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Russia: Judge Says Popular Opinion Not Proper Basis For Law (Part 1)

When Russia joined the Council of Europe in 1996, former President Boris Yeltsin imposed a moratorium on executions, in line with the organization's statutes, and promised to strike the death penalty from Russia's law books within three years. So far, Moscow has not honored its obligation, and on 15 February -- ahead of a formal vote on the issue -- a majority of legislators in the State Duma passed a resolution calling on President Vladimir Putin to resume executions, in light of overwhelming public demand.

Will Russia become the odd man out in Europe on the issue? What lies behind Russians' continued support for capital punishment, and can this stance be defended? In Part 1 of a two-part series, RFE/RL correspondent Jeremy Bransten discusses the death penalty and Russia's criminal justice system with one of the country's leading former judges and would-be reformers.

Prague, 20 February 2002 (RFE/RL) -- State Duma legislators clearly were in tune with Russian public opinion when they voted overwhelmingly in favor of a resolution urging President Vladimir Putin to lift Russia's six-year-old moratorium on executions on 15 February.

According to the latest surveys, some three-quarters of Russians favor the death penalty. Putin, although he has pronounced himself in favor of abolishing the punishment, added fuel to the fire recently in a speech blasting law-enforcement officials for their apparent inability to stem rising crime.

In March, Russian legislators will have to decide whether to ratify Protocol Number Six of the Council of Europe's Convention on Human Rights, which calls for the abolition of the death penalty in peacetime and whose passage is mandatory for all states in the organization. Out of the Council of Europe's more than 40 members, only Russia and Turkey have failed to ratify the article.

The Council of Europe's official stance is that the death penalty can no longer be regarded as an acceptable form of punishment from a human rights perspective. The Council calls it an "arbitrary, discriminatory, and irreversible sanction" that has the potential to be misapplied while being ineffective as a preventive measure.

Kristina Pencheva, of the Council of Europe's Directorate for Human Rights, refused to speculate on what might happen to Russia's membership in the prestigious organization if deputies vote to reinstate the death penalty. But she told RFE/RL the Duma resolution is viewed very negatively in Strasbourg.

"Instead of moving closer to ratification, which would be in line with the commitment which they undertook when joining the organization, the recent resolution on behalf of the State Duma in the sense that ratification is premature, addressing President Putin with an appeal that this should not happen, is very much not in line with the standards that the Council of Europe is upholding and has throughout its 43 member states," Pencheva said. "And secondly, it's a very unfortunate development in our view."

While European countries may have abolished the death penalty, many capital punishment advocates argue that Russia, like the United States, has a different history and social conditions than the continent and must be allowed to deal with crime in its own way. They point to Russian Interior Ministry statistics, which show the number of homicides in Russia rising from 29,000 in 1995, before the death penalty moratorium, to 32,000 in 2001.

Sergei Pashin -- now retired from the bench -- is one of Russia's pre-eminent judges. He was tasked by former President Boris Yeltsin, at the start of Russia's emergence as an independent state in the early 1990s, with drafting a new post-Soviet criminal code, which he did, before being pushed out by conservatives in 1995. That liberal code, says Pashin, is now being largely undone by Putin, with the emphasis being put on government control of the judicial process and harsh punishments, creating a climate in which re-adoption of the death penalty seems almost natural.

In fact, Russia's Supreme Court ruled in 1999 that once all of the country's regions have put in place a jury system for murder trials, death sentences could once again be handed down.

Pashin spoke at length on the issue to RFE/RL by telephone from Moscow: "Many norms regarding judicial reform have been adopted now, including new rules of criminal procedure, amendments to the law on the status of judges and a law on bodies falling under the Association of Judges in Russia. I believe that these series of laws contradict the concept of judicial reform which the Russian parliament adopted in 1991. They are acts of counter-reform. Decisions taken by the president enable the strengthening of law-enforcement bodies, that is to say the police and the public prosecutor's office -- they have received new powers -- while failing to promote the defense of human rights. And as regards the independence of judges, it is now seriously threatened."

Pashin said the new emphasis on repression over rehabilitation will only create more crime in Russia. He added that experience leads him to agree with the Council of Europe that the death penalty has no deterrent effect on crime.

