The death penalty in Russia. How would it threaten Ukrainians?

On March 22, a terrorist attack on the Crocus City Hall concert hall took place in the Russian capital. It was the second deadliest terrorist attack in Russian history – 143 people were killed and more than 170 injured. Only the attack on the school in Beslan on September 1-3, 2004, was worse in terms of victims.

There are many inconsistencies in the information concerning the attack on the Crocus City Hall released by the Russian authorities and security forces. As many times before, the Russian authorities are trying to use the terrorist attack for their benefit, in particular, to justify the war in Ukraine and to intensify repression in Russia.

Thus, a particularly active discussion started on March 25 and 26 of the possible return of the death penalty in Russia by representatives of the Russian authorities. More than ten State Duma and the Federation Council members spoke in favor of lifting the moratorium, and some official figures have already announced the launch of this procedure.

Discussions about the return of the death penalty in Russia have already happened before, usually after previous terrorist attacks and school shootings. However, they have never been so large-scale and specific.

Why hasn’t the death penalty been reintroduced earlier?

The current moratorium on the death penalty in Russia was adopted in 1999 as a prerequisite for joining the Council of Europe and ratifying many international conventions. For several years, this issue in Russia was in legal limbo: the moratorium was in effect, the courts did not order executions, but there was no legislative prohibition of the death penalty.

On November 19, 2009, the RF Constitutional Court ruled that no courts in Russia could pass death sentences without any exceptions. In 2012, Mikhail Fedotov, the head of the Presidential Council for Human Rights, clarified that the moratorium could now be lifted only by adopting an entirely new constitution. The same was repeatedly – last time in 2022 – confirmed by Valerii Zorkin, the head of the RF Constitutional Court.

A country that does not ban the death penalty cannot be a party to the European Convention on Human Rights and is not covered by the European Court of Human Rights jurisdiction.

Russia was far ahead of any Council of Europe state regarding the number of cases it lost, but it has systematically and blatantly failed to comply with ECHR rulings. But even this weak safeguard is not active now: on the second day of the full-scale invasion of Ukraine, Russia’s membership was suspended, and on March 16, 2022, it was expelled from the Council of Europe. After that, Russia announced the termination of all the Council of Europe’s agreements and conventions, including Protocol No. 6 on the prohibition of the death penalty.

While deciding the issue of reintroducing the death penalty, the Russian authorities, as in many other cases, are guided solely by their own political will, violating even their laws. On March 26, 2024, State Duma Speaker Volodin stated that “no referendums are needed” to lift the death penalty moratorium and that a decision of the RF Constitutional Court is sufficient. Representatives of all Russian parliamentary parties immediately spoke out unequivocally either in favor of the return of the death penalty or for the start of discussing the procedure of making this decision.

Pavel Chikov, a Russian human rights lawyer, satirizes how this procedure could work: “The President or the State Duma with the Federation Council send a request to the Constitutional Court stating that due to blah, blah, blah, a sharp increase in crime and the spread of pedophilia, as well as the most potent sanctions pressure, and because Russia is pursuing traditional values we ask to clarify whether we can restore the death penalty. And the chairman of the Constitutional Court, Valerii Dmytrovych Zorkin, gets together with his colleagues and says: ’Yes, indeed, we need to execute someone urgently.’"

Will Russia execute Ukrainian prisoners of war?

As early as 2016, the independent NGO Memorial Human Rights Center claimed that Russian law enforcement agencies and courts were using “terrorist” CC articles arbitrarily to prosecute their opponents. Over the following years, the situation only worsened. Russian courts have labeled the Ukrainian Right Sector, Azov Brigade, and Russian volunteer groups on the territory of Ukraine as “terrorist organizations.” At least seven organizations on the list of terrorist organizations on the FSB (Russian Security Service) website are described as having ties to Ukraine.

Of particular concern is the fact that after the full-scale invasion, the Russian authorities are actively using “terrorist” articles of the Russian Criminal Code against Ukrainian prisoners of war. This is especially evident in the case of the defenders of Mariupol, many of whom are still being held in captivity and abused. For example, on June 14, 2023, the trial of 22 Azov Brigade prisoners of war began in Rostov-on-Don. Another group of 24 Azov prisoners of war was similarly accused of “participation in a terrorist organization.”

It is not known precisely how many Ukrainian prisoners of war have been charged with terrorism, but it is likely many hundreds or even several thousand prisoners.

In the occupied territory, every Ukrainian becomes a “terrorist”

Since 2014, Russians have regularly detained and convicted Ukrainian civilians in the occupied territories, charging them with “terrorism.”

One of the most famous cases is the persecution of Oleh Sentsov and Oleksandr Kolchenko. They were sentenced to 20 and 10 years in prison without any evidence. Dozens of international human rights organizations have recognized these men as political prisoners and the charges as fabricated.

Russian special services and courts also actively use charges of alleged terrorism against Crimean Tatars and other Crimean residents.

After the start of the full-scale invasion, the situation with arbitrary detentions of Ukrainian citizens in the occupied territories has only worsened. In September 2023, the Russian Security Council stated that 256 terrorist crimes had been “prevented” in Russia since the beginning of the invasion of Ukraine. In 2022 alone, Russian intelligence services reported 47 “counterterrorism operations,” most of which allegedly involved “Ukrainian nationalists” and the SBU.

A law that is used retroactively

Non-retroactivity of law is one of the most basic legal principles. It means that if a new law introduces or increases the penalty for a crime, it applies only to those criminals who committed the crime after the law came into force. If, on March 1, a law was passed criminalizing the use of red color in clothing, then a person cannot be detained for walking around in a red jacket in February.

However, this principle has been violated in Russia on several occasions. In 2021, the Russian State Duma banned people convicted of “extremist” crimes from participating in elections. This prohibition also applies to the so-called “likes and reposts” cases. Restrictions have also begun to apply to those convicted before the corresponding law was passed.

It cost nothing for the Russian authorities to decide that after the return of the death penalty, it will expand to those who were accused of “terrorism” earlier. They are already threatening to do so directly. The head of the Security Council, Dmitry Medvedev, said that those suspected of the March 22 terrorist attack would be killed.

"It is unclear whether the death penalty, if it will be returned, will be applied to crimes committed before the moratorium was lifted. In the current system, everything that happens to the law is generally very difficult to analyze purely legally,” says Olha Podoplielova, a lawyer specializing in Russian constitutional law.

It is already clear that the return of the death penalty in Russia in any form could pose a significant threat to Ukrainian citizens. If the Russian side starts blackmailing Ukraine by executing Ukrainians who have been sentenced to death, it could significantly complicate the process of exchanging prisoners of war.