Moratorium on the death penalty - when capital punishment was abolished

Death penalty in our country

From the point of view of the Criminal Code

How surprised will you be to learn that the latest edition of the Criminal Code of the Russian Federation still has an entire article dedicated to the death penalty?

According to Article 59 of the Criminal Code of the Russian Federation, serious crimes can be punished with an exceptional penalty - execution. However, it cannot be applied to juvenile offenders, women and men over 60 years of age. By way of pardon, the death penalty may be replaced by indefinite imprisonment.

Does this article apply?

Moratorium on the death penalty

In 1996, our state joined the Council of Europe, which was possible only if the death penalty was banned in the country. Therefore, in April of the following year, the Russian government signed Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which excludes the possibility of applying such a penalty. The protocol never received legal force, but in accordance with the Vienna Convention, death sentences cannot be imposed or carried out in Russia.

Thus, in our country, criminals have not been executed for more than 20 years. The capital punishment was replaced by life imprisonment. There are countless debates about whether our state needs the death penalty for criminals or is it just a nightmare from the past.

Execution cannot be pardoned

According to the results of various social surveys, the majority of Russians would like the moratorium to be lifted. And although the number of supporters of the death penalty has been decreasing over time, there are still more than half of them. The population believes that pedophiles, rapists, brutal murderers and terrorists should be executed.

The history of executions of death sentences in our country frightens Russians, because there are cases where people were executed by mistake. However, the population does not want to pay for the accommodation and food of dangerous criminals throughout their lives through their own tax payments.

As a fair and useful alternative to death sentences and life imprisonments, respondents named involving criminals in dangerous work, for example, in conditions of high radiation activity.

"Behind"

Representatives of political parties such as the Communist Party of the Russian Federation and the Liberal Democratic Party are in favor of the death penalty, and they propose to apply this measure of punishment to malicious bribe-takers and terrorists. Vladimir Zhirinovsky is of the opinion that court officials should also be executed for issuing erroneous verdicts.

The head of the Russian Ministry of Internal Affairs, in one of his interviews for the federal television channel, spoke in support of an exceptional punitive measure. Vladimir Kolokoltsev did not explain his position on this matter in detail.

According to the head of the Chechen Republic Ramzan Kadyrov, acts of terrorists should be punishable by execution. Criminals do not deserve to be kept in prison for life at the expense of decent taxpayers.

"Against"

The President and Prime Minister of our country do not support the views of supporters of the death penalty. In 2010, the moratorium was coming to an end, but Dmitry Medvedev extended the document. Vladimir Putin believes that the death penalty is a manifestation of cruelty that has no place in a modern democratic state.

Basically, opponents of the death penalty believe that killing criminals is a terrible relic of the past. Inevitable errors of justice can destroy innocent people, and the murder of the truly guilty punishes not the criminals, but their relatives.

AZ-libr.ru

1. The death penalty remains an exceptional punishment in the Criminal Code. The right to life is a constitutional right of a person and a citizen (Article 20 of the Constitution), and he can be deprived of this right only in exceptional cases by a court decision when committing particularly serious crimes against life. The death penalty under the Criminal Code is provided for five crimes: premeditated murder under aggravating circumstances (part 2 of article 105); encroachment on the life of a statesman or public figure (Article 277); encroachment on the life of a person conducting justice or preliminary investigation (Article 295); assault on the life of a law enforcement officer (Article 317) and genocide (Article 357). 2. Each sentence for which the death penalty was imposed was verified by the VSRF cassation procedure. If such a sentence was left unchanged, persons sentenced to death, their defenders, close relatives, representatives of labor collectives and the public had the right to appeal to the President of the Russian Federation with a petition for pardon of the convicted person. If the pardon took place, then the death penalty could be replaced by life imprisonment or imprisonment for a term of twenty-five years, and the specified punishment is served by the convicted person in a special regime correctional colony (Part 6 of Article 74 of the Penal Code), while these persons were kept separately from others convicts who are also assigned a special regime in a correctional institution (Article 80 of the Penal Code). If the petition was rejected, the court's verdict was subject to execution. 3. The procedure and conditions for the execution of the death penalty are provided for in Chapter 23 of the Penal Code (Articles 184 - 186). 4. The death penalty cannot be applied to the persons listed in Part 2 of the commented article. 5. Taking into account the fact that Russia was admitted to the Council of Europe in January 1996, the question arose about the development and adoption of laws on the suspension of execution of sentences for which the death penalty was imposed, and in the future - on the abolition of the death penalty, since in accordance with According to the Constitution, the death penalty is a temporary measure of punishment and is applied until it is completely abolished (Part 2 of Article 20 of the Constitution). On May 16, 1996, the President of the Russian Federation issued Decree No. 724 “On the gradual reduction of the use of the death penalty in connection with Russia’s entry into the Council of Europe”1 {SZ RF. 1996. No. 21. Art. 2468.}