"I would not say that capital punishment can be a deterrent to crime. Many of those I have judged believed that if they were caught they would definitely be sentenced to death. It was only afterwards, while already in detention, that they understood that the law also allowed for a prison term for their crimes. So the belief that they would definitely be shot, if caught, didn't prevent them from committing their crimes," Pashin said. "It seems to me that social change, such as doing away with poverty, is a better way to prevent murders committed for the purpose of material gain. As concerns murders motivated by jealousy or domestic disputes, they won't be stopped by the death penalty."

Published data from law-enforcement agencies indicate that in Russia, as in the majority of countries, most murders happen between neighbors or relatives in the heat of argument. The weapon of choice: a kitchen knife. Premeditated killings form only a small percentage of the overall murder rate.

"Different countries have different experiences. If we look at Britain, which abolished the death penalty in the 1960s, there was no growth in premeditated murders following this decision," Pashin said. "I myself was a judge for many years and oversaw cases in which the death penalty was a possibility, and I have to say I never raised my hand to shoot someone who was found guilty because, as a rule, they were just sad cases. In five years as a judge, only once was I called to judge someone accused of a contract murder. Most murderers brought into court are people who have committed murder during a household dispute or unintentionally during an assault or burglary."

Pashin said politicians and journalists should be wary of public opinion polls that purport to show massive public support for the death penalty.

"Experience with juries demonstrates that many people who took part in surveys and behaved harshly, demanding the death penalty and the strongest punishments, saw with surprise once they became jury members that the criminals before them were basically sad characters. And those juries tend to find for the defendant or else they call for more lenient sentences," Pashin said. "Those who speak 'a priori,' and those who have actually experienced our justice system and understand how risky it is to trust that system with our fate, are two totally different sets of people."

Even if the number of capital punishment stalwarts is genuinely high in Russia, Pashin argued that this is not a sufficient argument for killing convicted criminals.

"In very few countries was capital punishment abolished by referendum. There were such examples, but as a rule people support the death penalty. And the less educated and poorer a population is, the more it demands hangings or the firing squad. Therefore, the only option is to observe international commitments, respect human rights as they are enumerated in the Constitution -- the right to life is part of our Russian Constitution -- and act wisely, despite the wishes of the population," Pashin said.

The sad irony is that conditions in Russia's notorious prison camps are so miserable that the presidential pardons commission periodically receives letters from inmates sentenced to life who request the death penalty, as a more "humane" option. For the first 10 years of their incarceration, lifers are allowed two brief visits and one parcel per year. They are kept in tiny, squalid cells and are often underfed, with the resulting likelihood of contracting tuberculosis or other potentially deadly communicable diseases.

But Pashin said it would be unconscionable for the Russian government to use these prisoners' cries of desperation as a justification for reinstating capital punishment: "It is true that conditions in the prison camps and especially for those sentenced to life imprisonment are not the best. They are torture. But I have never believed that capital punishment can be defined as humanism. I believe that human life -- even in the harshest conditions -- is sacred. Yes, I know that there have been some letters from prisoners addressed to the presidential pardons commission, in which prisoners sentenced to life have asked to be shot, saying it would be a humane act from their point of view. But the position of the population is one thing, the position of a prisoner is another, and the position of the state is yet another matter. The state cannot take away the life of its citizens and should concentrate instead on prison reform."

Editorialist Vladimir Dobrenkov, writing in the newspaper "Vremya MN" recently, warned that Russian politicians ignore popular will at their peril: "The people are not going to remain silent much longer. They want the authorities to listen to them and take their opinion into account. What Russia needs is a nationwide movement For Justice, Social Order and Individual Security."

Although surveys consistently show that Russians have little confidence in their current justice system and thus believe in the possibility of judicial errors being committed, such appeals for law and order have gone down well with the general public.

Russian politicians, on the death penalty issue, face a choice: follow the rest of Europe or strike out on their own, once again delineating a separate path for Russia.

(Part 2 of this series examines the rest of Europe's experience with capital punishment. What drove Europe's politicians to seek the death penalty's abolition, often in the face of popular opposition and what has been the experience since that time?)