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The Constitutional Court of Ukraine took a decision that application of the death penalty is unconstitutional

I.Sukhorukova, Kharkov
On the New Year’s eve the Constitutional Court of Ukraine considered the appeal of 51 MPs and took a decision that the application of the death penalty is unconstitutional.

The Constitutional Court’s decision is obligatory for the executive power on all the territory of Ukraine. The operating laws must be agreed with this decision in the nearest future. Certainly, it gives good grounds for hope. Not only because Ukraine at last fulfilled the obligations taken by Ukraine before the Council of Europe, but because one of the branches of power took the responsibility for this unpopular although necessary decision. We believe that this decision is not less important than the abolition of the death penalty, because up to now our authorities and the most of our intellectual elite stubbornly confused democracy, as the state establishment, with populism, that is the opinion of the majority. Politicians and journalists supported the capital punishment, referring to the ’will of the people’.

Those, who, together with us, proved the necessity of canceling the death penalty in Ukraine, certainly feel great satisfaction. Nonetheless, we cannot help seeing that the majority of the population is not on our side. In fact, there is nothing strange in it - Ukraine in this respect is not worse and is not better than the majority of the European developed countries. Sociological polls in European countries have shown that only in Scandinavian countries and in Italy the idea of returning the death penalty is supported by about 40%. In other European countries the number of supporters of the death penalty exceeds 50%. The expressive example is the quiet respectable Belgium which suddenly had many-thousand demonstrations for returning the death penalty after the arrest of a pedophilic maniac, who killed little girls. Here we see how unstable is the public opinion even in the country where people are not so irritated by their rightlessness and beggarly living standard, like in post-totalitarian countries. Thank God, the Parliament of Belgium did not agree. This is a normal phenomenon in a ripe democracy, when the power does not follow opinion of the majority in order not to break the very essence of public interrelations. This way of behavior demonstrates the proper role and duty of the state. Power-bearing elite must take the responsibility to be more humane to support higher moral principles than a man in the street, and this attitude must be embodied in the operating laws. Those who write laws and adopt them, those who, by profession and experience, may take part in discussing and estimating laws, must account for historical, geopolitical and cultural tendencies of the country development and its place in Europe and the world. Whereas we are afraid most of all to do something, which the majority dislikes, while an individual is worthless in our country, the people is the magic watchword. All politicians, parties and representatives of different branches of power bewitch each other with this word, since using this word gives them the chance for irresponsibility. The modern society is a very complicated mechanism that requires permanent and experienced agreement of interests of all society members. The majority often have not sufficient information to form opinions on many questions. By the Constitution Ukraine is a representative democracy, so those, who represent the voters, are not just their loudspeakers, as our leftish politicians believe. The majority of voters in our country do not know how to manage our state so, that it would become a convenient place for living. Up to now we have not managed to build such a state. Those, who are in power, must bear in mind a certain model of the society, modern and capable of self-development. The steady incorporation of humanism and moral at the state level can improve the situation in the country, where the relations between the power and an individual have been distorted by existing in the abnormal world for about a century. Abolition of the death penalty is the first real step in the correct direction. The first of many steps aimed at smoothing the cruelty of our society.

On 3 January in the TV program ֻ days’ an interview was shown among Kyivans devoted to the decision of the Constitutional Court. We were grieved less by the reactions of the participants, than by the attitudes of the TV journalists. They are clearly lacked some tact and the knowledge of the problem. Everybody agreed that Onoprienko (a maniac who killed 52 victims) should be torn to pieces without investigation and trial. But if the same people were put the question: ’Do you agree if our husband (or son, brother, grandson) would be arrested and beaten until he confessed to be a murderer, and then would be executed?’, we are sure that, since the suggested circumstances are rather realistic, this question would make people think. But the journalists preferred another, provoking, manner of asking questions. They finished their feature with the remark: ’The Council of Europe will be satisfied, but will the decision satisfy the majority of Ukrainians?’ This rhetoric question can be easily answered: no, they will not be satisfied, as well as Britons, Germans and Frenchmen. Politicians should not condescend to the level of a man in the street; on the contrary, they must educate their citizens, by and by convincing them that the human life is the top value.

To our pity, articles and interviews of such kind as we saw in the program ֻ days’ are very usual. Our establishment does not like to think. That is why the grave and progressive decision of the Constitutional Court must be doubly praised.

Thus, the decision is taken, but there remain many questions.

On the Orthodox Christmas eve the Kharkiv Group for human rights protection received a letter from a mother of a young man who had been convicted to death on 27 December. The court determined that the man was guilty of serial murders with the purpose of rape. The mother describes evidence that the confession was drawn by means of cruel torture, but neither the court nor the prosecutor’s office paid attention to his complaints. To our pity, this is not an exceptional case in the court practice.

Well, now those who were forced by torture to the confession in the crimes, which they had not committed, will not be executed, and their relatives, advocates and human rights protection organizations will have some time to fight for the acquittal of the innocent and, maybe, for their life since the living conditions in our penitentiaries are very dangerous for life itself. The ODA methods and the level of justice in our courts often leave no chances for the culprits to prove their innocence. Until we have such ODA and such court, the cancellation of the capital punishment is the cancellation of the most brutal neglect of human life by our juridical system.

The importance of the Constitutional Court decision is understandable today only for absolute minority of the society. The so-called ’man in the street’, to whose opinion our press likes to refer, until he himself is concerned, does not identify himself either with the criminal or with the victim. He just wants to live under protection and he is irritated when the power is unable to do it. If a citizen sees daily that his life and peace is a subject of care on the side of the state, then the cruelty in the society will decrease.

The death penalty as a criminal sanction of the Penal Code is abolished, but the price of life of our citizens remains very low. The citizens’ rights and dignity are under threat all the time. The Constitutional Court was the first to take the responsibility. It would be great if all our politicians and men in power follow the example.
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