Hary Pahaniaila: It's time to review the law on death penalty
Human rights activist Hary Pahaniaila tells why the death penalty is torture for relatives of the executed, about the "right to kill" and the subjectivity of judges.
Why aren't the bodies of the executed issued to their relatives in Belarus?
The origins of the law, according to which the relatives aren't issued the body of the executed and aren't informed about the place of burial, can be traced to the Soviet period. Thus, the state agencies try to conceal the date of execution and the place of burial. This is explained by the wish to avoid desecration of the bodies of the people who committed serious crimes. Of course, such practice cannot be considered as normal. The UN Committee has repeatedly stated that the procedure of the death penalty in Belarus has signs of torture and inhuman treatment in relation to the executed, as well as their relatives. The date of the execution is not announced. A convict stays on death row for a few months, which is a hard challenge for a human psyche. The convict doesn't know the time of the execution and how he can get ready to it, believers cannot always confess to the priests of their denominations. This is a violation of article 18 of the Covenant on Civil and Political Rights, “Freedom of religion and belief”. It is also torture and inhuman treatment with regard to the relatives, as under the current law the relatives have the right for thebody. The body must be issued in all cases. If it can not be hidden if it is found as a result of an offense, it must also be issued in the case of the death penalty, so that the relatives could observe the local national, ceremonial and religious traditions and visit the grave afterwards. Of course, a person could commit a crime and be sentenced to death, but how can we regard the non-issuance of the body? Is it an additional penalty for the relatives? Additional suffering? Even though the Republic of Belarus continues death executions, it is necessary to change the very procedure of the death penalty on the basis of our national traditions, taking into account the public opinion – to announce the date of execution to the convict and report this date to the relatives, issue them with the body for burying it where they need.
How can the problem of the possible desecration of the body be solved?
The relatives could bury the body secretly on their own in order to avoid possible abuse of the grave. However, in this case the parents, brothers and sisters could also visit it on special ritual days for ceremonies that are marked in the religious and folk calendars. For example, there is a specific day –Radunitsa, All Souls' Day, and we know that our citizens visit the cemeteries where their loved ones, relatives and friends are buried. They could also pay such visits to the graves of the executed. There is nothing wrong about it – it is a civilized solution. Then, another step could be taken - - the death penalty moratorium could be announced, and after it the death penalty could be abolished under the law. Such a sequence would witness that Belarus is ready to follow the civilized world and understand that the death penalty is a temporary measure, and was included as such in our Constitution and Criminal Code. It's time to revise the law on the death penalty and take steps to gradually eliminate it from practice.
What are the alternatives to execution?
Talking about the death penalty in Belarus, I should also remind that since 1998 Belarus has also used life sentence as an exceptional punishment alternative to the death penalty. But this law does not set criteria under which we can clearly define when one should use capital punishment or life punishment, which certainly creates difficulties for judges. It also introduces a certain share of subjectivity, personal attitude of the judge to the circumstances of the case and the personality of the defendant. I should remind you that when the legislature retained the death penalty as a temporary measure, it was provided that such cases would be considered by the jury. This is a more democratic form of judicial proceedings that takes into account a broader view of citizens, the twelve "angry" which decide one's fate. They should express their attitude and determine the verdict: "guilty" or "not guilty" and determine the scope of guilt. I am convinced that this form of trial, when the citizens of high moral authority are called to the criminal proceedings as jurors, would bring the humanistic idea, human relations and in some respects – the Christian attitude that people cannot be punished with death on behalf of the State... And jurisprudence itself would gradually eradicate the capital punishment. For instance, the jury say: "Yes, he is guilty, but deserves life imprisonment, not the death penalty". All of us are fully aware, and Metropolitan Filaret has spokenabout it: "The death penalty is another nail in the crucifixion of Christ". It is the sin of homicide, but committed on behalf of the State and in the form of revenge. Therefore, the subjectivity of the judge is accompanies the sentencing.
Where does the subjectivity stem from?
The public opinion is formed yet before the sentence, as it was in the case of Kanavalau and Kavaliou. When the head of the state said that only the most stringent measures should be used – he, in fact, issued the verdict which was to have been issued by the court. Press publications which violate the presumption of innocence, also do form the public opinion. All this affects the judge. He also lives in this reality, among the people, reads the same newspapers and watches the same TV. Of course, all of this somehow forms his inner convictions. He must be guided by the law and his inner convictions while making a sentence. It is impossible to eliminate subjectivity in judicial practice. However, an experienced and professionally courageous judge must abandon the public opinion and be guided by what has been found at court, where the evidence is studied according to the procedure, established by the Criminal Process Code. Only such great spiritual and professional work will help in rendering a fair verdict, which can be called lawful and justified.
Do you communicate with the judges who impose the death penalty? How do they feel after it?
Yes, of course, I used to be a judge myself. However, given the level of my court – People's court, such cases were beyond our powers. However, I managed to talk with the judges of the regional courts, Minsk City Court and the Supreme Court, I had many friends among the judiciary. We discussed especially high-profile cases, touched upon the subject of spiritual experiences, the burden assumedby the judge who imposes the death sentence. Believe me, the experience is very, very serious. It is a very heavy spiritual work, and it leaves a trail in the head and heart, and the physical condition... This is a hard work, but the judges are bound by the law. When the law allows the use of such an extreme punishment as the shooting, such sentences are issued in a number of cases. It is impossible to come to everyone and asks, and not every judge would agree to frankly speak of what thoughts he was guided by when determining the punishment. Each of the judges who make such judgments have personal attitude to the death penalty.
The interview was taken by Palina Stsepanenka for the campaign “Human Rights Defenders against Death Penalty in Belarus”