From: MSN NicknameEagle_wng  (Original Message)    Sent: 6/5/2006 10:58 AM
1.6.2006 17:50 MSK
Seven months to the death penalty
The sentence given Nurpash Kuleyev this last week in Vladikavkaz – death with life imprisonment as an alternative - has revived raised waves of arguments about the death penalty in Russia and a moratorium on it. However, despite the arguments, under the current state of Russian law the death penalty has only seven months to go.

Its is strange to read in newspapers and to listen to broadcast accounts, both reasoned discussions and fiery debates on the theme of whether "Russia should abolish its moratorium on the death penalty." Advocates and opponents of a moratorium are arguing about the non-existent. For there was not and is not any moratorium on the death penalty in Russia.

A propaganda red herring under the title "a moratorium on the death penalty" was let loose in Russia in the mid-1990s and has continued to float around in the mass media, leading to the delusion of unskilled readers here, and to that of simple-minded western observers.

In fact: In 1992, Russia applied to join the Council of Europe. This meant it had to adhere to the European Convention on the defense of human rights and basic freedoms, one of the supplementary protocols of which (protocol No. 6) provides for refusal to use the death penalty in peace time. Russia signed the European convention on Feb 18, 1996, and the Russian Parliament ratified this on May 5. Thus, Russia became a member of the Council of Europe. In joining, Russia undertook, among other things, to ratify Protocol 6 on the abolition of the death penalty within three years. This undertaking was entirely voluntary; the delay in implementation was explained by the need for a step-by-step approach in this direction.

Protocol No. 6 was signed in timely fashion, on April 16, 1997. The Russian Parliament was supposed to ratify it by May 5, 1999, for the Protocol to acquire the force of law, i.e., within three years of Russia’s entry into the Council of Europe. Then-President Boris Yeltsin presented the Protocol to Parliament for ratification three months late, on Aug 6, 1999. And then everything stopped. The Protocol has still not been ratified. Presidents and Parliaments have changed, but the death penalty remains.

On joining the Council of Europe, Russia agreed with a stipulation that it would announce a temporary moratorium on the death penalty at that time. But until it did so, Protocol No. 6 would not acquire the force of law. The Council of Europe proposed that this should happen in a maximum of three years.

But in Russia, everything happens slowly. The moratorium was not proclaimed when Russia became a member of the Council of Europe, nor within a month after, nor even later - and this situation continues. Who would announce the moratorium and how remains unsettled. The Parliament could do it through its own law processes, the President could do it by decree. But the Parliament (Duma) has not resolved on voting, and Presidents do not want to decree it. Not then, not now. So Russia continues to depend on the patience of the Council of Europe - the Protocol is not ratified, the moratorium is not proclaimed.

Instead of a moratorium, President Yeltsin on May 16, 1996 made some allusion to it in a decree "on the phased abolition of the use of the death penalty, in connection with Russia’s entry into the Council of Europe." The decree required the government to prepare a draft law for its adherence to Protocol No. 6, to recommend to Parliament a reduction in the number of cases subject to capital punishment, and to require the Interior Ministry and public prosecutors to deal humanely with those sentenced to death. There was not a word on the curtailing of death sentences. Government propaganda organizations and a servile press then trumpeted to the entire world that Russia had a moratorium on death sentences. Many people believed this, and did not delve into the texts of the decrees and the laws.

Apparently, everyone was happy with this arrangement. Possibly, the Council of Europe believed Yeltsin when he said that no one would be shot in Russia. Or maybe they only pretended to agree, to avoid rocking the boat of Russia’s unstable democracy.

Everything was now in stasis. Supporters of the death penalty satisfied that it has not been forbidden by law, opponents satisfied by the promises of Mr. President. This could have continued to the satisfaction of all, if three citizens had not complained to the Constitutional Court, that two of them had been condemned to death - and one acquitted - in a non-jury trial. They wanted a jury trial. Unfortunately for the accused, jury trials were not available in their regions. And things move slowly in Russia,. Those sentenced argued that this was unjust, since some people could have a jury trial, while others could not

The Constitutional Court agreed with them, ruling on Feb 2, 1999 that the death penalty cannot be imposed, either where there are jury trials or where there are not
For all those charged in Russia have the right to equal justice in an impartial court. This ruling is valid now, and will be continue until such time as trial by jury is available throughout the country. And thus it appears, that there will be no judicial barriers to the application of death sentences.

