4. CAPITAL PUNISHMENT IN THE OSCE REGION|
In 1998 and the first six months of 1999, the trend towards abolition of the death penalty within the OSCE area remained unbroken. While at the end of 1997 the legal codes of 22 participating States still provided for capital punishment, by the end of the period under review this number had dropped to 15.
As of 30 June 1999, Albania, Armenia, Belarus, Bosnia-Herzegovina, Kazakhstan, Kyrgyzstan, Latvia, Malta, the Russian Federation, Tajikistan, Turkey, Turkmenistan, Ukraine, the United States of America, and Uzbekistan had not completely abolished the death penalty. In addition, capital punishment also remains in force in a number of separatist, internationally unrecognized entities, namely Abkhazia and South-Ossetia (both within Georgia), Chechnya (within the Russian Federation), Nagorno-Karabakh (within Azerbaijan), and Transdniestria (within Moldova).
Seven participating States removed the death penalty entirely from their statute books during the period under review: Azerbaijan, Bulgaria, Canada, Cyprus, Estonia, Lithuania, and the United Kingdom. Thus, the total number of abolitionist participating States had reached 39 by June 1999.
In April 1999 Latvia de facto abolished the death penalty for ordinary crimes by ratifying Protocol No. 6 to the ECHR. Malta, which ratified Protocol No. 6 of the ECHR in 1991, retains the death penalty for military crimes in times of war. In Bosnia-Herzegovina, one of the two entities, the Federation of Bosnia and Herzegovina, abolished the death penalty in 1998, but the other entity, Republika Srpska, retains the death penalty for a range of peactime and wartime offences, albeit there exists a de facto moratorium on the passing of death sentences. Official or unofficial moratoria have been introduced by Albania (1995), Armenia (1991), the Russian Federation (1996), Turkey (1984) Ukraine (1997), and recently by Kyrgyzstan and Turkmenistan (December 1998).
Executions are confirmed to have taken place in at least four participating States: Belarus, Chechnya (within the Russian Federation), Kyrgyzstan17 and the United States of America. Tajikistan, Turkmenistan18, and Uzbekistan are believed to have carried out the death penalty, although no officially confirmed information was available. In Kazakhstan, which also retains the death penalty, no executions were reported officially or unofficially.
The Penal Code of Albania, in force since 1995, foresees capital punishment for 13 offences, including genocide and crimes against humanity, aggravated homicide, kidnapping, robbery inflicting death, attempted murder, and terrorism. Women and juvenile offenders under 18 years of age at the time of the crime are excluded from capital punishment. The new Constitution, adopted by referendum on 22 November 1998, does not explicitly mention the question of capital punishment. However, the Venice Commission under the Council of Europe concluded in a report adopted on 22 and 23 March 1999 that in the light of the Constitution as a whole and Albania's international commitments, the death penalty is inconsistent with the new Constitution19.
A three-year moratorium on executions was introduced in May 1995. Although it has not been officially extended following its expiry, a de facto moratorium based on the competence of the Supreme Court and the President to commute death sentences into life imprisonment seems to have remained in place20. The violent events of late 1997 and a significant rise in the crime rate, however, have led a number of leading political figures, including Prime Minister Pandeli Majko, to suggest that the death penalty should be applied again as a deterrent to increasing criminality. These tendencies aimed at lifting the moratorium appear to enjoy widespread public support21.
Albania has neither signed nor ratified Protocol No. 6 to the ECHR. The deadline to which Albania agreed on accession to the Council of Europe in 1995 expired on 13 July 199822. Commenting on the inclination of Albania to revert to the use of the death penalty, the Bureau of the Council of Europe Parliamentary Assembly warned that any step back from the commitment to abolish the death penalty and ratify Protocol No. 6 "would have serious consequences for Albania's membership of the Council of Europe"23.
According to official data, Albanian courts have passed 11 death sentences during 1998 and the first half of 1999. As of 30 June 1999, ten prisoners were on death row. No execution has been carried out since May 199524.
Thirteen offences carry a possible death sentence under the present Criminal Code of Armenia which has been in force, as amended, since 1961, including, inter alia, treason, espionage, terrorist acts, sabotage, crimes against the State, banditry, forgery or circulation of false money or securities, aggravated murder or rape, hijacking, and bribe taking. The military section of the Criminal Code provides for an additional 16 capital crimes in times of war. The death penalty may not be imposed on persons below 18 years of age at the time of the crime, on pregnant women, or the insane25.
