Leonid Nikitinsky: The Death Penalty as Sleeping Pill [Novaya gazeta]

25 March 2024

By Leonid Nikitinsky

Source: Novaya gazeta

It seems that Russia really expects the “return” of the death penalty. How will this be possible and what problems will it solve?

The day after the terrorist attack on Crocus City Hall, Vladimir Vasiliev, leader of the United Russia faction in the Duma, announced lawmakers’ plans to “work seriously on the topic of the abolition of the moratorium on the death penalty in accordance with the sentiments and expectations of society.”

This issue has been raised periodically by various politicians. The day after the start of the Special Military Operation, in February 2022, Dmitry Medvedev wrote on the VKontakte network: “The Council of Europe and PACE have suspended Russia’s membership… this is a good opportunity to reestablish a number of important institutions for the prevention of serious crimes in the country. Such as the death penalty…” 

The topic of the death penalty invariably resonates with the “masses” (not only in Russia) and is very good for political point scoring.

But Vladimir Abdualievich Vasiliev is no chattering idiot, and he will not dissemble where it is possible to avoid it.

Before joining the Duma, Colonel-General Vasiliev was engaged in the fight against organized crime at the highest level within the Ministry of Internal Affairs of the Russian Federation. He is no doubt familiar with numerous studies on the preventative effect of the death penalty. The most compelling of these are conducted in the USA, where in 27 states this measure of punishment exists (but in several is not practiced), and in 23 it is banned: there is no correlation with the crime rate, even for murders, and to believe that such a threat could stop a suicide bomber is even more ridiculous.

Referring to the “sentiments and expectations of society,” Vasiliev spoke very precisely; his words can be interpreted as follows: the dynamics of extreme populism in a de facto state of emergency return the issue of the death penalty to the agenda. The Duma is not against throwing this bone to the general public. It is not out of the question that the Federation Council and the president will also be unable to resist the “expectations of society.”

I repeat here once again that the “machine of modernized totalitarianism” (see on our site from January 27th) works not only as a mechanism of repression and for the creation of laws and practices convenient for suppressing protests, but also as media: the Duma mirrors societal expectations and returns to the public that which the “masses” crave.

This is not the first time Senator Andrei Klishas has tried to object to the “return” of the death penalty from a legal standpoint, arguing that this is possible only by amending the Constitution. A similar opinion was expressed in 2022 by Valery Zorkin, who, however, in one of his public addresses, did not rule out a reconsideration of the issue of the death penalty down the line. Both understand that this is Pandora’s box – one need only start.

However, the position of Zorkin and Klishas is only a half-truth, and it would be extremely inconvenient for them to articulate the full truth publicly without showing their disdain for the de jure bearers of sovereignty – the people. We will do this for them.

The death penalty has never been abolished in the Russian Federation; this type of punishment is provided for by Article 59 of the Russian Criminal Code and the corresponding articles of the Special Part of the Criminal Code of 1996. Article 20, Part 2, of the Constitution of the Russian Federation on the right to life states: “The death penalty, up until its abolition, may be established as an exceptional measure of punishment for especially serious crimes against life…” A terrorist act with numerous victims clearly falls under this definition. But the end of this clause in Article 20 of the Constitution also guarantees anyone who is threatened with the death penalty the opportunity to demand a trial by jury.

A moratorium on the application of the death penalty has twice been imposed by the Constitutional Court. On 2 February 1999, in resolution No. 3-P, the Constitutional Court justified the impossibility of such sentences by the fact that jury courts had not been established in all constituent territories of the Russian Federation. After the last such courts were organized in Chechnya, the Constitutional Court, upon the request of one of the judges of the Supreme Court of the Russian Federation, adopted a ruling from 19 November 2009, No. 1344-O-R, in which it was clarified:

“…as a result of the longstanding moratorium on the application of the death penalty, stable guarantees of the human right not to be subjected to the death penalty have formed, and a constitutional-legal regime has developed, within which, taking into account international-legal trends and the commitments assumed by the Russian Federation – an irreversible process is taking place, directed at the abolition of the death penalty… the execution of this Decree (from 2 February 1999L. N.), in the part concerning the establishment of a court with the participation of jurors throughout the territory of the Russian Federation, does not allow for the possibility of the application of the death penalty, including for judgments of guilt rendered on the basis of a jury verdict.”

