The abolition of the death penalty and its alternative sanction in

www.penalreform.org

The abolition of the death penalty and its

alternative sanction in Eastern Europe:

Belarus, Russia and Ukraine

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 1

Contents

Acknowledgments 2

Acronyms 3

Introduction 4

Research methodology 5

Executive summary 6

Country-by-country analysis

Republic of Belarus 8

Russian Federation 26

Ukraine 40

Comparison of the application and implementation of the death penalty

and its alternative sanction in Eastern Europe 51

2 Penal Reform International

Acknowledgements

This research paper has been created by Penal Reform International (PRI). It was written by Viktoria Sergeyeva

and Alla Pokras, and edited by Jacqueline Macalesher. This report is based on national research papers

prepared by Irina Kuchvalskaya and Vladimir Khomich (Belarus), Oleg Lysyagin (Russia) and Irina Yakovets

(Ukraine).

This research paper has been produced in conjunction with Penal Reform International’s project “Progressive

Abolition of the Death Penalty and Alternatives that Respect International Human Rights Standards” with

the nancial assistance of the European Union under the European Instrument for Democracy and Human

Rights (EIDHR) as well as the nancial assistance of the Government of the United Kingdom (Department for

International Development).

The contents of this document are the sole responsibility of Penal Reform International and can in no

circumstances be regarded as reecting the position of the European Union or the Government of the United

Kingdom.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 3

Acronyms

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CPT European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment

CRC

Convention on the Rights of the Child

ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms

EIDHR European Instrument for Democracy and Human Rights

EU European Union

FSIN

Federal Service of Execution of Punishments of Russia

GA General Assembly

ICCPR International Covenant on Civil and Political Rights

NGO Non-Governmental Organisation

NPM National Preventive Mechanism

ODIHR Ofce for Democratic Institutions and Human Rights

OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment

OSCE

Organization for Security and Cooperation in Europe

PACE Parliamentary Assembly for the Council of Europe

PED Department of Execution of Punishments of the Belarusian Ministry of Internal Affairs

PRI Penal Reform International

POC Public Oversight Commission (Russia)

SPS State Penitentiary Service (Ukraine)

TB Tuberculosis

UK United Kingdom

UN United Nations

UPR Universal Periodic Review

USA United States of America

4 Penal Reform International

Introduction

The death penalty is the ultimate cruel, inhuman and

degrading punishment. It represents an unacceptable

denial of human dignity and integrity. It is irrevocable,

and where criminal justice systems are open to error

or discrimination, the death penalty will inevitably be

inicted on the innocent. In many countries that retain

the death penalty there is a wide scope of application

which does not meet the minimum safeguards,

and prisoners on death row are often detained in

conditions which cause physical and/or mental

suffering.

The challenges within the criminal justice system do

not end with the institution of a moratorium or with

abolition. Many countries that institute moratoria

do not create humane conditions for prisoners held

indenitely on ‘death row’, or substitute alternative

sanctions that amount to torture or cruel, inhuman

or degrading punishment, such as life imprisonment

without the possibility of parole, solitary connement

for long and indeterminate periods of time, and

inadequate basic physical or medical provisions.

Punitive conditions of detention and less favourable

treatment are prevalent for reprieved death row

prisoners. Such practices fall outside international

minimum standards, including those established

under the EU Guidelines on the Death Penalty.

This research paper focuses on the application of

the death penalty and its alternative sanction in

three countries of Eastern Europe: the Republic of

Belarus, the Russian Federation and Ukraine. Its

aim is to provide up-to-date information about the

laws and practices relating to the application of the

death penalty in this region, including an analysis

of the alternative sanctions to the death penalty

and whether they reect international human rights

standards and norms.

This paper takes a country-by-country approach and

focuses on:

 The legal framework of the death penalty and its

alternative sanction (life imprisonment).

 Implementation of both sentences, including

information on fair trial standards.

 Application of the sentence, including an analysis

of the method of execution, the prison regime and

conditions of imprisonment.

 Statistical information on the application of the

death penalty/life imprisonment.

 Criminal justice reform processes in general.

This paper provides detailed and practical

recommendations tailored to each country to bring it

in line with international human rights standards and

norms.

We hope this research paper will assist advocacy

efforts towards abolition of the death penalty and

the implementation of humane alternative sanctions

in the region. We hope this paper will be of use to

researchers, academics, members of the international

and donor community, and all other stakeholders

involved in penal reform processes including

government ofcials, parliamentarians, prison ofcials

and members of the judiciary.

March 2012

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 5

Research methodology

Access to information on the application of the

death penalty and its alternative sanction is often

unavailable or inaccurate in many countries.

Statistical information is not always made available

by state bodies, and information provided is not

always timely, or lacks clarity. Across the Eastern

European region in particular, such information is

often classied as a state secret. As such, although

PRI aimed to undertake an in-depth analysis of legal,

policy and practice areas within the remit of this

research paper, access to some information was

beyond the abilities of the researchers, and therefore

gaps in the research remain.

A research questionnaire was designed in late 2010 to

assist researchers in identifying relevant information.

The research questionnaire was designed by PRI

in partnership with Sandra Babcock (Northwestern

University, USA) and Dirk van Zyl Smit (Nottingham

University, UK).

The researchers looked at primary sources, such

as legislation and case law, as well as interviewed

relevant government ofcials within the various

departments of the Ministries of the Interior, the

Ministries of Justice, Constitutional Councils, and

the Penitentiary Services, as well as with national

human rights commissions/Ombudsmen, lawyers

and judges, journalists, and members of civil society/

human rights defenders in all three countries, and

with a cross-section of death row and life sentenced

prisoners where access was made available. The

researchers also turned to reports by individuals or

organisations with rst-hand experience, such as by

inter-governmental organisations including reports by

UN treaty bodies, the OSCE and Council of Europe,

as well as reports by international NGOs such as

Human Rights Watch, Amnesty International, Death

Penalty Worldwide and the World Coalition against

the Death Penalty. Reports and articles by journalists

and academics were also analysed.

The research was completed in January 2012.

6 Penal Reform International

Executive Summary

The Eastern European region presents a unique

picture of a region in various stages of the abolition

process: Ukraine has abolished the death penalty

for all crimes in law, Russia is abolitionist in practice,

and Belarus continues to carry out executions.

While Belarus and Russia are the last two countries

in Europe to abolish the death penalty in law, it is

important to note that both of their constitutions

emphasise the exceptional and temporary nature of

this punishment.

Belarus is the only country in Europe that continues

to execute. The last executions took place in March

2012. The death penalty is retained for 14 criminal

offences (12 in time of peace and two in time of war).

However, since 1989, it has almost always been

applied for aggravated murder. According to the

Ministry of Internal Affairs, between 1998 and 2010,

102 men have been sentenced to death in Belarus.

Over the last ten years, the government have made a

number of positive statements in various national and

international forums indicating that Belarus is moving

towards a position of moratorium. A governmental

Working Group on the death penalty was established

in February 2010 to facilitate wide discussions on the

issue of abolition. However, following the disputed

presidential elections in December 2010, discussions

towards a moratorium have stalled. The 2011 terrorist

attack on the Minsk underground has also resulted

in a more negative approach towards establishing

an ofcial moratorium. It is important to note that

politicians in Belarus continue to rely on perceived

public opinion as an argument for retaining the death

penalty. In particular, politicians rely on the results of

a 1996 public referendum according to which 80.44

percent of the public were against abolition.

It should be noted that in the last ten years, the

number of executions have decreased considerably

in Belarus, from 47 executions in 1998, to an

average of two per year since 2008. However, the

total secrecy surrounding the procedures relating to

the implementation of the death penalty, awed fair

trial procedures and the harsh prison conditions for

those on death row raise fundamental human rights

concerns regarding its continued use.

Life imprisonment was established as a new sanction

for 14 criminal offences (the same offences as for

the death penalty) in Belarus is 1997. At least 144

men have been sentenced to life imprisonment since

its introduction, and a further 156 death sentences

have been commuted to life imprisonment. Life

imprisonment does not have a maximum tariff

however that sentence may be substituted for

a denite term of imprisonment after serving a

minimum of 20 years in prison. To date no lifers have

been paroled since life imprisonment has only been in

place for the last fteen years.

While Russia retains the death penalty in its Criminal

Code for ve offences, an ofcial moratorium on both

sentencing and executions has been in place since

February 1999, when the Constitutional Court found

that the death penalty would be unconstitutional until

jury-trials were established in all 89 regions of the

Russian Federation. The moratorium was extended

by the State Duma in 2006 until 2010. Chechnya was

the nal region to establish jury trials in 2010, and in

anticipation of this, the Constitutional Court extended

the moratorium indenitely in November 2009

until Russia raties Protocol No. 6 to the European

Convention on Human Rights.

Executions have not been carried out in Russia

since September 1996 (although executions were

carried out until 1999 in Chechnya, which de

facto was not then under control of the Russian

Federation), and despite the clear direction set

out by the Constitutional Court, debates on the

reinstatement of the death penalty occasionally

resurface. The issue of retaining the death penalty

for those convicted of committing acts of terrorism

has received signicant public coverage following

the Moscow Metro bombings in March 2010 and the

Moscow Domodedovo Airport bombing in January

2011. Furthermore, like Belarus, public opinion on

the death penalty has been an important part of its

continued retention, and law makers continue to refer

to the high percentage of the public who are against

abolition.

Life imprisonment as an alternative to the death

penalty was established by the Russian Federation

in 1992, and in 1996 it was established as a stand-

alone punishment for 13 offences in the Criminal

Code. At least 1,780 men have been sentenced

to life imprisonment since its introduction. Life

imprisonment does not have a maximum tariff;

however a lifer may apply for parole after serving a

minimum of 25 years in prison. To date no lifers have

been paroled.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 7

Ukraine is the only country in the region to have

abolished the death penalty in law for all crimes.

Following its membership to the Council of Europe in

1995, Ukraine promised to abolish the death penalty,

however executions continued until a moratorium

on executions was established on 11 March 1997.

Death sentences continued to be handed down until

the Constitutional Court ruled the death penalty to be

unconstitutional in December 1999 and the President

of Ukraine signed a law abolishing all 24 death

penalty applicable offences from the Criminal Code

in February 2000. Following the abolition of the death

penalty, a new sanction of life imprisonment was

established in 2000, and all 612 death row prisoners

had their sentences commuted to life sentences.

Life imprisonment may be imposed for nine offences

as set out in the Criminal Code, and unlike Belarus

and Russia, women can be sentenced to life

imprisonment in Ukraine. At least 1,883 prisoners are

currently serving a life sentence in Ukraine, including

approximately 20 women. Life imprisonment in Ukraine

does not have a maximum tariff; however a lifer may

apply to the President for a pardon of his/her life

sentence after serving a minimum of 20 years. If the

President grants a pardon, the life sentence is replaced

with a determinate term of 25 years imprisonment.

A prisoner may then apply for parole after serving

a minimum of three-quarters of their sentence.

However, the law is unclear as to whether the 25 year

determinate term includes the 20 years already served,

or whether the 25 years must be served in addition

to the rst 20 years. As such, there is a lack of clarity

as to when the three-quarter minimum term will be

reached by the prisoner. It should be noted that no lifer

has been paroled in Ukraine since life imprisonment

was introduced.

Across the region, all three countries have growing life

populations, and sentences that can be characterised

as disproportionate in length and overly punitive in

nature. People are sentenced after proceedings which

fail to meet international standards for a fair trial

as guaranteed under article 14 of the International

Covenant on Civil and Political Rights (ICCPR), to

which all three countries are state parties. Although

the right to a fair trial is not impeded by a lack of

legal guarantees, it is impeded in practice. The two

fundamental problems across all three countries lie in

the fact that the judiciary is overly inuenced by the

executive and lacks independence; and secondly, the

quality of legal defence, and in particular legal aid, is

poor and under-resourced. This results in notoriously

low acquittal rates and raises questions over the

fairness of sentences handed down, in particular,

death sentences issued in Belarus.

A harsh and discriminatory prison regime, and

a lack of rehabilitation for life or long-term

prisoners, reinforces the punitive

nature of life

imprisonment. Prison conditions across the region

are far below international standards. Improvements

are desperately needed to be made in terms of

accommodation, nutrition, sanitation, access to

medical and psychological care, visitation rights,

sentence planning, and rehabilitation and social

reintegration programmes including work and

education programmes. Life and long-term prisoners

are often separated from the rest of the prison

population and kept under a much harsher and

stricter regime–including solitary connement and

semi-isolation–which is unrelated to prison security,

but based on their legal status as lifers.

In Belarus, there is no ofcial information regarding

the treatment and conditions of prisoners on death

row, however, reports indicate that conditions are

poor and that death row prisoners are not provided

with fundamental legal safeguards. Independent

monitoring of places of detention is also severely

lacking across all three countries, and only Ukraine

has ratied the Optional Protocol to the Convention

against Torture (OPCAT), although it has yet to

designate its National Preventive Mechanism (NPM).

1 While the purpose of sentencing is ultimately punitive, the nature of the sentence should be proportionate to the seriousness of the offence and individualised

to the speciﬁcities of the crime, including the circumstances in which it was committed. Sentences should not, therefore, be used to serve wider political

purposes or purely to punish the offender. Effectively locking away criminals for life and creating a discriminatory and arbitrary regime purely because of the

type of sentence a prisoner is serving fails to tackle the structural roots of crime and violence. Prisoners serving life or long-term imprisonment often experience

differential treatment and worse conditions of detention compared to other categories of prisoner. Examples include separation from the rest of the prison

population, inadequate living facilities, excessive use of handcufﬁng, prohibition of communication with other prisoners and/or their families, inadequate health

facilities, extended use of solitary conﬁnement and limited visit entitlements. Punitive conditions of detention and less favourable treatment are known to be

particularly prevalent for reprieved death row prisoners. Sentences should reﬂect international human rights standards and norms, and provide the offender with a

meaningful opportunity for rehabilitation and reintegration back into society, thereby leading to law-abiding and self-supporting lives after their release.

8 Penal Reform International

Republic of Belarus

I Basic country information

Geographical region: The Republic of Belarus is the

biggest landlocked country in Europe. It is situated

in Eastern Europe and bordered by Russia, Ukraine,

Poland, Lithuania and Latvia. The capital is Minsk.

Type of government: According to Article 1 of the

Constitution, the Republic of Belarus is a unitary,

democratic, social state. Belarus is governed by a

President and a National Assembly.

Language: The ofcial state languages are Belarusian

and Russian.

Population: According to the 2009 census, the

population of Belarus is 9.5 million people

composed

of about 130 nationalities and ethnic groups.

Belarusians account for the majority, with Russians,

Poles and Ukrainians make up the majority of the

minority.

Religion: The majority of Belarusians are Orthodox

Christians.

II Overview of the status of the

death penalty in Belarus

In 1928, the Criminal Code of the Belarusian Soviet

Socialist Republic applied the death penalty to 60

different offences. Although, the 1960 Criminal Code

greatly decreased this number, it remained high at

more than 30 offences. An important point is that

both Codes, like the Constitution, emphasised that

the death penalty was only a temporary measure.

Article 24 of the Constitution of the Republic of

Belarus states, “until its abolition, the death penalty

may be applied in accordance with law as an

exceptional measure of punishment for especially

grave crimes and only in accordance with a court

sentence” (emphasis added).

The reduction in the scope of application of the death

penalty happened in parallel with an increase in the

categories of people exempt from the application of

the death penalty. Under the 1960 Criminal Code,

those under the age of 18 at the time the offence was

committed, and pregnant women were prohibited

from being sentenced to death. An amendment

was made on 1 March 1994 which extended the

categories prohibited from a death sentence for

women entirely.

Belarus’ Criminal Code adopted on 9 July 1999, and

entered into force on 1 January 2001, reduced the

number of death penalty applicable crimes to 14

offences (12 in time of peace and two in time of war),

and exempt from this form of punishment those over

the age of 65 at the time of sentencing.

The death penalty continues to be applied in Belarus,

making it the only country in Europe that carries

out executions. The last two executions were in

March 2012. It should be noted that the number of

executions has decreased dramatically in the last ten

years, from 47 executions in 1998, to an average of

two per year since 2008.

One of the key arguments in favour of its retention is

its alleged strong public support. On 24 November

1996 a public referendum was carried out on the

question of the death penalty in Belarus. 80.44

percent of those polled were against abolition.

Opinion polls carried out in 2000 and 2003

demonstrated that approximately 70 percent of the

population were still in favour of the death penalty.

However, data obtained in 2008 from a national poll,

carried out by the research centre ‘NOVAK’, showed

that 48.2 percent of those polled were in favour of the

death penalty, and 39.2 percent were in support of

abolition. It should be noted that the general public

are not given full information about the effect and

efcacy of the death penalty in practice, which can

have a negative impact on the outcome of public

opinion.

Over the last ten years, the government have made a

number of positive statements in various national and

international forums indicating that Belarus is moving

towards a position of moratorium.

In May 2002, parliamentary hearings on the political

and legal aspects of the death penalty were

organised by the House of Representatives of the

National Assembly (the lower house of parliament).

This represented a serious step forward on the road

to debating the question of abolition in Belarus. The

2 Belarusian National Committee of Statistics, <http://belstat.gov.by/homep/ru/perepic/2009/itogi1.php>.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 9

House of Representatives recommended that the

Belarusian cabinet of ministers study the issue of the

death penalty based on the possibility of gradually

introducing a moratorium. This recommendation

indicated a willingness of the Belarusian state

legislature to adopt a positive approach to abolition.

Following a request from the House of

Representatives, the Constitutional Court considered

whether the death penalty was constitutional in

March 2004. The Court recalled amendments made

to the 1999 Criminal Code in order to bring national

legislation in line with international standards

prevailing in the area of application of the death

penalty. It also made specic reference to the

importance of the 1996 referendum in the retention

of the death penalty. However the Court paid

particular attention to Article 24(3) of the Constitution

which permits the application of the death penalty

while emphasising the exceptional and temporary

nature of this punishment, and subsequently ruled

that a number of provisions of the Criminal Code

were inconsistent with the Constitution due to their

lack of reference to the temporary nature of the

death penalty.

The Court’s ruling providing for the

possibility of either the abolition of the death penalty

or the imposition of a moratorium on executions as

a rst step towards full abolition. However, the Court

ruled that such measures may only be enacted by the

head of state and the Parliament

The recommendations of the Constitutional Court

were welcomed in 2005 by the Special Rapporteur

on the situation of human rights in Belarus,

who

encouraged the government to abolish the death

penalty in law, or, as a rst step, to introduce a

moratorium.

However, instead of taking these recommendations

forward by abolishing the death penalty, the President

submitted a draft law to parliament in June 2005

that, inter alia, supplemented the Criminal Code with

a reference to the temporary nature of the death

penalty, which, until its abolition, may be applied as

an exceptional measure for cases of premeditated

murder with aggravating circumstances. On 23 June

2006, the law was adopted by the Parliament.

Neither the President nor the Parliament took any

further steps towards a moratorium, however, in June

2009 the Parliamentary Assembly of the Council

of Europe (PACE) voted in resolution 1671 that

they would restore Belarus’ special guest status in

the Assembly if they would implement an ofcial

moratorium on the death penalty (Belarus’ status was

removed in 1997).

