Russia and Europe to come into conflict over death penalty used against terrorists

The abolition of death penalty is likely to be one of the points on the agenda of a visit to Moscow by the President of the Parliamentary Assembly of the Council of Europe (PACE) Rene van der Linden, which begins on Monday. This year will mark the 10th anniversary of Russia’s moratorium on capital punishment. Moscow should take over presidency in the CE Committee of Ministers in May this year. In light of the above, Russia’s position is quite delicate at the moment. Russia remains the only CE member state whose parliament has not yet ratified the abolishment of “legitimate murder.” Moreover, some politicians believe that the introduction of jury courts in Chechnya next year will remove the main obstacle to the reinstatement of the death penalty. The leading Russian lawyers stick to a different point of view. Besides, the proponents of the death penalty seem to be intent on scratching the extradition of criminals e.g. Akhmed Zakayev to Russia. In accordance with the European law, the formal surrender of an alleged criminal from an EU member state to another country may be carried out only if the former is confident that an extraditable person will not be executed by the government of the latter.

The abolition of the death penalty was one of the requirements Russia was to meet prior to joining the Council of Europe. The countries of the Old World set the ball in motion in terms of the abolition of capital punishment worldwide. As many as 80 states abolished capital punishment in the 20th century. That is why Moscow signed the Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolishes the death penalty in peacetime, after receiving the CE “membership card” in February 1996. On May 16, 1996 , Boris Yeltsin issued a decree “On the Gradual Decrease of the Use of Capital Punishment following the accession of Russia to the Council of Europe.” In keeping with the president’s decree, death sentence executions have not been carried out since August 1996. At the same time, a draft bill on the abolition of capital punishment has not been ratified thus far, despite the CE’s numerous appeals. Besides, Russia’s Criminal Code still has five articles providing for the capital punishment.

Moreover, today’s Russia is moving towards the reinstatement of death penalty, according to some politicians. The development can be partly explained by the fact that the number of proponents (among the voters) of the death penalty has grown due to terrorist attacks, and therefore the capital punishment became a handy tool for scoring political dividends. The main reason refers to the system of jury courts that should come into force in 2007 in Chechnya, which is the only region of Russia with no jury courts. A jury court maybe introduced in Chechnya even earlier should the Constitutional Court make a speedy decision on the request by the Chechen President Alu Alkhanov with regard to the introduction of jury courts in Chechnya. Some politicians suggest that the 1999 moratorium on capital punishments will be effectively repealed once the new court system is in place in Chechnya. On Ferbruary 2, 1999, the Constitutional Court decreed that death sentences must not be handed down until jury courts were introduced in all Russian territories. According to the Constitutional Court, the decree is a main hindrance to the use of capital punishment.

In light of the above, some representatives of the law enforcement agencies seem to be getting ready to put firing squads back on the job. Deputy General Prosecutor Nikolai Shepel, head of the prosecution at the trial of Nurpashi Kulayev, the only surviving terrorist in the Beslan school siege, said that the accused should be found guilty on all the charges including terrorism for which the accused should be sentenced to death. “The court decision should spray a cold shower on potential terrorists. It should be designed to show that terrorists will end up buried in an unmarkedgrave,”said Shepel.

Shepel’s statement literally split the State Duma in two. Pavel Krasheninnikov, Chairman of the Criminal, Arbitration and Procedural Code Committee of the State Duma, and Vladimir Pekhtin, Vice-Speaker of the State Duma (both from the United Russia faction), raised a strong objection to the proposal. They are opposed to the prospect of reinstating the death penalty even “for the benefit of the Kulayev case.” Meanwhile, Vice-Speaker of the State Duma and a member of United Russia Vladimir Katrenko, took a different stance on the issue. “I fully appreciate and share the position of the Deputy General Prosecutor Nikolai Shepel with regard to Nurpashi Kulayev. The above terrorist is a special case, he is involved in the death of innocent people, most of them were children, and therefore he should be put to death despite the existing moratorium on capital punishment in Russia,” said Katrenko, in an interview to

Tamara Morshchakova, former deputy chairwoman of the Constitutional Court, believes that proponents of death penalty interpret the 1999 decree in a wrong way. Those in favor of the death penalty view it as a go-ahead on death by shooting provided that a jury court is in operation across Russia. “The Constitutional Court ruled that no death sentences must be handed down until jury courts were introduced all over the country. However, the decision of the Constitutional court says nothing as to the possibility of the use of capital punishment in Russia after the jury court system is brought into effect on a nationwide scale. The issue of reinstating the capital punishment has never been considered by the Constitutional Court. The aforementioned interpretation of the decision is absolutely wrong,” said Morshchakova, in an interview to

Speaking of the extradition of such notorious characters as Boris Berezovsky and Akhmed Zakayev, the proponents of the death penalty are likely to eventually render it impossible. The EU member states will not surrender an alleged criminal to Russia if the latter reinstates the death penalty. Vladimir Vasiliev, Head of the State Duma Security Committee, said that in compliance with international conventions a foreign party should be certain that an extraditable suspect will not be sentenced to death by Russian authorities. Tamara Morshchakova also spoke about the threat of negative effects should Russia fails to comply with its international legal obligations. “It is very unfortunate of Russia not to have a legal norm similar to the one in the German law. The norm concerns the right of an enforcer to ask the Constitutional Court whether an international agreement falls within the national legal framework. In that case the Constitutional Court could specify that the European convention and Protocol No. 6 are part of our legislation. At the same time, the Russian Constitution has a norm stating that Russia’s international agreements are to be automatically incorporated into the national legal system. The international agreements are above the federal law. In other words, the authorities must act in accordance with the international agreement in question i.e. Protocol No 6. Should we repeal the international agreement, which was one of the requirements for joining the Council of Europe, we may be expelled from the organization,” said Morshchakova.

We should also bear in mind that Moscow will preside at the CE Committee of Ministers from May to October 2006. The priorities of Russia’s presidencies will be discussed during the PACE President Rene van der Linden’s two-day visit to Moscow. “Russia is important to the Council of Europe while the CE is important to Russia. It is the first time ever that your country will hold presidency in the European democratic organization. I am confident that Russia will make its best to strengthen a unique position of our organization in Europe,” Rene ban der Linden was quoted as saying.


Translated by Guerman Grachev

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Author`s name Dmitry Sudakov