This verbose ruling isn’t the firmest of positions, but there was nothing else the Constitutional Court judges could have come up with within the framework of the Constitution and the Criminal Code. However, Russia’s withdrawal/exclusion from the Council of Europe in March 2022 and its denunciation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, on which the Russian Constitutional Court’s ruling No. 1344 was based, reversed its previous position. The moratorium announced 15 years ago can  legally be interpreted as non-active since March 2022, making a death penalty sentence an option for particularly severe crimes committed against the person after this date. Dmitry Medvedev, who has a PhD in law, is entirely correct in the post quoted above.

A practical difficulty, however, may arise when cases are being heard in court. Crimes of a terrorist nature, as well as “mass riots” and other crimes investigated by the FSB, were removed from the jurisdiction of trial by jury in 2008. At the same time, a jury in St. Petersburg succeeded in acquitting four “Islamic terrorists,” finding, even in the absence of a qualified defence, nothing in their actions apart from studying the Koran. The jury stated that a provocateur who infiltrated the group arranged the preparations for the terror act. The Supreme Court didn’t reverse the acquittal — a pretty hard blow against the FSB.

Between 2007 and 2012, I spent a lot of time working with former jurors, including in St. Petersburg. These everyday people, with all their typical prejudices, behaved in a highly responsible manner in the deliberation room, especially in the face of potentially needing to give a death penalty verdict. And, unlike professional judges, they stood firm in their position of the presumption of innocence. I’d venture a guess that if the only evidence the jury had been shown were confessions by a person who speaks Russian poorly and has an ear cut off (as in the video posted online on March 23) they wouldn’t have believed the prosecution.

There’s the catch. Other than that, the scheme is ready, and the death penalty theoretically could be used against those in the dock for the terrorist act at the Crocus City Hall. The Constitutional Court wouldn’t even need to issue a new ruling, although that would be desirable. However, the lawmaker in that case would have to:

  • either lop off Part 2 of Article 20 of the Constitution (in the chapter on human rights — this would require the Constitutional Assembly to convene at the request of three-fifths of the members of both houses of the Federal Assembly);
  • or include terrorist attacks in the jurisdiction of trial by jury (but then they’d have to include riots as well). This is simpler, but if it were done, the FSB, the prosecutor’s office, and the Moscow Regional Court (as well as similar bodies in other regions for similar cases) would be taking a substantial risk when selecting “trustworthy individuals” for juries. (How this is done from a technical perspective is a separate issue, but it’s not easy).

After all, the tales on TV about the Ukrainian window to Europe are at a high school level. In any case, the Tajiks detained in Bryansk Oblast don’t look like the organizers of such a professionally executed (unfortunately that’s what it was) terrorist attack. As for why, see my colleague Valery Shiryaev’s column. As for those who carried it out, Deputy Vasiliev knows very well what could convince the jury and civil society, if there still were one here: reenacting the crime. Let the detainees reproduce all their actions, from entering the Crocus City Hall, to leaving and traveling to Bryansk Oblast, with independent experts participating, in conditions as close as possible to what they were.

Given the scale of what happened, the tragedy, and the consequences, we (the public) have the right to insist that this happen. So let’s insist on it! It’s just that there’s nowhere to do it, and of course no one’s going to listen to us. And the trial (when and if it gets there) will be carried out by a trio of military judges behind closed doors, under the pretext of further terrorist threat.

Both around the world and in Russia (and formerly in the Soviet Union) there were many instances when the death penalty was carried out only for it to later emerge that the conviction was wrongful. In its existing state, the Russian judicial system provides no guarantees against such errors. That being the case, the “return” of the death penalty is advantageous only to those who are interested in covering up the traces of unsolved crimes. Nab these Tajiks “trying to flee” and no one will be the wiser. Now they’ll have to be questioned “in conditions close to normal,” including in court. Who could say what it may turn out might know under those circumstances?

Politically, however, the “return” of the death penalty is a very bad idea. Responding to terror with terror just provides the illusion of taking action; it’s a coverup. Or it’s like a sleeping pill that helps you sleep through the arrival of the next “black swan.” They do tend to travel in flocks.

Translated by Alyssa Rider and Nina dePalma