THE DEATH PENALTY
IN THE OSCE AREA

A Survey
January 1998 - December 1999

ODIHR

Organization for Security and Co-operation in Europe
Supplementary Human Dimension Meeting
"Human Rights and Inhuman Treatment or Punishment"
27 March 2000

ODIHR Background Paper

The Participating States recall their commitment in the Vienna Concluding Document to keep the question of capital punishment under consideration and reaffirm their undertakings in the Document of the Copenhagen Meeting to exchange information on the question of the abolition of the death penalty and to make available to the public information regarding the use of the death penalty.

(Document of the 1991 Moscow Meeting of the Conference on the Human Dimension of the CSCE, paragraph 36)


This report is one of a series of papers prepared under the auspices of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe for the benefit of participants at the OSCE Supplementary Human Dimension Meeting on Human Rights and Inhuman Treatment or Punishment. Every effort has been taken to ensure that the information contained in this report is accurate and impartial.

These papers are intended to highlight key issues and to promote constructive discussion; the opinions and information they contain do not necessarily reflect the policy and position of the Office for Democratic Institutions and Human Rights or of the Organization for Security and Co-operation in Europe. Any comments or suggestions should be addressed to the ODIHR.

Contents

EXECUTIVE SUMMARY

 There has never been a formal consensus within the OSCE concerning the abolition of capital punishment, and countries that apply the death penalty with stringent procedural safeguards and due process of law do not violate OSCE commitments. Relevant OSCE documents, in particular the 1990 Copenhagen Document, solely oblige participating States to keep the question of capital punishment under consideration, to co-operate on the subject within relevant organizations, to exchange information on the question of abolition of the death penalty, and to make available to the public information regarding the use of the death penalty. Furthermore, the Copenhagen Document refers to other international standards and instruments restricting or completely abolishing the death penalty, namely Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the Second Optional Protocol to the ICCPR, and Protocol No. 6 to the European Convention on Human Rights (ECHR).

This report reviews the period from 1 January 1998 to 31 December 1999. Notwithstanding the rather weak OSCE commitments on abolition of capital punishment, the worldwide trend towards abolition has been reflected also within the borders of the OSCE region. During the period under review alone, seven participating States removed the death penalty completely from their legal codes, thus bringing the total number of abolitionist countries within the OSCE to 39. As of 31 December 1999, only 15 participating States (and five separatist, internationally unrecognized entities) retained capital punishment in their statute books. Many of them, however, have ruled out the death penalty for peacetime offences or have imposed official or unofficial moratoria on executions. Therefore, the number of participating States actually carrying out the death penalty was very low.

The countries where executions were confirmed to have taken place in the period under review were Belarus, Kyrgyzstan1, the Russian Federation (Chechnya), and the USA. Other participating States, namely Tajikistan, Turkmenistan2, and Uzbekistan, are believed to have carried out the death penalty but no confirmed information was available. Several governments, including the governments of Belarus, Kazakhstan, Tajikistan, Turkmenistan, and Uzbekistan, regard information related to capital punishment as a state secret and refuse to disclose relevant material - a practice that is in clear contradiction to paragraph 17.8 of the Copenhagen Document.


1. INTRODUCTION

 There has never been a formal consensus within the OSCE concerning the abolition of capital punishment, and countries that apply the death penalty with stringent procedural safeguards and due process of law do not violate OSCE commitments. However, the worldwide trend toward abolition has also been reflected within the borders of the OSCE area. At a global level the de jure or de facto abolitionist countries by 1998 clearly outnumbered those retaining capital punishment, by 105 to 90. A similar and even clearer trend continued to be discernible within the OSCE area. As of 31 December 1999, only 15 out of 54 fully participating States retain capital punishment in their legal codes, as opposed to 22 in 1997. Between January 1998 and December 1999, seven participating States abolished the death penalty completely, three abolished it for ordinary crimes only, and two States announced a moratorium on executions.

