DEATH PENALTY IN UKRAINE: WILL THIS BE THE END?
Vol. 1, No. 5, December 25, 1995
In late October 1995, on the eve of joining the Council of Europe, Ukraine found itself obliged to deal with an issue, which never gained too much attention as a matter of public debate - the abolition of the death penalty. The Council of Europe membership required adherence to the international norms and the abolition of the death penalty was one of the conditions for admission to this all-European forum. According to the demand of the Council of Europe, Ukraine must abolish capital punishment within three years.
When the Presidium of the Supreme Court passed a resolution on heavier sentences in 1994, few could predict that the issue of the death penalty would arise in the foreseeable future.
President Kuchma's speech to representatives of the law enforcement structures and the Security Service about combating crime and extending the scope of crimes punished by death penalties left the impression that punishment for serious crimes would become harsher. However, on October 17, 1995, Ukraine's recently appointed Minister of Justice Serhiy Holovatyi, announced a temporary suspension of death penalties in Ukraine. He made this statement to a meeting of Ukrainian NGOs and a delegation of the Committee for Law and Human Rights of the Parliamentary Assembly of the Council of Europe, noting that 'this decision was made by the leadership of the state.' Meanwhile, Vice Prime Minister Vasyl Durdynets, whose responsibilities include supervising law enforcement, argued that the introduction of a moratorium on death penalty would be possible only in two or three years. He quoted statistics of crime in Ukraine: 472 thousand crimes committed during nine months of 1995, members of 660 criminal groups arrested. These figures reflect a 13% increase in crime compared to the same period of 1994./1 During 1995, crime involving weapons grew up by 100%, theft increased by 61.6% and murder jumped by 84.6%./2
Hryhory Vorsinov, Ukraine's newly-appointed Prosecutor General, also didn't share Minister Holovatyi's optimism. At his press-conference in Dnipropetrovsk on October 27, 1995, he said Ukraine was not ready to abolish the death penalty and referred to this requirement of the Council of Europe as 'dictating to Ukraine.' He supported his view on the necessity to preserve death penalty, pointing to the drastic increase of crime in Ukraine./3
On October 30, 1995, Serhiy Holovatyi made an official statement criticizing the position of Hryhory Vorsinov on the issue of abolition of death penalty in Ukraine. The Prosecutor General responded to this statement, and the two officials engaged in lengthy rhetorics on the matter. Holovatyi accused the new Prosecutor General of lack of competence, low level of political culture, abuse of authority and a 'strike in the back' before November 9, 1995, when the Parliamentary Assembly of the Council of Europe was due to make its final decision on admission of Ukraine as a full member of the Council. Hryhory Vorsinov was also far from praising the Minister's view. Without excluding the possibility that a moratorium on the death penalty would be introduced prior to abolition of capital punishment, Vorsinov stressed that the Parliament should not hurry with the moratorium. Furthermore, he regarded the conflict with the Minister of Justice as an effort to involve the Prosecutor General in political intrigues./4
Later on, after the President chose to intervene and stop the debate between the Minister of Justice and the Prosecutor General, Holovatyi claimed he had quoted Ukraine's Minister of the Interior who had promised to the representatives of the Council of Europe that capital punishment would be suspended.
Volodymyr Stretovych, head of the Parliamentary Committee for Legal Policy and Reform, expressed his view on the issue: 'Suspending or canceling capital punishment is the sole prerogative of the Parliament. In fact, when we applied to join the Council of Europe, we did sign a memorandum on canceling capital punishment. However, this does not mean it has to be done immediately.' According to Stretovych, some members of the Council of Europe continue to practice capital punishment. He also added that his committee was not actively working towards abolition of death penalty in the country. 'The Minister's of Justice statement will have no effect,' pointed out the MP responsible for dealing with the issue.
A number of international documents contain direct or indirect demand that death penalty should be abolished. Among them are Articles 3 and 5 of the Universal Declaration of Human Rights and Articles 6, 14 and 15 of the International Agreement on Civil and Human Rights. Without denying inhuman nature of the capital punishment, critics of an immediate launch of the abolition process point out that due to the cultural level of the society, dramatic increase in crime and drawbacks of the law-enforcement system, Ukraine must keep the death penalty. An expert of Ukraine's Parliamentary Commission for Law and law Enforcement, Dr. Natalia Tsys' referred to a UN study of world tendencies in abolition of death penalty. As of 1990, 27 countries abolished it, 9 more countries canceled it de-facto, 2 countries renewed their practice of death penalty and 13 countries did not perform death sentences./5 According to the Amnesty International reports, death penalties have been abolished in 35 states, and 18 more states reserve 'the top measure' for extremely dangerous, mainly war-related, crimes. 27 other countries no longer carry out death sentences. However, this count still leaves these countries in minority.
