And spoke about the possibility of a return of capital punishment in Russia
Lawyers for Briton Sean Pinner, who was sentenced to death in the DPR, filed a cassation appeal with the Supreme Court of the Donetsk People's Republic. And on June 29, the DPR Armed Forces confirmed this fact. From this moment, according to international lawyers, the terrible punishment cannot be carried out. However, in their opinion, capital punishment should not have been imposed in principle.
The death penalty is a painful and difficult topic. And all the more important was an open conversation about this with the Deputy Chairman of the UN Committee against Torture, Judge of the UN International Criminal Tribunals for Rwanda and the former Yugoslavia Bakhtiyar Tuzmukhamedov.
Right to life
A conversation about the death penalty took place in Yekaterinburg at the Yeltsin Center. The author of these lines was the moderator of the conversation (as a person who wrote dozens of articles about why this type of punishment should not be returned). My questions addressed to a unique speaker – a man who is now a member of the UN Committee against Torture. The main one is that Russia has withdrawn from the Council of Europe and the Convention on Human Rights, and does this mean that death sentences will soon be possible?
– I think not, – says Bakhtiyar Raisovich. — Because the 2009 Constitutional Court separated the comprehensive moratorium from international obligations, referring international obligations to only part of the grounds for not applying the death penalty.
This is what the Constitutional Court stated: “A legitimate constitutional and legal regime has developed in the Russian Federation, within which an irreversible process is taking place aimed at abolishing the death penalty as an exceptional measure of punishment.”
It was formed not on the basis, but only, I quote, “taking into account the international legal trend and the obligations assumed by the Russian Federation.” In addition, according to the Constitutional Court, I quote again: “Stable guarantees of the right not to be subjected to the death penalty have been formed”…
The Constitutional Court has established that the constitutional right to life already excludes the possibility of being deprived of life by the power of the state. The moratorium was replaced by a constitutional waiver of exceptional punishment.
– Well, maybe you can. We just need to convince the Constitutional Court to review its decisions. Even if by law they are final and not subject to appeal. And to convince the Constitutional Court to change its legal position: in 2009 it recognized that guarantees are unstable and the process is irreversible, now let them say that they are unstable and reversible. This is one way.
There is a more decisive, cardinal step. This is a constitutional change. This is where the “squiggle” comes in. It consists in the fact that this requires intervention in Chapter Two “Rights and Freedoms of Man and Citizen”, and it can be changed only through a complex procedure.
– Apparently, the legislator is simply not ready for this. It also focuses on public opinion. In this case, the constitutional refusal came “from above”. The abolition of the death penalty, as a rule, came “from above”, and only then was it accepted by society. Somewhere (let's take the USA) this refusal is not accepted so far.
The death penalty in the DPR: you can appoint, you can not execute
— Ukraine at first considered what was happening in the east of the country as an internal armed conflict, calling it an anti-terrorist operation. By his decree in 2014, President Petro Poroshenko transferred this to the category of an international conflict, accusing Russia of aggression. Russia did not recognize it then.
The Criminal Code of the LPR does not know the death penalty (life imprisonment is indicated as the highest measure). The Criminal Code of the DPR in terms of the number of “execution” compositions is approaching the Criminal Code of the RSFSR of the 60s (there are about 30 crimes for which capital punishment is provided – Auth.).
Here is the trick. Ukrainian servicemen who left Azovstal fell under the control of the Russian military. It seems to me that an international legal custom has been formed on the basis of both regional bilateral treaties, as well as the practice of international bodies: not to transfer persons to those jurisdictions where these persons may face criminal prosecution, which ends with the death penalty. There are a number of bilateral agreements on this matter.
So, in the Criminal Code of the DPR there is a clause on the non-application of the death penalty for persons who are transferred from a jurisdiction where the death penalty is not applied for any reason. Russia is just such a country. Therefore, in my opinion, either Russia should demand from the DNR a guarantee of non-application of the death penalty, or this guarantee is implied.
Among other things, you must treat the enemy, who laid down his arms and found himself in your power, the way you want to be treated by your own citizens, who are in the power of the opposite side. It seems to me. Moreover, there is no death penalty in Ukraine. I heard various statements about the fact that it is not necessary to exchange military personnel. Human life is the highest value. Let's do everything to “scratch out” our own.
How the tribunal punishes
– In international jurisdiction, the maximum sentence is life imprisonment (we do not take military Tribunal at Nuremberg, as well as 12 subsequent trials, where the death penalty was simply prescribed).
Since the formation of modern international jurisdictions, the process of abolition of the death penalty has already reached a certain level, which did not allow the use of such a measure and its introduction into the statutory documents. You will not find the death penalty in the statutes of the former tribunals for Rwanda and the former Yugoslavia, nor in the hybrid tribunals, whether in Sierra Leone or Cambodia.
In the first instance of the Tribunal for Rwanda, we had before us witnesses, some of whom were victims at the same time. Well, for example, in front of us was the mother of eight children, seven of whom were killed during the genocide.
And I don't remember calls for mortification. Maybe this is a consequence of the work of the prosecution, which explained to these people: “There is no death penalty here. Therefore, tell what happened to the family, but do not call on the judges to send all the defendants to the chopping block. Although it was the time of the genocide, an unspecified number of people were killed in a short period of several months (estimates vary from 800 thousand to a million people). Many of the dead have never been found. The bodies were carried away by the river.