In accordance with paragraph 17.7 of the Copenhagen Document, in which the participating States committed themselves to exchange information on the abolition of the death penalty and to keep this question under consideration, this report describes and analyses recent events and developments related to capital punishment within the OSCE area against the backdrop of relevant OSCE and other international commitments and standards.

The first two main parts of this report (Chapters 2 and 3) consequently provide an overview of OSCE commitments and other key international standards and instruments relating to capital punishment. The third main part (Chapter 4) is devoted to the specific situations and main developments in non-abolitionist participating States. Each country entry consists of an outline of the legal basis for the application of the death penalty, possible trends towards abolition, and statistical data (if available) concerning the number of death sentences, prisoners on death row, and executions. A full-text reproduction of all relevant OSCE commitments and a table providing death penalty-related information on all participating States, including ratification details, are attached in Annexes 1 and 2.

The country entries, as well as the table entries, are listed in alphabetical order. Given the reluctance of a number of participating States to meet their commitment to make available to the public information concerning the death penalty, some of the country entries remain rather fragmentary. It must be stressed therefore that the lack in a given country entry of reference to issues addressed elsewhere does not imply that these issues are of no relevance in the participating State in question.

This report is based on material received from various sources, including OSCE field missions, other international organizations such as the Council of Europe and the United Nations, as well as several non-governmental organizations, in particular Amnesty International, and media reports. It covers the period from 1 January 1998 to 31 December 1999.


2. OSCE COMMITMENTS RELATING TO CAPITAL PUNISHMENT

 Through the 1989 Vienna Concluding Document and the 1990 Copenhagen Document, the issue of capital punishment was introduced to the catalogue of CSCE/OSCE human dimension commitments. With the adoption of the Vienna and Copenhagen Documents, the participating States committed themselves

  • to impose the death penalty, where not abolished, "only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to their international commitments" (Vienna Document, "Questions relating to Security in Europe", paragraph 24);

  • to keep the question of capital punishment under consideration (ibid.);

  • to co-operate on the issue within relevant international organizations (ibid.);

  • to exchange information on the question of the abolition of the death penalty (Copenhagen Document, paragraph 17.7);

  • to make available to the public information regarding the use of the death penalty (ibid., paragraph 17.8).3

These commitments were subsequently reaffirmed by the participating States at the Moscow Meeting (1991), the Helsinki Summit (1992), and the Budapest Summit (1994). In accordance with paragraph 17.7 of the Copenhagen Document, the question of the abolition of the death penalty has been put on the agenda of the regular OSCE Review Conferences and Human Dimension Implementation Meetings. A number of recommendations have emerged from these meetings, although these have no formal or binding status. The recommendations include the introduction of measures aimed at facilitating the exchange of information on the abolition of the death penalty, asking the Office for Democratic Institutions and Human Rights (ODIHR) to act as a clearing-house for such information, and the development by ODIHR and OSCE missions of projects aimed at raising awareness against recourse to capital punishment. To date these recommendations have not significantly been translated into concrete action.

The Copenhagen Document also explicitly refers to other international standards relating to the death penalty which are dealt with in the following Chapter, namely:

  • the Second Optional Protocol to the International Covenant on Civil and Political Rights (paragraph 17.2);

  • the restrictions and safeguards regarding the use of the death penalty which have been adopted by the international community, in particular Article 6 of the International Covenant on Civil and Political Rights (paragraph 17.3); and

  • the provisions of the Sixth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty (paragraph 17.4).


3. OTHER INTERNATIONAL STANDARDS AND INSTRUMENTS

3.1 The International Covenant on Civil and Political Rights (ICCPR)

 Under Article 6 of the ICCPR (`right to life'), States Parties 4 are not obliged to abolish the death penalty but to restrict its use to the "most serious crimes".

