This piece from 2002 by the late Marjorie Farquharson (1953-2016) has been published on the website Marjorie and is republished here by kind permission. It was first published on 18 January 2002 by RFE/RL
No heart is more merciful than the tsar’s, the old saying goes. Russian President Vladimir Putin stood that proverb on its head on 27 December 2001 when he issued a decree dissolving the presidential Pardons Commission and giving its functions to new commissions in Russia’s 89 regions, based in the office of the president or governor. This move raises some important questions.
Under Gorbachev, Yeltsin and Putin
The first presidential pardons commission was established in the late 1980s by then-Soviet President Mikhail Gorbachev. Its job was to consider petitions from prisoners and recommend whom the president should pardon or release in one of the periodic amnesties that heralded important public holidays. Traditionally around 15 officials did the job, from law enforcement agencies like the Prosecutor-General’s Office, the Interior Ministry, and the Justice Ministry. They worked behind closed doors and recommended fewer than 10 pardons each year — although some of these went to prisoners convicted of serious crimes, even murder. A similar role was earlier played by the USSR Supreme Soviet.
1992 saw the appearance of a new breed of commission, when then-President Boris Yeltsin appointed the first public body under the chairmanship of the well-known writer, Anatolii Pristavkin. Over time Pristavkin was joined by writers like Bulat Okudzhava and religious leaders like Father Alexander Borisov, all of whom were moral authorities in their own right. The most remarkable thing about this commission was that it courted public opinion and its members were unanimously committed to abolishing the death penalty. The commission met twice weekly and would recommend over 2,000 prisoners for clemency each year. Possibly its greatest triumph came in 1999, after the Constitutional Court had ruled the death penalty unconstitutional in the absence of a nationwide jury system. The commission ensured in July 1999 that the more than 1,000 prisoners still on death row had their sentences commuted to life imprisonment.
President Putin’s decree ends a long game of cat-and-mouse with Pristavkin. Since he became president in 2000, Putin is said to have delayed responding to the commission’s recommendations, then sent them for a second opinion from federal law enforcement agencies. In October 2000, penal institutions throughout Russia received a letter from the Justice Ministry instructing them to restrict the number of petitions to the president. In 2001, Pristavkin complained that he was being smeared, and that his commission’s recommendations no longer reached President Putin himself. He said no one had benefited from clemency in the first half of the year.
The new pardons procedure
The new pardons procedure poses more questions than answers at this stage. The first of these is what will happen to the thousands of petitions that were scheduled for consideration by the presidential commission? Pristavkin has said they will be sent to pardons commissions in the regions where they originated. But these commissions do not actually exist yet. Nor is it known what their mandate will be when they are set up, or who will staff them.
Opinions are mixed about decentralizing the clemency system. Those who welcome it say that it will take prisoners out of a “federal lottery” and increase their chances of receiving a pardon. In Saratov, for instance, where no prisoner was pardoned in 2000, officials and academics are in favor. Saratov, however, is a sophisticated manufacturing zone in central Russia, with an interest in prison reform and a much-vaunted social consensus between its governor, Dmitrii Ayatskov, and civil society. It also has one of the most articulate new regional parliamentary ombudsmen, Alexander Lando. Other regions are not so well endowed, and it is far from certain that prisoners there would improve their chances of clemency under the new system. The one certain thing, critics say, is that the appearance of 89 local commissions will encourage bribery on an industrial scale.
Corruption aside, important constitutional issues are also at stake. Every convict in Russia has the right to petition for clemency under Article 50 of the constitution, and pardon is the exclusive gift of the head of state. No role is foreseen here for governors. To be constitutional, the new commissions must still send their recommendations to the president — and if they do, how will the procedure be any more manageable than before?
To people living outside Russia, the importance attached to “clemency” is hard to understand. It seems like a hangover from tsarist times that Russia would be better off without. In practice, however, it is a realistic way for prisoners to achieve remission on various grounds, in a country with no effective parole system. Russia’s Penal Code is still severe and sends people to prison for offences that in other countries might be punished by fines or community service. Although the courts can grant early release to prisoners, they have proved reluctant to do so. It is this gap in the criminal justice system that the president’s Pardons Commission has tended to fill. To their credit, Pristavkin and his fellow commissioners always portrayed their work in this wider context.
Pristavkin’s commission often said its aim was to humanize the penal system and prepare public opinion for Russia’s ratification of Protocol 6 to the European Convention on Human Rights. This protocol abolishes the death penalty forever in peacetime, and when it joined the Council of Europe Russia promised to ratify it by 1999. That deadline passed over two years ago. By dismissing Russia’s chief advocate of Protocol 6, President Putin has sent a provocative signal to the Council of Europe’s Parliamentary Assembly in Strasbourg that is unlikely to be ignored.
It is often said that Russia needs more clemency, not less. Will 89 pardons commissions provide it? That is yet to be seen. Pristavkin has been given a courtesy post as “presidential adviser.” President Putin might be advised to make rapid progress on the death penalty and on parole if he wishes to sell his changes to the outside world.