Honouring of the commitment entered into by Ukraine upon accession to the Council of Europe to put into place a moratorium on executions of the death penalty
Report(1)
Doc. 7745
28 January 1997
Rapporteur: Mrs Renate WOHLWEND, Liechtenstein, Group of the European People's Party
I. Draft resolution
1. The Assembly has received official information that in the first half year of 1996, 89 executions of the death penalty were carried out in Ukraine. It regrets that the Ukrainian authorities have failed to inform it of the number of executions carried out in the second half year.
2. The Assembly is particularly shocked by the information that executions in Ukraine are shrouded in secrecy, with apparently not even the families of the prisoners being informed, and that the executed are reportedly buried in unmarked graves.
3. Ukraine entered into a solemn commitment upon accession to the Council of Europe to put into place a moratorium on executions with effect from the day of accession. The executions which have taken place in Ukraine in 1996 thus constitute a flagrant violation of her commitments and obligations.
4.The Assembly welcomes and supports all efforts in the country, especially in the Supreme Rada, where a draft law on the abolition of the death penalty has been introduced, and in the Ministry of Justice, to institute a moratorium on executions, to limit the scope of capital punishment, and to abolish the death penalty.
5.However, the Assembly must condemn Ukraine for having violated her commitment to put into place a moratorium on executions, and deplores the executions that have taken place. It demands that Ukraine immediately honour her commitments and halt any executions of the death penalty still pending.
6.The Assembly warns the Ukrainian authorities that it will take all necessary steps to ensure compliance with commitments entered into. In particular, should any more executions of the death penalty be carried out following the adoption of this resolution, the Assembly may consider the non-ratification of the credentials of the Ukrainian parliamentary delegation at its next session.
II. Explanatory memorandum by Mrs Wohlwend
I. Introduction
The Assembly held a debate under urgent procedure on the abolition of the death penalty in Europe in June 1996, following-up on the general report by Mr Franck of October 1994. The Assembly had deemed it necessary to hold an urgent debate six months ago because it had been informed that executions of the death penalty were apparently being carried out in several Council of Europe countries, in violation of commitments entered into by these countries upon accession to the Council of Europe(2). Since no proof could be obtained, the Assembly limited itself in Resolution 1097 (1996) to a warning shot: It deplored the executions which had reportedly been carried out in Latvia, Lithuania and Ukraine, condemned Ukraine and Latvia for apparently having violated their commitments, and demanded that Russia - where the moratorium on executions seemed in danger of being broken - carry out no executions, warning these countries that "further violation of their commitments, especially the carrying out of executions, will have consequences under Order No. 508 (1995)".
The Committee on Legal Affairs and Human Rights has since received official confirmation that in the first half year of 1996, at least 89 executions were carried out in Ukraine, in flagrant violation of the commitment entered into by the country upon accession to the Council of Europe to put into place a moratorium on executions immediately.(3) Thus the Committee feels that the Assembly has to take action in accordance with its monitoring procedure to sanction this particular violation of an important human rights commitment by Ukraine, lest the credibility of the Council of Europe be damaged. For this reason, the Committee asked that an urgent debate be held during the January 1997 part-session on the issue.
In this report I shall thus deal solely with the commitment entered into by Ukraine to put into place a moratorium on executions with effect from the day of accession to the Council of Europe(4): I shall touch neither Ukraine's other commitments, nor on the general question of the abolition of the death penalty dealt with in my previous report of June 1996. Suffice it to say that several other new members of the Council of Europe - Albania, Bulgaria, Estonia, Latvia, Lithuania, Poland - are currently observing moratoria on executions, and Moldova has already abolished the death penalty in full in accordance with its commitment to the Council of Europe (the Czech Republic, Hungary, the former Yugoslav Republic of Macedonia and Slovakia had already abolished the death penalty prior to their accession). Thus the Assembly cannot be accused of discriminating between Ukraine and other countries, nor can Ukraine use the excuse that her situation is different: several of the countries which are honouring their commitment not to carry out executions, such as Albania, face similar, if not identical problems typical to post-communist societies, including a rapidly rising crime rate and retentionist public opinion, but are still managing to honour their commitment.