In a general comment on Article 6, the UN Human Rights Committee stated that "the expression `most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure"5. The `ECOSOC Safeguards' further specify that the scope of these crimes "should not go beyond intentional crimes with lethal or other extremely grave consequences"6. In its April 1999 resolution on the question of the death penalty, the UN Commission on Human Rights added to this interpretation that the death penalty should not be imposed "for non-violent financial crimes or for non-violent religious practice or expression of conscience"7. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions called, in her report submitted to the 1999 session of the Commission on Human Rights, for the exclusion of the possibility of imposing the death penalty for "economic and other so-called victimless offences, espionage and `disloyalty'". Capital punishment should also be excluded for "actions primarily related to prevailing moral values, such as adultery and prostitution, as well as matters of sexual orientation"8.

Article 6 explicitly prohibits the imposition of the death penalty for crimes committed by persons below eighteen years of age, as well as the execution of pregnant women. The `ECOSOC Safeguards' extend these restrictions to new mothers and persons who have become insane9. In Resolution 1999/61 the UN Commission on Human Rights added that no one should be executed "as long as any related legal procedure, at international or at national level, is pending"10.

Article 6 also prescribes that the procedural guarantees contained in the ICCPR must be complied with before the death penalty can be carried out. These guarantees include the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for defence, and the right to review by a higher tribunal. In addition to this, States Parties must grant every person sentenced to death the right to seek pardon or commutation of the death sentence.

Article 6(6) states that "nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant". The UN Human Rights Committee concluded in its general comment on Article 6 that "all measures of abolition should be considered as progress in the enjoyment of the right to life"11. In its latest resolution on the death penalty, the UN Commission on Human Rights stated that "abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights" and called upon all States still maintaining capital punishment "to establish a moratorium on executions, with a view to completely abolishing the death penalty"12.

The Second Optional Protocol to the ICCPR, adopted by the UN General Assembly on 15 December 1989, goes far beyond Article 6, providing for the total abolition of the death penalty13. It obliges all States Parties not to carry out executions, to abolish the death penalty from their laws in times of peace and war, and not to reintroduce capital punishment in the future. The only exception applies to States that, at the time of ratification or accession, made a reservation that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. As of 31 December 1999, the Second Optional Protocol has been ratified by 41 States worldwide, including 29 OSCE participating States14.

3.2. Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms

 Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter European Convention on Human Rights or ECHR) provides for the total abolition of the death penalty in times of peace15. Article 1 states that "the death penalty shall be abolished" and that "no one shall be condemned to such penalty or executed". According to Article 2, States Parties may retain the death penalty for crimes committed in time of war or of imminent threat of war. It is, however, specified that where this is so, the death penalty shall be applied only in the instances laid down by the law and in accordance with its provisions.

Protocol No. 6 has become the most effective instrument for the abolition of the death penalty within the OSCE region, in particular since the Council of Europe made it mandatory in 1994 for new member States to commit themselves upon accession to put in place a moratorium immediately and to ratify Protocol No. 6 within a certain time-limit. In case of non-compliance, the Council of Europe may impose sanctions such as the suspension of the rights of representation and thus enforce the implementation of the member State's commitments.

As of 31 December 1999, only two out of 41 Council of Europe member States have not signed the Protocol (Albania and Turkey). Another four member States (Georgia, Poland, the Russian Federation, and Ukraine) have signed but not ratified it16.


4. CAPITAL PUNISHMENT IN THE OSCE REGION

 In 1998 and 1999, the trend towards abolition of the death penalty within the OSCE area remained unbroken. While at the end of 1997 the legal codes of 22 participating States still provided for capital punishment, by the end of the period under review this number had dropped to 15.

As of 31 December 1999, Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina (Republika Srpska), Kazakhstan, Kyrgyzstan, Latvia, Malta, the Russian Federation, Tajikistan, Turkey, Ukraine, the United States of America, and Uzbekistan had not completely abolished the death penalty. In addition, capital punishment also remained in force in a number of separatist, internationally unrecognized entities, namely Abkhazia and South-Ossetia (both within Georgia), Chechnya (within the Russian Federation), Nagorno-Karabakh (within Azerbaijan), and Transdniestria (within Moldova).

Seven participating States removed the death penalty entirely from their statute books during the period under review: Bulgaria, Canada, Cyprus, Estonia, Lithuania, Turkmenistan and the United Kingdom. Thus, the total number of completely abolitionist participating States had reached 39 by December 1999.

