24.04.2008 | Halya Coynash

Conflicting interests


When the Minister of Internal Affairs first expressed his support a few days ago for the reinstatement of the death penalty, I was extremely disappointed, but no more. He had not muddled his pronouns, after all, was speaking only for himself, not for his party. He suggested no specific measures, nor plans to overthrow the Constitutional Court, which has declared the death penalty to be against the Constitution.  

On Tuesday, he brought up the subject himself and his address was passed on by his political faction. The remarks remain his own, seemingly not the party’s manifesto, however it is difficult to feel them to be quite so innocent, and not only because this is the second time in a week.

Not just any week …

The pre-election campaign for the pre-term elections in Kyiv has just begun, and Yury Lutsenko is standing for office as deputy of the City Council.  Among the criticisms levelled by both Ukrainian and foreign observers at the pre-term elections in 2007 and the campaigning for them was the failure by many public officials to clearly separate their official duties and their support for a particular faction.

Lutsenko was speaking as Minister of Internal Affairs, or so the “National Self-Defence” press service presented the situation.  The risk remains, however, of overload. Not only for the minister-candidate himself, but for us as we endeavour to understand whose words we are hearing. And there is a considerable difference when we are talking about capital punishment. After all, a candidate hoping to take his illustrious seat in the City Council can suggest resettling murderers on the Moon if he likes. That will influence (I hope!) the number of votes he or his party gains, but hardly much else.

The question, after all, inevitably arises as to whether in fact he is carrying out his normal duties. Twice in one week he makes a statement about the death penalty.  This view would appear to be at variance with the view of the vast majority of his colleagues since a recent draft law proposed by the Communist Party to reinstate the death penalty, gained a pathetic 49 votes. The Verkhovna Rada was at least on this occasion in full accord with Ukraine’s highest judicial body, the Constitutional Court, and in compliance with its international commitments.

It was therefore a serious statement (duplicated!) from the Minister- City Council candidate. It is a view that he is entitled to hold, of course, along with many other views which we find unpalatable.  The voters are also entitled to make their decisions about candidates, or political factions and how their views best correspond to their own, and to their aspirations for Ukraine’s future.

It is difficult not to suspect that Lutsenko was pitching his remarks at certain voters whose idea of “justice” tends to be rather uncompromising and seriously simplistic.  This is the case in most countries, although when it comes to the vote, they do not reinstate the death penalty.  If Lutsenko is playing a populist card, the game is a dangerous one and could seriously backfire.

It would also be helpful if he clarified what he is in fact suggesting, if anything. Last week it all seemed clear enough, if vague.  He supports, apparently, the death penalty for the most serious crimes against a person.  Obviously one would have to clarify which crimes against a person would not be serious enough. However these are details, the point is clear enough.

This cannot be said for the disturbingly muddled views expressed in Tuesday’s address.  The report initially made public by his party says that “Yury Lutsenko is convinced that it is necessary to reinstate the death penalty in Ukraine with deferment for 10 years.

“During this period (10 years), the person sentenced to death will have the possibility to appeal against the court ruling at all levels envisaged by legislation”, the Minister explained.”

Now NO execution can be carried out until all possible forms of appeal and all other avenues have been tried. Ten years should not be required for this.

Even with the backlog of cases at the European Court of Human Rights, it is highly likely that the person on a reinstated death row would win at least one claim against the Ukrainian government because of the conditions in Ukrainian penal institutions which remain appalling.

Nonetheless, Strasbourg could not overturn the actual verdict, unless there had been a miscarriage of justice. 

Perhaps Lutsenko is subconsciously thinking of the other cases already won, and those presently awaiting review at the European Court of Human Rights. I am thinking of the cases over violations of Article 3 of the European Convention on Human Rights – the prohibition of torture.  It is well-documented that all too many law enforcement officers in Ukraine still regard a confession as being the best “evidence” to present the courts.  Torture forces many people to confess to anything demanded.  The criminal investigation unit’s records may look wonderful (90% success rate and higher), but the cause of justice is not served, and nor can it be said is Ukraine’s reputation.

 “Lutsenko justified his position on the grounds that at present “one out of three crimes is committed by people previously convicted, and in two out of four crimes there are two or more victims.”

The most baffling words in this sentence are the first.  How can Lutskenko possibly think that information about repeat offenders justifies the use of the death penalty for the perpetrators of the gravest crimes against the individual? The criminals Lutsenko wishes to reinstate the death penalty for, if caught, are not released in order to offend again. This is so clear that one could take offence: what kind of idiots does he take us for?

“The Minister is convinced that the introduction of the death penalty will definitely lead to a reduction in the number of crimes in Ukraine. “The criminal must know that there is a higher court on this earth also”.

Yury Vitalyovych is well aware that this is not a matter of conviction, but of statistical research.  The latter has been carried out and provides no evidence whatsoever that the crime rate in any country has been reduced by the death penalty.  As the Ukrainian Helsinki Human Rights Union stated on 22 April, “the number of murders over the last eleven years since executions were stopped has not increased with the figure remaining around 200 a year”

The issue is not one of numbers alone. The problems in the law enforcement agencies and the courts remain acute.  There are far too many mistakes made, and if Lutsenko believes that a 10 year deferment would insure about such miscarriages, he is badly mistaken.

In 1975 in England Stefan Kiszko was convicted of the rape and murder of an eleven-year-old girl. Do you feel rage and hatred rising?  So do I.  But wait: Mr Kiszko was released having spent 16 years in prison, after DNA proved that he had not committed the crime. To check Kiszko’s name, I typed in a couple of words on a search machine. It turned out that such cases, particularly in the USA, are legion. In January this year a man was released in Texas after serving 27 years of an 89 year sentence for rape. Once again thanks to DNA, the case against him collapsed.

I would ask Yury Vitalyovych and all those calling for the reinstatement of the death penalty to just type in the following words on Google: DNA, wrongful, prison.  Or try torture and confession. You’ll read enough arguments to last a lifetime.

The likelihood of miscarriages of justice is unacceptably high making any suggestion of reintroducing capital punishment simply outrageous. Such a step would place Ukraine’s European choice in question. It would raise not only eyebrows but also questions among those democratic voters who might otherwise have felt justified in supporting certain political forces.  

Cheap populism gives very short-term gain, and it is to be hoped that Lutsenko and his colleagues have the longer term interests of Ukraine at heart.

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