Yuly Tay, member of the Council of the Moscow Bar Association, on death penalty

After the termination of Russia's membership in the Council of Europe, politicians at the federal level are making loud statements that it is necessary to lift the moratorium on death penalty in Russia. The possible resumption of its application was announced by the Deputy Chairman of the Security Council of the Russian Federation Dmitry Medvedev, and the leader of the Liberal Democratic Party Leonid Slutsky proposed to put this issue to a referendum. A large part of the book of the Chairman of the Russian Constitutional Court Valery Zorkin “Constitutional Justice: Nature and Procedure” is devoted to the issue of death penalty[1]. He believes that Russia will be able to refrain from returning it, but at the same time, he does not exclude the possibility that the moratorium on the death penalty in the Russian Federation can be lifted. At the 10th St. Petersburg International Legal Forum, Valery Zorkin reiterated[2] that lifting the moratorium on the death penalty "would be a very bad signal to society." Under the current Constitution and legal regime, the moratorium cannot be lifted; this would require a new Constitution.

Yuly Tay, a member of the Council of the Moscow Bar Association, tries to figure out whether it is possible  to use such a measure of punishment as death penalty in modern Russia, and what are the possible consequences.



There are many topics that are often and widely discussed in society for many decades, and sometimes even centuries. At the same time, the duration of the discussion in no way reduces either the emotional intensity of the discussion, or even the balance of power among the participants in the debate. One such topic is the issue of (in)admissibility of the death penalty. The civilized world has long and steadfastly taken the path not only legal, but above all humanistic and philosophical, forever abandoning the rule of Talion ("an eye for an eye, a tooth for a tooth"). Moreover, he did this not only on the basis of rational, rational arguments that the last century of law enforcement proved that tens and even hundreds of persons were executed as a result of a judicial error (and these are only confirmed cases), but, first of all, on the basis of the inadmissibility of lowering for base , cave impulses of vengeance (“I will repay”), which seemed to have been rethought and overcome a very long time ago, even with the advent of Christianity and the Gospel. But as ethologists prove, a person performs many actions on the basis of instincts developed over thousands of years, and many of these “animal impulses” will have to be outlived by mankind for a long time and with difficulty. As the classic wrote, "squeeze out drop by drop."

In 2021, 53 of the 195 countries of the world that are members of the UN or have observer status in it did not have a ban on the death penalty, and the Republic of Belarus is the only European country that has not yet abolished the death penalty.

According to the international non-governmental organization Amnesty International, 483 death sentences were carried out in 18 countries in 2020. This is 26% less than in 2019 (657 executions). Most often, executions are used in China, Iran, Egypt, Iraq and Saudi Arabia[3].

In 2018, UN Secretary-General António Guterres called[4] for all countries in the world to completely abolish the death penalty or to impose a moratorium on its use. According to him, a large number of people sentenced to death do not have the opportunity to defend themselves in court, since most cases are heard behind closed doors, and in these conditions the role of judicial error is significant. In 2019, the Council of Europe and the European Union issued[5] a joint statement: “The use of the death penalty is an affront to human dignity. This capital punishment constitutes cruel, inhuman and degrading treatment and is also contrary to the right to life. The death penalty has no proven deterrent effect and makes miscarriages of justice irremediable.” This was stated by the Secretary General of the Council of Europe Thorbjørn Jagland and the EU High Representative for Foreign Affairs and Security Policy Federica Mogherini[6].

We all know and remember that the Constitutional Court of the Russian Federation in its decisions (Decree of February 2, 1999 No. 3-P and Determination of November 19, 2009 No. 1344-O-R, explaining this Decree) clearly spoke of the impossibility of applying the death penalty in Russia. The Constitutional Court of the Russian Federation, in addition to referring to Russia's membership in the Council of Europe, noted in particular: “At present, the relevant provisions of the Criminal Code of the Russian Federation cannot be applied, since the legal regulation of the right to life that has developed in the Russian Federation, based on the provisions of Article 20 of the Constitution of the Russian Federation in conjunction with its articles 15 (part 4) and 17 and also including the decisions of the Constitutional Court of the Russian Federation, establishes a ban on the imposition of the death penalty and the execution of earlier sentences: with regard to the ban on the imposition of death sentences, the Russian Federation is bound by constitutional and legal obligations in nature arising both from international legal treaties and from domestic legal acts adopted by the Federal Assembly - the Parliament of the Russian Federation, the President of the Russian Federation, the Constitutional Court of the Russian Federation.

This means that in the Russian Federation there is a comprehensive moratorium on the application of the death penalty that specifies the guarantees of the right to life enshrined in the Constitution of the Russian Federation, which, in the sense of its constituent legal acts, was originally intended to be short-term. At the same time, this legal regulation has been in force for more than 10 years (now more than 25 years - author's note), as well as the establishment by the Constitutional Court of the Russian Federation (Decree of February 2, 1999 No. 3-P) of a direct ban - in the absence of proper procedural guarantees - on the imposition of the death penalty) and is legitimized by the established law enforcement practice, including subsequent decisions of the Constitutional Court of the Russian Federation and decisions of courts of general jurisdiction.