The Assembly has been trying to help those countries which would like to abolish capital punishment or have committed themselves to do so. The most recent example is the seminar on the abolition of the death penalty organised by the Committee on Legal Affairs and Human Rights in co-operation with the Ukrainian Ministry of Justice, which took place in Kyiv (Ukraine) on 28-29 November 1996. Over a hundred participants, most of them from countries of Central and Eastern Europe, took part in the seminar, discussing such themes as capital punishment and human rights, the incidence of the death penalty on the crime rate and the influence of public opinion. Several ways were shown up by the experts(5) who spoke at the seminar on how to go about instituting moratoria on executions and abolishing capital punishment.
The Assembly is aware that it can be a long and laborious process for countries to abolish the death penalty and ratify the Sixth Protocol to the European Convention on Human Rights. However, as the examples of Albania, Bulgaria and Poland show, it is possible to institute moratoria even in the face of retentionist public opinion and a rising crime rate. In any case, it is also to be remembered that Ukraine freely entered into her commitment to institute a moratorium on executions in order to be admitted to the Council of Europe. The Assembly cannot countenance the violation of commitments freely entered into, since this would engender a breach of confidence between the Council of Europe and the countries concerned. Commitments must be respected. The executions which have been carried out in Ukraine last year are thus wholly unacceptable, especially as the numbers involved are particularly high: only China is known to have executed more prisoners in 1996.
II. Death penalty statistics in Ukraine
Upon accession to the Council of Europe, Ukraine committed itself to impose a moratorium on executions "with immediate effect from the day of accession", and to abolish the death penalty within three years.
It has proved even more difficult in Ukraine than in Russia to collect reliable information on the number of executions carried out, since in Ukraine, they are regarded as a state secret. However, during the press conference given on the occasion of the Council of Europe seminar on the abolition of the death penalty on 29 November 1996 in Kyiv, Minister of Justice S. Holovaty confirmed that in the first six months of 1996, 96 death sentences had been handed down and 89 executions had taken place. He also gave the following figures for the years 1991 to 1995:
Year Death sentences handed down Executions carried out 1991 112 32 1992 79 103 1993 117 78 1994 143 60 1995 191 149
The number of inmates on death row is unknown.
Amnesty International's information indicates that more than a hundred prisoners have been executed in 1996 in Ukraine all in all. The non-governmental organisation was itself able to confirm four executions in the second half year of 1996, three in August and one in October 1996. Unfortunately, no official information has been forthcoming.
The secrecy surrounding executions in Ukraine causes particular distress to the families of the executed, who are often only informed of the death of their relative several months after the execution has taken place. Executed prisoners are buried in unmarked graves, so that even those cannot be visited by the family. The secrecy of executions also ensures that there can be no deterrent effect of capital punishment in Ukraine, for how can a criminal evaluate his risk of being executed should he commit a particular crime if he does not even know that executions are being carried out?
Five offenses carry the death penalty in Ukraine, yet all but two of the hundreds of death sentences handed down in recent years have been for premeditated, aggravated murder. The President has the constitutional right to pardon prisoners sentenced to death, and is aided in his work by the Presidential Clemency Commission, about which little, however, is known.
Ukraine has not yet fully reformed its judicial system, yet, either. Even in the few most advanced democracies which apply the death penalty, such as the United States, judicial errors have occurred in capital cases, and innocent people have been executed. In Ukraine, few judicial safeguards exist in capital cases, and there are numerous allegations of confessions obtained under duress, torture, etc... unrectifiable miscarriages of justice thus seem not only possible, but probable. The Committee on Legal Affairs and Human Rights has received several letters from prisoners sentenced to death and their relatives, claiming they were innocent. Amnesty International is also concerned that a number of death row inmates in Ukraine might be innocent(6).
Amnesty International has received indications that, for example, one prisoner (Mr S. Vysochansky) was forced to sign a confession of guilt under physical and psychological duress. There are allegations that another prisoner (Mr V. Chernitsa) cannot be held fully responsible for his actions at the time of the murder he is said to have committed as he suffers repercussions from severe head injuries.
III. Efforts to abolish the death penalty and introduce a moratorium on executions
It has often been pointed out, both during the Committee's seminar in Kyiv in November 1996 and in subsequent Committee meetings, that Ukraine reintroduced capital punishment only under Soviet rule. However, 85% of the Ukrainian population is said to be in favour of capital punishment, which might explain the Supreme Rada's retentionist stance, although the press is now reported to support abolition. Mr V. Kostytsky, a Ukrainian member of the Committee on Legal Affairs and Human Rights, has informed the Committee of tentative steps in the Supreme Rada in favour of the abolition of capital punishment, which apparently enjoy the support of the Speaker, Mr Moroz. The Minister of Justice has come out in favour of abolition of capital punishment. President Kuchma explicitly promised in his speech before the Assembly on 23 April 1996 that Ukraine would honour all its commitments, so that there is still hope despite the negative developments I have had to report here.