Although Armenia announced at the October 1998 UN Human Rights Committee hearings that a new Criminal Code completely abolishing the death penalty would come into force by 1 January 1999, the draft is still awaiting its final reading in Parliament. Due to the interruption of the legislative process by the Parliamentary elections in May 1999, the final reading is not expected to be put on the agenda before autumn 1999.
While death sentences are still handed down regularly by Armenian courts, there is a de facto moratorium on executions in place, based on the President's constitutional authority to exercise pardon. According to official information, no executions have been carried out since 199126. Twenty-eight prisoners are currently on death row27.
On 10 February 1998, the Parliament of Azerbaijan adopted a bill abolishing the death penalty, following an initiative by President Aliyev. One death sentence was passed before the relevant law came into force on 21 February 1998, bringing the total number of persons on death row to 128. However, all death sentences were commuted to long-term imprisonment after the abolition of capital punishment in February28.
The death penalty remains in force in the internationally unrecognized separatist enclave of Nagorno-Karabakh, and courts reportedly hand down death sentences. There are, however, no indications that executions are carried out29.
Capital punishment is actively used in Belarus. The Criminal Code of Belarus provides for the death penalty for a wide range of crimes, namely treason, plotting to seize power, terrorism, sabotage, bombings that threaten public safety, undermining the work of a prison, premeditated murder, and aggravated rape30.
In 1998, 47 death sentences were passed by Belarusian courts31. At least 84 people were reported to be under sentence of death as of October 1998. No one on death row was pardoned32. Official information about executions is not available as the death penalty - in violation of paragraph 17.8 of the Copenhagen Document - is regarded as a state secret in Belarus. However, the Deputy Procurator General was reported to have said that 33 people were executed between January and August 1998 alone33.
The secrecy surrounding capital punishment also extends to execution procedures. Relatives are not informed of the date of the execution, hence they do not have an opportunity for a last meeting before the execution. The body is not returned to the family, and the place of burial remains unknown34. There are numerous allegations of serious irregularities during the investigations and legal proceedings in cases that have resulted in death verdicts and executions. These allegations include forced confession under torture, lack of conclusive evidence, and denial of the right to legal defence35.
4.5 Bosnia and Herzegovina
There is no provision with regard to the death penalty at state level as criminal legislation belongs to the competence of the two entities, the Republika Srpska and the Federation of Bosnia and Herzegovina.
According to the Criminal Code of the Republika Srpska (RS), a wide range of peacetime and wartime offences may be punished with the death penalty, including murder, robbery, international terrorism, hijacking of an aircraft, assassination of a representative of high State authorities, acknowledging capitulation and occupation, as well as numerous other war-related crimes. Furthermore, the death penalty may be imposed for a large number of ordinary offences if committed in time of war or when the danger of war is imminent.
There is no official moratorium in place, but the Supreme Court of the RS has issued a decision whereby the death penalty was amended to 20 years of imprisonment to be consistent with the ECHR. Although this decision is not binding for the lower courts, it apparently has been complied with so far. Courts have not passed any death sentences during the period under review. However, two prisoners still remained on death row as of 30 June 199936.
In the Federation, the death penalty was abolished with the coming into force of a new Criminal Code in November 1998, which replaced capital punishment with extended prison terms. Even before the abolition, no death sentences were imposed by Federation courts during the period under review, and no one was on death row after the Human Rights Chamber ordered commutation of two pending death sentences into life imprisonment37.
Georgia abolished the death penalty in 1997 and signed (but has not yet ratified) Protocol No. 6 to the ECHR in June 1999 following its accession to the Council of Europe. Capital punishment has remained, however, in the statute books of the two separatist, internationally unrecognized entities of Abkhazia and South Ossetia.
Under the Criminal Code of the Georgian Soviet Socialist Republic which is still in force in Abkhazia, the death penalty can be applied to a long list of peacetime and wartime offences, including economic crimes. A moratorium is in effect, and there is an ongoing, if very limited, discussion on diminishing the number of crimes carrying the death penalty.
According to the Chairman of the AbkhazCommittee on Human Rights, no death sentences have been passed and no executions have been carried out in 1998/99. There are, however, still ten people under sentence of death, five of whom have escaped from prison and are now wanted38.
In South Ossetia the Criminal Code of the neighbouring Russian Federation is in use. Thus, courts may pass death sentences for five crimes (aggravated murder, attempt on the life of a state or public leader, attempt on the life of persons implementing jurisprudence of preliminary investigation, attempt on the life of an associate of a law enforcement agency, and genocide). There seems to be an unofficial moratorium on death sentences and executions in place, which apparently has been complied with during the years South Ossetia has not been under Georgian Government control.