Five participating States either abolished capital punishment de facto without having amended their legislation yet or retain the death penalty only for wartime crimes. Ukraine de facto abolished the death penalty for all peacetime and wartime crimes with the decision of the Constitutional Court in December 1999 that capital punishment is unconstitutional. Azerbaijan (in 1998) and Latvia (with the ratification of Protocol No. 6 to the ECHR in April 1999) abolished capital punishment for peacetime offences only. Albania is de facto abolitionist for peacetime offences since the Constitutional Court ruled in December 1999 that capital punishment is inconsistent with the Constitution in times of peace. Malta, which ratified Protocol No. 6 of the ECHR in 1991, also retains the death penalty only for military crimes in times of war.

Four participating States fully retain capital punishment for peacetime and wartime crimes but have introduced official or unofficial moratoria: Armenia (1991), Kyrgyzstan (1998), the Russian Federation (1996), and Turkey (1984).

In Bosnia-Herzegovina, one of the two entities, the Federation of Bosnia and Herzegovina, abolished capital punishment in 1998, while the other entity, Republika Srpska, retains the death penalty for a range of peactime and wartime offences, albeit there exists a de facto moratorium on the passing of death sentences.

Executions are confirmed to have taken place in at least four participating States during the period under review: in Belarus, Chechnya (within the Russian Federation), Kyrgyzstan17 and the United States of America. Tajikistan, Turkmenistan18, and Uzbekistan are believed to have carried out the death penalty, although no officially confirmed information was available. In Kazakhstan, which also retains the death penalty, no executions were reported officially or unofficially.

4.1. Albania

 On 10 December 1999, the Constitutional Court of Albania decided that the death penalty is incompatible with the new 1998 Constitution in times of peace and thus de facto abolished capital punishment for all peacetime offences, although the Criminal Code has not yet been amended accordingly. All death sentences have been commuted to sentences of life following the Court's decision, which is binding to all courts19.

Albania so far has neither signed nor ratified Protocol No. 6 to the ECHR, although the deadline to which Albania agreed upon accession to the Council of Europe in 1995 expired on 13 July 199820.

A three-year moratorium on executions had been introduced in May 1995. Although it had not been officially extended following its expiry, a de facto moratorium based on the competence of the Supreme Court and the President to commute death sentences into life imprisonment had remained in place21. The Constitutional Court's ruling came at a time when tendencies aimed at lifting the moratorium enjoyed widespread public support due to the violent events of late 1997 and a significant rise in the crime rate.

Albanian courts passed six death verdicts in 1998. During 1999, capital punishment was not in active use anymore. However, ten prisoners still were on death row when the existing death sentences were commuted following the de facto abolition of capital punishment in December 1999. No execution has been carried out since May 199522.

4.2. Armenia

 Thirteen offences carry a possible death sentence under the present Criminal Code of Armenia which has been in force, as amended, since 1961, including, inter alia, treason, espionage, terrorist acts, sabotage, crimes against the State, banditry, forgery or circulation of false money or securities, aggravated murder or rape, hijacking, and bribe taking. The military section of the Criminal Code provides for an additional 16 capital crimes in times of war. The death penalty may not be imposed on persons below 18 years of age at the time of the crime, on pregnant women, or the insane23.

Although Armenia announced at the October 1998 UN Human Rights Committee hearings that a new Criminal Code completely abolishing the death penalty would come into force by 1 January 199924, the draft is still awaiting its final reading in parliament. In view of the slow parliamentary process, the Presidential Commission on Human Rights and non-governmental organizations proposed to ratify the Second Optional Protocol to the ICCPR as a faster way to abolition. According to the Armenian Constitution, international treaties ratified by the parliament become a constituent part of the legal system and prevail over other laws.

While death sentences are still handed down regularly by Armenian courts, there is a de facto moratorium on executions in place, based on the President's constitutional authority to exercise pardon. According to official information, no executions have been carried out since 1991. In 1999, three people were sentenced to death by Armenian courts. Thirty-one prisoners are currently on death row25.