INFORMATION “MK”: The genocide in Rwanda takes place from April 6 to July 18, 1994. By order of the Hutu government, representatives of the Tutsi people were exterminated. The massacres were carried out by the army, the gendarmerie and pro-government groups. The total number of victims was up to 20 percent of the entire population of the country.
– Not. First. You see, there is probably a certain limit, after which the feeling of death becomes dull. One person, two, three… And when it comes to hundreds of thousands… Second. I had to control myself. Third. I became a judge of the highest instance in 2009. 16 years have passed since the genocide. Feelings have become dulled even among the survivors of the victims.
My first case, on the one hand, was the simplest, because the accused cooperated with the investigation, and it was just a matter of passing a sentence. There was clearly no blood on his hands. There were witnesses describing it from the positive side.
How it was. They came to him, put a knife to his throat and said: “Here is your warehouse (and he was the head of the state tea and coffee company), weapons will be stored there.” In those conditions, weapons were not machine guns, but machetes and cobblestones (by the way, I remember one episode when people simply did not know how to use hand grenades, they threw them like cobblestones).
There was a funny moment: the prosecution demands a “fork” from 8 to 14 years. The defense refuses to appeal (this simplifies the matter). The presiding judge is a Dane, there was another judge from an African country, and so am I. I say: “Let's give 8.” The Dane looks at me with surprise, then calls me up and says: “I know that you are from Russia, so I thought you would demand the death penalty.”
I remember one case, it was also in the first instance, when an African was presiding, one of the judges was a Turk, with whom we became friends (who, unfortunately, fell under disassembly after an armed coup attempt) and me. And we made up the majority, insisting on a lesser punishment for the accused, while my Turkish friend proceeded from humanitarian considerations.
And again there was no evidence that there was blood on the hands of the accused. And I was such a doubting people's assessor. But, unfortunately, all this came to the highest authority and, for reasons, from my point of view, extremely unconvincing, the appeal increased the sentence. From my point of view, the appeal should not increase the punishment. But this has happened in the practice of international tribunals.
– For my practice in the first instance in the Rwanda tribunal and then in the appellate instance, which was common to the tribunal for Rwanda and the former Yugoslavia, I repeatedly spoke with dissenting, dissenting opinions. In some cases, the consideration of the case by appeal ended with an acquittal.
There was a case when we acquitted a person (he was accused of complicity in genocide) who spent 18 years in prison. But there were stories with villains…
I went against the majority on appeal in one case with several defendants, where one episode was the massacre of Belgian peacekeepers in Rwanda. I was at the crime scene. Several young soldiers with a young lieutenant there gave the last decisive battle…
Most of my colleagues (I expressed a dissenting opinion) were inclined to such a reduction in the term for one of the main executors that at the time of the announcement of the verdict (after the completion of the formalities) he was released. And since he had no way either to Rwanda (he would not have lived there for a long time), or abroad, he simply came to the trials and sat in the hall. We had a glass barrier behind which the audience sat. And this bastard came and watched (there was an emotion here, because I myself participated in a peacekeeping operation and for me there was also a personal moment).
– Ask – do not ask: the indictment and the list of persons who were subject to consideration in international jurisdictions were determined not by themselves, but by international instances. And these are crimes of persons of high level, high rank.
The cases in which I participated were at the level of government: the deputy head of government, the minister of the former Yugoslavia. Although there were exceptions, it was the tribunal for the former Yugoslavia that was the first to allow such exceptions.
With regard to Rwanda and the death penalty, I cannot answer whether death sentences were handed down and carried out in the period from 1994 to the moment when the tribunal gained some strength. I cannot rule out that the UN and “outside forces” had the means to influence Rwanda to refrain from using the death penalty.
For a long time in Rwanda there were grassroots, people's courts – Gachacha, which, in the absence of lawyers in their composition, were vested with the right to pass death sentences. But when Rwanda began to show interest in the prosecution of those involved in the genocide, a harsh condition was set: the abolition of the death penalty. Officials observe this under monitoring by the UN.
—People were either convicted and served in a place of punishment, or released. Those who were convicted by the tribunal had nowhere to go, and they lived in protected premises for a long time. They were barred from going to Rwanda, not all countries were ready to accept them even for humanitarian reasons, even if members of their families lived there.
Some people were sent to serve their sentences in African states (there was a practice of concluding agreements on the basis of which they accepted persons convicted by the tribunal to serve their sentences). Monitoring was carried out. International standards were respected. I've heard of a fairly liberal regime there.
I myself was only in isolation. I remember the first time I visited the prison in Tanzania, which belonged to the UN. It was located in the middle of the Tanzanian prison, and I assumed that the prisoners in the “Tanzanian” part would rather not jump outside, to freedom, but inside the UN detention center – the conditions there were so comfortable. I remember a volleyball court with a drainage system in the middle (perhaps this only increased interest and excitement).
Relatively good conditions were in the detention center located in the suburbs of The Hague, where there was an international block in which they were kept as persons whose cases were considered by the appeal or the tribunal for the former Yugoslavia.
The cell is not less than 15 sq. m, a door that opens no later than 8 am and closes at 21.30-22.00. It is possible to order groceries. The head of the prison said: “When they start cooking food (national), I drool.” Gym, tennis court, opportunities for intensive meetings with lawyers, discussion of cases.
There was a death rate. I wouldn't blame the administration for this. I remember how one accused (he was in the Yugoslav tribunal) was held by the first instance, despite the progressing cancer and numerous petitions. Only the court of appeal allowed him to return home, where he soon died.