IV. Conclusions
The Assembly cannot accept that Russia and Ukraine, alone of several member countries of the Council of Europe, have violated their solemn commitment to put into place moratoria on executions upon their accession. The high number of known executions for the first six months, 89 in the case of Ukraine, beaten only by China, makes this flagrant violation of commitments even more unbearable. The Assembly thus condemns Ukraine for having violated her commitment to put into place a moratorium on executions, and deplores the executions that have taken place.
The Assembly is aware of tentative steps in the right direction in Ukraine, to institute a moratorium on executions either by virtue of a law passed in parliament or a decree of the President. These efforts enjoy the full support of the Assembly.
However, it is most important to the Assembly that no more lives are lost. It thus demands that both countries immediately honour their commitments and halt any executions of the death penalty still pending, and warns Russia and Ukraine that it will take all necessary steps to ensure compliance with commitments entered into. In particular, should any more executions of the death penalty be carried out following the adoption of this resolution, the Assembly should consider the non-ratification of the credentials of the Russian and Ukrainian parliamentary delegations at its next session.
APPENDIX I:
Letter of Amnesty International to the President of the Assembly dated 17 January 1997 (FR)
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Assembly decision of 27 January 1997 for an urgent procedure debate
Draft resolution adopted by the committee on 28 January 1997 with 33 votes in favour, 4 votes against and 6 abstentions
Members of the Committee: Mr Hag�rd (Chairperson), MM Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Ak�ali, Alexander, Aushev, Bartumeu Cassany, Berti, Besostri, Clerfayt, Columberg, Contestabile, Deasy, Dees, De Marco, Deniau, Mrs Err, M Fogas (alternate: Fico), Mrs Frimansd�ttir, MM Frunda, Fuhrmann, Fydorov, Mrs Gelderblom-Lankhout, MM Guenov, G�rel (alternate: Soysal), Mrs Holand, Mr Hunault, Ms J��tteenm�ki, MM Jaskiernia, Jeambrun, Kelam, Kirkhill, Koschyk (alternate: Junghanns), Kostytsky, Kovacevic (alternate: Kandare), Kyprianou (alternate: Christodoulides), Loutfi, Magnusson, Martins (alternate: Dias), M�sz�ros, Micheloyiannis, Moeller, Mosetic, Nastase, N�meth, Mrs Novesk�, MM Oleksy, Pantelejevs, Patnick, Pollo, Polydoras, Poppe, Prokop, Rhinow, Robles Fraga, Rodeghiero, Sol� Tura, Solonari, Staciokas, Symonenko, Tahiri, Vishnyakov, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Chatzivassiliou, Ms Kleinsorge and Ms Clamer
Note: 1by the Committee on Legal Affairs and Human Rights
Note: 2It will be remembered that by virtue of Resolution 1044 (1994), the willingness to sign and ratify Protocol No. 6 to the European Convention on Human Rights and to introduce a moratorium on executions upon accession had become a prerequisite for membership of the Council of Europe on the part of the Assembly.
Note: 3Ukraine entered into the following commitment by virtue of Opinion No. 190 (1995), paragraph 12 ii: "The Parliamentary Assembly notes that Ukraine shares its interpretation of commitments entered into as spelt out in paragraph 11, and intends to sign within one year and ratify within three years from the time of accession Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the abolition of the death penalty, and to put into place, with immediate effect from the day of accession, a moratorium on executions." Ukraine acceded to the Council of Europe on 9 November 1995.
Note: 4Originally, the Committee had intended to deal with the violation of the commitments to institute a moratorium on executions entered into by Russia and Ukraine upon accession to the Council of Europe in one report, but on 20 January 1997 the Committee decided to separate the two countries.
Note: 5The materials of the seminar are available in English, French and Russian from the Secretariat of the Committee on Legal Affairs and Human Rights upon request.
Note: 6Information contained in the letter of 17 January 1997 addressed to the President of the Assembly by the Director of the Legal and International Organizations Program of Amnesty International, reproduced as Appendix I.