Following the adoption of resolution 1671, Belarusian

high-ranking ofcials and independent experts

expressed their opinion that a moratorium could

be introduced in the near future, not only as a step

towards gaining special guest status in PACE, but

also because public opinion had shifted since the

1996 referendum took place.

In July 2009, a Belarusian representative of

government stated at an OSCE Permanent Council

Meeting that “in Belarus, too, there is a movement in

favour of gradually limiting the application of (capital)

punishment” and that “the Belarusian authorities and,

in particular, the national parliament are continuing

to give this subject the attention it deserves in order

to gradually pave the way for an examination of the

possibility of introducing a moratorium on the death

penalty.”

In November 2009, the President announced a

special information campaign aimed at the issue

of abolition of the death penalty, stating “[w]e are

planning to conduct a number of events in Belarus

aimed to change public attitude towards the death

penalty.”

However the ofcial campaign was

conducted very formally and did not attract public

interest.

3 Decision No. 3–171/2004, Constitutional Court of the Republic of Belarus, 11 March 2004.

4 Articles 48(1)(11) and 50 of the Criminal Code were found to be inconsistent with the Constitution.

5 Report of the Special Rapporteur on the situation of human rights in Belarus (Mr. Adrian Severin), 18 March 2005, E/CN.4/2005/35, para. 85.

6 Resolution 1671 (2009) Situation in Belarus, Parliamentary Assembly of the Council of Europe, 23 June 2009.

7 Belarusian authorities will go to a moratorium on death penalty, NewsBY.org, 1 July 2009, <http://newsby.org/by/2009/07/01/text8425.htm>.

8 OSCE Permanent Council Meeting, Statement by the Republic of Belarus, Vienna, 20 July 2009, PC.DEL/656/09.

9 Belarus takes steps towards abolition of the death penalty, In Victory, <http://news.invictory.org/issue26466.html>.

10 Penal Reform International

In February 2010, a parliamentary working group on

“the discussion of the death issue” was established.

The working group comprised members of both

chambers of the Belarusian parliament. Nikolay

Samoseiko, the head of the Standing Parliamentary

Commission on Legislation, became the chairperson

of this Working Group.

One of the group’s aims was to facilitate wide

public discussion on the issue of abolition. It was

anticipated that the work of the group would result

in parliamentary hearings on the application of the

death penalty in practice. However, shortly after

its establishment, Belarus executed two men in

March 2010. PACE subsequently suspended high-

level contacts with the Belarusian parliament and

governmental authorities, noting a “lack of progress

towards the standards of the Council and a lack of

political will to adhere to its values”.

On 12 May 2010, during the Universal Periodic

Review of Belarus, 15 States raised the question

of the death penalty; 14 recommended ending

its practice and 13 to introduce an immediate

moratorium on executions. Belarus, however, rejected

all of these recommendations.

In September 2010, the government of Belarus

did acknowledge to the UN Human Rights Council

the need to abolish the death penalty and stated

its intention to mould public opinion in favour of

abolition, as well as to continue its co-operation with

the international community on this issue.

Shortly

after, on 6 December 2010, at the fourth All Belarus

People’s Assembly, President Lukashenko stated that

“the issue of capital punishment should be revisited”,

as there are “strong [arguments] for the non-use of

capital punishment.” At the same time, he stated that

public opinion in favour of capital punishment should

be taken into account.

However, following the disputed presidential elections

on 19 December 2010, President Lukashenko ceased

all activities of the governmental working group and

discussion towards a moratorium stalled. This was

due in two parts: rstly, to the negative reaction of

European countries to the presidential elections,

and secondly, the terrorist attack on the Minsk

underground on 11 April 2011. The Chairman of the

Standing Committee on Legislation and Judicial

Issues (and Chair of the death penalty Working

Group), Nikolay Samoseiko, stated that if the April

2011 terrorist had not occurred, a moratorium could

have been discussed in 2011.

Two men, Dzmitry

Kanavalau and Uladzislau Kavalyou, accused of

committing the 2011 bomb attack were sentenced to

death by the Supreme Court in November 2011, and

executed in March 2012.

III Legal framework: application

of international human rights

standards in Belarus

According to Article 8 of the Constitution “Belarus

shall recognise the supremacy of the generally

recognised principles of international law and shall

ensure the compliance of laws therewith”. However,

treaties that contradict the Constitution cannot be

ratied.

Belarus is party to a number of international human

rights instruments that are relevant to the death

penalty.

Belarus ratied the International Covenant on Civil

and Political Rights (ICCPR) on 12 November 1973,

and the First Optional Protocol to the ICCPR on 19

December 1996, however is not a signatory to the

Second Optional Protocol to the ICCPR (aiming at

the abolition of the death penalty). Belarus ratied

the Convention against Torture and Other Cruel and

Degrading Treatment or Punishment (CAT) on 13

March 1987, but is not a signatory to its Optional

Protocol (OPCAT). It ratied the Convention on the

Rights of the Child (CRC) on 1 October 1990. It is not

a signatory to the Rome Statute on the International

10 PACE suspends it high-level contacts with the Belarusian Government and Parliament, Parliamentary Assembly of the Council of Europe, 29 April 2010.

11 Report of the Working Group on the Universal Periodic Review on Belarus, 21 June 2010, A/HRC/15/16.

12 Country entry on Belarus, Annual Report 2011: The state of the world’s human rights, Amnesty International, 2010.

13 Lukashenko urges a revisiting of the death penalty issue, BelTA, 6 December 2010, <http://news.belta.by/en/news/president?id=598428>.

14 Interview on Euroradio, 13 December 2011, <http://euroradio.fm/ru/report/samoseiko-esli-ne-terakt-my-uzhe-obsuzhdali-moratorii-na-kazn-81829>.

15 Article 8 of the Constitution.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 11

Criminal Court. Belarus is not a party to the European

Convention on Human Rights, or its related Protocols.

Belarus abstained from voting in the three United

Nations General Assembly resolutions calling for a

moratorium on the death penalty in 2007 (resolution

62/149), 2008 (resolution 63/168) and 2010 (resolution

65/206).

IV Legal framework: the death

penalty in Belarus

Death penalty applicable crimes

The Criminal Code, which was adopted on 9 July

1999 and came into force on 1 January 2001,

provides for the death penalty as an exceptional

measure of punishment for particularly serious crimes

involving the deliberate deprivation of life under

aggravating circumstances. Twelve articles specify

the offences for which the death penalty may be

imposed in peace-time and a further two in time of

war:

1. Initiation or waging of aggressive war: Article

122(2).

2. Act of terrorism against a representative of a

foreign state: Article 124(2).

3. International terrorism: Article 126.

4. Genocide: Article 127.

5. Crimes against human security: Article 128.

6. Use of weapons of mass destruction: Article 134.

7. Violation of the laws or customs of war

[associated with intentional murder]: Article

135(3).

8. Aggravated murder: Article 139(2).

9. Terrorism [associated with murder or committed

by an organised group]: Article 289(3).

10. Treason [associated with murder]: Article 356(2).

11. Conspiracy or other acts committed with the

aim of seizing state power [resulting in death or

associated with murder]: Article 357(3).

12. Act of terrorism: Article 359.

13. Sabotage [committed by an organised group or

resulting in death]: Article 360(2).

14. Murder of a police ofcer: Article 362.

None of these offences provide for a mandatory

death sentence.

Since 1989 the death penalty has only been applied

for intentional aggravated murder (Article 139 of

the Criminal Code). The only exceptions are two

sentences handed down in 1995 for rape of an under-

aged girl leading to aggravated consequences (Article

115(4) of the 1960 Criminal Code), and in 2011, two

people were sentenced to death for terrorism (Article

289(3)).

In its review of Belarus in 1997, the Human Rights

Committee expressed its concern over the use of the

death penalty and recommended a “thorough review

of relevant legislation and decrees be restricted to

the most serious crimes […], and that its abolition

be considered by the State party at an early date.”

The Committee against Torture also renewed this

recommendation in its review of Belarus in 2011.

Prohibited categories

According to Article 59 of the Criminal Code, the

death penalty cannot be applied to:

 Persons under 18 years of age at the time the

crime was committed.

 Women.

 Men who reached the age of 65 at the time of

sentencing.

Article 28 of the Criminal Code provides that a person

who, during the commission of a socially dangerous

act, was “insane” i.e. could not realise the actual

character and social dangerousness of his action

(inaction) due to chronic mental illness, temporary

mental disorder, dementia or a morbid state of mind

is not criminally liable. Where mental illness is proved,

the court may apply compulsory medical measures.

16 UN Human Rights Committee Concluding Observations: Belarus, 19 November 1997, CCPR/C/79/Add.86, paras. 8 and 11.

12 Penal Reform International

A person who commits a crime in the state of limited

mental illness is not exempt from criminal liability,

but the fact may be taken into account as mitigating

factor during the sentencing hearing.

Article 92 of the Criminal Code also provides that a

person who becomes ill (“mentally disordered”) after

sentencing shall be exempt from punishment and

may be subjected to compulsory medical measures

by the court’s decision. In case of recovery, the court

may decide to re-apply the death sentence or another

punishment.

V Legal framework: alternative

sanctions to the death penalty

in Belarus

Life imprisonment as a relatively new form of

punishment was rst introduced into the 1960

Criminal Code on 31 December 1997. Following the

adoption of the new Criminal Code in 1999, Article 58

made provision for life imprisonment as an alternative

to the death penalty for the offences associated

with intentional iniction of death under aggravating

circumstances.

Length of life imprisonment

According to Article 58(4) of the Criminal Code, a

person sentenced to life imprisonment, may have

that sentence substituted for a denite term of

imprisonment after serving a minimum of 20 years

imprisonment. The court takes into account the

prisoner’s behaviour, the state of health, and age.

Life sentence applicable crimes

The Criminal Code sets out 14 articles whereby a

life sentence may be imposed (they are the same

offences as for death penalty applicable crimes).

None of these offences provide for a mandatory life

sentence:

1. Initiation or waging of aggressive war: Article

122(2).

2. Act of terrorism against a representative of a

foreign state: Article 124(2).

3. International terrorism: Article 126.

4. Genocide: Article 127.

5. Crimes against human security: Article 128.

6. Use of weapons of mass destruction: Article 134.

7. Violation of the laws or customs of war

[associated with intentional murder]: Article

135(3).

8. Aggravated murder (Article 139 part 2);

9. Terrorism [associated with murder or committed

by an organised group]: Article 289(3).

10. Treason [associated with murder]: Article 356(2).

11. Conspiracy or other acts committed with the

aim of seizing state power [resulting in death or

associated with murder]: Article 357(3).

12. Act of terrorism: Article 359.

13. Sabotage [committed by an organised group or

resulting in death]: Article 360(2).

14. Murder of a police ofcer: Article 362.

Prohibited categories

The restrictions on the application of life

imprisonment are the same as for the death penalty:

 Persons under 18 years of age at time the crime

was committed.

 Women.

 Men who reached the age of 65 at the time of the

passing of a sentence by a court.

 Mentally-ill.

17 Article 29 of the Criminal Code.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 13

VI Application of the death

penalty/life imprisonment: fair

trial procedures

Presumption of innocence

Article 26 of the Constitution legally guarantees the

right to be presumed innocent.

However, according to independent experts, the

presumption of innocence is often undermined in

practice due to a lack of judicial independence,

ineffective legal assistance and inequality between

the prosecution and the defence. The Working Group

on arbitrary detention recommended that legislation

be aligned with international standards in order to

ensure the respect for the presumption of innocence,

for the principles of opposition and adversarial

procedure and equality of means in all phases of the

criminal procedure.

Trial by jury

In Belarus, trial by jury does not exist in law.

Article 32 of Criminal Procedure Code stipulates

that offences punishable by long-term (over 10

years) imprisonment or by death must be heard

by a panel of one judge and two lay judges called

People’s Assessors. According to Article 354(4) of

the same Code, the death penalty may be imposed

on the accused only if she/he is found guilty by a

unanimous decision of all three judges. This system is

not equivalent to trial by jury, and lay judges as a rule

follow the opinion of the professional judge.

On 10 October 2011, President Lukashenko signed

decree No. 454 “On measures to improve the activity

of general courts of the Republic of Belarus”, which

includes, inter alia, consideration of the possibility of

introducing jury trials to Belarus. However, no steps

have been taken yet to implement this decree in

practice.

The right to adequate legal assistance

Articles 17 and 20 of the Code of Criminal Procedure

guarantee the right to a legal defence. If a person

is accused of committing a crime of “high gravity”,

which includes those that warrant a sentence of

death or life imprisonment, the participation of

a lawyer is compulsory.

The Ministry of Justice

administers legal aid for indigent defendants.

Local human rights activists have raised concerns

about the quality and independence of legal

representation in criminal cases, especially legal

defence undertaken by legal aid lawyers. In 2006,

an inquiry was conducted among life-sentenced

prisoners.

Out of 100 lifers questioned, only 30

percent were satised with the services of their legal

aid defence. Complaints concerned the fact that

the lawyers were negligent and indifferent in relation

to their cases, or that their lawyers were frequently

replaced. Many of those interviewed noted that

lawyers do not play any signicant role in the judicial

system.

Furthermore, the rights of the defendant are often

not observed in practice. Article 60(2)(8) of the Code

for Criminal Procedure stipulates that a person who

has condentially assisted on a case cannot be

questioned as a witness without his or her consent

and the consent of the prosecuting authority. Due

to this rule, the prosecutor has the opportunity to

use sources of information that cannot be cross-

examined by the defence, thereby undermining the

equality of arms between prosecution and defence.

The UN Working Group on arbitrary detentions raised

concerns about adequate legal assistance, raising

examples of court-appointed lawyers for indigent

defendants demanding to be paid to be present

during interrogations.

The Working Group also

raised concerns that defence lawyers have limited

or nonexistent access to prosecutorial evidence

and expertise and thus have difculty preparing and

executing a defence.

18 Report of the Working Group on Arbitrary Detention: Mission to Belarus, 25 November 2004, E/CN.4/2005/6/Add.3, para. 83.

19 Article 45 of the Code of Criminal Procedure.

20 Information received from Irina Kuchvalskaya, Belarusian Association of Women-Lawyers.

21 Report of the Working Group on arbitrary detentions: Belarus, supra n. 18, para. 42.

22 Ibid, para. 79.

14 Penal Reform International

Independence of the judiciary

A lack of judicial independence in Belarus is a major

concern. The selection, promotion and dismissal of

judges are neither based on objective criteria nor

transparent. In practice, judges are appointed by the

President on the advice of the Ministry of Justice and

the Chairperson of the Supreme Court,

which implies

political inuence over the appointment of the judiciary.

Furthermore, the law lacks clear criteria on the tenure

of judges’ appointment (from ve years to life).

The report

of the Special Rapporteur on the

independence of judges and lawyers on his country

visit to Belarus in June 2000 raises concerns that

Belarusian judges are not unbiased. He expresses

concern that a large number of inexperienced judges,

poor working conditions and their dependence on

the government enhance opportunities for exerting

pressure on the judiciary and creates opportunities for

corruption. Low levels of remuneration of judges and

their dependence on the executive branch and the

Presidential administration in matters of promotion

and sustaining their conditions of service threaten the

ability of judges to make decisions free of political

inuence.

In its consideration of Belarus in 2011, the Committee

against Torture also indicated that the independence

of the judiciary was still not being fullled and

raised concerns about provisions in Belarusian

law on discipline and removal of judges, and their

appointment and tenure, which does not guarantee

their independence towards the executive branch of

government.

Language of the court

Article 13 of the Code on Judicial System and

Status of Judges provides that legal proceedings

are conducted in Belarusian or Russian. Those

participating in the proceedings who do not know

these languages have the right to get acquainted

with the materials of the case and to participate in

proceeding through an interpreter, and to speak in

their native language. Article 365 of the Criminal

Procedure Code provides that the verdict must also

be read out in the native language of the accused or

in another language which she/he understands. In

accordance with Article 163 of the Criminal Procedure

Code the procedural costs associated with the

provision of an interpreter are covered by the state

budget.

If the defendant does not speak Belarusian or

Russian, the participation of a defence lawyer is also

compulsory. However, judges and prosecutors have

in the past rejected motions for interpreters.

Open hearings

Under Article 23 of the Criminal Procedure Code,

criminal trials are open to the public in all courts. The

trial of a criminal case in a closed court session shall

be permitted only in the interest of protection of state

secrets and other secrets protected by law, as well as

in cases of crimes committed by persons under the

age of sixteen, in cases of sexual offences and other

cases in order to prevent disclosure of information

about intimate aspects of life of those involved in

the case, or when it is necessary for the safety of the

victim, witnesses or other parties to the proceedings,

as well as their family members.

Those present in an open court session have the right

to conduct a written transcription or tape-recording of

the trial. Photography and video lming are allowed

with the permission of the judge presiding at the

hearing and with the consent of the parties.

However, in January 2007, the UN Special Rapporteur

on the situation of human rights in Belarus noted that

“trials are often held behind closed doors without

adequate justication, and representatives of human

rights organisations are denied access to courts to

monitor hearings.”

All verdicts are announced publicly.

23 National report to the Human Rights Council: Belarus, 22 February 2010, A/HRC/WG.6/8/BLR/1, para. 22.

24 Report of the Special Rapporteur on the independence of judges and lawyers, E/CN.4/2001/65/Add.1, 8 February 2001.

25 Concluding observations of the Committee against Torture, 7 December 2011, CAT/C/BLR/CO/4, para. 12.

26 2010 Human Rights Report: Belarus, USA Department of State Bureau of Democracy, Human Rights and Labor, 8 April 2011, p. 7.

27 Report of the Special Rapporteur on the situation of human rights in Belarus (Adrian Severin), A/HRC/4/16, 15 January 2007, para. 14.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 15

Right to an appeal by a court of higher

jurisdiction

The defendant has the right to appeal (to the

Supreme Court) against the decision of the court of

rst instance. Cassation must be submitted within

ten days after the verdict has been announced. If the

defendant is being held in custody, cassation may

be submitted ten days after they have received the

copy of the sentence. If a cassation trial relates to the

death penalty, it is compulsory for the defendant and

his lawyer to participate in the trial.

However, some death sentences have been handed

down by the Supreme Court acting as a court of rst

instance, thereby negating any right to an appeal by a

court of higher jurisdiction.

Right to seek pardon or commutation of the

sentence

According to Article 59(3) of the Criminal Code, the

death penalty may be commuted to life imprisonment

by pardon. The President has the power to grant

pardon.

The pardon procedure is determined by Presidential

Decree No. 250 (3 December 1994) which created a

Commission on Pardon Issues under the President

of Belarus. Appeals are initially considered by the

Commission before being decided by the President.

All individuals sentenced to death are automatically

considered for pardon by the President regardless

of whether a request has been submitted by the

prisoner, or even where the Commission has given a

negative recommendation. The implementation of the

death sentence is suspended pending the pardon.

According to the Ministry of the Interior, 156 persons

sentenced to death have had their sentences

commuted to life imprisonment between 1998 and

2010.

Petitions for pardon of persons sentenced to life

imprisonment are only considered by the President

if there is a positive recommendation by the

Commission on Pardon Issues.

VII: Implementation of the death

penalty: method of execution

The death sentence is executed upon receipt of

an ofcial notication of rejection of the petition for

pardon.

The death penalty is executed non-publicly, by a

shot to the back of the head.

Where more than one

prisoner is to be executed, executions are carried out

separately.

Those sentenced to death generally spend between

six to eighteen months on death row before being

executed.