Numerous efforts of scholarly research didn't find scientific proof of the thesis that the capital punishment provision in a country's Criminal Code restricts the growth of crime and that introduction of 'harsher methods' actually improves the crime record.
Many experts believe that Article 93 of the Ukraine's Criminal Code complies with universally recognized standards. It stipulates that capital punishment cannot be applied to persons under 18 and pregnant women, and is used for only severely aggravated crimes. Furthermore, those sentenced to death have the right of appeal to a higher court. 'The existence of death penalty in a democratic state has its economic, political and ideological grounds,' maintains Dr. Tsys', '... in a democratic state this is a temporary phenomenon that can exist only if the state complies with special guarantees of human rights and liberties.'
There were several attempts to abolish death penalty in the former Soviet Union: in 1917, 1920 and 1947-1950, all dropped at their early stages. The communist regime in the former Soviet Union was notorious for its massive executions of 'enemies of the people,' when capital punishment was used more often to eliminate or silence political opponents than actually fight crime. Between 1921-1954, over 642 thousand death sentences were carried out. In 1962-1989, 21,075 people were executed in the USSR, one third of death sentences worldwide and 22 times more than in the US during the same period. Among the death sentences passed in political cases, there were executions for 'anti-Soviet agitation and propaganda.'
Prisoners sentenced to death had the right to petition for clemency, which might be granted by the Presidium of the USSR Supreme Soviet and by the Presidium of a republican Supreme Soviet. If clemency was granted, the death sentence was commuted to imprisonment of up to 20 years in the harshest type of corrective labor colony./6
In March 1989, the USSR Supreme Soviet reduced the scope of the death penalty to six peacetime offenses: treason, espionage, terrorist acts, sabotage, international homicide under aggravating circumstances and the rape of minors. Women were exempt from the death penalty, as were men who were under 18 at the time of the crime or were 60 when the sentence was passed.
Currently, Ukraine still uses the Criminal Code adopted in December 1960. Though numerous changes have been made to the document since then, it is still far from democratic. Ukraine occupies a (dis)honorary 5th place in the world death-penalty rating after China, Iraq, Iran and Nigeria. Among the CIS states, it is the most severe to its criminals. Statistically, Ukraine is also the most 'quiet' among the former republics. Although crime rate in Russia is some 300% higher than in Ukraine, only about two dozens of death sentences have been passed in Russia in 1995. Criticism of 'the state that kills' by human rights activists cause vigorous objections of the officials. Olexandr Panevin, head of the department of court statistics and analysis of Ukraine's Supreme Court stated that of those sentenced to death in 1995 more than a half had committed crimes before and 18 persons had been convicted three or more times. In 32 cases murderers took lives of two or more people. The number sentenced to death totals 103. 34 criminals were convicted for murders during gang assaults. Every fourth of the convicts had committed 'especially cruel' murders before. Every sixth of them committed murder trying to cover another crime. Every tenth raped and murdered his minor victim. Majority of cases are group murders, premeditated or 'ordered' murders committed by organized criminal groups./7
In Ukraine, the death penalty is used only for premeditated murder, aggravated by the following factors: self-interest, rowdyism, taking the life of a police officer, killing of two or more people, murder of a pregnant woman, special cruelty or a threat to lives of many people, attempt to hide another crime, rape, performed by a relapsist or a person who committed intentional murder before.
Though officially not included into the list of 'state secrets,' the process of implementing a death penalty is a matter on which officers of the Ministry of Justice prefer not to comment. Execution is done in a maximum security prison in Dnipropetrovsk. 'Those sentenced to death in Dnipropetrovsk are shot in their cells by a flag-bearer from the Interior Ministry's Military Division and the medical experts confirm death. The body is not returned to relatives and no information is given once the sentence is carried out'./8 By means of execution, the state not only shoots the criminal, but intends to warn others against following the example, even though, it appears that the society itself does not believe in the 'educational' value of death penalty.
Capital punishment is hardly an adequate method of crime prevention. Statistics fail to show an increase in crime in countries where death penalty is abolished. Furthermore, if the society wanted to deter would-be murderers by the possibility of the death penalty, it would reintroduce public executions, simultaneously running the risk of severely damaging the people's morale. The death penalty itself is a premeditated murder, aggravated by months of suffering and horror.
