Russia, the death penalty, and Europe: the ambiguities of influence

Abstract

Studies of capital punishment worldwide investigate how international influence affects the death penalty. We analyze European influence on the death penalty in Russia over the imperial, Soviet, and post-Soviet periods, using two parameters: the changing mechanisms of influence in each period and the death penalty's significance in the broader spectrum of punitive violence. On the first parameter, in the tsarist period, European influence on Russian policy was “productive” – exercised through prestige, moral suasion, and “diffusion.” In the Soviet period, European influence was blocked. In the post-Soviet period, European influence is coercive, as the Council of Europe has unsuccessfully sought to compel Russia to abolish its death penalty. On the second parameter, the death penalty in Russia has always been only one of many forms of state-sanctioned punitive killing. In consequence, the Council's involvement in Russia's death penalty has produced an incoherent policy outcome and has entangled the Council in Russia's authoritarian politics. Russia thus exemplifies the hazards of external involvement in death penalty abolition.

Keywords::

• H10
• K14
• K42
• P37
• Z18

Jel Classification:

• capital punishment
• death penalty
• coercive abolitionism
• punitive violence
• Russian Empire
• Soviet Union
• post-Soviet Russia
• state-sanctioned punitive killing
• judicial killing

Acknowledgements

We thank Wendy Wong for introducing us to the scholarly literature on varieties of power in the international system; and Alison Smith, Jim Phillips, and John Beattie for helpful comments and references.

Notes

^1. Protocol 13 (2002), abolishing the death penalty in all circumstances including in time of war, has been ratified by 42 member states. Armenia, Latvia, and Poland have signed but not ratified. Azerbaijan and Russia have neither signed nor ratified.

^2. Reference to the death penalty is found in the Dvina Charter (1397), the Pskov Judicial Charter (1467), and the “Sudebniks” (law codes) of 1497 and 1550 (Mikhlin 1999, 9). The later codes feature it more extensively. Whereas the Dvina Charter provided the death penalty only for theft on a third offense, the Pskov Charter provided it for treason, arson, and horse stealing, and the 1497 and 1550 Sudebniks extended it to the killing of one's master, as well as religious offenses (Mikhlin 1999, 9–10; Mal'ko and Zhil'tsov 2003, 25–39).

^3. Thus, in The Spirit of the Laws, Montesquieu claims that in Russia, both robbery and murder are punished by death, violating the principle of marginal deterrence (1989, Part I, Book 6, chap. 16, 92).

^4. A partial English text is available at http://academic.shu.edu/russianhistory/index.php/Catherine_the_Great%27s_Instructions_to_the_Legislative_Commission%2C_1767. However, executions for high treason continued under Catherine. The leader of a peasant uprising, Yemelyan Pugachev, was quartered, and many of his supporters were also put to death (Shelkoplyas 2003, 65–72).

^5. Catherine's careless borrowing from Western authors led to inconsistencies in her Nakaz. Thus, borrowing from Beccaria ([1764] 1986, 48–53), some passages specify that capital punishment is justified only in time of insurrection or war (Nakaz, s. 205 and 210). Yet, elsewhere the decree states that “a citizen deserves death when he has violated the public security so far as to have taken away, or attempted to take away, the life of another” (Nakaz, s. 79), wording borrowed verbatim from Montesquieu (1989, Part II, Book 12, chap. 4, 191).

^6. Thus, following a wave of assassinations of officials in the 1870s, the death penalty was reinstated even for some ordinary offenses (Daly 2000, 347). In 1903, however, it was again limited to political offenses (Daly 2002, 73).

^7. A number of officials were executed for economic offenses under General Secretary Yuriy Andropov (1982–1984); see Duhamel (2004, 2010).

^8. In the USA, there were 18 executions in 1986 and 23 in 1990 (US Department of Justice 2005).

^9. On legal developments more broadly during the 1990s, and the harmonization of regional and federal legislation, see inter alia Kahn, Trochev, and Balayan (2009) and Gans-Morse (2012) – Ed., PSA.

^10. See http://www.constitution.ru/en/10003000-03.htm.

^11. The Code permits death sentences only for certain aggravated murders (e.g., of more than one person, or of a child) (Art. 105(2)); attempted murder of a state official (Art. 277); and genocide (Art. 357)]. See http://www.consultant.ru/popular/ukrf/10_11.html#p608.

^12. The Council is formally distinct from the European Union, which is an organization for economic and political integration. While all members of the Union are members of the Council, the reverse is not true.

^13. Approval of Russia's application may also have reflected support for Yeltsin, who was facing a difficult reelection battle in 1996 (Jordan 2003).