For example, Sergei Morozov, Valeri

Gorbatii and Igor Danchenko, whose sentence came

into force on 9 October 2007, were executed on 5

February 2008: spending about four months on death

row.

The execution takes place in presence of a

prosecutor, prison ofcer and a doctor. The doctor

ascertains the death of the prisoner. The prison

administration noties the court that issued the

sentence that the execution has been carried out,

and the court then informs the family of the executed

person.

The condemned prisoner is not informed of the

date of his impending execution. His family are only

informed that the execution has happened after it has

taken place. The family are not given the opportunity

for a last visit to the prisoner. The body is not

returned to the family, and the place of burial is not

disclosed.

28 See for example the recent case of Dzmitry Kanavalau and Uladzislau Kavalyou who were sentenced to death for the Minsk metro bombings by the Supreme

Court acting as a court of ﬁrst instance in November 2011.

29 Article 59(3) of the Criminal Code.

30 Article 59(1) of the Criminal Code.

31 International Fact-Finding Mission: Conditions of Detention in the Republic of Belarus, International Federation for Human Rights (FIDH) and the Human Rights

Centre “Viasna”, June 2008, p. 31.

32 Article 175 of the Criminal Executive Code.

16 Penal Reform International

The Human Rights Committee has raised concerns

regarding the secrecy surrounding the procedures

relating to the death penalty in Belarus.

In 2003, after considering the Banderenko v. Belarus

case, the Human Rights Committee considered that

the refusal by the authorities to tell the mother about

her son’s execution and the refusal to let her know

the burial place were in violation of Article 7 of the

ICCPR.

To date, Bandarenko’s family still does not

know where their relative is buried. The same is true

for the families of all of those executed in Belarus.

In 2011, the Committee against Torture asked Belarus

to “remedy the secrecy and arbitrariness surrounding

executions so that family members do not experience

added uncertainty and suffering.”

VIII Application of the death

penalty: statistics

The Republic of Belarus is notoriously secretive

about the application of the death penalty, and has

historically never published ofcial statistics on the

number of death sentences issued and executions

based on its state secrecy laws.

In a resolution on the situation of human rights in

Belarus, the UN Commission on Human Rights

urged the Government of Belarus “to provide

public information regarding the execution of those

sentenced to death”.

The Human Rights Committee

and the Committee against Torture have also

expressed their concern at the secrecy surrounding

the procedures relating to the death penalty at all

stages.

The Special Rapporteur on extrajudicial,

summary or arbitrary executions recommended that

Belarus publish annual statistics on the death penalty,

and provide the names or details of individuals who

have already been executed.

In 2010, the Ministry of Justice reported for the rst

time that 321 people had been sentenced to death

between 1990 and 2009. The largest number of

death sentences was handed down in the period

1990–1999. In 2011, the Ministry of Internal Affairs

published on its website, for the rst time, some

information on the number of death sentences issued

between 1998 and 2010.

Year Number of people sentenced

to death

2011 2

2010 2

2009 2

2008 2

2007 4

2006 9

2005 2

2004 2

2003 4

2002 4

2001 7

2000 4

1999 13

1998 47

1997 46

1996 29

1995 37

Total 216

33 Concluding Observations of the Human Rights Committee, supra n. 16, paras. 8 and 11.

34 UN Human Rights Committee, Communication 886/1999, 3 April 2003, CCPR/C/77/D/886/1999.

35 Concluding Observations Committee against Torture, supra n. 25, para. 27.

36 Situation of human rights in Belarus, 12 April 2005, E/CN.4/2005/L.32, item 2(j); and Comments of Belarus to the concluding observations of the Committee

against Torture (CAT/C/BLR/C/4), 16 January 2012, CAT/C/BLR/CO/4/Add.1, para. 6.

37 Concluding Observations of the Human Rights Committee, supra n. 16, para. 8.

38 Report on the transparency and imposition of the death penalty, Special Rapporteur on extrajudicial, summary or arbitrary killings (Philip Alston), 24 March 2006,

E/CN.4/2006/53/Add.3, para. 17.

39 Ofﬁcial website of the Ministry of Internal Affairs <http://mvd.gov.by/ru/main.aspx?guid=9091>.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 17

Statistics about the number of executions carried out

still remains a state secret. However, various sources,

including Belarusian human rights organisations, local

media and international organisations such as Amnesty

International, provide information about the number of

executions of which PRI have been able to collate.

Year Number of people executed

2012

(to date)

2011 2

2010 2

2009 0

2008 4

2007 At least 1

2006 Unknown

2005 At least 4

2004 Unknown

2003 Unknown

2002 5

2001 7

2000 10

1999 13

1998 47

1997 46

Total At least 143

Judicial practice shows that for several years

the death penalty has been applied primarily in

cases of premeditated murder with aggravating

circumstances.

2012 Executions

On 15 March 2012, Dzmitry Kanavalau and Uladzislau

Kavalyou were reportedly executed soon after

President Alexander Lukashenka refused clemency

appeals.

Kanavalau and Kavalyou were sentenced

to death by the Supreme Court, acting as the Court

of rst instance, for an alleged series of bomb attacks

in Belarus, including an explosion in a Minsk metro

station on 11 April 2011. According to Amnesty

International,

their sentence followed a awed

trial that fell short of international fair trial standards

and left no recourse for appeal, other than to the

President for clemency. There were allegations

that the two men were forced into confessing and

there was no forensic evidence linking either of

them to the Minsk explosion including no traces

of explosives were found on either of them. During

the trial Kavalyou retracted his confession. His

mother claimed that both men were beaten during

interrogation. Belarus considered the complaint for

violation of the right to life

submitted by Kanavalau

and Kavalyou to the UN Human Rights Committee on

15 December 2011 as invalid, arguing that national

remedies had not been exhausted.

2011 Executions

Some day between 11 and 19 July 2011, Andrei

Burdyka and Aleh Hryshkautsou were executed

despite their cases pending at the UN Human Rights

Committee. The Human Rights Committee had

explicitly requested, under rule 92 of its Rules of

Procedure, that Belarus take preliminary measures

to not carry out executions until the results of their

review had been submitted. Andrei Burdyka and Aleh

Hryshkautsou alleged that they had been subjected to

torture at the pre-trial investigation stage and had not

received a fair trial. Burdyko and Grishkovets had been

sentenced to death on 14 May 2010 by the Grodno

Regional Court for the murder of three people; their

sentence was upheld by the Supreme Court on 17

September 2010. A request for clemency was refused.

On 21 July 2011, the Human Rights Committee sent

a letter to the Belarus Permanent Mission in Geneva,

40 Prospects for abolition of the death penalty in the Republic of Belarus, Grigory A. Vasilevich and Elissa A. Sarkisova, The death penalty in the OSCE area:

Background Paper 2006, OSCE-Ofﬁce for Democratic Institutions and Human Rights, p. 11.

41 Statement by the International Commission against the Death Penalty on Belarus: Execution of Dmitry Konovalov and Vladislav Kovalyov, 19 March 2012,

<http://www.icomdp.org/cms/wp-content/uploads/2012/03/ICDP-Statement-on-Belarus-March-2012.pdf>.

42 Death Sentences and Executions 2011, Amnesty International, ACT 50/001/2012, p. 30.

43 Article 6 of the International Covenant on Civil and Political Rights.

44 The Human Rights Committee shall not consider any communication of an individual who has not exhausted all available domestic remedies, unless these would

be unreasonably prolonged (Article 5(B) of the Optional Protocol to the ICCPR).

18 Penal Reform International

expressing concern over the execution of Burdyka

and Hryshkautsou, in violation of the Committee’s

request for interim measures of protection. The

Committee’s Chairperson, Ms. Zonke Zanele

Majodina, stressed on that occasion to “deplore

the fact that, by proceeding to execute these two

individuals, Belarus has committed a grave breach

of its obligations under the Optional Protocol to the

International Covenant on Civil and Political Rights.

[…] The imposition of a death sentence after a trial

that did not meet the requirements for a fair trial

amounts to a violation of articles 14 and 6 of the

Covenant.”

2010 Executions

Andrei Zhuk and Vasily Yuzepchuk were believed

to have been executed in Minsk around 18 March

2010.

The Human Rights Committee had also

requested interim measures for Zhuk and Yuzepchuk.

According to the testimonies of Andrei Zhuk and

Vasily Yuzepchuk and as supported by medical

records, they had been repeatedly subjected to

torture. Vasilii Yuzepchuk stated that he was beaten,

starved, given unknown pills and forced to take

alcohol. As a consequence he lost the ability to

adequately evaluate what was happening to him.

There had been no proper investigation into these

allegations.

2008 Executions

Sergei Morozov, Valery Gorbaty and Igor Danilchenko

were reportedly executed on 5 February 2008.

IX Application of life

imprisonment: statistics

According to the Ministry of Internal Affairs,

in the

period from 1998 to 2010, 144 life sentences were

issued, and 156 death sentences were commuted

to life imprisonment, meaning at least 300 men are

currently serving a life sentence in Belarus. Statistical

information for 2011 is unavailable.

Year Number of people

sentenced to life

imprisonment

The number of

people whose

death sentence was

commuted to life

imprisonment

2010 2 4

2009 5 3

2008 9 3

2007 7 4

2006 7 5

2005 8 6

2004 12 5

2003 12 5

2002 15 18

2001 11 20

2000 18 24

1999 29 27

1998 3 32

Total 144 156

In August 2010, the government Working Group on

the death penalty visited Zhodino prison where life-

sentenced prisoners are incarcerated, and found that

the number of offenders serving this sentence has

noticeably reduced in recent years.

45 Press release of the UN Human Rights Committee, 27 July 2011, <http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews aspx?NewsID=11268&LangID=E>.

46 Belarus executes two men: Andrei Zhuk and Vasily Yuzepchuk, Amnesty International, 22 March 2010.

47 Human Rights House Network letter of concern to Alexander Lukashenko, President of the Republic of Belarus, 18 April 2010, <http://humanrightshouse.org/

Articles/13997.html>.

48 Council of Europe Secretary General Terry David condemns executions in Belarus, Council of Europe, 6 February 2008.

49 Ofﬁcial website of the Ministry of Internal Affairs, <http://mvd.gov.by/ru/main.aspx?guid=9091>.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 19

X Implementation of the death

penalty/life imprisonment:

prison regime and conditions

Location of imprisonment for death row and

life sentenced prisoners

Death row inmates are held at the pre-trial detention

centre No. 1 in Minsk. Executions are carried out in

the same place.

Those sentenced to life imprisonment are

incarcerated in:

 Pre-trial detention centre No. 8 in Zhodino

(approximately 45km from Minsk).

 Colony No. 13 in Glubokoye (approximately

160km from Minsk).

Zhodino was established in 2000 and has facilities

for 100 prisoners. By 2003 the institution was

overcrowded and the administration had to place four

prisoners in cells built for two. In 2008 it was decided

to transfer lifers who have served at least ten years

without breaching the prison rules or committing

additional crimes to the colony in Glubokoye, where

the regime is less strict. The colony in Glubokoye has

subsequently also become overcrowded, meaning

that the living conditions for lifers do not reect

international standards.

Cost of imprisonment

There is no information regarding the cost of

imprisoning a prisoner on death row or of a life

sentence.

An estimation of the nancial cost is difcult to

assess due to a restriction of information and the high

levels of ination in Belarus. However, expenditures

on death row and for lifers are much higher than other

prisoners because of the high security measures

imposed.

Prison regime

According to the Criminal Executive Code of Belarus,

adult offenders serve their prison sentence in

correctional facilities, which are subdivided into four

regimes:

1. Correctional colony-settlement.

2. Penal colonies for rst-time prisoners.

3. Correctional colonies for repeat offenders.

4. Correctional colonies of special regime.

Prisoners on death row and those serving a life

sentence must serve their sentence in a correction

colony of special regime, which has higher security

requirements and stricter conditions for inmates.

Conditions and treatment of detention

There is no ofcial information regarding death row

conditions in Belarus, and researchers were unable

to visit these prison cells. However, reports indicate

that death row inmates are being held in solitary

connement, with limited access to fresh air or

exercise. The conditions of imprisonment for those

sentenced to death are set out in Article 174 of the

Criminal Executive Code. A prisoner on death row is

entitled to visits from their defence lawyer or other

persons having the right to provide legal assistance,

without limitation in number and duration; to send

and receive letters without limits; to have one short

family visit per month (up to four hours); to have visits

from a priest; to receive parcels ever three months;

and to receive necessary medical assistance.

In November 2011, the Committee against Torture

expressed concern at reports of the poor conditions

of persons sentenced to death in Belarus and that

some death row prisoners were not provided with

fundamental legal safeguards.

The Committee

called on Belarus to take all necessary measures to

improve the conditions of detention of persons on

death row; and to ensure they are afforded all the

protections provided by the CAT.

The conditions of imprisonment for those sentenced

to life are established in Article 173 of the Criminal

Executive Code. Lifers are housed in cells and are

50 Concluding observations Committee against Torture, supra n. 25, para. 27.

20 Penal Reform International

required to wear dark robes marked by the rst

letters of the words “life imprisonment”. Legally,

prisoners are to be incarcerated two persons per cell;

in practice in Zhodino colony there are usually four

or more prisoners per cell, while in colony No. 13 of

Glubokoye, there may be four or even six prisoners

per cell.

Overcrowded cells have become the norm

over the last ten years. At the request of the prisoner,

or if there is a threat to the safety of a prisoner, he

may be placed in solitary connement subject to the

decision of the prison administration.

The living conditions of lifers during the rst ten

years of their sentence are especially harsh. They

are entitled to two short visits per year (visits can be

up to two or three hours through a glass partition);

to receive two parcels per year; to walk for 30

minutes per day; and to spend a specic amount of

money from their accounts on food and essentials.

According to the Criminal Executive Code, lifers may

spend funds from their personal account on food and

essentials “in the amount of three basic amounts”.

The “basic amount” is a universal measure, which is

currently set at 35,000 Belarusian rubles or 3.4 Euros.

From 1 April 2012 it will go up to 100,000 Belarusian

rubles or 9.4 Euro).

From the time they wake up until the time they go to

bed, life sentenced prisoners can walk or sit at a table

on benches screwed to the oor. Lying on their bed

is forbidden. When a prisoner is taken out of their cell

(for a walk, for a visit, or to talk with a prison ofcial)

he is only allowed to move in a certain position – with

arms held behind his back in handcuffs, bending

down and looking at the oor.

Those who violate the prison rules can be deprived of

visits, parcels, moved to a disciplinary cell, or sent to

solitary connement for up to six months.

If a lifer has served at least ten years of their

sentence without any violations of the prison rules

or committing any further criminal offences, they

may be transferred from the special regime colony

to a correction colony which has slightly less harsh

conditions and a reduced security regime. Transfer

is decided by court on the basis of an application

submitted by the prison administration approved by a

local monitoring commission.

Following a transfer, a lifer would be entitled to

one additional visit per year; to spend additional

money from his account (in the amount of four basic

amounts); to receive an additional two more parcels

per year; and to exercise for up to one hour per day.

The sanitary conditions of the cells are very poor.

Prisoners have requested that they be allowed to

use their own tableware and clothes; that they can

remove their coats when it is hot; and to allow them

to wash their uniforms themselves. There is a lack of

time or facilities for washing clothes and bed linen

and drying facilities. Prisoners have also complained

about the improper distribution of sleeping facilities

(“legs of another convict are in front of my face”).

There is a lack of well-balanced and nutritional food

for prisoners. This is caused by a lack of appropriate

resources as well as various problems in the food

supply chain. Lifers are only permitted to receive two

parcels per year, which means that even if their family

had the means to supplement their diet, they could

not do so on a regular basis.

Access to medical care

According to Article 10(6) of the Criminal Executive

Code, all prisoners have the right to access health

care. From a 2006 inquiry of life sentenced prisoners,

approximately 90 percent of those interviewed

reported health problems.

More than half of the

respondents (52) had some form of chronic illnesses,

the majority being gastrointestinal problems. The

spread of TB has also been a serious concern for

prisoners, which is compounded by overcrowded

cells, and a lack of appropriate nutrition. The UN

Developmental Programme reported in September

2009 that none of Belarus’ prisons fully comply with

the World Health Organisation’s TB infection control

guidelines.

The majority of lifers interviewed in 2006 were not

satised with the level of psychiatric care provided.

51 How Belarusian Lifers Serve Their Sentences, Olga Antsipovich, Komsomolskaya Pravda, 4 August 2009, <www.kp.by/daily/24337/528445/>.

52 Information received from Irina Kuchvalskaya, Belarusian Association of Women-Lawyers.

53 Ibid.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 21

Approximately 30 percent suffered from some form of

mental health issues.

A psychologist based in Zhodino colony stated that

a prisoner is subject to obligatory psychological

testing, and prisoners may speak with a psychologist

if they wish, but not all of them do.

There is only one

psychologist available at Zhodino.

Mr. A.A. Kralko, the head specialist of medical

services of the Department of Execution of

Punishments (PED) of the Ministry of Internal Affairs

has stated that the nancing of penitentiary facilities,

including that needed for adequate health care, is not

enough.

This is especially compounded by the rising

costs of resources (staff, food, medicines etc), and

the growing number of inmates.

Rehabilitation and social reintegration

programmes

Those sentenced to life imprisonment spend at least

23 hours a day in their cell. There are virtually no out-

of-cell activities, and minimal in-cell activities. There

is a lack of access to education, employment, or any

other rehabilitative programmes, and most lifers are

only entitled to a small number of family visits per

year, often under very restrictive conditions.

Article 173(2) of the Criminal Executive Code makes

provisions for lifers to undertake some form of work

programme, however there are none available in

practice. Prison ofcials explained that this was due

to the special security requirements for lifers.

Article 10 of the Criminal Executive Code establishes

that all prisoners should have access to exercise and

sports. However, lifers are only entitled to 30 minutes

of walking per day and up to one hour if transferred

from the special regime colony. A prison ofcer, in

response to why sports and exercise are severely

limited for lifers, stated that the “prison personnel do

not want serious criminals to have good muscles,

[and] the metal parts of training equipment may be

used improperly, and there is a high risk of traumas….

We’ll have to write a lot of explanations if a convict

gets hurt from sporting equipment and not from us”.

Almost all prisoners have demonstrated some interest

in accessing books, newspapers and magazines. A

high proportion of inmates have expressed a desire

to access educational literature including legal texts.

Life sentenced prisoners have also made requests

for educational programmes, particularly secondary

education and to study foreign languages, information

technology, and psychology; to train in some kind

of profession (carpenter, builder, tailor, electrician,

accountant etc); to take part in creative activities; and

to have access to sports equipment.

The possibility to perform religious rites and access

priests is permitted in Zhodino and Glubokoye, and

there are some rooms provided for prayers.

Conditions for parole

Article 90 of the Criminal Code stipulates that

parole (or conditional release) can be applied only

if the prisoner’s behaviour is very good and shows

rehabilitation.

Parole can be applied for only after the prisoner has

served at least 20 years of his sentence.

Parole is decided by courts, who may substitute life

imprisonment with imprisonment for a denite term.

While taking the decision the court takes into account

the prisoner’s behaviour, age, and state of health.

Life imprisonment was introduced in Belarus in 1998,

thus to date no lifers have served the minimum

20 years. As a consequence, there is currently no

practice of application of parole for this category of

prisoner.

