Death Penalty in Belarus
The right to life is a fundamental human right. The state must protect human life from all unlawful attempts and other threats and provide legal, social, economical, ecological and other conditions for a normal and worthy life.
The right to life is protected by international documents in the field of human rights as well as by the national Constitutions.
Belarus is a member country of the International Covenant on Civil and Political Rights, in Article 6, paragraph 1 of which it is stated: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.
Even though the Covenant does not provide obligatory refusal from capital punishment, some formulations of Article 6 definitely aim the countries at restriction and abolishment of this extreme penalty: ‘Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant’ (Article 6, paragraph 6). The Republic of Belarus still has not joined the Second optional protocol to the International Covenant on Civil and Political Rights, aimed at abolishment of death penalty (adopted by the UN General Assembly on 15 December 1989). The states that agreed to participate in this Protocol, undertook to abolish this kind of penalty.
By its abstinence during the voting of the UN Moratorium on the Death Penalty (adopted by the UN General Assembly on 18 December 2008) the Republic of Belarus showed its unreadiness to refuse from capital punishment.
In the Republic of Belarus the right to life is protected by Article 24 of the Constitution: ‘Everyone has the right to life. The state protects human life from all unlawful attempts’. This very article of the Constitution determines the conditions for the use of death penalty: ‘Until the death penalty is abolished, it may be applied in accordance with the law as an exceptional penalty for particularly serious crimes and only in accordance with the verdict of a court of law’. Thus, in this Article capital punishment is considered as a temporary measure. Article 59 (paragraph 1) of the Criminal Code provides that the death penalty may be imposed for severe crimes connected with deliberate deprivation of life with aggravating circumstances. The death penalty is envisaged for 14 crimes: 12 in peaceful time and 2 more in the time of war. Article 84 (paragraph 19) of the Constitution gives the president authority to grant clemency. The death penalty can be commuted to life imprisonment. A person sentenced to death can apply to the president for clemency during ten days after receiving a copy of the verdict or an answer to a cassation complaint. Appeals are initially considered by the Clemency Commission. The cases of all individuals sentenced to death are automatically considered regardless of whether the sentenced person has submitted an appeal for clemency. Then they are passed to the president for taking the final decision. The orders for commutation of sentences or denial in clemency are signed by president in person.
The closeness of the results of the activities of the Commission on pardon and the president’s decision on cases of death convicts for the society causes a great concern. Only once there was published information that in 2003 the Commission rejected two petitions for pardons and one case was returned to the Supreme Court for review, as a result of which the Supreme Court replaced death penalty with 15 years of imprisonment. Information about the results of the Commission’s activity and the president’s decisions can be obtained only from reports of inter-state organizations to which the Belarusian government presents the necessary data. In particular, according to the information presented to the OSCE, ‘during the period from 1 July 2007 to 30 June 2008, no clemencies or commutations were granted’. (The Death Penalty in the OSCE Area. Background Paper 2008).
According to the UN information, as of November 2007 146 countries either completely refused from or introduced moratorium on death penalty, whereas in 51 countries (including Belarus) this kind of penalty was preserved.
At present Belarus is the last country in Europe where death sentences are made and executed. After the abolishment of death penalty in Uzbekistan since 1 January 2008 Belarus remains the last post-Soviet state where this kind of penalty is used.
The head of the Supreme Court characterized the situation of death penalty in Belarus as ‘actual moratorium’. At the press-conference on 9 September he stated that ‘death sentences are issued extremely seldom: we have actually reached moratorium and are psychologically ready to it provided the appropriate decision is taken on the level of the parliament and the president’.
According to the head of the Supreme Court, only one death sentence was issued in 2008 (in 2007 there were four, in 2006 – nine, in 2005 – two and in 2004 – two author), three persons got life imprisonment (all in all, 130 persons are currently serving life sentence in Belarus).
At the press-conference on 10 December the minister of interior Uladzimir Navumau also said that only one death sentence was issued in Belarus in 2008. He called capital punishment a factor that withheld people from grave crimes.
At the same time, according to the official information and mass the mass media where the cases that resulted in death sentences were elucidated in 2008, there are at least two such cases (!)
