September, 1996, when the President of the Russian Federation Boris Yeltsin signed a decree on stage-by-stage decrease of death sentences in connection with its entry into the Council of Europe. In 1997 Protocol No 6 of the Convention on Human Rights was signed, but not ratified.

Besides, ten years ago the the Constitutional Court of Russia declared death sentences to be unconstitutional motivating this decision with the fact that in some places jury trials authorized to pass death sentences  are not available.

This moratorium covered all regions of the Russian Federation and by 2007 the only place where this moratorium was not in force was the Chechen Republic. In January, 2007, this institution should also have been introduced in Chechnya but, due to well-known reasons, the term was postponed by 3 years – to January, 1, 2010. Because of this, the Constitutional Court  decided to extend moratorium on death penalty, pointing out that in the course of these three years legitimate constitutional and legal regime was formed within the framework thereof irrereversible process is going on, aimed at abolition of capital punishment as exclusive measure, that is a temporary measure of punishment intended for a certain transitional period.

Today Russia found itself in a complicated situation which is close to a legal trap. Presently, we witness high rise of criminality there, and moreover, some crimes seem to be much more sophisticated than before. The better part of the society as well as considerable number of  deputies of the State Duma are inclined to restore death penalty. And if this signed Protocol No 6 is submitted for ratification now, nobody will guarantee that it won’t fall through, just like many proposals which are currently being considered by the State Duma. I would call it a ‘political suicide’, as in this case death sentences will be carried out, thus automatically canceling Russia’s membership in the Council of Europe and European Court.

Taking into account the law-enforcement experience the Russian Federation has already had, and considering the fact that between Europe and Russia we are the only country in which capital punishment is still applied, do we hold any inter-parliamentary consultations with Russia on the future of death penalty institution?

No, we don’t have such consultations with the Russian Federation, at least, officially.

And what about any European bodies? Do we communicate with any of them and discuss this issue?

Yes, we have contacts with European bodies, both on the initiative of the Council of Europe, Parliamentary Assembly of the Council of Europe and on the initiative of the Belarusian side.
For example, in February, 2009, PACE delegation headed by the Chairman of the PACE’s Political Affairs Committee Goran Lindblad visited our country.  As a result of this visit it was announced that the Assembly’s Rapporteur on Belarus Andrea Rigoni is going to propose  restoring the special guest status for Belarus to the Assembly session in June. In May of that year PACE Political Commission voted in favour of this restoring for the National Assembly of Belarus, but on June, 23, 2009, at the PACE session in Strasbourg it was decided that the special guest status would be restored for one year on condition that moratorium on death penalty was decreed in Belarus.  

That means, that a social and legal issue also became a political one? The Parliament needs status and this status will be restored by PACE only if moratorium on death penalty is decreed?

Discussions of the possibility of moratorium on death penalty in Belarus or its complete abolition are going on for a long time. But one should understand the mentality of Belarusians: after PACE actually presented an ultimatum to Belarus, the process came to a standstill last year.   Presently, it is gaining in strength again, but it is not connected with the above conditions. The situation with PACE ultimatum has to some extent negatively influenced the discussion of this issue, and somewhat slowed it down.   

Application of death penalty in the country prevents us from entry into the Council of Europe. Do we really want to enter and do we regard capital punishment as an obstacle?

The given issue is not connected with the process of approaching European institutions. Foreign policy of Belarus has many vectors, we never imposed any conditions and never yielded to pressure either from Europe or from Russia, or from the East. The main criteria in this issue is the benefit of Belarusian people and our wish not to harm the interests of our country. In our foreign policy we proceed only from this.

What shall we proceed from while taking decision on possible abolition of capital punishment or declaration of moratorium on death penalty?  Here we can not proceed from the principle whether this is profitable for us or not. The argument of many supporters of capital punishment is that economically it is not profitable for the state to keep criminals in jail for life on taxes of people.