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February 27, 1997 The President of the Russian Federation issued Order No. 53-rp “On the signing of Protocol No. 6 (regarding the abolition of the death penalty) of April 28, 1983 to the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950,” and on May 5, 1997 this The protocol was signed on behalf of the Russian Federation by the Permanent Representative of Russia to the Council of Europe. Protocol No. 6 to the European Convention recommends the abolition of the death penalty in the state in times of peace. 6. At the same time, the courts should keep in mind that the Constitutional Court of the Russian Federation adopted Resolution No. 3-P dated 02.02.1999 “In the case of verifying the constitutionality of the provisions of Article 41 and Part 3 of Article 42 of the Criminal Procedure Code of the RSFSR, paragraphs 1 and 2 of the Supreme Resolution Council of the Russian Federation dated July 16, 1993. “On the procedure for enacting the Law of the Russian Federation “On introducing amendments and additions to the Law of the RSFSR “On the Judicial System of the RSFSR”, the Criminal Procedure Code of the RSFSR and the Code of Administrative Offenses”” in connection with the request of the Moscow City Court and a number of citizens”2 {SZ RF.
1999. No. 6. Art. 867.} , by which paragraph 1 of the resolution of the Supreme Council of the Russian Federation dated July 16, 1993, to the extent that it further does not ensure throughout the entire territory of the Russian Federation the exercise of the right of the accused of a crime for the commission of which the death penalty is established by criminal law as an exceptional measure of punishment, for consideration of his case by a court with the participation of a jury, was declared inconsistent with the Constitution, its Art.
19, 20 and 46. From the moment the said Resolution comes into force (in accordance with Article 79 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation” (as amended on December 15, 2001)1 {SZ RF 1994. No. 13. Art. 1447; 2001. No. 7. Art. 607.}
) the decision of the Constitutional Court of the Russian Federation comes into force immediately after its proclamation and until the entry into force of the corresponding federal law, providing for everyone accused of a crime throughout the Russian Federation , for the commission of which the death penalty is established by federal law as a penalty, the right to have his case considered by a court with the participation of a jury, the death penalty cannot be imposed regardless of whether the case is considered by a court with the participation of a jury, a panel of three professional judges or consisting of a judge and two lay judges.
7. Federal Law of December 27, 2002 No. 181-FZ2 {SZ RF.
2002. No. 52 (part 1). Art. 5137.} Art. 8 of the Federal Law “On the entry into force of the Criminal Procedure Code of the Russian Federation.” This article determines the time for the introduction of jury trials throughout the Russian Federation. The last date for the introduction of jury trials is January 1, 2007, from which such a trial will be introduced in the Chechen Republic. Consequently, the effect of the Resolution of the Constitutional Court of the Russian Federation dated 02.02.1999 No. 3-P will be valid at least until the specified date. 8. According to Art. 176 of the Penal Code, a person sentenced to death (as well as those sentenced to other types and measures of punishment) has the right to apply to the President of the Russian Federation for a pardon. However, the law does not establish any time limits for such treatment. Consequently, the convicted person can do this immediately after the sentence enters into legal force. The petition is submitted by the convicted person through the administration of the institution or body executing the sentence.

Death penalty in other states

1. Belarus is the only European country where the death penalty is used.
2. The only state among the countries of America is the USA.
3. Some countries in Africa and Asia still execute particularly dangerous criminals.

USA

The states use the following methods of execution:

• electric chair;
• lethal injection (the most common type);
• hanging;
• execution;
• gas chamber.