Thus, in the Russian Federation, on the basis of the Constitution of the Russian Federation and the legal acts specifying it, the death penalty as a punishment has not been imposed or executed for a long time. As a result of such a long moratorium on the use of the death penalty, an element of the legal basis of which is the Resolution of the Constitutional Court of the Russian Federation of February 2, 1999 No. 3-P, in conjunction with its other decisions, stable guarantees of the right not to be subjected to the death penalty have been formed and a legitimate constitutional and legal regime within which, taking into account the international legal trend and the obligations assumed by the Russian Federation, an irreversible process is taking place aimed at the abolition of the death penalty as an exceptional measure of punishment of a temporary nature (“until its abolition ”) and allowed only during a certain transitional period, i.e. for the realization of the goal enshrined in Article 20 (Part 2) of the Constitution of the Russian Federation”.

However, in connection with the termination of Russia's membership in the Council of Europe this year, the question arose of the possibility of waiving the moratorium and restoring the use of the death penalty in Russia, especially given the fact that periodically crimes are committed in the country that cause horror, anxiety in any person, fear and, as an inevitable consequence of this, the desire for revenge (retribution).

According to the Federal Penitentiary Service of Russia, there are currently almost 550 convicts in Russian correctional colonies, whose death penalty was replaced by a pardon with life imprisonment.

Speaking about the present and the future, we must not forget the history of our country, so as not to turn into "Ivans who do not remember kinship."

In tsarist Russia, as is known, in peacetime the death penalty was used extremely rarely and only with the personal consent of the monarch. And the peak of the use of the death penalty in the USSR was the period of the "Great Terror": for 1937-1938. 681,692 death sentences were handed down in the affairs of the NKVD of the USSR. After the end of this gloomy period of national history, the number of executions greatly decreased, but there could be no question of its abolition. For example, in 1962, 2,159 people were sentenced to death.

In the modern Russian Federation, the number of death sentences has significantly decreased. In 1993, 157 people were sentenced to death in Russia (of which 10 were executed), in 1994 - 160 people (10 were executed), in 1995 - 141 people (40 were executed), in 1996 - 153 people (executed 1), in 1997 - 106 people, in 1998 - 116 people, in 1999 - 19 people (no execution was applied).

Judicial statistics[7] of the last decade show the following indicators: in 2020, 45 persons were sentenced to life imprisonment (of which 39 were for crimes against life and health),

in 2019 - 50 (40),

in 2018 - 68 (55),

in 2017 - 65 (60),

in 2016 - 94 (75),

in 2015 - 61 (54),

in 2014 - 68 (60),

in 2013 - 67

in 2012 - 66 (59),

in 2011 - 64 (61).

It can be seen that there are few such sentences (probably because the applied punishment still does not affect the level of crime in the country), but at the same time there is no clear trend towards a decrease in life imprisonment.

Nevertheless, discussions about the death penalty do not stop, and all sociological surveys continue to demonstrate a high degree of adherence of the country's population to the call "Crucify!". Meanwhile, the question of the death penalty, as well as questions of taxation, cannot be decided by a plebiscite, since there is no place for emotions and impulses in them. This is a matter of legal and moral policy, the decision of which should be placed on the shoulders of the highest court, and he has already expressed his opinion many times. None of the democratic legal states proceeds from the fact that all issues must be decided by voting. It is generally recognized that some decisions should be determined by competent experts, persons authorized by the state and society, who have not only the relevant competence, but also the necessary level of composure (detachment), capable of a well-reasoned opinion. So, for example, issues of war and peace, the structure of the government, the personalities of ministers, ambassadors, judges of the Supreme Court and the Constitutional Court, the size of the refinancing rate are decided not by voting by the population, but by specially authorized bodies and persons. And that's okay, that's reasonable.

Why, in our opinion, is the restoration of the death penalty in Russia unacceptable, inappropriate?

Even without being currently a member of the Council of Europe and not being under the jurisdiction of the ECHR, Russia, without a doubt, was, is and will remain a European state, and not so much in a geographical sense, but in a cultural, ideological, civilizational sense. I realize that this point of view is not the only one possible, and at the moment, perhaps, even looks seditious. Nevertheless, I am convinced of its correctness and repeated proof. And the consistent refusal of all European states from the use of the death penalty is not due to fashion and political conjuncture, but exclusively rational moral and philosophical arguments. The first argument, in my opinion, is axiomatic: the modern judicial system in no country in the world is flawless. The possibility of miscarriage undeniably exists, so it is impossible to completely eliminate the risk of condemning the innocent to death. Let me give you a textbook example from world practice: in 1949, Timothy Evans was hanged on charges of murdering his pregnant wife and two-year-old daughter. Only four years later, serial killer John Christie, who testified at the trial against Evans, confessed to this murder. He was hanged and Timothy Evans was exonerated posthumously. The Timothy Evans case is one of the most colorful stories in the death penalty debate. In Russian sources, the example of illegal executions of two people for committing serial murders is popular, but it was subsequently established that the infamous Chikatilo was the true killer. The death penalty is irreversible and therefore unacceptable, and posthumous rehabilitation will not return a person's life, and a good name may not always return.