I would never compare human life with economic profit. Following respondents’ logic we can go too far: then life imprisonment is not profitable either, as well as 25 or 15 years’ imprisonment. In this case either all criminals should be executed, or they should released. These two aspects,  human life and economic calculations, are quite incompatible.  

What can you say about our penal legislation from the European point of view as regards not only death penalty but, for example, its correspondence to international agreements concluded by us, to international standards? Are we ready, from the point of view of the legislature, to take decisions on the level of European principles?

As for correspondence to international agreements, our legislation corresponds to them completely. Since Belarus, being a member of the Convention on Human Rights, didn’t sign Protocol No 6 and, accordingly, didn’t ratify it, it didn’t assume any obligations as regards this. Besides, Artcile 6 of the International Covenant on Civil and Political Rights, which Belarus is a member of, says that every state guarantees its citizens the right to live. Part 2 of this article says that in the countries where capital punishment has not been abolished, death sentences shall be passed only for the most grievous offences in accordance with the legislation active at the moment of committal of this offence and only according to the definitive sentence of the competent court.

The referendum held in 1996 showed that Belarusians are against abolition of capital punishment. What, in your opinion, changed after almost thirteen years? Is Belarusian society, or at least, most of it, ready for  abolition of capital punishment or moratorium on it?  

During the time that passed, the number of death sentences has decreased 23 times. After signing in May, 2002, by the Council of Europe member states of Protocol No 13 on abolition of capital punishment not only in peacetime but also in wartime, in June, parliamentary hearings were held in the House of Representatives of the National Assembly of Belarus on political and legal abolition of capital punishment in Belarus with participation of PACE. The result of these  parliamentary hearings was the recommendations to the Government, state structures, sociologists and scientists in the given issue.

In March, 2004, the Constitutional Court of Belarus considered the issue of correspondence of the Constitution of the Republic, provisions of the Penal Code to international agreements regulating application of death penalty. After conclusion of the Constitutional Court which pointed out the temporary nature of capital punishment, in July, 2006, these provisions were secured also in two articles of the Penal Code. 
All this can be regarded as preconditions for discussion of abolition of capital punishment or declaration of moratorium on it.

As for subjective factors, indeed, the referendum of 1996 showed that 80.44% of those taking part in it, voted in favor of preservation of death penalty. Today, this figure is not permanent. For example, according to the sociological poll carried out by Independent Institute of Socio-Economic and Political Studies in Vilnius, as of August 9, 2009, 44.2% of Belarusian respondents voted for abolition of death penalty, 47.8% voted against it, 8% were ambiguous about it. At the same time, I’d like to emphasize that analysts of the given Institute say that in the XXI century attitude to capital punishment is some kind of a test on belonging to the civilized world, if by it we understand the world of Western democracy.

If the question was asked in this manner, then personally I doubt objectivity of this poll. It should be noted, that approximately at the same time, in the summer of 2009, I personally took part in one of the programs of ‘The Choice’ talk-show. The program was about the problems of capital punishment, and in the beginning of it the ratio of those in favor of abolition of death penalty and those against abolition was approximately 20:70. By the end of the program, after discussions, this ratio changed to 30:60. At that, much also depends on the manner in which this question is asked.  For example, I am sure that if we include in the list of queries besides ‘for’ and ‘against’ also ‘life imprisonment’, then, probably, the number of ‘for’s’ would decrease.

Proceeding not only from geopolitical position but also from historic point of view, we can say that in many respects Belarus has its own way to go. On the one hand, we have 46 countries in the West that have abolished capital punishment, we also have Russia which declared moratorium on it and finds itself now in a difficult situation. On the other hand, in the East we have China that bears the palm, Iran, Saudi Arabia where death penalties are quite common. That’s why I’m inclined to think that Belarus has its own way. In most European countries the decision about abolition of capital punishment was taken contrary to public opinion. Later on, public opinion changed and presently sociological polls show that society is in favor of this abolition. But Belarus, in my opinion, should obtain balance by informing its society, so that the society would come to realization of this issue.