With the coming into force of the new Criminal Code of Kazakhstan on 1 January 1998, the scope of capital punishment was reduced from 18 to three peacetime crimes (premeditated and aggravated murder, genocide and sabotage). The death penalty also applies to treason in time of war as well as to eight military crimes. There is no moratorium on executions in place. It is planned to introduce life imprisonment as an alternative to capital punishment by 2003, but President Nazarbayev has reportedly stated that if international aid for the construction of suitable prisons were made available, this date could be brought forward39.
No executions were reported, but at least one person was sentenced to death during 199840. In violation of paragraph 17.8 of the Copenhagen Document, Kazakhstan does not disclose statistics on capital punishment.
The new Criminal Code of Kyrgyzstan which has been in force since 1 January 1998 allows the application of the death penalty in connection with five offences: terrorism, murder, aggravated crimes, rape, and state treason. A two-year moratorium on executions was introduced by a presidential decree signed on 5 December 1998. The decree became effective on 8 December 199841.
According to the First Deputy Chairman of the Supreme Court of Kyrgyzstan, 55 men were sentenced to death in 1998, another five death verdicts were passed during the first six months of 1999. Seven executions were carried out in 1998 before the moratorium came into force. Two death row prisoners died while in medical care42.
The Latvian Parliament ratified Protocol No. 6 to the ECHR on 15 April 1999, thus abolishing the death penalty for all peacetime offences with effect from 1 June 1999. Although national legislation has not yet been amended accordingly, the ECHR has a higher legal status and thus makes Latvia an abolitionist country at least with regard to crimes committed in times of peace43.
The death penalty has been abolished for all peacetime offences. It can only be imposed for military crimes in time of war. Malta signed and ratified Protocol No. 6 to the ECHR in 199144.
While Moldova removed the death penalty from its statute books in 1995, capital punishment remained in force in the internationally unrecognized separatist entity of Transdniestria. The Criminal Code of the Moldavian Soviet Socialist Republic, which is still in operation in Transdniestria, provides for the death penalty for state crimes, premeditated murder under aggravating circumstances, rape with grave consequences, rape of a juvenile under 14 years of age, attempt on the life of a member of the militia, and for grave military crimes. Capital punishment may not be imposed on women and persons below 18 years of age at the time of the crime. Although no official moratorium is in place46, death sentences are not carried out in Transdniestria. In connection with the preparation of a new Criminal Code, the abolition of the death penalty is currently being discussed in the Supreme Soviet.
According to information received from the Prosecutor of Transdniestria, no death sentences were passed in 1998 or during the first six months of 1999. As of 30 June 1999, two prisoners were on death row. One of them, Ilya Ilascu, was sentenced to death by the Judicial Board of the Supreme Court of Transdniestria in 1993 for terrorism and a number of other crimes following a trial that reportedly was politically motivated and failed to meet international standards. The case is currently being examined by the European Court of Human Rights47.
4.12 Russian Federation
The 1997 Criminal Code of the Russian Federation foresees capital punishment for five crimes: aggravated murder, attempt on the life of a state or public leader, attempt on the life of persons implementing jurisprudence of preliminary investigation, attempt on the life of an associate of a law enforcement agency, and genocide. Women, persons who were below 18 years of age at the time of the crime, and men who had reached the age of 65 at the time of sentencing are exempted from the death penalty48.
A moratorium on executions has been in force since August 1996. It is based on a presidential decree. In 1998 the State Duma rejected legislation that would have enshrined the moratorium into law for a three-year period. On 2 February 1999, the Constitutional Court imposed an additional de facto moratorium on the passing of death sentences by its decision to generally prohibit capital punishment verdicts in the Russian Federation until all citizens can be granted the right to jury trials - a process that could take years as to date jury trials are available only in nine out of the Federation's 89 republics, regions and territories49.
Upon accession to the Council of Europe in 1996, the Russian Federation undertook to abolish the death penalty and ratify Protocol No. 6 to the ECHR within three years. While this deadline expired on 28 February 1999, the Russian Federation has still neither formally abolished the death penalty nor ratified Protocol No. 6. Although draft laws on the introduction of a moratorium, the abolition of the death penalty and the ratification of Protocol No. 6 have been under preparation or already put before the Parliament, all initiatives in this regard have been blocked by the State Duma so far50.
According to official information, 67 persons were sentenced to death during the first six months of 1998. As of February 1999, about 900 prisoners were under sentence of death51. On 3 June 1999, however, President Yeltsin signed a decree commuting the death sentence of all convicts on death row into either life sentences or 25-year prison terms52.
