war crimes in Ukraine

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Shall we cancel the death penalty?

Inna Zakharova, Kharkov
A sly trick, the so-called moratorium on execution of death verdicts, was introduced in Ukraine by the will of the President, who managed in this way to meet the demand of the Council of Europe notwithstanding the position of the majority of MPs and the population. Thus we have not an actual law: the President just suspended the juridical procedure, having refused after 29 November 1996 to consider the requests of mercy. It follows from here that the death penalty cannot be executed. This decision satisfies no one. It is clear why it does not satisfy supporters of the death penalty. But I, a convinced enemy of the capital punishment, also feel dissatisfaction. One reason is that hundreds of the sentenced to death, whose requests of mercy are not considered for years, feel dire psychological torture that cannot be imagined. The second reason concerns the life conditions in our prisons, but the most painful is the unreadiness of the Ukrainian society to solve this problem in its essence. All supporters of the death penalty refer to this unreadiness. A statistical citizen votes for the death penalty, but if it is banned, then, I am sure, crowds of citizens would not revolt in the streets. The public in any developed country become reconciled to the ban of the death penalty many years later after the ban, when citizens see that the ban has not changed the criminal situation in the country. The ban of the death penalty in the beginning is always the will of the political and intellectual elite. The unreadiness of our intellectual elite to ban the death penalty is the most distressing circumstance. Infrequent and inefficient attempts of some public organizations, journalists or public figures to discuss the topic cannot break the dense resistance, which is felt almost physically. Mass media much more often air the popular arguments against the ban of the death penalty. And I am not surprised to came across an article in my favorite newspaper ‘Den’, which is a very clever defense of the death penalty in Ukraine. The more so that the fact which is described in the newspaper does not favor abstract philosophical and juridical discussions. They write about the trial of a maniac who killed 52 innocent people, one millionth of the total Ukrainian population.

Certainly, the relatives of the victims cannot agree with the abolition of the death penalty, the very idea seems to them sacrilegious. The reader may feel the same emotions, because it is natural to sympathize with victims. But journalists must think more soberly. I have a question to them: if they interviewed relatives of those who perished because of medical mistakes, what would the relatives propose to do with those who caused, due to their negligence or ignorance, death to their dear ones? I met such relatives and they said: such doctors must be put before a firing squad. Nonetheless, the society does not introduce the death penalty even for brazen ignorance of a medical doctor. A relative is under emotions, which is natural. We must sympathize with him, but we must not follow his wishes too literally. When a journalist uses such emotions for discussing some juridical or philosophical problem, he uses a sleight-of-hand.

Once I participated in a TV round table dedicated to the discussion of the death penalty, and one of my opponents, a prosecutor, asked me what would I do with the person who would attempt to kill my child. I answered that I would tear him into pieces. But we spoke not about myself, or any other individual, but about the society. We discussed not a personal revenge, but the death penalty, that is a certain social institution. This difference must be clearly understood. When President Kuchma says that, as a human person, he would kill the murderer of 52 citizens of Ukraine, I sympathize with him. This is a typical case when the individual and the state reaction on a situation may not coincide. Until the death penalty is contained in the Penal Code of Ukraine, the serial maniac Onoprienko, if proved guilty, even in a part of his crimes, will not avoid the capital punishment. Another question is will this verdict be executed. I seldom praise our executive power, but the moratorium on executions of the death penalty is the undoubtful accomplishment of the President. We, opponents of the death penalty, have difficulties in convincing the society since usually the logical arguments are replaced with emotions and examples. It was so in other countries where this problem was discussed.

I believe that we need another approach to this problem. This is not a political and not a juridical question, it is a culturological question in the full sense of the word. Let us try to go out from this circulus viciosusand sum up the main arguments pro and contra.

Arguments of opponents of death penalty

Counterarguments of supporters of death penalty

1. The death penalty does not decrease the number of murders, which is confirmed by statistics of all countries. Moreover, the abolishment of the death penalty does not correlate with the number of the gravest crimes (references to statistical data gathered during decades).

1. The abolishment of the death penalty under the existing abnormal economic conditions resulting in the growing rate of crimes will destroy the last of restraining factors (references to killers who commit crimes after a sober account of all pros and contras).

2. The state has no right to apply the capital punishment, since the courts very often make mistakes, so the state can cause the death of innocent people.

2. One must perfect the courts in order to avoid mistakes. The death penalty is applied to extremely dangerous recidivists, who are practically incorrigible.

3. Instead of the death penalty one must introduce the incarceration for life, which can be applied more widely than the death penalty. So the society will be better protected from incorrigible recidivists, since the death penalty is applied less frequently than grave crimes are committed.