You said that, according to sociologists, attitude to capital punishment is some kind of a test on belonging to the civilized world. But in the USA they still apply death penalties. That means, the USA don’t belong to the civilized world, whatever democratic they would call themselves? 

I think, we all got sick and tired of expression ‘the USA is the country of double standards’. If the USA consider themselves to be civilized and democratic society but don’t consider some other country as such, that doesn’t mean that it is really so.  By the way, notice that according to criminological studies preservation of capital punishment stimulate aggression in public opinion as well. A person may start thinking in the following manner: “If the state can do this, in certain circumstances I also have right to do this”. And here we have a striking example of the USA: it is already acknowledged that capital punishment developed a strong feeling of aggressiveness among the American population. And both foreign and internal functions of the US themselves are already aggressive.              

You mentioned that application of death penalty provokes growth of aggressiveness in the society as well. But the society looks at the state, and does the state have the right to kill its citizen even for the murder committed by him, when one of Christian commandments says “Thou shalt not kill !”?  And, generally speaking, killing is a deed punishable by God…

The issue on whether a state has the right to apply death penalty is within the competence of each concrete state, proceeding from the concrete social and economical situation. It may seem a paradox, but pre-Christian Russia didn’t have any capital punishment whatsoever. It was introduced to criminal legislation due to Byzantine and later to West-European influence.

As for the deeds punishable by God, I’d like you to consider the following thesis: according to Christian religion a killer will come to the Last Judgment also as a killer if he was not executed himself. Otherwise, he will appear as a victim.

Quite recently it was reported in the press that human rights activists made an appeal to the Parliament regarding abolition of capital punishment. How did the Parliament react to this? Will it consider this issue and when can we expect this?    

I wouldn’t connect consideration of this issue with the appeal of human rights activists. Preconditions for consideration of this issue existed for a long time and the relevant activities started long ago. I’ll take the liberty of  saying that if it were not for PACE ultimatum, then the working group would have been formed already last summer. Presently, the work on this issue is going on and I think in the near future, before the spring session, the working group will be created in the Parliament for consideration of the possibility of abolition of capital punishment.

If a decision is taken to hold parliamentary hearings, what will be the purpose of them? How can their results be used? And how these results will influence the decision regarding death penalty? 

The results of parliamentary hearings can directly influence the decision, positive or negative. It should be pointed out that parliamentary hearings of 2002 became an impulse leading to the conclusion of the Constitutional Court and subsequent amendments in the legislation regarding death penalty.    

What body will take the decision, and what can it look like technically from the point of view of legal mechanisms?  

Legal mechanism for declaration of moratorium or abolition of capital punishment is the secondary issue, purely technical. To solve the secondary issue, we should solve the first one, which we are presently discussing – readiness of our society.

If we talk about legal mechanism, there are enough ways to do this: signing and subsequent ratification of Protocol No 6 of the European Convention of 1950, declaration of a temporary moratorium either by the President or by the Parliament, introduction of amendments into the Penal Code.  But however that may be, this is the secondary issue.

What is your personal opinion of death penalty? 

This is the very question I was expecting. I stand for abolition of capital punishment. We can talk about those who stand for and those who stand against, we can either support or refute arguments, but this issue must be discussed. I’m deeply convinced there will be no winners in this dispute: one way or another, reasons of each party deserve attention.

Society regards death sentence as an act of social revenge. Is it possible that moratorium on death penalty or its abolition will lead to tension within the society?  

Moratorium is a temporary measure: we can declare it, estimate the situation and, if necessary, we can cancel it.

In theoretical and legal aspects, preservation of capital punishment is an element which is incompatible with the essence of justice, because justice which is based on revenge is not justice.

The main argument in favor of abolition of death penalty is absence of clearly justified,  indisputable and valid arguments against it. I think that it is life imprisonment that can be an adequate punishment for a crime.