Monitoring prisons

Belarus has yet to ratify the Optional Protocol to

CAT (OPCAT), and therefore establish a National

Preventive Mechanism (NPM).

54 Sentenced to Live, Yekaterina Nechayeva, BELTA, 25 August 2010.

55 Medical and sanitarian provision of convicts: condition and problems–situation at detention facilities of Belarus (Assessment of achievements and reformation

prospects), A.A. Kralko, PRI, 2008, p. 80.

56 Sentenced to Live, supra n. 54, 25 August 2010.

22 Penal Reform International

Chapter 4 of the Rules of Internal Order of

Correctional Facilities regulates inspections of

correctional facilities. According to its provisions,

only the Minister of Internal Affairs and the Head of

the Penalty Execution Department has the right to

perform such inspections. Others may be authorised

in written form by them.

Monitoring commissions have also been set up under

the local executive and regulatory authorities to

monitor correction facilities. According to Belarusian

legislation

only members of monitoring commissions

have the right to exercise public control over the

activities of bodies and institutions administering

penal activities. Control over who can be part of a

monitoring commission is exercised by the Ministry

of Justice — a commission may comprise 3 to 11

members. Members must be a Belarusian citizen, and

a member of a duly registered organisation, whose

statutes provide for the protection of citizens’ rights.

In order to visit a penal institution or a pre-trial

detention facility, the commission les a request

with the head of the Department of Corrections and

upon receiving permission, negotiates the time of the

visit with the correctional facility administration. The

commission is permitted to visit a facility if permission

has been granted, contact the warden and other

ofcials of the facility, and talk with prisoners in the

presence of a facility administration representative.

Members of the commission are not allowed to:

acquaint themselves with the materials of the

operative activities, personal les of inmates, or other

documents related to the execution of sentences; to

lm, photograph, and make video-and audio-records;

or to take written requests from prisoners. At the

same time, the Regulations emphasise that in case

of violation of these rules, as well as “providing false

information about activities of bodies and institutions

administering corrections to a foreign state, foreign

or international organisations, and the media”, a

commission member may be expelled.

It is worth noting that commissions are not made

up of representatives of independent NGOs —

commissions are made up of members of pro-

government organisations and in the course of their

work the public is not informed of any concerns that

may be raised by the commissions.

Civil society and the media are also heavily restricted

in terms of visiting prison facilities or reporting on the

conditions and treatment of prisoners.

As such, there is no real independent or regular

monitoring of detention facilities in Belarus, meaning

there is little transparency and accountability as to

how they are being operated.

In its consideration of Belarus’ state report, the

Committee against Torture also raised concerns

surrounding the lack of independence of the

national monitoring system and the lack of

information on effective procedures and reporting

practices, and recommended that Belarus establish

fully independent bodies with the capacity to

perform independent and effective unannounced

visit to places detention and to speak privately

with detainees, and that their ndings and

recommendations are made public in a timely and

transparent manner.

XI Abolitionist movement in

country

Human rights NGOs are often unable to function

effectively in Belarus: they are denied registration,

and where they are registered, face interference

from government ofcials. The Belarusian Helsinki

Committee, for example, one of the rare registered

NGOs, has, for a number of years, faced a suit for

dissolution pending before the High Economic Court;

in 2011 it received two admonitions of the Ministry

of Justice for violations of the legislation on public

associations which allows the Ministry to commence

proceedings with a view to dissolve the organisation.

Another leading organisation, “Viasna” (Belarusian for

Spring), was denied registration in 2003 despite the

UN Human Rights Committee stating in Byalyatski

et al v. Belarus

that the denial of registration

constituted a violation of the ICCPR. Activities on

behalf of unregistered organisations are a criminal

57 Regulation No. 1220 by the Council of Ministers of Belarus of 15 September 2006 “On Approval of Regulations of the order of exercising control by national and

local public associations over the activities of bodies and institutions administering penal activities and other measures of criminal liability”.

58 Concluding observations of the Committee against Torture, supra n. 25, para. 13.

59 Belyatsky et al v. Belarus, UN Human Rights Committee Communication no. 1296/2004, 24 Jul 2007.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 23

offence punishable by up to two years in prison.

is also prohibited for unregistered organisations to

obtain and spend funding.

Despite such interference, there are a small number

of human rights organisations who continue to

work on the abolition of the death penalty or related

criminal justice reforms in Belarus. These include:

 Association “Legal Initiative”.

 Belarusian Association of Women Lawyers.

 Belarusian Helsinki Committee.

 Human Rights Centre “Viasna”.

 Platform.

These organisations are most prevalent in the

collection and publication of information on the

application of the death penalty, making statements

and commentary, calling on the government to stop

executions and introduce a moratorium, and to inform

the general public on the effect and efcacy of the

death penalty in Belarus as well as globally.

On 9 December 2011, representatives of Amnesty

International, Viasna and Belarus Helsinki Committee,

were turned away while attempting to deliver a

petition with over 250,000 signatures from around the

world to President Lukashenko, calling for an end to

executions.

On 26 January 2012, PRI hosted a national

conference on “The development of the criminal

justice system in Belarus” in Minsk to discuss

criminal policy, legislation and practice in Belarus,

as well as prospects for abolition of the death

penalty, including steps towards a moratorium, and

humane alternative sanctions to death penalty. PRI

also hosted a lm festival on 27 January in Minsk

with the aim to restore public discussion about the

death penalty and changing opinion from inside the

country. Five lms were shown, two of which focused

on Belarus, including a new lm, “Capital Measure”,

which was produced by PRI. The lm focused on the

independence of the courts and the protection of

human rights for those charged with a capital offence.

Two specic death penalty cases were highlighted

in the course of the lm, aimed to demonstrate

how the sentence is implemented in practice.

Other documentaries looked at the application of

the death penalty and its alternative sanction of

life imprisonment in Central Asia and the South

Caucasus. PRI have also remained active in training

local journalists on how to report on the death penalty

in Belarus, as well as in undertaking national and

international advocacy activities.

60 Article 193(1) of the Criminal Code.

61 Article 20 of the Public Associations Act.

62 Death Sentences and Executions 2011, supra n. 42, p. 30.

24 Penal Reform International

XII Recommendations to the

Republic of Belarus

1. Fully abolish in law the death penalty by

eliminating it as a form of punishment from the 14

articles in the Criminal Code and from Article 24

of the Constitution. As an interim measure, reduce

the application of the death penalty by abolishing

those crimes which do not meet the “most

serious crimes” threshold, and establish an ofcial

moratorium on sentencing and executions.

2. Undertake a process to commute all death

sentences to a xed-term sentence. Each case

should be reviewed individually, taking into

consideration the length of sentence already

served, the behaviour of the prisoner and the type

of crime committed.

3. Undertake a campaign to educate the public

on the need to abolish the death penalty. The

campaign should incorporate elements of

implementing humane alternative sanctions.

4. Ratify and implement the Second Optional

Protocol to the International Covenant on Civil

and Political Rights aiming at the abolition of the

death penalty.

5. Vote in favour of the upcoming fourth UN General

Assembly resolution calling for a moratorium on

the death penalty scheduled for 2012, and any

other relevant resolutions.

6. Make denite steps towards becoming a state

party to the Rome Statute on the International

Criminal Court, to the European Convention

on Human Rights and its relevant Protocols

(including the Sixth and Thirteenth Protocols).

7. Provide public access to information and

statistics on the national penal system, including

the number of sentenced prisoners and their

characteristics, length and place of sentence.

Publish historical information on the application

of the death penalty, including data on those

executed and those sentenced to death. Provide

the family members of those who are to be

executed an opportunity to say goodbye, and

after the execution, information on the location of

their graves.

8. Shorten the minimum length of term which a life-

sentenced prisoner must serve before being able

to apply for parole (currently 20 years). According

to the UN Crime Prevention and Criminal Justice

Branch’s 1994 report ‘Life Imprisonment’

, all

prisoners sentenced to life should have their

suitability for release reviewed after serving

between 8 and 12 years of incarceration.

9. Humanise the system of punishment by reducing

the number of crimes (currently 14) for which life

imprisonment may be prescribed, and limit these

cases to only the “most serious crimes”.

10. Undertake legislative and policy steps to

ensure the independence of the courts and the

transparency of the judicial system. This should

include guaranteeing that judicial appointment,

compensation, and tenure are made according to

objective criteria, and are not dependent on the

executive branch of government.

11. Reform the system of legal aid in Belarus to

ensure that indigent defendants accused of

an offence for which the death sentence or life

imprisonment may be imposed can obtain free

legal assistance at all stages of the case: pre-

trial, trial, appellate, pardon and parole. Ensure

all legal aid lawyers are independent of the

state, adequately paid, have the same rights

vis-à-vis the prosecutor, and are well-trained in

courtroom advocacy methods for capital trials

and sentencing hearings.

12. Draft and adopt a strategy to reform the penal

system in Belarus with a clear vision that makes

specic reference to reforming life imprisonment

which is consistent with international human

rights standards and norms, including eliminating

discriminatory practices and regulations

applicable to life sentenced prisoners. Organise a

public debate on the strategy, with participation

from all interested parts of civil society.

63 Life Imprisonment, UN Ofﬁce in Vienna, Crime Prevention and Criminal Justice Branch, 1994, ST/CSDHA/24.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 25

13. Carry out reforms to the penitentiary system so

that it is in compliance with international human

rights standards including the UN Standard

Minimum Rules for the Treatment of Prisoners.

This should include improving the cell size and

living conditions for prisoners at Zhodino and

Glubokoye institutions, reducing overcrowding,

and improving access to health care including

mental health care. Prioritise resources of the

Belarus prison administration so that they

can effectively implement those international

standards and norms.

14. Ensure that prison conditions of life-sentenced

prisoners approximate as closely as possible to

the conditions of life outside the prison system,

and offer programmes for rehabilitation and

reintegration. This should include the possibility

to undertake education, to work, to have

contact with the outside world, and to receive

psychological or medical treatment.

15. Special efforts should be made to prevent the

breakdown of family ties of prisoners serving life

sentences and to increase the number of visits

for lifers, to reduce the restrictive requirements

for visits, and to increase the number of parcels

which family members can send in to prisoners.

16. Improve daily activities for life-sentenced

prisoners. Such activities should be aimed at

supporting their rehabilitation and reintegration

back into society by organising targeted training

for them, and providing them with appropriate

work skills and education. This should include:

a. Providing lifers with regular access to sporting

activities.

b. Providing lifers with the opportunity to engage

in employment.

c. Regularly renewing the library.

d. Implementing all necessary measures in order

to provide lifers with the right to education.

e. Consider developing other rehabilitation and

reintegration programmes that will assist a lifer

to deal with any underlying issues or problems

linked to their crime, such as drug or alcohol

abuse, anger management, psychological or

psychiatric support.

17. Abolish the systematic use of handcufng of

lifers when being taken out of their cell. Any

security or disciplinary measures should only be

implemented on a case-by-case basis, based on

an individual risk-assessment, and not based on

the type of sentence being served.

18. Increase resources for the prison system to

improve salary and working conditions for prison

staff. Ensure all prison staff is appropriately

trained in international human rights standards.

19. Improve the parole system, making procedures

clear, and ensure that judges who have the

responsibility to review parole applications are

specialised penal judges, with experience of

dealing with such cases.

20. Ratify the Optional Protocol to the Convention

against Torture and establish a National

Preventative Mechanism, which is independent,

competent to monitor all places where people are

deprived of their liberty, and are well resourced.

Ensure that any allegations or reports of torture

and/or inhuman or degrading treatment or

punishment are effectively investigated by state

ofcials in a timely manner, and that perpetrators

are brought to justice.

21. Encourage further collaboration between

government ofcials and civil society, including

journalists, on criminal justice issues.

22. Encourage relevant international organisations

and donor states in a position to do so to

promote and support criminal justice reforms

within Belarus at both the nancial and political

level.

26 Penal Reform International

Russian Federation

I Basic country information

Geographical region: Russia is the largest country in

the world. It is situated partially in Eastern Europe and

partially in Northern Asia. The capital is Moscow.

Type of government: According to Article 1 of the

Constitution, the Russian Federation is a democratic

federal State with a republican form of government.

The President is the head of state and the Prime

Minister is the head of the government.

Language: The ofcial state language is Russian.

National republics within the Russian Federation

may establish their own state language along with

Russian, and 23 republics have done so.

Population: Russia is a multinational state with a

population of 143 million people as of 1 January

2012.

73.7 percent of the population are urban.

More than 80 percent of the population are ethnic

Russians, however more than 180 ethnic groups are

represented in Russia.

Religion: The dominant religion in Russia is Orthodox

Christianity. Islam and Buddhism are also considered

traditional Russian religions.

II Overview of the status of the

death penalty in Russia

Article 20 of the Constitution provides that everyone

shall have the right to life and that capital punishment,

until its complete elimination, may be envisaged by

federal law as an exclusive penalty for especially

grave crimes against life. Thus, the constitution

regards the death penalty as a temporary measure

until its full abolition.

On 28 February 1996, the Russian Federation joined

the Council of Europe. One of the requirements of

the Council of Europe was the abolition of the death

penalty. On 16 May 1996, President Yeltsin issued

decree No. 724 “On Phasing out the death penalty

in connection with Russia’s accession to the Council

of Europe”. The Decree requested the Russian

government to draft a federal law on accession

to Protocol No. 6 to the European Convention on

Human Rights and Fundamental Freedoms (ECHR).

On 16 April 1997, Russia signed Protocol No. 6 to

the ECHR. On 6 August 1999, a draft federal law on

ratication of Protocol No. 6 was submitted to the

State Duma (parliament) along with a letter from the

President. However, to date, the State Duma has not

yet ratied Protocol No. 6.

The last execution was carried out on 2 September

1996. Executions were however carried out until 1999

in Chechnya, but which de facto was not then under

control of the Russian Federation.

On 2 February 1999, the Constitutional Court of

Russia issued Ruling No. 3-P, which declared the

application of the death penalty in the absence

of jury trials in the country’s then-89 regions as

unconstitutional, and thereby imposed a temporary

moratorium on sentencing and executions until jury

trials could be established across all regions of the

Federation.

At the time of the court ruling, jury

trials were only available in nine of then 89 regions.

However, the new Criminal Procedure Code, which

entered into force on 1 July 2002, foresaw the

introduction of juries throughout the entire Federation.

Following the Constitutional Court’s landmark ruling,

703 prisoners on death row were pardoned by

presidential Decree No. 698 of 3 June 1999, which

commuted their sentences to life imprisonment.

President Vladimir Putin expressed his rm views

against the resumption of executions in 2001. In

televised remarks from a meeting with the head of

the World Bank in the Kremlin on 9 July, President

Putin said that “[t]he state should not assume the

right which only the Almighty has–to take a human

life. That is why I can say rmly I am against Russia

reinstating the death penalty.” President Putin

was also quoted as saying he believed that state-

sponsored cruelty did nothing to ght crime and

only engendered new violence. He said that Russia

64 Article 68 of the Constitution.

65 Russian Federation Federal State Statistics Service, <http://www.gks.ru/wps/wcm/connect/rosstat/rosstatsite.eng/>.

66 Article 20 of the Constitution provides that those accused of a capital crime shall be granted the right to have his case examined by a jury trial.

67 Death Penalty News: 2001, Amnesty International, September 2001, ACT 53/004/2001.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 27

should continue to uphold the moratorium on the

death penalty despite widespread public support to

reinstate executions.

Russia’s State Duma extended the moratorium in

November 2006 until 2010 while regions take steps

to implement jury trials. Chechnya became the nal

Russian region to institute jury trials on 1 January

2010. Anticipating this event, the Supreme Court

sought clarication from the Constitutional Court on

the future of the moratorium. On 19 November 2009,

the Constitutional Court ruled that the moratorium be

extended indenitely notwithstanding the introduction

of juries throughout the entire Federation. Court

Chairperson Valery Zorkin reportedly conrmed

that an “irreversible process to abolish capital

punishment” was occurring in Russia.

The

moratorium would be in place “until the ratication of

Protocol No. 6 to the ECHR.”

The Russian Federation conrmed to the UN Human

Rights Committee that legislative abolition of the

death penalty is one of the goals of the juridical

and legal reforms currently under way and that

government departments are engaged in intensive

preparations for the State Duma’s ratication of

Protocol No. 6 and the introduction of relevant

amendments to the criminal legislation.

A bill “On

the abolition of the death penalty in the Russian

Federation” was submitted to the State Duma by

its Legislative Committee on 20 February 2008;

however no further developments towards abolition

by the State Duma have been reported.

On 5 October 2009, during the Universal Periodic

Review (UPR) of Russia, in its interactive dialogue,

the UPR Working Group raised the question of

the death penalty and a number of states made

recommendations that Russia abolish the death

penalty in law and ratify the Second Optional

Protocol to the ICCPR.

Russia’s response to these

recommendations was that the abolition of the death

penalty will depend on whether a majority of Russian

public opinion will come to favour abolition of the

death penalty in law.

Public opinion on the death penalty has been a very

important part of its continued retention, and law-

makers continue to raise the high percentage of the

public who are not in favour of abolition.

A 2007 survey, conducted by the Levada Analytical

Centre on behalf of PRI, found that the number of

people in favour of abolition is growing. The number

of people supporting a moratorium had increased

from 23 percent in 2006 to 31 percent in 2007. Up

to 11 percent of Russians polled said they could not

condone the death penalty at all. Interestingly, the

2007 survey identied ineffective law enforcement

agencies as the main cause of insecurity in the

country, as well as “an ineffective judiciary that

regularly commits errors.”

According to results revealed in 2012 by a major

Russian polling centre – the Public Opinion

Foundation

– 62 percent of the country’s residents

want the moratorium on the death penalty lifted

and executions to resume. Respondents suggested

using capital punishment for sexual offenses

against teenagers (72 percent), murder (64 percent),

terrorism (54 percent), drug trafcking (28 percent),

andtreason (12 percent). Meanwhile, 21 percent of

those polled suggested that Russia should maintain

the moratorium, and ve percent were in favour of full

abolition.

A poll conducted in 2001 had indicated that 80

percent of respondents were in favour of the death

68 Russia prolongs moratorium on death penalty, contemplates ban, RIA Novosti, 19 November 2009, <http://en.rian.ru/russia/20091119/156902623.html>.

69 Ruling of the Constitutional Court of the Russian Federation No. 1344-O-P of 19 November 2009 “On Clariﬁcation of Paragraph 5 of Operative Part of

Constitutional Court Resolution No 3-P of 2 February 1999”.

70 Comments by the Government of the Russian Federation to the concluding observations of the Human Rights Committee, 2 February 2005, CCPR/CO/79/RUS/

Add.1, para. 11.

71 The death penalty in the OSCE area: background paper 2008, OSCE-Ofﬁce for Democratic Institutions and Human Rights, p. 5.

72 Report of the Working Group on the Universal Periodic Review: Russian Federation, 5 October 2009, A/HRC/11/19, para. 85, recommendations 1 and 2

(German, Australia, Brazil).

73 Views on conclusions and/or recommendations, voluntary commitments and replied presented by the State under review, 5 June 2009, A/HRC/11/19/Add.1/

Rev.1, recommendations 1 and 2.

74 Russian citizen’s opinion on crime, justice and the death penalty, Yuri Levada Analytical Centre, 2007.

75 Capital punishment: Russians want return of death penalty, RT Question More, 29 March 2012, <http://rt.com/news/death-penalty-return-russia-787/>.