4.3 Azerbaijan

 On 10 February 1998, the Parliament of Azerbaijan adopted a bill abolishing the death penalty for peacetime offences, following an initiative by President Aliyev. One death sentence was passed before the relevant law came into force on 21 February 1998, bringing the total number of persons on death row to 128. However, all death sentences were commuted to long-term imprisonment after the decision to abolish capital punishment26.

Nagorno-Karabakh

The death penalty remains in force in the internationally unrecognized separatist enclave of Nagorno-Karabakh, and courts reportedly hand down death sentences. There are, however, no indications that executions are carried out27.

4.4 Belarus

 Belarus is the only European country in which the death penalty is in active use. The Criminal Code of Belarus provides for the death penalty for a wide range of crimes, namely treason, plotting to seize power, terrorism, sabotage, bombings that threaten public safety, undermining the work of a prison, premeditated murder, and aggravated rape. In the referendum of 1996, which was not recognized by the international community due to serious irregularities, the majority of the voters voiced support for the continued use of the death penalty28.

In 1998, 47 death sentences were passed by Belarusian courts, and 40 people were executed. According to General Procurator Oleg Bozhelko, 14 death sentences were carried out in 199929. In violation of paragraph 17.8 of the Copenhagen Document, there is very little transparency concerning the use of the death penalty in Belarus. The secrecy surrounding capital punishment also extends to execution procedures. Relatives are not informed of the date of the execution, hence they do not have an opportunity for a last meeting before the execution. The body is not returned to the family, and the place of burial remains unknown30. There are numerous allegations of serious irregularities during the investigations and legal proceedings in cases that have resulted in death verdicts and executions. These allegations include forced confession under torture, lack of conclusive evidence, and denial of the right to legal defence31.

4.5 Bosnia and Herzegovina

 There is no provision with regard to the death penalty at state level as criminal legislation belongs to the competence of the two entities, the Republika Srpska and the Federation of Bosnia and Herzegovina.

According to the Criminal Code of the Republika Srpska (RS), a wide range of peacetime and wartime offences may be punished with the death penalty, including murder, robbery, international terrorism, hijacking of an aircraft, assassination of a representative of high State authorities, acknowledging capitulation and occupation, as well as numerous other war-related crimes. Furthermore, the death penalty may be imposed for a large number of ordinary offences if committed in time of war or when the danger of war is imminent.

There is no official moratorium in place, but the Supreme Court of the RS has issued a decision whereby the death penalty was amended to 20 years of imprisonment to be consistent with the ECHR. Although this decision is not binding for the lower courts, it apparently has been complied with so far. Courts have not passed any death sentences during the period under review. However, two prisoners still remained on death row as of 31 December 1999. The proposed amendments to the Criminal Code currently under consideration do not contain the death penalty anymore32.
In the Federation, the death penalty was abolished with the coming into force of a new Criminal Code in November 1998, which replaced capital punishment with extended prison terms. Even before the abolition, no death sentences were imposed by Federation courts during the period under review, and no one was on death row after the Human Rights Chamber ordered commutation of two pending death sentences into life imprisonment33.

4.6 Georgia

 Georgia abolished the death penalty in 1997 and signed (but has not yet ratified) Protocol No. 6 to the ECHR in June 1999 following its accession to the Council of Europe. Capital punishment has remained, however, in the statute books of the two separatist, internationally unrecognized entities of Abkhazia and South Ossetia.

Abkhazia

Under the Criminal Code of the Georgian Soviet Socialist Republic which is still in force in Abkhazia, the death penalty can be applied to a long list of peacetime and wartime offences, including economic crimes. A moratorium is in effect, and there is an ongoing, if very limited, discussion on diminishing the number of crimes carrying the death penalty.

While Abkhaz courts apparently did not pass any death sentences in 1998, at least one person was sentenced to death in 1999. The Chairman of the Abkhaz Committee on Human Rights reported in November 1999 that 14 people had been sentenced to death since Abkhazia declared its independence. However, no executions were reported as there seems to be a de facto moratorium in place34.