3. The upkeep of prisoners for life is too expensive. We cannot afford this sort of money.

4. The death penalty presupposes the existence of executors, legal killers, which is amoral and harmful for the public morals.

4. The fair retribution may not be amoral. If the death penalty is abolished, it will provoke citizens to lynch the criminal.

Objectively speaking, the arguments and counterarguments seem to be equal in strength. The solution is defined by psychological preferences. Personally for me argument 2 is psychologically insurmountable. Two innocent people were shot in the Chikatillo case and three more were shot in the case of Mozyr maniac in Belorus. I am sure that this is a serial state murder, which is possible under a completely perfect system of legislation. I understand my opponents who affirm that such errors are very infrequent, especially under an efficient Western court system. In contrast to me they consider that the court system can be made more perfect, and thus the problem will be abolished.

However, regardless of the equivalence or not equivalence of the arguments and the counterarguments, the problem has to be solved after the disintegration of the Soviet Union, because we are coming towards Europe and willy-nilly have to accept European values. In Europe there remained no countries (except some post-Communist ones) where the death penalty is retained. As to the USA, the most states have retained the death penalty, but a fierce fight is being carried for its abolishment. In the USA the retaining of the death penalty is explained by excessive democracy. We prefer to call it the will of the people. However, upon the whole, we see that the culturological dominant ousts the death penalty from Europe and presses it in the New World. The culturological dominant dictates the Western world a certain model of the social behavior. In the 18 thcentury Europeans, especially French, carried out fierce debates on public executions, including sophisticated ones. A century before debates started if torture may be applicable (we mean legally permitted procedures, not illegal actions that even now are practiced by police in many countries, certainly including ours). Now nobody considers torture normal, the mass consciousness absolutely rejects this form, but the same society supports statistically the death penalty. The recent public execution in Chechnya arose a wave of indignation in all CIS countries, although a furtive execution inside prison walls is justified by the majority.

During the last two centuries the public consciousness of the Western world drifted considerably. The philosophy of right has included the right for life and private inviolability. Most European states refused from the right to kill criminals, thus confirming their culturological affiliation with Christianity, whose commandment ‘thou shall not kill’ is the first and absolute law.

Israel, where Judaism is a state religion, actually does not apply the death penalty, and in the legislation it is retained only for terrorism and crimes against humanity. During the entire history of Israel the death penalty was applied only with respect to Nazis who were guilty of the holocaust. Thus, Israel, being under a strong Oriental culturological influence (a great proportion of Israeli came from Asia), on the legislative and law-applying level demonstrated herself as a state belonging to the Western civilization. Meanwhile, the Oriental countries which appeared after the disintegration of the USSR, by and by are attracted to the field of Islamic influence and begin to apply the laws of Shariat. They do not abolish the death penalty; contrariwise, they started public executions. It is quite clear that any attempts to abolish the death penalty in Islamic countries is too early. I am far from blaming such countries, since here we deal with another type of civilization, which at present sets and solves quite other problems.

However, a country, that regards its future in the framework of the Western civilization, just cannot afford to retain the death penalty since it threatens political isolation and other complications with respect to European countries, which are nowadays donors to post-totalitarian countries, which have dropped for years from their proper culturological frame. All the same we shall have to solve this problem not only in the context of our internal and external policy, but also in the framework of our culture. This demands intellectuals to join the discussion, which is now stays on a miserable and irritating level.

Now a loud campaign is carried around the case of Onoprienko. If one believes mass media, the entire problem consists in the moratorium, and we shall sleep quietly if to make an exception for Onoprienko. But who may guarantee that in our lawless and amoral post-totalitarian country another serial murderer will not appear, who will be captured after the death of several scores of victims? The attempt to defend the death penalty because of a serial murderer is psychologically and politically invalid: this demonstrates that we do not understand what we are doing. And this ignorance is unfortunately demonstrated by the political elite. In six months, if we do not abolish the death penalty, we shall be marched out of the Parliamentary Assembly of the Council of Europe, since we have clearly demonstrated that we are not in Europe yet. On the other hand, we are not in Asia. Ukraine is not attracted to the Orient, like Russia, to say nothing of the post-Soviet countries of middle Asia. Ukraine can be turned to the Orient only by force, as it happened during the last three centuries, when it belonged to the Russian Empire.

So we must return to our European sources and correspondingly measure our actions. The sooner our political elite will comprehend this, the sooner we shall become a normal European country. The most important things now are the will and understanding the essence of the problem. We must not return to the execution of the death verdicts. On the contrary, we must exclude the death penalty from the Penal Code of Ukraine. We must cross the precipice between the Communist and normal world with one leap. Otherwise, being afraid and hesitating, we shall fall down.
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