28 Penal Reform International

76 Death Penalty Lingers in Former Soviet Republics, Kester Kenn Klomegah, IPS News, 5 April 2010, <http://ipsnews.net/news.asp?idnews=50912>.

77 Russia can’t abolish death penalty due to terrorist threats, Interfax, 23 March 2010, <http://www.interfax-religion.com/?act=news&div=7068>.

78 News article by the Liberal Democratic Party, <http://www.ldpr.ru/#party/Program_LDPR/A_practical_program_for_the_Liberal_Democratic_Party>.

79 Authorities identify teen as Moscow subway bomber, Maxim Tkachenko and Matthew Chance, CNN, 2 April 2010, <http://articles.cnn.com/2010–04–02/world/

russian.bombing_1_park-kultury-umalat-magomedov-female-suicide-bombers?_s=PM:WORLD>.

80 Article 125(6) of the Constitution.

penalty, which means that there has been at least an

18 percent reduction in public opinion support for this

form of punishment in ten years.

Despite the clear direction set out by the

Constitutional Court, debates on the reinstatement

of the death penalty occasionally resurface. The

issue of retaining the death penalty for those

convicted of committing acts of terrorism received

signicant media coverage following the Moscow

Metro bombings in March 2010 and the Moscow

Domodedovo Airport bombing on January 2011.

Immediately after the bombings, the Committee

on Judicial and Legal Affairs of the Federation

Council (the upper house of the Russian parliament)

reportedly began work on a draft law to introduce

the death sentence for organisers of terrorist attacks

resulting in multiple deaths.

According to reports

of a statement made by State Duma Speaker Boris

Gryzlov to two visiting members of the Parliamentary

Assembly of the Council of Europe (PACE), “terrorist

activities in Russia have been the factor that has

prevented the country from abolishing capital

punishment.”

The Communist Party of the Russian Federation

has also called for the reinstatement of the death

penalty for large-scale corruption cases. Following

the terror attacks, party leader Gennady Zyuganov

also suggested that the death penalty be restored for

especially grave crimes.

The Liberal Democratic Party has also called for the

moratorium to be dropped for acts of terrorism, and

to introduce the death penalty for corruption by high-

ranking ofcials.

Russian President Dimitry Medvedev stating that,

even though he would not have introduced the

moratorium in 1996, Russia would adhere to its

international obligations.

However, until Russia

fully abolishes the death penalty in law, there

is an elevated risk that this sentence could be

reintroduced.

III Legal framework: application

of international human rights

standards in Russia

According to Article 15(4) of the Constitution, “The

universally-recognised norms of international law

and international treaties and agreements of the

Russian Federation shall be a component part of its

legal system.” However, where an international treaty

undermines the rights or guarantees set out in the

Constitution, the Constitutional Court can nullify the

international agreement.

After the dissolution of the Soviet Union in 1991, the

Russian Federation was recognised by the international

community as the successor to the USSR.

The Russian Federation became a party to a number

of international human rights instruments relevant to

the death penalty.

The Soviet Union (and the Russian Federation as

its successor) ratied the International Covenant on

Civil and Political Rights (ICCPR) on 16 November

1973, and the First Optional Protocol to the ICCPR

on 1 October 1991, however is not a signatory to

the Second Optional Protocol to the ICCPR (aiming

at the abolition of the death penalty). Russia ratied

the Convention against Torture and Other Cruel and

Degrading Treatment or Punishment (CAT) on 3 March

1987, but is not a signatory to its Optional Protocol

(OPCAT). It ratied the Convention on the Rights of

the Child (CRC) on 16 August 1990. It is a signatory to

the Rome Statute on the International Criminal Court,

but has not yet ratied it. Russia ratied the European

Convention on Human Rights on 5 May 1998, and

signed Protocol No. 6 to the ECHR (concerning

the abolition of the death penalty) on 16 April 1997,

but has not yet ratied it. Upon accession to this

Convention, Russia made a reservation for a phased

accession to Protocol No. 6. Russia has neither signed

nor ratied Protocol No. 13 (concerning the abolition of

the death penalty in all circumstances).

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 29

Russia voted in favour of the UN General Assembly

moratorium resolutions in 2007, 2008 and 2010. In

2010 the Russian Federation co-sponsored the UN

GA moratorium resolution for the rst time.

IV Legal framework: the death

penalty in Russia

Death penalty applicable crimes

While there is a moratorium on sentencing and

executions, the death penalty remains in law. The

1960 Criminal Code (which was in place until 1

January 1997) established the death penalty for

31 offences. The 1996 Criminal Code reduced the

number of death penalty applicable crimes to ve

offences, permitting the death penalty “only for

especially grave crimes encroaching on human life”:

1. Aggravated murder: Article 105(2).

2. Encroachment on the life of a statesman or a

public gure: Article 277.

3. Encroachment on the life of a person

administering justice or engaged in a preliminary

investigation: Article 295.

4. Encroachment on the life of an ofcer of a law

enforcement agency: Article 317.

5. Genocide: Article 357.

None of these offences envisages a mandatory death

sentence. Each of them may be punished by life

imprisonment, or by a denite term of imprisonment

for up to 20 years.

There is no information about the application of the

death penalty for offences other than aggravated

murder during the period between 1989 and 1996.

Prohibited categories

According to Article 59(2) of the Criminal Code, the

death penalty cannot be applied to the following

persons:

 Persons under 18 years of age at time the crime

was committed.

 Women.

 Men who reached the age of 65 at the time of

sentencing by a court.

 Persons extradited to Russia by a foreign state for

prosecution in accordance with an international

treaty of the Russian Federation or on the basis

of reciprocity, if the law of the foreign country that

has extradited the person, does not envisage

the death penalty for a crime committed by this

person or non-use of death penalty is a condition

of extradition or a death sentence can not be

applied to them for other reasons.

Article 21 of the Criminal Code also provides that

“[a] person who, at the time of the commission of

a socially dangerous act, was insane, that is, was

unable to understand the actual character or social

danger of his actions (inaction) or to govern them

as a result consequence of a chronic or temporary

mental derangement, mental deciency or any other

mental condition, shall not be subject to criminal

responsibility”. Compulsory medical treatment may

instead be imposed by the court.

81 Article 59 of the Criminal Code.

30 Penal Reform International

V Legal framework: alternative

sanctions to the death penalty

in Russia

Life imprisonment was rst introduced in the Criminal

Code in 1992

as an alternative to the death penalty

for commutations and pardons. It was introduced as

a stand-alone sentence in the 1996 Criminal Code.

Length of life imprisonment

Life imprisonment in Russia has a minimum tariff of

25 years.

Life sentence applicable crimes

The 1996 Criminal Code established that life

imprisonment can be imposed for the most serious

crimes against human life, as well as for committing

serious crimes against public health and public

morality, public safety, sexual integrity of minors

under the age of fourteen years of age.

The 1996 Criminal Code sets out thirteen offences

for which life imprisonment may be imposed (four

of these offences were recently introduced to the

Criminal Code in 2012):

1. Aggravated murder: Article 105(2).

2. Rape under aggravating circumstances: Article

131(5).

3. Sexual assault under aggravating circumstances:

Article 132(5).

4. Sexual intercourse and other sexual acts with

a person under fourteen years of age: Article

134(6).

5. Act of terrorism: Article 205(3).

6. Hostage-taking resulted in death: Article 206(4).

7. Organisation of a criminal association or

participation in it: Article 210(4).

8. Smuggling of narcotic drugs, psychotropic

substances and their precursors or analogues,

plants containing narcotic drugs, psychotropic

substances or their precursors, or parts thereof,

containing narcotic drugs, psychotropic

substances or their precursors, tools or

equipment that are under special control and

used for the manufacture of narcotic drugs or

psychotropic substances: Article 229(1)(4).

9. Encroachment on the life of a statesman or a

public gure: Article 277.

10. Sabotage resulting in death: Article 281(3).

11. Encroachment on the life of a person

administering justice or engaged in a preliminary

investigation: Article 295.

12. Encroachment on the life of an ofcer of a law

enforcement agency: Article 317.

13. Genocide: Article 357.

None of these offences provide for a mandatory life

sentence.

Prohibited categories

The restrictions on the application of life

imprisonment are the same as for the death penalty:

 Persons under 18 years of age at time the crime

was committed.

 Women.

 Men who reached the age of 65 at the time of the

passing of a sentence by a court.

 Mentally-ill.

82 The Law of the Russian Federation No. 4123-I of 17 December 1992 “On Amendments to Article 24 of the Criminal Code of the RSFSR”.

83 The Criminal Code of the Russian Federation, adopted by The State Duma on 24 May 1996.

84 Introduced into the Criminal Code by Federal Law No. 14-FZ of 29 February 2012.

85 Ibid.

86 Ibid.

87 Introduced into the Criminal Code by Federal Law No. 18-FZ of 1 March 2012.

88 Article 57 of the Criminal Code.

89 Ibid.

90 Ibid.

91 Article 21 of the Criminal Code.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 31

VI Application of the death

penalty/life imprisonment: fair

trial procedures

Presumption of innocence

Article 49 of the Constitution and Article 14 of the

Criminal Code provides that everyone accused of

committing a crime shall be considered innocent until

his guilt is proved in accordance with the law. The

Code of Criminal Procedure also requires that a guilty

verdict cannot be based solely on suppositions.

However, there is a lack of trust by the public in

investigating bodies and the court system, and

a heightened concern that enforcement bodies

are corrupt. Although there is a presumption of

innocence, the court often gives undue weight to

evidence presented by the prosecution and takes

a more accusatory approach. The acquittal rate of

just over one percent leads to the assumption that

the principle of presumption of innocence is not

consistently enforced in practice.

Trial by jury

With the adoption of the new Constitution in

December 1993, the right of a defendant to have

his case tried by a jury was established. Article

47(2) provides that those accused of a criminal

offence shall have the right to a jury trial. However,

Federal Law No.321-FZ of 30 December 2008 “On

Amendments to Individual Legislative Acts of the

Russian Federation on the Issues of Combating

Terrorism” excludes from this list a number of

offences against the state, including some of those

punishable by life imprisonment. Article 20 of the

Constitution, however, does provide that a jury trial is

compulsory for those accused of a capital offence.

For several years jury trials were available in several

pilot regions, however by 2010 jury trials were

established in all regions of the Russian Federation.

In 2011, Prime Minister Putin commented that jury

trials are ineffectual and should be abolished on

a local level and only used on the federal level.

President Dmitry Medvedev stated that although

jury trials should remain, they should not be allowed

to consider corruption cases because of their

“exposure” to outside inuence. However, Medvedev

said there was no getting away from the fact that “our

juries are vulnerable” and “I am not so sure that a jury

trial is a good form in the administration of justice, for

example, in bribery cases.”

The right to adequate legal assistance

Article 48 of the Constitution guarantees the right to

a legal defence. In certain cases, legal aid shall be

provided, and paid out of the federal budget.

This

includes those circumstances where the accused has

a physical or mental illness; where the accused does

not have a good command of the language of the

criminal proceedings; or if the person is accused of

committing a crime punishable by imprisonment for a

term of over fteen years, life imprisonment, or capital

punishment.

In practice, defence lawyers have much fewer powers

of investigation than the prosecution, and often

become the target of intimidation and coercion.

The UN Committee against Torture has expressed

concern about a lack of respect for the right to a

lawyer.

In 2009, the Special Rapporteur on the

independence of judges and lawyers observed

that a failure to understand the role of defence

lawyers in the justice system and interference by the

executive has undermined the public’s condence

in the administration of justice.

For example,

cases have been reported in which defence lawyers

92 Report of the Special Rapporteur on the independence of judges and lawyers (Leandro Despouy), Russian Federation, 23 March 2009, A/HRC/11/41/Add.2,

para. 37.

93 Medvedev opposes abolition of jury trials, Mikhail Klimentiev, RIA Novosti, 2 February 2011, <http://en.rian.ru/russia/20110202/162424910.html>.

94 Article 50(5) of the Criminal Procedure Code.

95 Committee against Torture Concluding Observations: the Russian Federation, 6 February 2007, CAT/C/RUS/CO/4, para. 8.

96 Report of the Special Rapporteur on the independence of judges and lawyers: Russia, supra n. 92, paras. 93–97.

32 Penal Reform International

have experienced difculties in obtaining access

to and extracting les of case materials during the

investigative stage.

There is no independent entity responsible for

organising the legal aid system as a whole.

In the

absence of a specic federal legal framework, legal

aid is regulated by a number of laws and regulations,

notably the Criminal Procedure Code and the Federal

law on Legal Practice and the Bar. While existing

legislation provides for a separate legal aid budget

line in the budgets of the investigation authorities, no

such line is dened in the courts’ budgets.

Public centres, staffed on a part-time basis by

lawyers, continue to offer free legal and remedies

under the law; however, they are not permitted to

handle individual cases.

100

According to a 2009 report by the Special Rapporteur

on the independence of judges and lawyers, the

method used for legal aid in criminal cases is ex ofﬁcio

appointment. Decisions to appoint a lawyer are made

by investigation agencies or courts depending on the

stage of the proceedings. There appear to be diverging

systems of cooperation between the bar associations

on the one side and the courts and the investigation

bodies on the other to ensure proper appointment.

While some systems seem to allow for objective

appointment of a defence lawyer, others seem to

cause arbitrary appointments. According to the law,

advocates are obliged to provide the same quality of

defence work for ex ofﬁcio appointment as for paid

services. In spite of this, existing legislation appears

to only envisage paying advocates for participation

in investigative proceedings and court appearance.

There is no compensation provided for other services

or costs. Decisions to pay the legal counsel are made

by investigation authorities or the courts. For different

reasons, both may tend to allocate fewer resources

than needed in the interest of effective defence work.

This does not only affect the quality of legal defence

but also the adherence to the principle of equality of

arms. Furthermore, low tariffs, difculties and delays

with payments adversely affect advocates’ motivation

to perform high-quality work.

101

Independent judiciary

The law provides for an independent judiciary.

102

However this right is not always realised in practice.

Judges remain inuenced by the executive,

particularly in high prole cases.

103

The UN

Committee against Torture has raised concerns about

the system of tenure of judges and its impact on the

independence of the judiciary.

104

The Government itself acknowledges that the

practice of “telephone justice” or “justice for money”

persists in the country. In addition, it has been

reported that judges have sometimes failed to make

independent decisions as they feared to have their

judgement overturned after they received “advice”

from the prosecutor’s ofce, the respective appeal

court or their own court chairperson.

105

Judicial salaries have been signicantly raised several

times in the past years. While in 2000, a judge’s

average monthly salary was less than $200, the

monthly salary in 2008 was 50,000 roubles for district

court judges (about $2,000).

106

Language of the court

Criminal proceedings are conducted in Russian,

or the state language of the Republics (except

97 Ibid, para. 39.

98 Ibid, para. 44.

99 Ibid, para. 45.

100 2010 Human Rights Report: Russia, USA Department of State Bureau of Democracy, Human Rights and Labour, 8 April 2011, p. 8.

101 Report of the Special Rapporteur on the independence of judges and lawyers: Russia, supra n. 92, para. 45.

102 Article 120 of the Constitution.

103 2010 Human Rights Report: Russia, supra n. 100, p. 7.

104 Conclusions and recommendations of the Committee against Torture, supra n. 95 para. 13.

105 Report of the Special Rapporteur on the independence of judges and lawyers: Russia, supra n. 92, para. 58.

106 Ibid, para. 64.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 33

Supreme Court hearings which are conducted only

in Russian).

107

However, Article 26 of the Constitution

provides that everyone shall have the right to use his or

her native language in court. The Criminal Procedure

Code provides that the state must provide interpreter’s

services free of charge to a defendant who does

not speak the language of the court, this includes to

make statements, lodge petitions and complaints, be

acquainted with the materials of the criminal case,

and to take the oor in the court using their native

language. When the sentence is given, the interpreter

is required to read out a translation of the sentence.

108

Open hearings

All court hearings are open to the public

109

, aside from

those involving state secrets protected by federal law,

where the accused in under the age of 16 years, cases

involving sexual offences, or where it is necessary

to guarantee the security of the participants of the

proceedings or their close relatives.

110

Persons attending an open court session have the

right to carry out audio recording and to make records

of the proceedings in writing. Photography or video

recording are only admissible with the permission of

the presiding judge of the court session.

Public judgments

Court sentences are announced in public court. If the

criminal case has been conducted in camera, only the

content of the judgement may be made public.

111

Right to an appeal by a court of higher

jurisdiction

Sentences may be appealed within ten days after the

sentence has been announced, or if the defendant

is in pre-trial detention, ten days after the sentence

has been given to him. Appeal is made to the district

court/court of appeal, or to the cassation court

(Supreme Court), which can consider the legality

of the sentence.

112

The accused has the right to

participate in the hearing of the court either directly

or through video-conferencing. The ling of an appeal

suspends the execution of the sentence.

Right to seek pardon or commutation of the

sentence

The right to issue a pardon or commutation of all

sentences rests exclusively with the President.

113

Applications for pardon are submitted by the

administration of the penal institution to a Clemency

Commission in the relevant region of the Russian

Federation. The application will include a copy of the

sentence, a health certicate of the petitioner, their

criminal record, and any other relevant information.

The Commission prepares a recommendation

regarding the appropriateness of a pardon, and

submits it to the Governor of the region. The

Governor submits his recommendation on the

appropriateness of a pardon to the President.

All death sentences are automatically considered

for pardon regardless of whether a request has

been submitted by the prisoner. In the case of a life

sentenced prisoner, they must submit an application

themselves.

If successful, a pardon decree will be signed by the

President, and sent back to the relevant Governor as

well as to the institution where the prisoner is being

incarcerated. If the application for pardon is rejected,

the petitioner is notied by the Governor.

Death sentences are not executed until a decision on

clemency has been issued.

114

On 3 June 1999, a presidential decree commuted

the sentences of all 703 individuals on death row to

life imprisonment. Since then, no pardons have been

issued for those sentenced to serious offences.

107 Article 18 of the Criminal Procedure Code.

108 Ibid, Article 310.

109 Article 123(1) of the Constitution.

110 Article 241 of the Criminal Procedure Code.

111 Ibid, Article 241(7).

112 Chapter 43 of the Criminal Procedure Code.

113 Article 89(c) of the Constitution.

114 Article 184 of the Criminal Execution Code.

34 Penal Reform International

VII: Implementation of the death

penalty: method of execution

The method of execution in Russia is by a shot to the

back of the head.

115

Prior to the moratorium, the body

of the executed prisoner was not returned to the

family and the place of burial was not disclosed.

116

VIII Application of the death

penalty: statistics

The last execution in the Russian Federation took

place in September 1996 (although executions

were carried out until 1999 in Chechnya, which de

facto was not then under control of the Russian

Federation). The moratorium on sentencing and

executions was established in 1999.

Year Number

of people

sentenced

to death

Number of people executed

117

2000 Moratorium

sentencing

Moratorium on executions

1999 19 Moratorium on executions

(although it is known that Chechnya

continued to execute until 1999).

1998 116 Moratorium on executions

(although it is known that Chechnya

continued to execute until 1999).

1997 106 Moratorium on executions

(although it is known that

Chechnya continued to execute

until 1999).

