31 March 2022
an interview with Tamara Morshchakova, a legal expert and former juddge of the Russian Constitutional Court
Former Russian Federation Constitutional Court judge, holder of a Moscow Helsinki Group human rights prize, on a moratorium on the death penalty in Russia following the country’s exit from the Council of Europe
Russia’s exit from the Council of Europe has once again led to debate over the restoration of the death penalty in the country. Deputy chair of the Security Council Dmitry Medvedev, the LDPR faction in the State Duma and human rights ombudsmen have all spoken out on the topic. What such a return to the past would mean for Russia was the focus of our discussion with Professor Tamara Morshchakova who was deputy chair of the Constitutional Court in 1996, the year Russia joined the Council of Europe.
Vechernyye Novosti [VN]: We asked Tamara Georgiyevna to comment on the possibility of the moratorium being lifted. She agreed to talk to us on one condition: “It would be more correct to prepare material under the slogan “the impossibility”. The force of the media distorting people’s awareness demands that care be taken over the choice of words. Otherwise, we’ll start talking about the possibility of cannibalism as well.”
Tamara Morshchakova is a doctor of legal sciences, a professor, a judge of the Russian Constitutional Court (1991-2002), deputy chair of the Russian Constitutional Court (1995-2002), a member of the Russian Presidential Council for Civil Society and Human Rights (2004-2019). She was a member of the Constitutional Conference to Draft a Constitution of the Russian Federation.
One of the country’s most brilliant public figures, she has made an invaluable contribution to the creation of the legal foundations of statehood and civil society in modern Russia. She is the author of research studies into the problems of legal reform, the investigation of miscarriages of justice, issues to do with organizing judicial activity, quality assessment of the justice system and the significance of reforming that system in order to overcome Russia’s totalitarian past. She holds a Moscow Helsinki Group Prize for Human Rights.
Tamara Georgiyevna, deputy chair of the Security Council Dmitry Medvedev recently said that, following Russia’s exit from the Council of Europe, the country no longer has any restrictions on a return of the death penalty. The statement, to put it mildly, is alarming…
The restoration of the death penalty in Russia is impossible. Russia has no legal nor actual grounds for this. I should like to shout this sentence from the rooftops.
Recently, however, we have been hearing statements of this kind and personally I very much suspect that this is for nefarious reasons, in order to undermine the constitution when it is effectively already under threat. Formally, it is still working and under no circumstances should it be “stamped out”.
Those who are raising the moratorium issue cite the example of other countries where the death penalty still applies…
We should not be looking at others who might be stupid, cannibals, uneducated. There is a standard typical of civilised humanity. It’s possible to associate ourselves with cannibals and cavemen… But this is not in keeping with the direction of human development. And humanity embarked on this path for one simple reason: unless we create a security system that protects humanity – the most fragile thing in the world – we might all perish. All together or one by one. To prevent this under any circumstances, people sensibly agreed what they would not do. This includes sensible people agreeing not to toss their nuclear toys around to avoid the deaths of a great many people or humanity as a whole… And no one can destroy these agreements.
Big decisions have been taken very quickly in our country in recent weeks. And yet the issue of the death penalty cannot be solved at lightning speed, at a click of the fingers.
I should like to recall that we left the Council of Europe at precisely a click of the fingers because the usual exit procedure takes up to a year. We are the ones who slammed the door.
Talking of a moratorium, it is important to determine whether we are talking about something that should happen or something that “could”. If it’s “should” then no, such a decision must not be taken. It’s not legally permissible.
As for “could”… Aren’t enough crimes committed here already? Quite simply, this would be just one more. Because in law everything that violates a public veto drawn up by the state is a “crime”. We have adopted this moratorium. The death penalty has been abolished. It’s impossible to cancel the abolition. There is no provision for such a move. Our constitution states “until its complete elimination” (Article 20, para. 2 Constitution of the Russian Federation: “Capital punishment until its complete elimination may be envisaged by a federal law as an exclusive penalty for especially grave crimes against life, and the accused shall be granted the right to have his case examined by trial by jury” – editor’s note) And this “until” exists. In other words, the death penalty has been abolished. Its elimination is enshrined in decisions of the Constitutional Court, in a decree of President Boris Yeltsin. Everyone calls the decision a moratorium but in reality the president simply complied with Russia’s international obligations, acted to enforce the law when we were accepted into the Council of Europe and this condition had to be observed.
It’s impossible to restore the death penalty in Russia today. Because the Constitution simply doesn’t make legal provision for doing so.
If Russia (theoretically) did suddenly lift the moratorium, what would need to happen from a legal point of view?
From a legal point of view, the current Constitution would have to be repealed and a new one adopted. And the trouble is that this doesn’t seem to be a problem for the authorities although so far, as we can see, it is easier for them simply not to meet its requirements.
Of course, this is not a lawful route. But cannibalism doesn’t need permission. Licenses aren’t issued for cannibalism.
If you want to define a specifically legal possibility, the word “legal” in this instance must still be put into inverted commas because that route inevitably takes us from a state governed by the rule of law to one that isn’t. This is a road to nowhere. Even those who are suggesting the return of the death penalty are aware of this, unless of course they’re acting as provocateurs.
Is there really no requirement for a referendum to discuss the impossibility of a return of the death penalty? Does something here depend on the general public?
Nothing depends on a public that supports everything. They will go where they are pointed. Sadly, so far, this is how we live.
Purely theoretically, a referendum can have a negative result. But reality is such that tried and tested procedures of direct democracy are developing along the “necessary” lines… We have to start from another thesis, that all the guarantees of legal development that have been created do not exist. Without them, all the very best and essentially democratic institutions cannot function. They become their own opposite. A multiparty system becomes the supremacy of just one person. Pluralism of opinion becomes persecution of those who think differently, an insult to the feelings of supporters of something or other or of those who disagree with something or other… All democratic procedures are only possible in conditions of pluralism.
I am not a futurologist or a conspiracy theorist. I know that the people’s opinion is being manipulated. And most of the population has no other sources of information about life than the television. So what if suddenly, in the precise circumstances of this referendum, everything changed? We have no provisions that guarantee the possibility of objectively reflecting and forming the opinion of the people as sovereign, as the sole subject endowed with genuinely sovereign power. They can’t express their opinion. They are being manipulated.
The only correct option is to stand firm on the need to ban the death penalty rather than discussing its restoration and a referendum. The only correct option is to read out in public the list of victims of political repression.
Do you think Russia would have taken the decision to abolish the death penalty on its own if it hadn’t been required by the Council of Europe in 1996?
I think that what is essential today is to focus only on universal moratoria rather than debating what might be… Killing is wrong. Full stop. If it is necessary in terms of self-defence, then going beyond those boundaries entails criminal liability.
I repeat: killing is wrong. The state which has rendered harmless a convicted person declared to be dangerous has no right to kill him because it cannot take ownership of life. The criteria for condemnation change throughout history. Errors cannot be ruled out. Objectively, it does not prevent real crime.
Translated by Melanie Moore