^14. A bill to ratify Protocol 6, introduced by Yeltsin in 1999, is still nominally under consideration by the Duma's Committee on Civil, Criminal, and Arbitrage Procedural Legislation (Russia [Duma] 1999).

^15. See the Vienna Convention on the Law of Treaties (United Nations 1980).

^16. In 2009, a Constitutional Court justice was forced to step down after he publicly defended a colleague who had criticized Putin's autocratic rule (Bonet 2009; Osborn 2009; Pushkarskaya 2009).

^17. Under Russia's Federal Law on International Treaties, abolition could theoretically occur through either parliamentary ratification of Protocol 6 or a constitutional amendment. Although parliamentary ratification requires only a simple majority of both chambers of the Russian Parliament and signature of the president (Russia 1995), there is no sign that such a vote is forthcoming. A constitutional amendment seems even more unlikely, because it would entail a far more demanding procedure.

^18. Putin later accused the Communists of trying to capitalize on the death penalty before Parliamentary elections (Russia [President] 2007).

^19. Dmitry Medvedev replaced Vladimir Putin as President between 2008 and 2012. However, according to many observers, Putin retained real power in the country. As President, Medvedev said little about capital punishment in public. Although Council of Europe General Secretary Terry Davis, Amnesty International, and Russian human rights organizations all urged Medvedev to ratify Protocol 6, Medvedev made no public response to these appeals (Romanov 2008; Rosbalt 2008). One interpretation is that he preferred to leave this issue to Putin.

^20. In the current Duma (elected December 2011), United Russia holds 237 seats, 53% of the total; see http://www.duma.gov.ru/structure/factions/.

^21. “The December 2007 State Duma elections were carefully engineered by the administration, handing pro-Kremlin parties a supermajority in the lower house, which was powerless in practice” (Freedom House 2009).

^22. In a 2002 poll, 78.7% of respondents supported the death penalty (Boulanger and Sarat 2005). A 2006 poll reported that 75% still supported the death penalty, and 55% opposed the moratorium (Lenta.ru2006). In a 2010 poll, 29% supported the moratorium, 18% said that the death penalty should be abolished, and 44% favored resuming executions immediately (VtsIOM 2010). The most recent poll (March 2012) found that 62% of respondents support resuming executions, 21% support the moratorium, and only 5% support immediate abolition (Fond Obshchestvennoye Mneniye 2012).

^23. For example, during the recent economic crisis, the government announced substantial increases to customs duties on imported cars. The government stuck to its position despite large-scale protests in the Far East (where imports are especially popular) and, later, Moscow (Odynova 2009).

^24. Following the 2008 Russo-Georgian war, there were calls in the PACE to suspend Russia's membership. Russia successfully fended these off, in part with support from friendly countries such as Germany, by threatening that Russia would simply withdraw permanently from the PACE rather than accept suspension (Socor 2008). Russia has also threatened to withdraw from the ECtHR in the face of its continuing judgments against Russia on complaints by Russian citizens (Goble 2009; Trochev 2009).

^25. See, e.g., Aslakanova and others v. Russia, Application nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10, December 18 (2012); Umarova and others v. Russia, Application no. 25654/08, December 17 (2012); Vakhayeva v. Russia, Application no. 27368/07, November 19 (2012); Ilayeva and others v. Russia, Application no. 27504/07, November 19 (2012); Umayevy v. Russia, Application no. 47354/07, October 22 (2012); Kadirova and others v. Russia, Application no. 5432/07, September 24 (2012). See also Kahn (2008, 531–541).

^26. See Memorial (2009). That report's author was charged with criminal libel and sued for civil libel by Kadyrov. While the civil court ruled in favor of Kadyrov, the Memorial author was acquitted in the criminal trial. Case materials for both cases are available at http://www.memo.ru/2009/11/03/sudeng.html.

^27. See http://www.nytimes.com/2012/12/07/business/global/senate-passes-russian-trade-bill-with-conditions.html.

^28. In February 2008, three members of a criminal gang were executed by shooting (Yasna Human Rights Center 2008). Then, on 29 June 2009, a murderer was sentenced to death. In response, the European Union appealed to Belarus to abolish capital punishment or at least introduce a moratorium (Livnev 2009).

^29. Through ongoing incentives, the European Union has maintained pressure on Eastern European states to respect the rights of the Roma (Gypsy) minority, even following their EU accession (Ram 2012).

^30. Putin's ally Mikhail Margelov, chairman of the Foreign Affairs Committee of the Federation Council (the upper chamber of Parliament), and at the time vice-speaker of the PACE, has argued that Russia's retention of the death penalty damages its international interests (Margelov 2006). In 2007, Russia joined European countries in supporting a resolution in the United Nations General Assembly calling for a worldwide moratorium on capital punishment; the USA was opposed (Samigullina 2007).