Secondly, criminologists have long and convincingly proved that the death penalty cannot have a beneficial effect on the level of crime, since its use is not a deterrent for mentally ill people, and the desire to avoid it leads to more violent crimes. It is also impossible not to say that it does not reduce the growth of social problems and contradictions that give rise to crime. Deep and extensive studies[8] of specialists do not support the position that the death penalty is a deterrent to crime. Many supporters of the death penalty cite as an example such a legal state as the United States. However, it is known that the level of violent crimes in this country is one of the highest in the world, and the existence of the death penalty in a number of states not only does not confirm its necessity and positive influence, but, on the contrary, serves as convincing empirical evidence of the opposite. Domestic experience leads exactly to the same conclusion. The introduction of the death penalty in the USSR for premeditated murder in 1954 only led to an increase in the number of murders. Criminals got rid of witnesses, finding themselves in conditions where they had nothing to lose. The same thing happened with the introduction of the death penalty for aggravated rape in 1961 - the number of rapists did not decrease, but now they killed their victims.

Thirdly, the fight against criminals by their own methods of cruelty and humiliation with fear is a social atavism that directs the wheel of social progress in the opposite direction. After all, protecting the right to life of one person, we deprive this right of another person, even a criminal. In addition, this approach provokes the solution of emergency problems in society in primitive ways, instead of looking for a constructive and systemic approach.
Thirdly, the fight against criminals by their own methods of cruelty and humiliation with fear is a social atavism that directs the wheel of social progress in the opposite direction. After all, protecting the right to life of one person, we deprive this right of another person, even a criminal. In addition, this approach provokes the solution of emergency problems in society in primitive ways, instead of looking for a constructive and systematic approach.

Fourthly, by applying the death penalty, we do not fight the cause of criminal behavior, which contributes to the further development of the criminal situation in the country. The energy of the society and the state "goes into the whistle" of revenge, the situation seems to be reset to zero, instead of creating a permanent reason for vigilance and a consistent fight against crime, including its most terrible examples and forms.

Fifthly, the death penalty prolongs the suffering of the relatives of the murdered person, hardens and embitters them and inflicts the same suffering on the relatives of the person convicted of murder. Sociological studies[9] confirm that the death of the offender does not bring moral satisfaction (comfort) to the relatives of the victim.

In the end, the use of the death penalty awakens in the population the worst, hidden, "dark" sides of the soul, as if indicating the naturalness of both violence in general and revenge in particular. This, in turn, sometimes leads to lynching, and the logic here is simple and linear: “if the state can do this, then why can’t I take revenge myself?” In other words, violent death ceases to be an absolute taboo, a categorical prohibition.

The recognized Italian humanist Cesare Beccaria wrote: “The more severe the punishments become, the more hardened the souls of people…”. Nobel laureate Albert Camus once insisted that "neither in the hearts of men, nor in the morals of society, there will be lasting peace until death is outlawed." Even the ideologue of the most leftist political movements, Karl Marx, was aware that "cruelty makes punishment ineffective, because it destroys punishment as a result of law."

In this regard, it is necessary by all means to avoid the return of the death penalty to our legal future, since this abyss has no bottom, although it attracts and beckons everyone who stares into this void, relying on its healing properties for society. It is impossible to make this protracted jump into the abyss in one fell swoop, annihilating several decades of painstaking and laborious movement towards progress, law and humanism. It is impossible to admit even the thought that all these efforts and the process of self-education of the population of our country will go to waste and disappear into oblivion!

Julius Tai


[1] Zorkin V.D., “Constitutional justice: procedure and meaning”, p. 80;

[2] Lecture by the Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin "The Law of Russia: Alternatives and Risks in the Conditions of Global Crisis";

[3] Which countries have the death penalty in 2022 (hochusvalit.com);

[4] UN: the death penalty must be abolished in all countries of the world;
[5] Joint Statement by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe on the occasion of the European and World Day against the Death Penalty;

[6] Khaybrakhmanova A. D. “A moratorium on the death penalty: a manifestation of humanism or a forced measure of the Russian Federation?” // New legal bulletin. - 2019. - No. 6 (13). - S. 32-37.

[7] Judicial statistics of the Judicial Department at the Supreme Court of the Russian Federation;

[8] Study 1: Reevaluating the Deterrent Effect of Capital Punishment: Model and Data Uncertainty (2006);

Study 2: DETERRENCE AND THE DEATH PENALTY (2012);

[9] How Families of Murder Victims Feel Following the Execution of Their beloved One’s Murderer: A Content Analysis of Newspaper Reports of Executions from 2006-2011.



Image: The Execution of Savonarola by Stefano Ussi.
Second half of 19^th century, Palazzo Pitti.