Notwithstanding the recent developments in the Russian Federation towards a de facto abolition of the death penalty, executions have continued to be carried out in Chechnya. The Supreme Shari'a Court imposes the death penalty for various offences, including murder, kidnapping, and drug-related crimes. At least one person was executed in 1998. According to the Chechen presidential press service, 11 persons were executed during the first six months of 1999 for drug trafficking alone53. The total number of executions is not known.
The new Criminal Code of Tajikistan, in force since 1 September 1998, reduces the number of crimes carrying a possible death sentence from 44 to 15, including murder, rape, terrorism, hijacking, drug trafficking and illegal cultivation of forbidden crops containing narcotic substances. Death sentences can be commuted to 25 years' imprisonment. Pregnant women and persons below 18 years of age at the time of the crime are excluded from capital punishment54.
At least 24 persons were sentenced to death in 1998, another six during the first six months of 199955. While, in violation of paragraph 17.8 of the Copenhagen Document, no official information on executions is available, there are credible reports of at least two persons being executed in late 1998 and early 1999. Abdulkhafiz Abdullayev, the brother of a former Prime Minister active in the political opposition, was sentenced to death together with five co-defendants for his alleged involvement in the attempt to assassinate President Rakhmonov in April 1997. According to international observers, several witnesses had been forced under duress to incriminate Abdulkhafiz Abdullayev. He was reportedly shot in November 1998. Bakhrom Sadirov, who had been found guilty of the February 1997 hostage-taking of several United Nations observers, was allegedly executed in January 199956.
A number of other trials, several of them with a political background, have resulted in death verdicts, including the case of three United Tajik Opposition (UTO) members who were sentenced to death in March 1999 for their alleged involvement in the killing of four United Nations employees in July 1998, and the trial against two prominent opposition figures, former high officials of Khalton province Sherali Mirzoyev and Kosym Babayev, who were found guilty in June 1999 of having participated in the 1997 coup attempt led by Colonel Makhmud Khudoberdiyev57.
According to the Turkish statute books, capital punishment may be imposed for a broad range of 21 crimes. The Penal Code provides for the death penalty for nine offences, namely crimes against the territorial integrity of the State, collaboration with a State at war with Turkey, espionage, attempts to overthrow the existing constitutional system by force, armed rebellion against the government, preventing the Cabinet from performing its functions, inciting the people to revolt and kill one another, attempting to assassinate the President, and aggravated homicide. Other offences that carry the death penalty are included in the Military Criminal Code, the Law on the Prohibition and Prosecution of Smuggling, and the Law on Forestry. Pregnant women sentenced to death may not be executed before they have given birth. Mentally ill persons may not be executed before they have recovered. The Bill on a new Penal Code currently being examined by the Grand National Assembly no longer includes capital punishment58.
A de facto moratorium on executions has been in force since 1984, as the Grand National Assembly has not voted on any death sentences brought before it for ratification. However, following the verdict in the trial against Kurdish Workers Party leader Abdullah Öcalan who was sentenced to death on 29 June 1999 it is not clear whether this practice will be further maintained.
At least 21 death sentences were handed down by Turkish civil and military courts in 1998, nine more were recorded during the first six months of 199959. According to official information, there were 40 prisoners under sentence of death in Turkish prisons as of 1 January 199960.
The Criminal Code of Turkmenistan, adopted in June 1997, provides for the death penalty for 17 offences, including murder, genocide and various anti-state and drug-related crimes61. A moratorium on executions has been in force since 1 January 1999. According to Foreign Minister Boris Shikhmuradov, who announced the moratorium at the OSCE Ministerial Council in Oslo on 3 December 1998, national legislation will be subsequently amended to "radically reduce the number of laws providing for capital punishment"62. Various high-ranking officials, including President Saparmyrat Niyazov, have told foreign visitors that they expect the People's Assembly (Halk Maslahaty) to formally abolish the death penalty at its annual meeting in December 199963.
Before the moratorium came into force on 1 January 1999, the death penalty was thought to be widely applied in Turkmenistan, very often in drug-related cases. No official statistics are available however as, in violation of paragraph 17.8 of the Copenhagen Document, the death penalty has been classified as a state secret. Executions were reported to be often carried out promptly following the court's decision, with only a perfunctory appeal and clemency process64. Courts are eligible to continue to pass death sentences, but no executions have been reported since the moratorium entered into force.
Five articles of the Ukrainian Criminal Code provide for the death penalty. It may be imposed for attempted murder of a politician or a foreign State representative, misappropriation, aggravated murder, and attempted murder of a judge or an employee of the legal authorities in the performance of his or her duties. Another 18 offences are punishable by the death penalty during times of war. The death penalty cannot be passed on persons under 18 years of age at the time of the crime or on pregnant women65.