Meanwhile, the results of various sociological surveys show that the increase in crime is the second among public worries. According to recent opinion polls, the abolition of death penalty meets opposition of up to 92% of the population of Ukraine and, surprisingly, up to 90% of judges and lawyers. The advocates of death penalty as a preventive and 'educational' method refer to horrid pictures of aggravated murders, especially those combined with rape of minors and, in the name of the society, call for vengeance. They claim that otherwise the criminals will be sentenced to 'only' 15 years in prison - the maximum term in Ukraine. However, Ukraine's Minister of the Interior Yuri Kravchenko thinks there is a different solution to the problem: introduction of life sentence which will protect the society from potential relapsists./9 However, speaking to students of the Legal Department of the Taras Shevchenko Kyiv University, General Kravchenko said that if the death penalty is substituted by the life-long imprisonment, two new prisons will be required to accommodate the 3-4 thousand 'clients,' as every year 120 to 140 criminals receive the death sentence./10
There exists another problem raised by the supporters of the death penalty. Serhiy Synchenko, a member of the Parliamentary Commission for fighting corruption and organized crime stressed that one prisoner cost Ukrainian tax-payers 4,4 million karbovantsi./11 Numerous representatives of the authorities offer the economic side of the matter as arguments against the abolition of the death penalty. Chief Justice Vasyl Bilousenko believes life imprisonment will become necessary, if capital punishment is abolished. Furthermore, there currently exists no adequate legislation, the adoption of which will take a long time. Chief Justice Bilousenko also claimed that changing death penalty to life sentences would mean the necessity to build new prisons every five years.
According to Serhiy Holovatyi, 143 death sentences were made in 1994, and 74 death sentences in the first 6 months of 1995. However, Holovatyi claimed that since September 1995, capital sentences have practically not been fulfilled./12
Apparently, Ukrainian legislators are looking for the way to comply with the requirement of the Council of Europe. The Draft Constitution of Ukraine, prepared by the working group of the joint parliamentary-presidential Constitutional Committee and presented on November 15, 1995, avoids using the words 'death penalty.' Instead, Article 22 of the Draft Constitution stipulates that 'every human has the right to life. Nobody can deliberately take a person's life.'/13 This compromise is intended to make the Draft Constitution more acceptable for advocates of the 'harsher methods' of combating crime. Probably the authors believe that the death sentence is not issued by the Court 'deliberately,' and taking away a person's life by the decision of the Court does not constitute violation of that person's constitutional right to live.
Ukraine was one of the states that initiated, in December 1989, the Second Facultative Protocol to the International Civil and Political Rights Pact that came into force on July 11, 1991. The Protocol stated that steps towards the abolition of the death penalty should be regarded as a progress in guaranteeing human rights. Furthermore, the Protocol stipulated that 'every signatory will take all necessary measures within its jurisdiction to abolish the death penalty.'/14 However, Ukraine has not yet ratified the Protocol.
In his 'Reflections Over the Guillotine,' Albert Kamue wrote: 'To sentence a person to death means to deprive him or her of any chance to atone for the guilt. ... There is no supreme court without absolute innocence. We all commit evil. ... The right to live coincides with the possibility to redeem and is the natural right of every human, even the worst one. ...Nobody is allowed to lose faith in a human up to his or her death.... It is not our power to submit a person to the supreme justice before his or her death. He who gives the final sentence, condemns himself.'/15
1. Vseukrainskie Vedomosti, October 19, 1995.
2. Oleh Yeltsov, The Death Penalty, Eastern Economist, November 27, 1995.
3. Kievskie Vedomosti, November 3, 1995.
5. Holos Ukrainy, November 30, 1995.
6. When the State Kills... The death Penalty vs Human Rights, Amnesty International, 1989.
7. Holos Ukrainy, November 28, 1995.
8. Oleh Yeltsov, The Death Penalty, Eastern Economist, November 27, 1995.
9. Kievskie Vedomosti, November 1, 1995.
10. Kievskie Vedomosti, December 13, 1995.
11. Vseukrainskie Vedomosti, October 19, 1995.
12. Interfax Ukraina, November 18, 1995.
13. Draft Constitution of Ukraine, Nezavisimaya Gazeta, December 7, 1995.
14. Second Facultative Protocol to the International Agreement on Civil and Human Rights, Human Rights in Ukraine, Kyiv, 1994.
15. Kamue, Albert: 'Reflections Over the Guillotine,' Human Rights in Ukraine, Kyiv, 1994.