The death penalty is used only in some states of the country and can be imposed for capital murder, terrorism and treason for adult offenders. The largest number of executions occurs in Texas.

A few hours before the execution of the sentence, the convicted person is asked to choose food for the last dinner.

Asia, Middle East and Africa

In Israel, those sentenced to death are shot. The highest punitive measure is treated with caution. In the entire history of Israel, only 2 people were sentenced to death, one of them wrongly.

Execution by hanging is still used in Japan and India.

The list of acts punishable by death in China is long: drugs, corruption, prostitution, murder and more.

Arab countries are distinguished by the cruelty of execution of death sentences - thieves are cut off with a sword, female traitors are stoned to death. Religious apostates and members of sexual minorities are sentenced to death.

In Africa, most countries have suspended or abolished the death penalty. The bulk of death sentences in this part of the world occur in Nigeria.

Commentary on Article 59

1. The article under comment is based on Art. 20 of the Constitution of the Russian Federation, according to which the death penalty “pending its abolition may be established by federal law as an exceptional measure of punishment for particularly serious crimes against life, providing the accused with the right to have his case examined by a court with the participation of a jury.”

2. This constitutional provision is developed and specified in Art. 59 of the new Criminal Code of the Russian Federation. Part 1 of this article, turning to the legislator, states that the death penalty, as an exceptional measure of punishment, can be provided only for especially serious crimes that encroach on life. The Special Part of the Criminal Code provides for the death penalty for crimes under Art. 105, part 2 (aggravated murder), 277 (attack on the life of a state or public figure), 295 (attack on the life of a person conducting justice or preliminary investigation), 317 (attack on the life of a law enforcement officer) and 357 (genocide ). All of them are a type of especially serious crimes that encroach on life.

3. In accordance with Part 2 of Art. 59 of the Criminal Code, the death penalty does not apply to women, as well as to persons who committed a crime under the age of eighteen, and to men over the age of sixty-five.

4. According to Part 3 of the commented article, the death penalty by way of pardon can be replaced by life imprisonment or imprisonment for a term of twenty-five years.

5. The procedure for executing the death penalty is regulated in criminal executive legislation.

Scientific and practical commentary:

1. The death penalty, concluding the one given in Art. 44 of the Criminal Code, the list is the most severe punishment: it consists in depriving the convicted person of the most important good - life. 2. One of the conditions for Russia’s admission to the European Community is the abolition of the death penalty in our country. In this regard, in 1998, the President of the Russian Federation imposed a moratorium on the execution of sentences that imposed the death penalty. But on February 2, 1999, the Constitutional Court of the Russian Federation issued a conclusion on the inconsistency of the commented article with Art. 20 of the Constitution of the Russian Federation, which establishes that the death penalty “pending its abolition may be established by federal law as an exceptional measure of punishment for especially serious crimes against life, providing the accused with the right to have his case considered by a court with the participation of a jury.” Since jury trials have not yet been created in all constituent entities of the Russian Federation, the country does not guarantee that all criminal cases involving crimes for which the law provides for the death penalty are considered by jury, as required by the Constitution of the Russian Federation. After the publication of the aforementioned conclusion of the Constitutional Court of the Russian Federation, the country's courts stopped imposing death sentences. At the same time, the provisions of the Criminal Code concerning the death penalty remain in force, and after the monstrous acts of terrorism in Buinaksk, Volgodonsk, Moscow, and Beslan, the number of supporters of the practical use of the death penalty has increased significantly. 3. Although the Criminal Code, having introduced the death penalty into the punishment system, does not call it temporary, the temporary nature of this punishment follows from Art. 20 of the Constitution of the Russian Federation, where the right of the legislator to establish the death penalty is accompanied by the clause “until its abolition”. 4. The death penalty is defined in Art. 59 as an exceptional measure of punishment. Its exceptional character is as follows. Firstly, it is provided only for five particularly serious crimes related to an attack on human life (Part 2 of Article 105, Articles 277, 295, 317 and 357 of the Criminal Code). Secondly, the scope of its application is limited to the circle of persons by gender and age of the perpetrators; it is not prescribed to: women; persons who committed a crime under the age of 18, regardless of their age at the time of sentencing; men who have reached the age of 65 at the time of sentencing, regardless of the age at which the crime was committed. Thirdly, the death penalty can be replaced by imprisonment for life or for a period precisely specified in the law - 25 years. The appeal of a convicted person with a petition for pardon constitutes his right and entails mandatory consideration by the pardon commissions under the heads of the constituent entities of the Russian Federation, and then by the President of the Russian Federation. Fourthly, the penal legislation has established a number of additional guarantees against the execution of unjustified death sentences: mandatory issuance of opinions by the Chairman of the Supreme Court of the Russian Federation and the Prosecutor General of the Russian Federation on the absence of grounds for filing a protest against the court verdict in the manner of supervision. 5. According to the law, the basis for the execution of the death penalty is a court verdict that has entered into legal force, the above-mentioned conclusions of the Chairman of the Supreme Court of the Russian Federation and the Prosecutor General of the Russian Federation, as well as a notice of rejection of a petition for clemency or an act of refusal of the convicted person to apply for a pardon. pardon (part 4 of article 184 of the Penal Code of the Russian Federation). The death penalty is carried out non-publicly by shooting. The administration of the institution where the death penalty is carried out notifies the court that passed the sentence, as well as one of the close relatives of the convicted person, about the execution of the punishment.