South Ossetia

In South Ossetia the Criminal Code of the neighbouring Russian Federation is in use. Thus, courts may pass death sentences for five crimes (aggravated murder, attempt on the life of a state or public leader, attempt on the life of persons implementing jurisprudence of preliminary investigation, attempt on the life of an associate of a law enforcement agency, and genocide). There seems to be an unofficial moratorium on death sentences and executions in place, which apparently has been complied with during the years South Ossetia has not been under Georgian Government control.

4.7 Kazakhstan

 With the coming into force of the new Criminal Code of Kazakhstan on 1 January 1998, the scope of capital punishment was reduced from 18 to three peacetime crimes (premeditated and aggravated murder, genocide and sabotage). The death penalty also applies to treason in time of war as well as to eight military crimes. Women, persons who were minors at the time of the crime, and men who are over 65 when the sentence enters into force are excluded from capital punishment. The death penalty can be carried out not earlier than one year after the sentence in order to avoid judicial errors35.

There is no moratorium on executions in place. It is planned to introduce life imprisonment as an alternative to capital punishment by 2003, but President Nazarbayev has reportedly stated that if international aid for the construction of suitable prisons were made available, this date could be brought forward36.

In violation of paragraph 17.8 of the Copenhagen Document, Kazakhstan does not disclose official statistics on the use of the death penalty. At least 51 death sentences were handed down in 1998, of which five were commuted by the Amnesty Commission appointed by the President37. According to the Prosecutor's Office, 63 persons were sentenced to death in 1999. Fifteen of these death sentences were subsequently commuted or annulled by the Supreme Court38.

4.8 Kyrgyzstan

 The new Criminal Code of Kyrgyzstan which has been in force since 1 January 1998 allows the application of the death penalty in connection with five offences: terrorism, murder, aggravated crimes, rape, and state treason. A two-year moratorium on executions was introduced by a presidential decree signed on 5 December 1998.39.

According to the First Deputy Chairman of the Supreme Court of Kyrgyzstan, 55 men were sentenced to death in 1998. Seven executions were carried out in 1998 before the moratorium came into force. In 1999, 20 death sentences were passed according to unofficial information. About 60 people were reported to be on the death row at the end of 199940.

4.9 Latvia

 The Latvian parliament ratified Protocol No. 6 to the ECHR on 15 April 1999, thus de facto abolishing the death penalty for all peacetime offences with effect from 1 June 1999. However, national legislation has not yet been brought into compliance with Protocol No. 6. Amendments to the Criminal Code abolishing capital punishment at least for crimes committed in times of peace are currently being prepared for second reading before parliament41.

4.10 Malta

 The death penalty has been abolished for all peacetime offences. It can only be imposed for military crimes in time of war. Malta signed and ratified Protocol No. 6 to the ECHR in 199142.

4.11 Moldova

Transdniestria

While Moldova removed the death penalty from its statute books in 1995, capital punishment remained in force in the internationally unrecognized separatist entity of Transdniestria43. The Criminal Code of the Moldavian Soviet Socialist Republic, which is still in operation in Transdniestria, provides for the death penalty for state crimes, premeditated murder under aggravating circumstances, rape with grave consequences, rape of a juvenile under 14 years of age, attempt on the life of a member of the militia, and for grave military crimes. Capital punishment may not be imposed on women and persons below 18 years of age at the time of the crime. On 6 July 1999, President Igor Smirnov signed a decree introducing a moratorium on executions with retro-active effect from 1 January 1999. In connection with the preparation of a new Criminal Code, the abolition of the death penalty is currently being discussed in the Supreme Soviet.

According to information received from the Prosecutor of Transdniestria, no death sentences were passed in 1998 or 1999. As of 31 December 1999, two prisoners were on death row. One of them, Ilya Ilascu, was sentenced to death by the Judicial Board of the Supreme Court of Transdniestria in 1993 for terrorism and a number of other crimes following a trial that reportedly was politically motivated and failed to meet international standards. The case is currently being examined by the European Court of Human Rights44.