A new draft Criminal Code, replacing the death penalty in peacetime by imprisonment for life, was passed in the first reading by Parliament in September 1998. A final decision, however, was still pending as of the end of June 1999. Referring to widespread public support for the death penalty, linked in particular to the case of the serial killer Anatoly Onuprienku, the Parliament has so far rejected any legislation abolishing capital punishment. It has been encouraged by several public statements in favour of retaining the death penalty, made by high-ranking officials and State representatives, including President Leonid Kuchma.
While a de facto moratorium on executions was introduced by President Kuchma in March 1997, Ukraine did not ratify Protocol No. 6 to the European Convention on Human Rights, as it had committed itself to do on accession to the Council of Europe in 1995. The deadline for ratification set by the Council of Europe expired in November 1998. Subsequently, the Parliamentary Assembly of the Council of Europe warned Ukraine that it would commence the procedure for the annulment of the credentials of the Ukrainian delegation if substantial progress concerning the abolition of the death penalty and some other fields were not made by 21 June 1998. On 24 June 1999, however, this deadline was extended to the next session of the Parliamentary Assembly in January 200066.
According to the Chairman of the Supreme Court, 146 people were sentenced to death in 1998. Within the same time period, the Supreme Court cancelled three death sentences passed by regional and military courts, and commuted 13 to long term imprisonment67. As of 1 January 1999, 388 persons sentenced to death were being held in prison68. No executions were reported during 1998 and the first six months of 1999.
4.17 United States of America
As of June 1999, legal provisions allowing for the use of the death penalty existed in 38 states as well as under federal and military law69. The scope of the death penalty legislation varies from state to state. In fourteen states capital punishment may not be imposed for crimes committed by individuals less than 18 years old. The remaining 22 non-abolitionist states have either no minimum age or a minimum less than 18 years, thus making the USA the only OSCE participating State retaining the death penalty for crimes committed by persons under 18. Twenty-six states do not forbid the execution of mentally retarded offenders.
Sixty-eight persons were executed in 1998, another 53 during the first six months of 1999, bringing the total number of executions to 553 since the reintroduction of the death penalty in 1976. As of 1 April 1999, 3,565 prisoners were on death row, including 74 for crimes committed before reaching the age of 18.
Four offenders were executed during 1998 and the first six months of 1999 for crimes committed before they reached age 18. Article 6(5) of the ICCPR explicitly prohibits the imposition of the death penalty for crimes committed by persons below 18 years of age. The United States ratified the ICCPR in 1992, but entered a reservation on this clause. However, the legitimacy of this reservation is widely questioned. The UN Human Rights Committee, for instance, deplored the practice of imposing the death penalty on persons who were younger than 18 years when committing the crime. It called upon the USA to withdraw the reservation to Article 6(5), and to take appropriate steps to ensure that persons are not sentenced to death for crimes committed before they were 1870. This view was shared by the UN Special Rapporteur on extrajudicial and summary or arbitrary executions in the 1998 report on the use of the death penalty in the USA, which stated that the US practice of imposing the death penalty on those under 18 at the time of the crime was a "very serious and disturbing practice that inherently conflicts with the prevailing international concesus"71.
Among those executed in 1998 and the first half of 1999 were seven foreign nationals who, in violation of Article 36 of the Vienna Convention on Consular Relations, had not been notified by the authorities after arrest of their right to communicate with their consular representatives72. In one case, the execution was carried out despite an order by the International Court of Justice that the execution be suspended73.
The death penalty remains in active use in Uzbekistan. Following a decision by the Uzbek Parliament in August 1998 to reduce the scope of the death penalty and remove it as a punishment for five offences, the Criminal Code now contains eight crimes that are subject to capital punishment: aggravated murder, rape of a female aged under 14 years, waging aggressive war, genocide, terrorism involving death or serious injury, treason, organizing a criminal conspiracy and illegal sale of large quantities of narcotics. The death penalty may not be applied to women or persons under 18 years of age at the time of committing the crime74.
At least 10 persons were sentenced to death in 1998. Other death sentences were believed to have been passed and carried out. At least one death sentence was handed down during trials against alleged "Wahhabi" Islamic extremists accused of being responsible for the murders in the Fergana Valley in 1997. During the first six months of 1999 at least six men were sentenced to death, all of them were found guilty of having organized the bombings in the capital, Tashkent, on 16 February 199975. According to international observers, the trial proceedings were not in conformity with international standards76. In violation of paragraph 17.8 of the Copenhagen Document, no official information on the death penalty is available in Uzbekistan.