Commentary to Art. 59 of the Criminal Code of the Russian Federation

The Constitution of the Russian Federation establishes the priorities of the values ​​of our society. The highest of them in accordance with Art. 2 is a person, his rights and freedoms. Fundamental human rights and freedoms are inalienable and belong to everyone from birth. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.

Among the fundamental rights, the right to life stands out, which, if violated, cannot be restored. This circumstance necessitates the need for the most thorough approach to resolving issues related to the possibility of depriving a person of life. It was precisely on the basis of the above provisions that Russian criminal legislation followed the path of reducing the conditions under which the death penalty could be imposed for a crime committed. Firstly, this was manifested in a reduction in the types of crimes for which this punishment could be imposed, and, secondly, in a reduction in the categories of persons to whom the death penalty is applied. In addition, the Criminal Code of the Russian Federation provides for other restrictions on the use of the death penalty. For example, the death penalty was consistently excluded from the articles of the Criminal Code of the Russian Federation providing for liability for theft on an especially large scale, violation of the rules on currency transactions, bribery, etc. Currently, the Criminal Code of the Russian Federation provides for the possibility of imposing the death penalty only for crimes related to an attack on human life. These include: murder under aggravating circumstances (part 2 of article 105 of the Criminal Code of the Russian Federation); encroachment on the life of a state or public figure (Article 277 of the Criminal Code of the Russian Federation); encroachment on the life of a person administering justice or preliminary investigation (Article 295 of the Criminal Code of the Russian Federation); encroachment on the life of a law enforcement officer (Article 317 of the Criminal Code of the Russian Federation) and genocide (Article 357 of the Criminal Code of the Russian Federation). If, until 1993, the death penalty could not be imposed only on minors who had not reached the age of eighteen at the time of committing the crime, and on women who were pregnant at the time of the crime, pronouncement or execution of the sentence, then the current Criminal Code of the Russian Federation establishes a ban on imposing the death penalty on any woman, as well as persons who committed crimes under the age of eighteen, and men who had reached the age of sixty-five at the time of sentencing.

The prohibition of the death penalty against certain categories of convicts is based on the principle of humanism and a certain social conditioning. Thus, the non-application of this type of punishment against minors is due to the fact that at a young age they do not yet have an established psyche, do not always adequately perceive current circumstances, do not have sufficient life experience, and are more susceptible to the influence of others than adults. Because of this, it is often difficult for minors to assess the social significance of their actions.

As for women, practice has shown that they rarely commit crimes for which the law provides for the death penalty. At the same time, the great emotionality and excitability of the female psyche were taken into account. The practice of sentencing women was also taken into account - exceptional punishment was imposed on them by the courts extremely rarely.

The prohibition of the death penalty against men who have reached old age is also associated with the rarest cases of their committing relevant crimes, the virtual absence of recidivism and other circumstances that indicate the inappropriateness of maintaining the death penalty for this category of persons.