1996 153 53

1995 143 40

1994 160 10

1993 157 123

1992 159 18

1991 147 37

1990 223 Unknown

1989 100 Unknown

Total 1,483 At least 281

IX Application of life

imprisonment: statistics

As of March 2012, there are 1,788 lifers in Russia. The

gure includes the 703 people whose death sentence

was commuted to life imprisonment by President

Yeltsin in 1999.

Year Number of people sentenced to

life imprisonment (this ﬁgure does

not include the 1999 death row

commutations)

2012 (March) 14

2011 62

2010 60

2009 71

2008 70

2007 68

2006 45

2005 64

2004 89

2003 93

2002 96

2001 124

2000 98

1999 75

1998 55

1997 16

Total 1,100

X Implementation of the death

penalty/life imprisonment:

prison regime and conditions

Location of imprisonment for death row and

life sentenced prisoners

Prior to the moratorium, death row prisoners were

kept in solitary connement at pre-trial detention

centres or prisons all around the country. Executions

were performed in the pre-trial detention centre or the

prison where the inmate was held.

115 Ibid, Article 186.

116 Ibid, Article 186(4).

117 Criminality of XX century: global, regional and Russian trends, V.V.Lumeev, Wolters Kluver: Russia, 2005.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 35

Prisoners convicted to life imprisonment are kept in

ve special regime penal colonies in the following

regions:

 Vologda.

 Sverdlovsk.

 Orenburg.

 Yamalo-Nenets autonomous district.

 Perm.

There is also a separate building for lifers within the

special regime colony in the Republic of Mordovia.

Prison conditions and treatment

The execution of life sentences is detailed in the

Criminal Code and the Criminal Executive Code.

Lifers serve their sentences in isolation from other

prisoners in correctional colonies of special regime.

They are placed in the cells, usually no more than two

people per cell.

118

At the request of a prisoner, or in

case of threats to his personal safety, a prisoner may

be transferred to solitary connement, subject to the

decision of the head of the colony.

The cells are designed with a double door – the

outside door is wooden covered with steel and the

inside door is made of steel bars. The inner door has

a small window to pass food, books etc to prisoners.

The outside door has both mechanical and electric

locks, with a watch hole installed. Each cell has a

window. Electricity is controlled from outside the cell.

A radio is provided. The cells are provided with a

signalling button connected to the junior inspector’s

monitor.

While serving a sentence under the special regime,

prisoners have the right to spend a specied amount

of money on food and essential from their special

prison account (money earned while serving their

sentence or received as a pension or social welfare),

plus an additional 700 rubles (approximately 18

Euros) per month that may come into their account

from another sources, such as from their family;; to

receive one large parcel (up to 20 kg) and one small

parcel (up to 2 kg) per year; to have two short (four

hour) family visits per year; and to have a daily walk

for ninety minutes, or if they have demonstrated good

behaviour up to two hours, in a walking yard.

119

Lifers

are permitted to send and receive letters without

limitation. They may also receive visits from a priest.

However, it should be noted that penal colonies for

lifers in the Russian Federation are situated far from

cities which makes it very difcult and expensive for

family members to visit.

Following ten years of imprisonment under the

special regime, a lifer may be transferred to general

conditions if he has not violated any prison rules or

committed a criminal offence while in prison.

After being transferred to general conditions, a

prisoner has the right to spend additional money from

his special prision account (up to 1,000 rubles or

26 Euros per month if available from other sources,

such as being deposited by their family members); to

receive three large and three small parcels per year;

and to have two short (four hour) and two long (three

day) family visits.

After ten years under the general conditions, a lifer

may be transferred to less strict conditions. Additional

benets include three short and three long family

visits per year; four large and four small parcels

per year; and to spend additional money from their

special prison account (up to 2,000 rubles or 52

Euros per month if available from other sources, such

as being deposited by their family members).

Very few prisoners sentenced to life imprisonment

are able to access employment programmes, and

there are no rehabilitation or social reintegration

programmes.

Conditions for parole

A person who is sentenced to life imprisonment may

be released on parole if the court nds that he does

not need to serve any further punishment, if he has

118 Article 127(1) of the Criminal Executive Code.

119 Ibid, Article 125(3).

36 Penal Reform International

served at least 25 years of his sentence, and has not

committed any violations of the prison rules in the last

three years.

120

If a prisoner commits another crime

while imprisoned, he looses his right to apply for early

release.

To date, no lifer has been released on parole.

Prison staff and management

All penal colonies for lifers are situated far from cities;

as such it is not easy to recruit appropriately trained

staff. There is a lack of well-developed educational

programmes or psychological trainings designed

specically for the staff working with lifers and long-

term prisoners.

Monitoring prisons

Russia has not ratied the Optional Protocol to the

CAT (OPCAT), and has not yet established a National

Preventive Mechanism. Monitoring of prisons is

currently undertaken by the government through the

following three bodies: Ministry of Justice, the Federal

Service of Execution of Punishments (FSIN), and the

General Prosecutor’s Ofce.

In addition, the following ofcials have the right to

visit penal institutions without special permission

while performing their ofcial duties: the President of

the Russian Federation, the Prime Minister, members

of the Federal Assembly (parliamentarians), the

Human Rights Ombudsman; and judges.

Public monitoring can also be undertaken by the

Public Oversight Commission (POC) in line with

Federal Law No. 76-FZ of 10 June 2008 “On Public

Control of human rights in places of detention and

assistance of persons in places of detention”. The

POCs are composed of between 5 and 20 members

who are nominated by all-Russian, inter-regional

or regional NGOs, which have been registered,

operational for at least 5 years. The appointments

are made by the Council of the Public Chamber of

the Russian Federation (an advisory body under

the President of the Russian Federation). There are

no criteria against which the candidates should be

assessed by the Council of the Public Chamber. This

has led to inconsistent, if not arbitrary, practices in

the selection of candidates.

POCs can visit places of detention and consider

individual complaints across all regions of the Russian

Federation. However, they are not permitted to make

unannounced visits; the POC must receive prior

notication from the relevant penitentiary authority.

POCs cannot meet with detainees in private, and

they are not allowed to take written complaints out

of the detention facilities unless the complaints are

registered by the penitentiary administration (the POC

members themselves are unable to register such

complaints while meeting the detainees). Acting upon

the complaints the POC can contact the ofce of the

prosecutor to open an investigation.

Strategies and practices of the POCs vary depending

on the region and composition of the POC. While

some POCs aim to visit as many detention facilities

as they can, others try to examine detainees’

individual complaints, and yet others lobby for

changes in the penitentiary systems. Few combine

them all (strategies may vary within one POC, two

members’ agreement is enough to act) and not all of

them prepare reports following their visits (or other

activities). Such reports may be ignored or taken

into account in decision-making. The decisions of

the POCs on the complaints are not binding, but are

forwarded to the Commissioner for Human Rights

and the Public Chamber of the Russian Federation

(not to the regional public chambers).

XI Transparency and

accountability

Federal Law No. 8-FZ of 9 February 2009 “On

Providing Access to Information on the Activities

of Government Bodies and Bodies of Local Self-

Government” obliges government bodies to give

individuals and organisations access to information

on their activity.

As such, general information and statistics are

provided by the Federal Service of Execution of

Punishments on their website (<http://fsin.su/>) and

websites of their regional departments.

120 Ibid, Article 176.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 37

Federal Law No. 262-FZ of 22 December 2008

(effective from 1 July 2010) “On Providing Access

to Information on the Activities of the Courts in the

Russian Federation” sets forth the requirement for the

court to provide public access to court judgements,

and judicial statistics (accessible online <http://

www.sudrf.ru>). The law also allows individuals and

representatives of organisations to be present in

public court proceedings; and for the publication of

information on the courts’ activity in the media.

XII Current reform processes in the

Russian criminal justice system

During the last twenty years the criminal justice

system and the judiciary have been subject to

various reform processes. In 2008, President Dmitry

Medvedev announced the beginning of a new stage

of judicial reform, the aim of which is to “actually

achieve independence of the judiciary”. To regain the

trust of citizens in the judicial system, the President

proposed to eliminate “unlawful decisions on

telephone call”

121

(‘Telephone justice’ is a term which

originated in Soviet times. When a top ofcial wanted

a particular result in court, he would simply phone

the judge and tell him what the party line was. While

Soviet rule long gone, pressure on courts continue to

exist).

In 2010–2011 the President submitted to the State

Duma three packages of amendments to the

criminal laws with the aim of introducing alternatives

to imprisonment. This included house arrest,

imposing nes for some economic crimes previously

punishable by imprisonment, and other alternatives

for less serious crimes. At the same time it should

be noted that the list of offences punishable by life

imprisonment was broadened in 2012 and now

includes four additional life sentence applicable

crimes which include various sexual-and drug-related

offences.

In October 2010, the government approved a new

reform package for the prison system. The aim was to

raise the prison system up to European standards, to

reduce re-offending of paroled prisoners, to improve

the conditions of detention, and to observe human

rights of offenders by 2020.

According to the reform package, the majority of the

prison colonies for adults are to be transformed into

prisons in a “European style”, and the institutions

for juveniles are to become educational centres.

However independent experts have raised a number

of concerns regarding these reform packages:

122

 Re-labelling a correctional institution as “prison”

will not achieve the required reform.

 The European instruments (such as the European

Prison Rules) concerning deprivation of liberty

are not well known to Russian law-makers and

practitioners and need to be studied in-depth

before embarking on such a vast reform.

 National legislation (both the Criminal and

Criminal Executive Codes) would need radical

amendments.

 A new system of staff training would need to be

introduced to enables staff to work according to

European standards.

 Resources for the reform must be guaranteed

from the state budget.

121 News article <http://www.kommersant.ru/doc/894260>.

122 Improving detention conditions through effective monitoring and standard-setting, Natalya Khutorskaya, Council of Europe, 14 March 2010, <http://www.coe.

int/t/dghl/standardsetting/prisons/Conferences/Speech%20by%20Ms%20KHUTORSKAYA.pdf>.

38 Penal Reform International

XIII Recommendations to the

Russian Federation

1. Fully abolish in law the death penalty by

eliminating it as a form of punishment from the

ve Articles in the 1996 Criminal Code and from

Article 20 of the Constitution.

2. Undertake a campaign to educate the public

on the need to abolish the death penalty. The

campaign should incorporate elements of

implementing humane alternative sanctions.

3. Ratify Protocol No. 6 and Protocol No. 13 to the

European Convention for the Protection of Human

Rights and Fundamental Freedoms concerning

the abolition of the death penalty.

4. Ratify the Second Optional Protocol to the

International Covenant on Civil and Political

Rights aiming at the abolition of the death penalty.

5. Co-sponsor and vote in favour of the upcoming

fourth UN General Assembly resolution calling for

a moratorium on the death penalty scheduled for

2012, and any other relevant resolutions. Make

use of bilateral relations to advocate for other

states to support the resolution.

6. Shorten the minimum length of term which a life-

sentenced prisoner must serve before being able

to apply for parole (currently 25 years). According

to the UN Crime Prevention and Criminal Justice

Branch’s 1994 report ‘Life Imprisonment’,

123

all

prisoners sentenced to life should have their

suitability for release reviewed after serving

between 8 and 12 years of incarceration.

7. Humanise the system of punishment by reducing

the number of crimes (currently 13) for which life

imprisonment may be prescribed, and limit these

cases to only the “most serious crimes”.

8. Undertake legislative and policy steps to

ensure the independence of the courts and the

transparency of the judicial system.

9. Reform the system of legal aid in Russia to ensure

that indigent defendants accused of an offence

for which a death sentence or life imprisonment

may be imposed can obtain free legal assistance

at all stages of the case: pre-trial, trial, appellate,

pardon and parole. Ensure all legal aid lawyers are

independent of the state, adequately paid, have

the same rights vis-à-vis the prosecutor, and are

well-trained in courtroom advocacy methods for

capital trials and sentencing hearings.

10. Draft and adopt a strategy to reform the penal

system in Russia with a clear vision that makes

specic reference to reforming life imprisonment

which is consistent with international human

rights standards and norms, including eliminating

discriminatory practices and regulations

applicable to life sentenced prisoners, such as

requiring that all lifers be imprisoned under a

special security regime for at least the rst ten

years of their sentence. Security measures should

be implemented on a case-by-case basis, based

on an individual risk-assessment, and not based

on the type of sentence being served. Involve

academics and public organisations on the reform

programme. Organise a public debate on the

strategy, with participation from all interested

parts of civil society.

11. Carry out reforms to the penitentiary system so

that it is in compliance with international human

rights standards including the UN Standard

Minimum Rules for the Treatment of Prisoners.

This should include improving the cell size

and living conditions for prisoners, improving

access to health care including mental health

care. Prioritise resources of the Russian prison

administration so that they can effectively

implement the reforms, including the 2010–2020

government-led reform programme.

12. Ensure that prison conditions of life-sentenced

prisoners approximate as closely as possible to

the conditions of life outside the prison system,

and offer programmes for rehabilitation and

reintegration. This should include the possibility

to undertake education, to work, to have

contact with the outside world, and to receive

psychological or medical treatment.

123 1994 Life Imprisonment report, supra n. 63.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 39

13. Special efforts should be made to prevent the

breakdown of family ties of prisoners serving life

sentences and to increase the number of long-

and short-term visits for lifers, to reduce the

restrictive requirements for short-term visits, and

to increase the number of parcels which family

members can send in to prisoners.

14. Improve daily activities for life-sentenced

prisoners. Such activities should be aimed at

supporting their rehabilitation and reintegration

back into society by organising targeted training

for them, and providing them with appropriate

work skills and education. This should include:

a. Providing lifers with regular access to sporting

activities.

b. Providing lifers with the opportunity to engage

in employment.

c. Implementing all necessary measures in order

to provide lifers with the right to educational

and vocational programmes.

d. Consider developing other rehabilitation and

reintegration programmes that will assist a lifer

to deal with any underlying issues or problems

linked to their crime, such as drug or alcohol

abuse, anger management, psychological or

psychiatric support.

15. Develop a system of regular assessment of

prisoners convicted to life imprisonment, with

the view of preparing them for release on parole.

Improve the parole system, making procedures

clear, and ensure that judges who have the

responsibility to review parole applications are

specialised penal judges, with experience of

dealing with such cases.

16. Increase resources for the prison system to

improve salary and working conditions for prison

staff. Ensure all prison staff are appropriately

trained in international human rights standards.

17. Ratify the Optional Protocol to the Convention

against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment and establish

a National Preventive Mechanism (NPM). Ensure

that the NPM is independent, competent to

monitor all places where persons are deprived of

their liberty, and is well resourced and nanced to

ensure its effectiveness.

18. Ratify the Rome Statute of the International

Criminal Court.

19. Encourage further collaboration between

government ofcials and civil society, including

journalists, on criminal justice issues.

20. Encourage relevant international organisations

and donor states in a position to do so to

promote and support criminal justice reforms

within Russia at both the nancial and political

level.

40 Penal Reform International

Ukraine

I Basic country information

Geographical region: Ukraine is the second largest

country in Europe. It borders Russia, Belarus, Poland,

Slovakia, Hungary, Romania and Moldova. Its capital

is Kiev.

Type of government: Ukraine is a republic under a

presidential-parliamentary system.

Language: The ofcial language is Ukrainian. Russian

is also widely spoken.

Population: Ukraine is home to approximately

46million people; 77.8percent of whom are ethnic

Ukrainians, with sizable minorities of Russian,

Belarusian and Romanian.

Religion: The dominant religion in Ukraine is Eastern

Orthodox Christianity.

II Overview of the status of the

death penalty in Ukraine

Following its membership to the Council of Europe

in 1995, Ukraine made a commitment to abolish the

death penalty. However, Ukraine continued to pass

death sentences and carry out executions. At least

180 people were executed in Ukraine between 1995

and March 1997,

124

including 167 executions in 1996

alone.

125

Many Ukrainians favoured retaining the

death penalty as crime rates soared after the collapse

of the Soviet Union in 1991.

On 29 January 1997, the Parliamentary Assembly

of the Council of Europe (PACE) passed Resolution

1112 in which it condemned Ukraine’s failure to

honour the commitment made on accession to the

Council to put in place a moratorium on the use of

the death penalty and deplored the executions which

took place in 1996. Resolution 1112 continued, “The

Assembly warns the Ukrainian authorities that it will

take all necessary steps to ensure compliance with

commitments entered into. In particular, should any

more executions of the death penalty be carried

out following the adoption of this resolution, the

Assembly may consider the non-ratication of the

credentials of the Ukrainian parliamentary delegation

at its next session.”

On 11 March 1997, a moratorium on executions was

established by the President. Courts continued to

pass death sentences.

Ukraine eventually abolished the death penalty in

February 2000, with an overwhelming majority vote

from the members of the then Ukrainian parliament

(the ‘Verkhovna Rada’). The vote followed a landmark

ruling of the Constitutional Court on 30 December

1999, judging the death penalty unconstitutional. The

Court found that the punishment violated the principle

of the right to life, which is enshrined in the country’s

constitution, and contravened the constitutional

provision that no one should be subjected to torture

or to cruel or inhuman treatment or punishment.

The last death sentence was issued in 1999, and

the last 612 death row prisoners had their sentences

commuted to life imprisonment. On 22 February

2000, Law No. 1483-III established life imprisonment

as the alternative to death penalty In Ukraine.

Article 27 of the Constitution was amended to

provide that “Every person shall have the inalienable

right to life. No one shall be arbitrarily deprived of

life. Protection of human life shall be the duty of the

State.”

In April 2001 Parliament approved the new Criminal

Code which formally abolished the death penalty

(entering into force on 1 June 2001). Ukraine ratied

Protocol No 13 to the ECHR banning the death

penalty in all circumstances on 11 March 2003, and

subsequently ratied the Second Optional Protocol

to the ICCPR (aiming at the abolition of the death

penalty) on 25 July 2007.

124 Ukraine, Hands off Cain, <http://www.handsoffcain.info/bancadati/schedastato.php?idcontinente=20&nome=ukraine>.

125 Ukraine: 1996 execution ﬁgure–second highest in the world–reveals international abolition commitment being openly ﬂouted, Amnesty International, 11 February

1997, EUR 50/04/97.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 41

III Legal framework: application

of international human rights

standards in Ukraine

Article 9 of the Constitution provides that international

treaties ratied by Ukraine form a part of the domestic

legislation.

Ukraine is party to almost all international human

rights instruments relevant to the death penalty.

Ukraine ratied the International Covenant on Civil

and Political Rights (ICCPR) on 12 November 1973,

the First Optional Protocol to the ICCPR on 25 July

1991, and the Second Optional Protocol to the

ICCPR (aiming at the abolition of the death penalty)

on 25 July 2007. Ukraine ratied the Convention

against Torture and Other Cruel and Degrading

Treatment or Punishment (CAT) on 24 February 1987,

and it’s Optional Protocol (OPCAT) on 19 September

2006. It ratied the Convention on the Rights of the

Child (CRC) on 28 August 1991. It is a signatory to

the Rome Statute on the International Criminal Court,

but has not yet ratied it. Ukraine ratied Protocol

No. 6 to the ECHR (concerning the abolition of the

death penalty) on 4 April 2000, and Protocol No. 13

(concerning the abolition of the death penalty in all

circumstances) on 11 March 2003.

Ukraine co-sponsored and voted in favour of UN

General Assembly moratorium resolutions in 2007,

2008 and 2010.