In particular, according to the information that was placed at the web-site of the General Prosecutor’s Office, on 21 March 2008 there came into force the death sentence that was issued by the college board on criminal cases of Minsk oblast court to 21-year-old native of Salihorsk district Mikalai Kaliada. He was accused of having committed three murders, two attempts on human life, robbery and hooliganism. The Belarusian authorities informed the OSCE about this very case and this information can be found in the organization’s document on the usage of capital punishment in 2008. The Belarusian authorities also informed the OSCE that there were no cases when death penalty was replaced with a softer penalty as a result of the procedure of pardoning, which means that the sentence to M.Kaliada was left in force. However, it is also known that on 20 June 2008 Homel oblast court sentenced to death 27-year-old citizen of Homel Pavel Leny on accusation in rape and murder of a nine-year-old boy (http://naviny.by). In October the Belarusian mass media informed that P.Leny was executed (www.svaboda.org/content/Article/1328779.html). The information about this sentence and its implementation was not mentioned by the authorities, which in incomprehensible and is a cause for concern.
On 5 February from the words of the press-secretary of the Supreme Court Anastasia Tsimanovich it became known about the execution of three leaders of Homel gang – Ihar Danchanka, Valery Harbaty and Siarhei Marozau (the Supreme Court twice sentenced Danchanka and Marozau to death in December 2006 and in October 2007; Harbaty was sentenced to shooting in December 2006). However, at the time of execution the hearings on the case of Marozau gang still continued: in January 2008 the Supreme Court received the criminal case against Siarhei Marozau and three more members of the gang. The quickness of the execution causes not only surprise, but also anxiety. According to one of the versions, Siarhei Marozau was shot before the beginning of the court hearings (19 February) because he started giving testimonies against high-rank officials of the KGB and MIA, thanks to the protection of which his gang acted with impunity in Homel oblast throughout 1994-2004.
In 2007 the head of the Parliamentary Assembly of the Council of Europe Rene van der Linden addressed the president of Belarus with the call to abolish the death sentences to I.Danchanka, V.Harbaty and S.Marozau. He also emphasized that introduction of moratorium on death penalty in Belarus would become ‘an evident and decisive step for convergence of Belarus with the Council of Europe’.
Having received information about execution of the criminals the Secretary General of the Council of Europe Terry Davis stated that it was ‘another manifestation of Belarus’ open disrespect to human values and achievements that unite all European countries’. Terry Davis pointed that though not being a member of the Council of Europe Belarus is a member of the UN and execution of three citizens contradicts to the letter and intent of the resolution of the UN General Assembly calling to the universal moratorium on death penalty.
The ongoing use of capital punishment in Belarus was also condemned in the resolutions of the European Parliament of 22 February and 9 October 2008. The PACE resolution that was adopted on 15 April, after discussion of the report on abuses in the system of criminal justice in Belarus, called on the Belarusian authorities to immediately introduce moratorium on death penalty.
The greatest resonance had the open letter of the PACE rapporteur Andrea Rigoni to the chairman of the Chamber of Representatives of the National Assembly of Belarus Vadzim Papou and the head of the head of the Soviet of the Republic Henadz Navitski that was published on 14 April in Narodnaya Hazeta – the official edition of the parliament of Belarus. In his open letter Mr. Rigoni urged the heads of both chambers of the parliament to take all possible measures for introduction of moratorium on death penalty as an interim step towards its complete abolition. The letter emphasizes: ‘Every capital execution is one too many. However hideous the crime which has been committed, however indisputable the evidence of guilt, nothing justifies assassination by the State.’. Andrea Rigoni stated that he knew that at the referendum of 1996 the Belarusian society voted for preservation of the extreme penalty and insisted: ‘Popular will should be the basis of every decision but there are some issues on which the authorities of a country should assume the responsibility to lead the way. I call on you and the Institution over which you preside to lead the way towards the introduction of a moratorium on the death penalty in Belarus, as an intermediate step towards its complete abolition.’
At the press-conference on 17 April the head of the Chamber of Representatives Vadzim Papou thusly commented the address of A.Rigoni: ‘Many people said that there was no need to publish Rigoni’s material, because the people would be indignant. We have published it. Now let us see, how the population will react. Will there be any discussion or no? How will the people treat it? Then we will think what to do next.’
In fact, it was the first proposal from the side of the authorities to hold a public discussion on a daily issue for the last years. Vadzim Papou also stated that ‘the time has come to discuss the question of moratorium on death penalty in Belarus. Let us together prepare the public opinion for creation of the preconditions for this decision. Let us see how the people will react to this issue. Of course, we cannot begin from abolishment of capital punishment. May be it would be useful to introduce moratorium first? Even then we need to continue working with the society. Can it be any other way, when at the referendum 86% (to be more accurate, 80,44% - author) citizens of Belarus voted against abolishment of death penalty? Imagine the deputies taking another decision. What human rights and democracy could we spoke if we had supported Europe and implemented its request?’