Restrictions on imposing the death penalty are also associated with other circumstances. For example, the death penalty is not imposed if the jury verdict is lenient, for preparation for a crime and attempted crime. If the death penalty is imposed, then by way of pardon it can be replaced by life imprisonment or imprisonment for a term of twenty-five years.

The non-application of the death penalty for an unfinished crime is also based on the principles of humanism and justice. At the same time, the legislator proceeds from the position that the death penalty can be imposed only in cases of causing death to other persons. Finally, the circumstances of the crime may be such that imposing the death penalty would be manifestly unfair. Therefore, the leniency of the jury is a factor that vetoes the application of an exceptional measure of punishment.

The Constitution of the Russian Federation recognizes the death penalty as an exceptional punishment, which, until its abolition, can be established by federal law only for particularly serious crimes against life. In this case, the accused is given the right to have his case examined by a jury.

The exclusivity of the death penalty as a punishment is also emphasized in the Criminal Code of the Russian Federation (Article 59). Thus, current legislation allows for the possibility of applying the death penalty if the above conditions are met, and, therefore, this type of punishment is legitimate. However, it has not been used in Russia for a long time. And this non-application is not at all connected with the absence of crimes for which the death penalty can be imposed. What is the prohibition on imposing and executing this type of punishment? In the legal literature one can find a statement about the establishment of a moratorium on the use of the death penalty. In this case, a moratorium usually refers to the provisions contained in Decree of the President of the Russian Federation of May 16, 1996 N 724 “On the gradual reduction of the use of the death penalty in connection with Russia’s entry into the Council of Europe.” However, this Decree did not establish a ban on the use of the death penalty, and could not have been established, since the President of the Russian Federation does not have such a right. Therefore, the only legal basis for the non-application of the death penalty is Resolution of the Constitutional Court of the Russian Federation of February 2, 1999 N 3-P, from the moment of entry into force of which until the entry into force of the corresponding federal law, providing throughout the Russian Federation for everyone accused of a crime, commission of which the death penalty is established by federal law as an exceptional measure of punishment, the right to have his case considered by a court with the participation of a jury, the death penalty cannot be imposed regardless of whether the case is considered by a court with the participation of a jury, a panel consisting of three professional judges or a court consisting of a judge and two people's assessors.

But this ban on the use of the death penalty is temporary. Formally, this punishment has been retained in the Russian Federation. Therefore, there is still a debate in society about the advisability of maintaining the death penalty in criminal law.

It should also be noted here that Russia is a member of the Council of Europe. Protocol No. 6 “Concerning the abolition of the death penalty” (Strasbourg, April 28, 1983) stipulates that the member states of the Council of Europe that have signed this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, have come to an agreement that the death penalty is abolished and that no one can be sentenced to death or executed (Article 1). Russia signed the Protocol on April 16, 1997 (Order of the President of the Russian Federation of February 27, 1997 N 53-rp). On March 30, 1998, Federal Law No. 54-FZ “On the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols” was adopted. This Law ratified the Convention and a number of protocols, among which Protocol No. 6 was not included. It has not yet been ratified.

Thus, the presence of the death penalty in the Criminal Code of the Russian Federation is completely legitimate.

As noted above, the death penalty is an exceptional punishment. Correction of a judicial error in the case of execution of the death penalty is impossible. Therefore, the legislator provides not only special conditions for imposing the death penalty, but also a special procedure for executing the death penalty, which would eliminate such an error to the maximum extent possible. This procedure is regulated by the Penal Code of the Russian Federation.

The death penalty is carried out non-publicly by shooting. The execution of the death penalty in relation to several convicts is carried out separately in relation to each and in the absence of the others.

During the execution of the death penalty, there is a prosecutor, a representative of the institution in which the death penalty is carried out, and a doctor.

The death of the convicted person is confirmed by a doctor. A protocol on the execution of the court sentence is drawn up and signed by the persons present during the execution of the sentence.

The administration of the institution in which the death penalty is carried out is obliged to notify the court that passed the sentence, as well as one of the close relatives of the convicted person, about the execution of the punishment.