IV Legal framework: the death

penalty in Ukraine

Death penalty applicable crimes

Prior to abolition in 2001, there were 24 crimes

punishable by death in the Criminal Code of Ukraine.

These included:

1. Aggravated murder.

2. Encroachment on the life of a statesman.

3. Encroachment on the life of a representative of a

foreign state.

4. Encroachment on the life of a person

administering justice or a preliminary

investigation, or a law enforcement ofcer.

5. A number of crimes committed during wartime.

Prior to abolition, the death penalty was primarily

used for those accused of aggravated murder.

Prohibited categories

Prior to abolition, the death penalty could not be

applied to the following persons:

126

 Individuals under the age of 18 at time the crime

was committed.

 Pregnant women.

V Legal framework: alternative

sanctions to the death penalty

in Ukraine

In February 2000, the death penalty was replaced

with life imprisonment as the maximum punishment in

Ukraine.

Article 64(1) of the Criminal Code provides that life

imprisonment is imposed for “special grave” offences

and shall apply only in cases “where a court does

not nd it possible to impose imprisonment for a

determinate term”.

Length of life imprisonment

Life imprisonment in Ukraine means a whole life

sentence, however a pardon may be applied for after

serving a minimum of 20 years imprisonment. If the

pardon is issued, the life sentence will be substituted

by a denite term of 25 years imprisonment.

126 Article 24 of the Criminal Code.

42 Penal Reform International

Life sentence applicable crimes

Under the Criminal Code, life imprisonment as

a punishment is foreseen for the following nine

offences:

1. Aggravated murder: Article 115.

2. Terrorism-related offences resulting in death:

Article 258.

3. Encroachment on the life of a state-person or a

public gure: Article 112.

4. Murder or attempted murder of a law

enforcement ofcial, a judge, an associate

judge, a serviceperson, a defender or his/her

representative: Articles 348, 379, 400.

5. Resistance to military authorities resulting in

murder: Article 404.

6. Violation of laws and customs of war related to

intentional murder: Article 438.

7. Application of weapons of mass destruction

if it led to the death of people or other severe

consequences: Article 439.

8. Genocide: Article 442.

9. Murder or attempted murder of a foreign

representative: Article 443.

In some circumstances, the Criminal Code provides

that life imprisonment may be imposed for offences

where there are no lethal consequences.

None of these offences provide for a mandatory life

sentence.

Prohibited categories

The prohibitions on the application of life

imprisonment are set out in Article 64(2) of the

Criminal, and include:

 Individuals under the age of 18 at time the crime

was committed.

 Pregnant women.

 Individuals over 65 years of age at the time of

sentencing.

Article 66 of the Criminal Code also allows the

state of health of the accused to be taken into

consideration as a mitigating factor. If a person is

assessed as being mentally ill (i.e. a person who

could not be conscious of his/her activities at

the time of the offence and be in charge of them

due to a mental illness, or got ill at the moment of

adjudication), then a person may not be found to

have criminal responsibility, and compulsory medical

measures could be imposed by the court.

127

If a person becomes mentally ill while serving his/

her sentence, which renders him/her incapable of

realising his/her actions, he/she may be discharged

from further punishments, and subjected to

compulsory medical measures.

128

VI Application of the death

penalty/life imprisonment: fair

trial procedures

Presumption of innocence

The constitution legally guarantees the right to a fair

trial, including the right to be presumed innocent;

129

however, high conviction rates call that presumption

into question.

130

Trial by jury

The constitution provides for jury trials in Ukraine,

131

and the Verkhovna Rada (parliament) plans to adopt a

new Code for Criminal Procedure in April 2012 which

will introduce the concept of trial by jury for very

serious crimes. At present, most cases are decided

by judges who sit alone. Trials on charges carrying

a maximum sentence of life imprisonment are heard

127 Ibid, Article 19(2).

128 Ibid, Article 84.

129 Article 62 of the Constitution.

130 2010 Human Rights Report: Ukraine, USA Department of State Bureau of Democracy, Human Rights, and Labor, 8 April 2011, p. 15.

131 Article 129 of the Constitution.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 43

by two judges and three public assessors who have

some legal training. The right to adequate legal

assistance

The Criminal Procedure Code guarantees the right

of a legal defence,

132

and makes it compulsory

that those accused of an offence for which life

imprisonment may be imposed must have the

services of a defence lawyer.

133

The court may

appoint a defence lawyer through the legal aid

agency for an indigent defendant or those accused of

life sentence applicable offence.

134

Legal aid can also

be provided at the appeal stage.

According to reports by local civil society

organisations, the quality of the legal defence

provided by a legal aid lawyer is extremely low. It

has been reported that such lawyers do not actively

work to protect the interests of their clients, and

are neglectful of their duties. The payment legal

aid lawyer’s receive is not regulated, and as a

consequence they are reluctant to take on such work.

The law species that a defendant may consult a

lawyer in private; however, human rights groups have

also reported that ofcials occasionally deny this

lawyer-client privilege.

135

Independence of the judiciary

The constitution provides for an independent

judiciary;

136

however, in practice the judiciary remains

subject to political pressure, suffers from corruption

and inefciency, and lacks public condence.

The right to a fair trial is undermined by lengthy court

proceedings, by political pressure on judges, and

inadequate court funding and resources. Judges

also continue to complain about pressure from high-

ranking politicians interfering in cases.

137

All courts, except for the Supreme Court, are funded

through the State Judicial Administration, which is

also responsible for stafng. The Ministries of Justice

and Education are responsible for the training of

judges. The judiciary’s lack of adequate staff and

funds contributed to inefciency and corruption and

increased its dependence on the executive branch.

138

On 7 July 2010, parliament adopted a new law on the

“Judicial System and Status of Judges”. Under the

law a new High Specialised Court for Examination

of Civil and Criminal Cases was established, which

greatly reduced the powers of the Supreme Court and

the number of Supreme Court justices. The legislation

also gave the 20-member High Council of Justice a

more prominent role in nominating and dismissing

judges, chairpersons and deputy chairpersons of

courts except for the Supreme Court. Under the law

the number of judges in a court is determined by the

Minister of Justice upon the proposal of the State

Judicial Administration.

139

In their addendum to the PACE report on 4

October 2010, co-rapporteurs Wohlwend and Reps

highlighted concerns over the enlarged powers

of the High Council of Justice.

140

They noted the

Venice Commission’s statement that the legislation

creates “an evident danger of politically motivated

nominations to the High Council of Justice guided by

political considerations.”

141

132 Article 21 of the Criminal Procedure Code.

133 Ibid, Article 45(1) and (2).

134 Ibid, Article 45(1) and (2).

135 2010 Human Rights Report: Ukraine, supra n. 130, p. 7.

136 Article 126 of the Constitution.

137 2010 Human Rights Report: Ukraine, supra n. 130, p. 6.

138 Ibid, p. 6.

139 Ibid, p. 6.

140 The functioning of democratic institutions in Ukraine, Addendum to the report, Parliamentary Assembly to the Council of Europe, Doc 12357, 4 October 2010,

para. 10.

141 Comments on the Law of Ukraine on amending certain legislative acts of Ukraine in relation to prevention of abuse on the right to appeal, Ms Hanna Suchocka

(Member, Poland), European Commission for Democracy through Law (Venice Commission), CDL(2010)086, para. 5.

44 Penal Reform International

Open court hearing

By law trials are held in public, and defendants have

the right to confront witnesses. However, courtroom

space is often limited, and media personnel are

at times not able to attend and report on court

proceedings.

142

Right to an appeal by a court of higher

jurisdiction

In July 2011, the Verkhovna Rada (parliament)

established a new law to provide the district

courts of Ukraine with jurisdiction to impose a life

sentence. Prior to this, only the Court of Appeal (as

a trial court) had jurisdiction to hear cases of those

accused of aggravated and especially grave offences.

Following the 2011 law, the court of appeals now has

jurisdiction to review petitions for appeal, meaning

that those sentenced to life imprisonment can now

pass through all levels of appeal to the Supreme

Court.

Right to seek pardon or commutation of the

sentence

The Secretariat of the President has a special

Clemency Commission to hear pardon applications.

The Commission is made up of the delegates

of the Supreme Council of Ukraine. The prison

administration prepares the materials on request of

the Commission (a copy of the sentence, a certicate

of good conduct, a medical certicate, and proof of

payment for nes levied on the prisoner) and submits

them to the Commission. The Commission makes

a preliminary recommendation to the President of

Ukraine who bears the nal responsibility for signing

the pardon application.

Following abolition of the death penalty,

approximately 612 death row prisoners had their

sentences commuted to whole life imprisonment.

VII: Implementation of the death

penalty: method of execution

Before the moratorium, the death penalty in Ukraine

was carried out by shooting. It was executed in a

non-public location, with participation of the public

prosecutor, a penal committee representative and a

doctor. Where there was more than one execution to

be carried out, they were conducted individually.

Relatives were not informed about the date of the

execution in advance, but were notied after the

execution had taken place. The body of the executed

person was not returned to the relatives, and the

place of burial was not disclosed.

VIII Application of the death

penalty: statistics

In 1996, according to Amnesty International, Ukraine

executed 167 persons, making them the second

highest executioner in the world after China for that

year.

143

The last executions in Ukraine were carried out in

1997: 13 people were executed

144

despite the country

adopting a moratorium on executions in March of

the same year. At least 73 people were sentenced to

death in 1997.

145

The last death sentence in Ukraine was issued in

1999.

IX Application of life

imprisonment: statistics

As of 1 March 2012, the number of prisoners serving

a life sentence in Ukraine was 1,883. In January 2011

the number was 1,696, in February 2010 there were

1,617 lifers, and in June 2009 the number was 1,560.

As such, the number of lifers has risen by 323 in less

142 2010 Human Rights Report: Ukraine, supra n. 130, p. 7.

143 Ukraine: 1996 execution ﬁgure–second highest in the world–reveals international abolition commitment being openly ﬂouted, Amnesty International, 11 February

1997, EUR 50/04/97.

144 Ukraine: Death Penalty, Amnesty International, 9 September 1997, EUR 50/15/97.

145 Ibid.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 45

than three years meaning more than 100 people are

sentenced to life imprisonment on average per year.

The data published by the Department for Execution

of Sentences indicate that as of 1 June 2010, 20

women were serving a life sentence in Ukraine.

According to the media, all women currently serving a

life sentence in Ukraine had been sentenced to death

for aggravated murder before having their sentences

commuted to life.

X Implementation of life

imprisonment: prison regime

and conditions

Those who have been sentenced to life imprisonment

are incarecerated in special wings of 12 prison

colonies and 22 pre-trial detention centres throughout

Ukraine. Approximately one third of all lifers are

incarcerated in the Vinnitsa region.

Article 150 of the Penitentiary Code provides that

those serving a life sentence must serve it in the

highest security penal colonies and must be kept

isolated from other prisoners.

Women are housed in a specialised wing of a middle

security colony.

Cost of imprisonment

The government does not provide ofcial information

on the cost of imprisonment. However, in 2009,

the Department for the Execution of the Sentences

published an article on its website which stated that

the cost of maintenance for a life-sentenced prisoner

is approximately 13 thousand hryvnas (about $ 1,650

or € 1,200) per year.

Conditions and treatment of detention

Life-sentenced prisoners are required to be

incarcerated in a two-person cell segregated from

the rest of the prison population and required to

wear a specic uniform.

146

In practice though, lifers

are housed with three to four prisoners per cell. A

lifer may be retained in a solitary cell by request of

the prisoner in order to protect him from possible

infringements on his life, or to prevent an offence by

this person, subject to authorisation by the head of

the prison colony.

People sentenced to life imprisonment have the

right to spend money earned in the colony on food

and living essentials once a month in the amount of

50 percent of the minimal salary; to have one short

family visit (up to four hours) every three months via

a glass partition in the presence of prison ofcials; to

receive visits from a priest; to receive small parcels;

to have a one-hour daily walk in the exercise yard;

and to order books from the prison library (which has

not be renewed for some time).

The European Committee for the Prevention of Torture

and Inhuman or Degrading Treatment or Punishment

(CPT) raised concerns regarding severe restrictions

on the visiting entitlement of life sentenced prisoners

during their 2009 visit. The CPT called on Ukraine to

ensure that special efforts should be made to prevent

the breakdown of family ties of prisoners serving life

sentences.

147

The European Court of Human Rights found in

February 2012 that Ukraine had violated Article 8

(right to respect for private and family life) of the

European Convention on Human Rights by imposing

restrictions on family visits.

148

The applicant, who

is currently serving a life sentence for murder, was

allowed to see his relatives no more than once

every six months. Following an amendment to the

Enforcement of Sentences Code, he was granted

family visits once every three months. The visits could

last no longer than four hours and no more than

three visitors could be present at once. The Court

underlined that it was an essential part of a detainee’s

right to respect for family life that the authorities

enabled him to maintain contact with his close family.

Restrictions on the number of family visits constituted

an interference with the detainee’s right under

Article 8.

146 Chapter 22 of the Penitentiary Code of Ukraine “The Procedure and Conditions of the Execution and Service of Life Imprisonment Sentence”.

147 Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment (CPT) from 9 to 21 September 2009, CPT/Inf (2011) 29, para. 92.

148 Trosin v. Ukraine, application no. 39758/05, European Court of Human Rights, 23 February 2012.

46 Penal Reform International

Those convicted to life imprisonment are legally

entitled to engage in work programmes. However,

as the prison administration is required to take

into consideration that lifers must remain in cell-

type rooms this prohibits any real involvement

in proper work programmes. There are no other

efforts by the prison administration to provide any

social rehabilitation programmes for lifers. The main

principle behind this is the assumption that such

prisoners will never be released back into society,

and therefore there is no need to encourage social,

educational or work programmes.

The CPT raised concerns that no progress has been

made as regards the regime of activities offered

to life-sentenced prisoners: “These inmates spent

23 hours a day in their cells in a state of enforced

idleness, their main activity being watching TV and

reading books. Further, the exercise yards to which

they had access one hour every day were of an

oppressive design and too small for real physical

exertion.”

149

The CPT called upon the Ukrainian

authorities to develop a programme of purposeful

activities for prisoners sentenced to life imprisonment

(including work, education, association, sports and

cultural activities, as well as targeted rehabilitation

programmes).

Furthermore, every ten days prisoners are required to

move cell (including prisoners with tuberculosis).This

is considered a security requirement. However it puts

considerable strain on the prisoner by never allowing

them to feel settled in the prison.

In 2008, Ukraine underwent its Universal Periodic

Review (UPR) by the UN Human Rights Council.

Two countries (Russia and Canada) made specic

recommendations to Ukraine to improve the

conditions and treatment of detainees.

150

In January 2010, the parliament approved

amendments to the Criminal Procedure Code and the

Code of Criminal Law Administration. The amended

legislation eased restrictions for prisoners serving

life sentences. According to the amendments, after

fteen years imprisonment under a high security

regime, a lifer may be transferred to a general regime

prison, where they can interact with the general

prison population and take part in group activities

such as educational or cultural programmes.

However, as the amendments do not make the

transfer compulsory, and it does not set out what pre-

conditions have to be fullled in order for the prisoner

to be transferred, it is difcult for the prison service

to implement this law in practice. Furthermore, the

amended legislation does not apply to those with

health issues, including mental illness, tuberculosis

and venereal diseases.

According to the amendments, which are scheduled

to enter in to effect in 2012, the minimum living

area per inmate at penitentiary facilities shall be

increased from 3m

to 4m

. However, according

to the Ombudsman’s ofce, in practice the prison

service will not be able to implement this as the

numbers of life sentenced prisoners continues to

increase contributing to overcrowding in prison

cells. Approximately 100 people are sentenced to

life imprisonment every year, and none have been

released on parole to date.

The living conditions and treatment for female life-

sentenced prisoners is slightly better than for male

lifers. Women are not incarcerated in cells, but in

separate rooms with several people in each, they

sleep in ordinary beds, and can engage in joint work

programmes. There is a greater sense of community

and structure for female prisoners, and a reduced

security regime.

Access to medical care

Access to medical health care for life-sentenced

prisoners in Ukraine is basic to say the least. In cases

of minor illnesses a medical assistant may not always

be available to treat the prisoner, and if he/she does

provide treatment, the main source of medicine

available in an analgin injection (which reduces fever,

and has an anti-inammatory and strong analgesic

effect). Where injections are given, it is always

through the food opening in the cell door.

There is no medical room for examination of patients

in the prison, and in the case of a serious illness,

patients may have to spend up to three months

waiting for a doctor to examine them, which takes

place in the prison ofcers room where 5–6 prison

149 CPT Report to the Ukrainian Government, supra n. 147, para. 90.

150 Report of the Working Group on the Universal Periodic Review: Ukraine, 3 June 2008, A/HRC/8/45, recommendations 16 and 17.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 47

ofcers will be present. Prisoners have complained

that prison ofcers often laugh at their medical

conditions or give humiliating remarks during

examination. The physician is not able to refer a

prisoner for external treatment at a hospital. Internal

treatment is often not effective as medicines are

given to prisoners in limited quantity, irregularly, and

they may be removed by a security ofcer during cell

searches.

If a prisoner wants to obtain medication from their

relatives, prison rules require that they must submit

an application for permission for the required

medicine. The application is taken for consideration

by the prison authorities, and in many cases,

permission is refused. Following approval, the

prisoner must send the permission to their relatives,

who then can then send in the required medicines by

post. The process can take 2–3 months.

Those with tuberculosis remain incarcerated in

the same wing as healthy prisoners. They are not

quarantined in special medical facilities, and their

cells are not sanitised. The cells are damp with

concrete oor, small windows and without ventilation,

which is not conducive to treating TB patients.

Parole

Life imprisonment in Ukraine does not have a

maximum tariff; however a lifer may apply to the

President for a pardon of his/her life sentence after

serving a minimum of 20 years. If the President

grants a pardon, the life sentence is replaced with

a determinate term of 25 years imprisonment. A

prisoner may then apply for parole after serving

a minimum of three-quarters of their sentence.

However, the law is unclear as to whether the 25

year determinate term includes the 20 years already

served, or whether the 25 years must be served in

addition to the rst 20 years. As such, there is a lack

of clarity as to when the three-quarter minimum term

will be reached by the prisoner.

To date, no lifer has been paroled in Ukraine since

life imprisonment was introduced. There are no

clear parole procedures for those sentenced to

life imprisonment. Parole procedures for non-lifers

are more clear and transparent, with the decision

belonging to the court.

Monitoring prisons

Despite being a party to the Optional Protocol to CAT

(OPCAT) since 2006, Ukraine has yet to designate its

National Preventive Mechanism (NPM). However, it is

worth noting that a number of state institutions can

monitor places of detention. This includes: the ofce

of the executive, the ofce of the prosecutor, and the

Ombudsman. Furthermore, following a 2004 Decree

of the Cabinet of Ministers, Oversight Commissions

were created in all regions of Ukraine.

In November and December 2011 a delegation of

the CPT carried out a one-week visit to the country.

It was the CPT’s sixth visit since 1998. A report of

the CPT’s ndings has not yet been made public

(reports are only made public subject to the state’s

agreement). However, the CPT’s 2009 visit provided

an opportunity to review the situation of prisoners

sentenced to life imprisonment.

XI Transparency and

accountability

Ukraine does not provide ofcial statistics on

individuals serving life sentences. The latest data

published by the Department for the Execution of

Sentences was in 2009,

151

on their own initiative.