In fact, despite these sound statements, during the year the authorities conducted no informational work with the society and no measures aimed at change of the public opinion concerning death penalty.
In 2008 the Belarusian authorities did not take any decisive measures aimed at abolishment of death penalty or moratorium on it. The discussion on this issue was mainly restricted to discussion of the perspective of Belarus’ joining to the Council of Europe and abolition of death penalty as one of conditions for this political step.
During the January session of the Parliamentary Assembly of the Council of Europe in Strasbourg Natallia Andreichyk, head of the commission on legislation and state-building of the Soviet of the Republic, stated that ‘Belarus wants to advance on the way to the standards of the Council of Europe, which is witnessed by its intention to introduce moratorium on death penalty’.
In the interview the news agency Interfax-Zakhad of 18 December the head of the Chamber of Representatives of the National Assembly of the fourth Convocation Uladzimir Andreichanka stated that ‘the Belarusian authorities treat with understanding the position of the Council of European and the PACE on death penalty and take the necessary efforts for its restriction and complete abolishment’. Meanwhile, U.Andreichanka called as one of the obstacles for decisive steps in this direct ‘the people’s will, manifested at the referendum of 1996 at which more than 75% (80,44% -- author) of citizens voted against the abolishment of death penalty. However, we principally do not rule out the possibility to review the issue on introduction of temporary moratorium at a certain stage of social development. The complete abolishment of death penalty is possible only by means of national referendum.’
By the way, Andreichanka’s opinion about the necessity of national referendum for moratorium on or abolishment of death penalty does not correspond to the Conclusion of the Constitutional Court of Belarus of 11 April 2004 where it is said: ‘The Constitutional Court thinks that in the present conditions the question of abolishment of this kind of penalty or introduction of moratorium on it as the first step, can be decided by the head of the state or the parliament’. Therewith, in the Conclusion it is pointed that the decision of the referendum 1996, at which 80,44% of citizens voted for preservation of death penalty, ‘is not obligatory’.
In the interview to the BelTA news agency on 2 June the head of the Supreme Court of Belarus Valiantsin Sukala stated that ‘it is within the competency of the subjects of legislative initiative and the members of parliament to decide whether this kind of penalty should be preserved in the criminal legislation or removed from it. What concerns the judicial power, we have never insisted on its preservation and think that at present there are all necessary preconditions for consideration of this issue with the aim to at least introduce moratorium on the use of this exclusive kind of penalty.’
At the same time, sociologists register a considerable humanization of the views of Belarus’ citizens on death penalty. In particular, according to the information of the national questioning that was held in September 2008 by the Independent Institute of Socio-economic and Political Studies, 44,2% of the respondents spoke for abolishment of capital punishment in the Republic of Belarus, while 47,8% were for its preservation. It means that references to the referendum that was held twelve years ago no longer reflect the real public opinion and are used to justify the reluctance of the authorities to take political decisions.
In its yearly review, presented in May 2008, the international human rights organization Amnesty International called Belarus the ‘last hangman in Europe’. During the recent years it has often addressed to the Belarusian authorities with the urge to refuse from the usage of death penalty, criticizing both its presence in the legal system and the procedure of its implementation. Continuing its work in this direction, in 2009 Amnesty International stated about organization of a wide campaign, aimed at abolishment of death penalty in Belarus. On 22-28 October an AI representative Heather McGill visited Belarus for monitoring the situation and holding preliminary consultations with the interested parties. She intended to hold meetings with Belarusian officials including representatives of MIA, the office of the Prosecutor General, the Ministry of Justice and the Supreme Court. These agencies have been informed about it in advance by the appropriate inquiries. ‘Representatives of Belarus’ authorities could have met with me in order to discuss the issue of capital punishment and its abolition, which I was very interested in. It would be a productive step towards Europe. However, my attempts have still given no result,’ said Heather McGill. She managed to meet only with representatives of the Ministry of Justice, while other state structures refused from the meetings referring to business of their administration.
Thuds, 2008 did not bring a breakthrough in solution of the issue of death penalty in Belarus and the country’s joining the European community that is free from the legalized assassination of people by the state.