Currently, Chechnya is the only place where jury trials are lacking. A law of 2001 on the introduction of a new criminal procedures code provides that jury trials should be introduced into Chechnya not later than Jan 1, 2007. There are seven months and two days until then.

Meanwhile, the myth of the moratorium continues to stimulate the imagination of PR people, politicians and members of Parliament. One of the latter, Sergei Baburin, is so assured of the existence of the moratorium that he introduced a draft bill in Parliament last November "to repeal it." Or at least some of it.. The draft bill is simple/simplistic like its author - end the moratorium and give those sentenced to death the right to apply for clemency. It should be said that the Russian Government and the law officers responded to the draft with bewilderment, asking how to repeal a moratorium which does not exist.

"How does it not?" is how Baburin – a member of six academies and a doctor of laws might riposte. Thus, in September of 2000, a group of the parliamentary faction "People’s Deputies" applied to President Vladimir Putin with a plea to abolish the moratorium. The then-plenipotentiary on human rights (can I call him the Ombudsman? Its shorter - DA) Oleg Mironov while objecting to repeal of the moratorium, did not deny that it existed. Thus, the chair of the Council of the Federation Sergei Mironov asserted in April 2002 that a moratorium on capital punishment was based on a presidential decree, and the Chief Prosecutor in October of that year told the Georgian authorities that a moratorium on capital punishment was in effect in Russia when he sought the extradition of a few Chechens. So the Deputy General Prosecutor of the Russian Federation Vladimir Kolsenikov told RIA Novosti the he did not exclude the abolition of the moratorium after the establishment in Chechnya of trial by jury. But nobody said that the moratorium did not exist and never had.

The terminological labyrinth which led to the decision of the Constitutional Court being assumed to be a death sentence moratorium is not being used accidentally. Behind it lies the efforts of some deadbeat layabouts to maintain the democratic image of Russia. The moratorium should be introduced as a government decision for the implementation of the European Convention on human rights and the commitments of Russia to the Council of Europe. The basis of this act should rely in humanitarian motives, and a recognition of the fact that the death penalty has lost its significance as a repressive measure. But the bases of the Constitutional Courts decision are based on quite other considerations - a recognition of the incompleteness of the Russian court system which has to be dealt with, so that the death penalty can be applied in the future. Thus, although the results of the moratorium and the decisions of the Constitutional Court would seem to point the way to similar results in the short term, the sense of these documents is quite different. One points to the future and specifies the vector of civilized European development, the other nested in currently applicable legal systems does not express the possibility of a return to the old methods of criminal law repression. The difference here is pretty evident since the Constitutional Court did not even mention the word "moratorium" in its finding.

The absolute value of the moratorium and its relative one - in the ruling of the Constitutional Court have emerged over time. The Council of Europe long since adopted Protocol No 13 on the complete abolition of the death penalty (including in time of war), and 33 governments have already ratified this So Russia remains the only one of 46 members of the Council of Europe which so far has not ratified Protocol 6

The judicial renewal of the death penalty exposes Russia to the most severe sanctions, up to exclusion from the Council of Europe. A completely real prospect. One cannot think that participation in current organizations, as generally in the public opinion of Europe is all that important for today’s Russian powers. But to risk membership in the Council of Europe by maintaining the death penalty in the country is clearly something not wanted. Indeed, since those in power and legal authorities even without death sentences can easily take the lives of those they want to eliminate Probably, this year the Kremlin will strong-arm ratification of Protocol 6 through an obsequious parliament. And decency abroad will be maintained.

Alexander PODRABINEK
http://www.prima-news.ru/eng/news/articles/2006/6/1/36159.html