The Supreme Court of Ukraine also provides some

information on the number of life sentences handed

down by the courts on an annual basis.

151 Department for the Execution of Sentences <http://www.kmu.gov.ua/punish/control/uk/publish/article>.

48 Penal Reform International

XII Current reform processes in

the criminal justice system of

Ukraine

In January 2010, the parliament amended the Penal

Code, prohibiting racial, religious, and other types

of discrimination against inmates at penitentiary

institutions. It added additional groups to the list of

individuals authorised to visit penitentiary institutions

without special permission, including the Justice

Minister, members of the CPT, and members of

Oversight Commissions monitoring prison conditions.

In the beginning of 2011 the State Department for

Execution of Punishments was restructured under

the new name the State Penitentiary Service (SPS)

of Ukraine. It is now coordinated by the Minister of

Justice. According to the reforms, all regulations and/

or agreements relating to the SPS that previously

could be signed by the Head of Department must

now be signed by the Minister of Justice. This, along

with a change of personnel, has lengthened the time

it takes to get proposed regulations approved by the

government.

The government also established a Working Group

to prepare a new concept of developing the criminal

executive system. The Working Group’s mandate

lasts until 2015 and they have already drafted a

concept to prioritise reforms. This includes:

 Strengthening state policy in the area of

execution of punishments and ensuring that the

prison service continues to function in a stable

environment.

 Ensure prison conditions reect what is required

under national legislation.

 Implementation of European standards for prison

conditions and treatment (such as the European

Prison Rules) and recommendations made by the

European Committee for the Prevention of Torture

(CPT).

 Increased effectiveness of prison management

based on principles of accountability,

transparency and interaction with other central

and regional state bodies.

 Develop and introduce new forms of social-

educational and psychological assistance to

offenders.

 Widen and strengthen communication with mass

media regarding the operation of the prison

service aiming at forming a positive public

attitude.

 Improve the system of training and re-training of

prison personnel.

 Strengthen cooperation with scientic and public

organisations.

The SPS is preparing amendments to the current

legislation taking into account the recommendation

set out in the draft concept of the Working Group. At

present, SPS initiatives are being fully supported by

the government.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 49

XIII Recommendations to Ukraine

1. Abolish the use of whole life sentences. All life

sentenced prisoners in Ukraine should have a

realistic right of parole. According to the UN

Crime Prevention and Criminal Justice Branch’s

1994 report ‘Life Imprisonment’,

152

all prisoners

sentenced to life should have their suitability for

release reviewed after serving between 8 and 12

years of incarceration.

2. Humanise the system of punishment by reducing

the number of crimes (currently nine) for which life

imprisonment may be prescribed, and limit these

cases to only the “most serious crimes”.

3. Undertake legislative and policy steps to

ensure the independence of the courts and the

transparency of the judicial system.

4. Reform the system of legal aid in Ukraine to

ensure that indigent defendants accused of

an offence for which life imprisonment may be

imposed can obtain free legal assistance at

all stages of the case: pre-trial, trial, appellate,

pardon and parole. Ensure all legal aid lawyers are

independent of the state, adequately paid, have

the same rights vis-à-vis the prosecutor, and are

well-trained in courtroom advocacy methods for

trial and sentencing hearings.

5. Complete and implement the reform programme

for the penal system in Ukraine as established

by the government Working Group. Ensure the

programme makes specic reference to reforming

life imprisonment which is consistent with

international human rights standards and norms,

including then European Prison Rules and the

UN Standard Minimum Rules for the Treatment of

Prisoners. This should include improving the cell

size and living conditions for prisoners, improving

access to health care including mental health care

and those suffering from tuberculosis. Involve

academics and public organisations on the reform

programme. Organise a public debate on the

strategy, with participation from all interested

parts of civil society. Prioritise resources of

the Ukrainian prison service so that they can

effectively implement the reforms.

6. Eliminate discriminatory practices and regulations

applicable to life sentenced prisoners such

as requiring all lifers to be imprisoned under

a special security regime for at least the rst

fteen years of their sentence. Security measures

should be implemented on a case-by-case basis,

based on an individual risk-assessment, and not

based on the type of sentence being served. A

system of progressive transfer from high security,

to medium security, to open prisons should be

established based on the behaviour and genuine

dangerousness of the prisoner rather than type of

sentence, with the aim of eventual release back

into society.

7. Ensure that prison conditions of life-sentenced

prisoners approximate as closely as possible to

the conditions of life outside the prison system,

and offer programmes for rehabilitation and

reintegration.

8. Special efforts should be made to prevent the

breakdown of family ties of prisoners serving life

sentences and to increase the number of short-

term visits for lifers, and introduce long-term visits

for lifers.

9. Improve daily activities for life-sentenced

prisoners. Such activities should be aimed at

supporting their rehabilitation and reintegration

back into society by organising targeted training

for them, and providing them with appropriate

work skills and education. This should include:

a. Providing lifers with regular access to sporting

activities.

b. Providing lifers with the opportunity to engage

in employment.

c. Implementing all necessary measures in order

to provide lifers with the right to educational

and vocational programmes.

d. Renewing the selection of books available in

the prison libraries.

e. Consider developing other rehabilitation and

reintegration programmes that will assist a lifer

to deal with any underlying issues or problems

linked to their crime, such as drug or alcohol

abuse, anger management, psychological and/

or psychiatric support through a dedicated

psychologist employed by the prison.

152 1994 Life Imprisonment report, supra n. 63.

50 Penal Reform International

10. Develop a system of regular assessment of

prisoners sentenced to life imprisonment, with

the view of preparing them for release on parole.

Improve the parole system, making procedures

clear for lifers, and ensure that those who have

the responsibility to review parole applications are

specialised and have experience of dealing with

such cases.

11. Increase resources for the prison system to

improve salary and working conditions for prison

staff. Ensure all prison staff are appropriately

trained in international human rights standards.

Develop and publish a set of recommendations

for prison personnel on how to treat those

sentenced to life imprisonment.

12. Establish a National Preventive Mechanism

(NPM). Ensure that the NPM is independent,

competent to monitor all places where persons

are deprived of their liberty, and is well resourced

and nanced to ensure its effectiveness.

13. Provide public access to information and

statistics on the national penal system, including

the number of sentenced prisoners and their

characteristics, length of sentence and place of

sentence. Publish historical information on the

application of the death penalty prior to abolition,

including data on those executed and those

sentenced to death.

14. Ratify the Rome Statute of the International

Criminal Court.

15. Co-sponsor and vote in favour of the upcoming

fourth UN General Assembly resolution calling for

a moratorium on the death penalty scheduled for

2012, and any other relevant resolutions. Make

use of bilateral relations to advocate for other

states to support the resolution.

16. Encourage further collaboration between

government ofcials and civil society, including

journalists, on criminal justice issues.

17. Encourage relevant international organisations

and donor states in a position to do so to

promote and support criminal justice reforms

within Russia at both the nancial and political

level.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 51

Comparison of the application and implementation of the death

penalty and its alternative sanction in Eastern Europe

Republic of Belarus Russian Federation Ukraine

Death penalty

1. Death penalty

status

Retentionist De facto abolitionist Abolitionist

2. Date abolished,

if applicable

N/A N/A 30 December 1999

3. Date of last

execution

March 2012 2 September 1996 (although

executions were carried

out until 1999 in Chechnya,

which de facto was not then

under control of the Russian

Federation).

1997

4. Date last death

sentence

2011 June 1999 1999

5. Death penalty

applicable

crimes

1. Initiation or waging of

aggressive war.

2. Act of terrorism against a

representative of a foreign

state.

3. International terrorism.

4. Genocide.

5. Crimes against human

security.

6. Application of weapons of

mass destruction.

7. Violation of the laws or

customs of war.

8. Murder.

9. Terrorism.

10. Treason

11. Conspiracy or other acts

committed with the aim of

seizing state power.

12. Act of terrorism.

13. Sabotage.

14. Murder of a police ofcer.

1. Aggravated murder.

2. Encroachment on the life

of a statesman or public

gure.

3. Encroachment on the life

of a person administering

justice or a preliminary

investigation.

4. Encroachment on the

life of a law enforcement

ofcer.

5. Genocide.

Prior to abolition there were

24 crimes punishable by

death, including:

1. Aggravated murder.

2. Encroachment on the life

of a statesman.

3. Encroachment on the life

of a representative of a

foreign state.

4. Encroachment on the life

of a person administering

justice or a preliminary

investigation, or a law

enforcement ofcer.

5. A number of crimes

committed during

wartime.

6. Is the death

sentence

mandatory?

No. No. Prior to abolition, no.

52 Penal Reform International

Republic of Belarus Russian Federation Ukraine

7. Categories

excluded from

the death

penalty

• Juveniles under 18 years at

time of committing crime.

• Women.

• Men over 65 years at the

time of sentencing.

• Mentally-ill.

• Juveniles under 18 years at

time of committing crime.

• Women.

• Men over 65 years at the

time of sentencing.

• Mentally-ill.

• Persons extradited to

Russian by a foreign

state for prosecution

in accordance with an

international treaty,

whereby the non-

applicability of the death

penalty is a condition of the

extradition.

• Juveniles under 18 years at

time of committing crime.

• Pregnant women.

8. Is there a

moratorium?

No. In 1999, the Constitutional

Court established a

moratorium on executions

and sentencing. In 2009,

the Constitutional Court

further extended it until the

ratication of Protocol No. 6

to the ECHR.

An ofcial moratorium on

executions was established

on 11 March 1997.

9. Have there been

any death row

commutations?

Approximately 156

prisoners sentenced to

death have had their death

sentences commuted to life

imprisonment.

703 death row prisoners

had their death sentences

commuted to life

imprisonment in 1999.

Following abolition of the

death penalty, approximately

612 death row prisoners

had their death sentences

commuted to life

imprisonment.

10. Method of

execution

Shooting. Shooting. Prior to abolition: shooting.

11. Are relatives

informed about

the execution /

place of burial?

Executions are carried out

in secret. Relatives are not

informed of the time or place

of execution, and are not

notied of the place of burial.

Relatives were not notied of

the place of burial.

Prior to abolition, relatives

were not informed of the time

or place of execution, and

were not notied of the place

of burial.

12. Location of

death row

Pre-trial detention centre No.

1 in Minsk.

N/A N/A

13. Number of

prisoners on

death row

Approximately 102 men. None. N/A

14. Right to apply

for clemency or

pardon

The President has the

power to issue a pardon or

clemency.

The President has the

power to issue a pardon or

clemency.

Prior to abolition, the

President has the power to

issue a pardon or clemency.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 53

Republic of Belarus Russian Federation Ukraine

15. Cost of

imprisoning

one death row

inmate for a day/

year

Unknown. N/A N/A

16. Number of death

sentences in

2010 and 2011

2011 – 2 death sentences.

2010 – 2 death sentences.

None N/A

17. Number of

executions in

2010 and 2011

2011 – 2 executions.

2010 – 2 executions.

None N/A

18. Have there

been any recent

opinion polls on

death penalty,

and if so, key

ﬁndings

In 1996 a public referendum

demonstrated that 80.44

percent of the public were

against abolition. Opinion

polls carried out in 2000

and 2003 demonstrate that

approximately 70 percent

of the population was still in

favour of the death penalty.

A national poll carried out by

research centre ‘NOVAK’ in

2008 demonstrate that 48.2

percent were in favour of

the death penalty, and 39.2

percent were in support of

abolition.

According to a 2012 poll

by the Public Opinion

Foundation, 62 percent of

the country’s residents are in

favour of the death penalty,

21 percent want to maintain

the moratorium, and ve

percent were in favour of full

abolition.

In March 2011, an opinion poll

carried out by the Research

& Branding Group found that

45 percent of respondents

wanted Ukraine to bring

the death penalty back, 43

percent were in favour of

maintaining abolition, and

12 percent were unable to

answer.

Alternative sanctions

19. Alternative

sanction to

death penalty

Whole life imprisonment,

which may be substituted

for a denite term of

imprisonment after serving

a minimum of 20 years in

prison.

Whole life imprisonment, with

a possibility of early release

after serving a minimum of 25

years in prison.

Whole life imprisonment,

which may be substituted

for a denite term of

imprisonment (25 years) after

serving a minimum of 20

years in prison.

20. Is there a

mandatory life

sentence?

No No No

54 Penal Reform International

Republic of Belarus Russian Federation Ukraine

21. Life

imprisonment

applicable

crimes

1. Initiation or waging of

aggressive war.

2. Act of terrorism against a

representative of a foreign

state.

3. International terrorism.

4. Genocide.

5. Crimes against human

security.

6. Application of weapons of

mass destruction.

7. Violation of the laws or

customs of war.

8. Murder.

9. Terrorism.

10. Treason.

11. Conspiracy or other acts

committed with the aim of

seizing state power.

12. Act of terrorism.

13. Sabotage.

14. Murder of a police ofcer.

1. Aggravated murder.

2. Rape under aggravating

circumstances.

3. Sexual assault under

aggravating circumstances.

4. Sexual intercourse and

other sexual acts with a

person under fourteen

years of age.

5. Act of terrorism.

6. Hostage-taking resulted in

death.

7. Organisation of a

criminal association or

participation in it.

8. Smuggling of narcotic

drugs, psychotropic

substances and their

precursors.

9. Encroachment on the life

of a statesman or a public

gure.

10. Sabotage resulting in death.

11. Encroachment on the life

of a person administering

justice or engaged in a

preliminary investigation.

12. Encroachment on the

life of an ofcer of a law

enforcement agency.

13. Genocide.

1. Aggravated murder.

2. Terrorism-related offences

resulting in death.

3. Encroachment on the life

of a state-person or a

public gure.

4. Murder or attempted

murder of a law

enforcement ofcial,

a judge, an associate

judge, a serviceperson,

a defender or his/her

representative.

5. Resistance to military

authorities resulting in

murder.

6. Violation of laws and

customs of war related to

intentional murder.

7. Application of weapons

of mass destruction if

it led to the death of

people or other severe

consequences.

8. Genocide.

9. Murder or attempted

murder of a foreign

representative.

22. Categories

excluded

from life

imprisonment

• Juveniles under 18 years at

time of committing crime.

• Women.

• Men over 65 years at the

time of sentencing.

• Mentally-ill.

• Juveniles under 18 years at

time of committing crime.

• Women.

• Men over 65 years at the

time of sentencing.

• Mentally-ill.

• Juveniles under 18 years at

time of committing crime.

• Pregnant women.

• Men over 65 years at the

time of sentencing.

• Mentally-ill.

23. Location of

life sentenced

prisoners

• Pre-trial detention centre

No. 8 in Zhodino.

• Glubokoye colony.

Prisoners convicted to life

imprisonment are kept in ve

special regime penal colonies

in the following regions:

• Vologda.

• Sverdlovsk.

• Orenburg.

• Yamalo-Nenets

autonomous district.

• Perm

There is also a ward for lifers

in the special regime colony in

the Republic of Mordovia.

Life sentenced prisoners

are kept in special wings of

12 prison colonies and 22

pre-trial detention centres

throughout Ukraine.

The abolition of the death penalty and its alternative sanction in Eastern Europe: Belarus, Russia and Ukraine 55

Republic of Belarus Russian Federation Ukraine

24. Number of lifers Approximately 300 men (144

life sentences and 156 death

sentence commutations).

1,780 men. 1,883 lifers (1,863 men and 20

women).

25. Can lifers apply

for a pardon or

clemency?

The President has the

power to issue a pardon or

clemency.

The President has the

power to issue a pardon or

clemency.

The President has the

power to issue a pardon or

clemency.

26. Cost of

imprisoning one

lifer for a year/

day

Unknown. Unknown. The cost of imprisoning one

life-sentenced prisoner is

approximately 13 thousand

hryvnas (about $ 1,650 or €

1,200) per year.

27. Number of

life sentences

issued in 2010

and 2011

2011 – Unknown.

2010 – 2 life sentences.

2011 – 62 life sentences.

2010 – 60 life sentences.

Unknown.

28. Number of lifers

paroled in 2010

and 2011

None None None

Fair trial standards

29. Presumption of

innocence

Presumption of innocence is

legally guaranteed, however

there are criticisms about its

weak realisation in practice.

Presumption of innocence is

legally guaranteed, however

there are criticisms about its

weak realisation in practice.

Presumption of innocence is

legally guaranteed, however

high conviction rates call that

presumption into question.

30. Trial by jury No trial by jury. Trial by jury is legally

guaranteed and has been

established in all regions of

Russia.

Trial by jury is legally

guaranteed, however the right

has not been implemented in

practice.

31. Access to legal

aid

Legal aid is legally

guaranteed, however there

are criticisms about the

quality of legal aid defence

provided.

Legal aid is legally

guaranteed, however there

are criticisms about the

quality of legal aid defence

provided and the lack of

budget to pay legal aid

lawyers.

Legal aid is legally

guaranteed, however there

are criticisms about the

quality of legal aid defence

provided.

32. Appeal process Defendants are legally entitled

to appeal their sentence to a

higher court; however that is

not always implemented in

practice when the Supreme

Court acts as the court of rst

instance.

Cases can be appealed to

the Court of Appeal (District

Courts) or the Cassation

Court (Supreme Court).

Cases can be appealed to the

Court of Appeal and then to

the Supreme Court.

56 Penal Reform International

Republic of Belarus Russian Federation Ukraine

Civil society

33. Key civil society

organisations

working on

abolition/

alternative

sanctions

• Association “Legal

Initiative”.

• Belarusian Association of

Women Lawyers.

• Belarusian Helsinki

Committee.

• Human Rights Centre

“Viasna”.

• Platform.

• Amnesty International

(Russia Ofce).

• Moscow Helsinki Group.

• Penal Reform International

(Moscow Ofce).

• Donetsk Memorial.

• Kharkive Human Rights

Group.

• Vinnitsa Human Rights

Group.

International and regional human rights standards

International

Covenant on Civil

and Political Rights

(ICCPR)

12 November 1973 16 October 1973 12 November 1973

First Optional

Protocol ICCPR

30 September 1992 1 October 1991 25 July 1991

Second Optional

Protocol ICCPR

Unsigned Unsigned 25 July 2007

Convention Against

Torture (CAT)

13 March 1987 3 March 1987 24 February 1987

Optional Protocol

CAT (OPCAT)

Unsigned Unsigned 19 September 2006

Convention on the

Rights of the Child

1 October 1990 16 August 1990 28 August 1991

International

Criminal Court /

Rome Treaty

Unsigned Signed, but not ratied Signed, but not ratied

2007 UN GA

moratorium

resolution 62/149

Abstained Voted in favour Voted in favour

Co-sponsored resolution

2008 UN GA

moratorium

resolution 63/168

Abstained Voted in favour Voted in favour

Co-sponsored resolution

2010 UN GA

moratorium

resolution 65/206

Abstained Voted in favour

Co-sponsored resolution

Voted in favour

Co-sponsored resolution

Protocol No.

6 European

Convention on

Human Rights

Unsigned Signed 16 April 1997, but not

ratied

4 April 2000

Protocol No.

13 European

Convention on

Human Rights

Unsigned Unsigned 11 March 2003

For more information on the work of Penal Reform International, please contact:

Penal Reform International

60–62 Commercial Street

London E1 6LT

United Kingdom

Uglovi Pereulok Dom 2

PO Box 62

Moscow 125047

Russian Federation

www.penalreform.org

ISBN 978–0–9568822–7–1