4.12 Russian Federation

 The 1997 Criminal Code of the Russian Federation foresees capital punishment for five crimes: aggravated murder, attempt on the life of a State or public leader, attempt on the life of persons implementing jurisprudence of preliminary investigation, attempt on the life of an associate of a law enforcement agency, and genocide. Women, persons who were below 18 years of age at the time of the crime, and men who had reached the age of 65 at the time of sentencing are exempted from the death penalty45.

A moratorium on executions has been in force since August 1996. It is based on a presidential decree. In 1998 the State Duma rejected legislation that would have enshrined the moratorium into law for a three-year period. On 2 February 1999, the Constitutional Court imposed an additional de facto moratorium on the passing of death sentences by its decision to generally prohibit capital punishment verdicts in the Russian Federation until all citizens can be granted the right to jury trials - a process that could take years as jury trials are available only in very few of the Federation's 89 republics, regions and territories46.

Upon accession to the Council of Europe in 1996, the Russian Federation undertook to abolish the death penalty and ratify Protocol No. 6 to the ECHR within three years. While this deadline expired on 28 February 1999, the Russian Federation has still neither formally abolished the death penalty nor ratified Protocol No. 6. Although draft laws on the introduction of a moratorium, the abolition of the death penalty and the ratification of Protocol No. 6 have been under preparation or already put before the Parliament, all initiatives in this regard were blocked by the previous State Duma47.<

According to official information, 67 persons were sentenced to death during the first six months of 1998. As of February 1999, about 900 prisoners were under sentence of death48. On 3 June 1999, however, President Yeltsin signed a decree commuting the death sentence of all convicts on death row into either life sentences or 25-year prison terms49.

Chechnya

Executions had been carried out in Chechnya before the beginning of the Russian Federation's military operation in late 1999. The Supreme Shari'a Court imposed the death penalty for various offences, including murder, kidnapping, and drug-related crimes. At least one person was executed in 1998. According to the Chechen presidential press service, 11 persons were executed during the first six months of 1999 for drug trafficking alone50. The total number of executions is not known.

4.13 Tajikistan

 The new Criminal Code of Tajikistan, in force since 1 September 1998, reduces the number of crimes carrying a possible death sentence from 44 to 15, including murder, rape, terrorism, hijacking, drug trafficking and illegal cultivation of forbidden crops containing narcotic substances. Death sentences can be commuted to 25 years' imprisonment. Pregnant women and persons below 18 years of age at the time of the crime are excluded from capital punishment51.

In violation of paragraph 17.8 of the Copenhagen Document, no official information on the use of the death penalty is made available by the Tajik authorities. According to unofficial information, at least 24 persons were sentenced to death in 199852, and at least 15 in 1999. While the total number of executions is not known, there are credible reports of at least two persons being executed in late 1998 and early 1999. Abdulkhafiz Abdullayev, the brother of a former Prime Minister active in the political opposition, was sentenced to death together with five co-defendants for his alleged involvement in the attempt to assassinate President Rakhmonov in April 1997. According to international observers, several witnesses had been forced under duress to incriminate Abdulkhafiz Abdullayev. He was reportedly executed by shooting in November 1998. Bakhrom Sadirov, who had been found guilty of the February 1997 hostage-taking of several United Nations observers, was allegedly executed in January 199953.

A number of other trials, several of them with a political background, have resulted in death sentences, including the case of three United Tajik Opposition (UTO) members who were sentenced to death in March 1999 for their alleged involvement in the killing of four United Nations employees in July 1998, and the trial against two prominent opposition figures, former high officials of Khalton province Sherali Mirzoyev and Kosym Babayev, who were found guilty in June 1999 of having participated in the 1997 coup attempt led by Colonel Makhmud Khudoberdiyev. Three leaders of an armed group that was operating in Kurgan-Tyube during another anti-Government mutiny led by Colonel Khudoberdiyev in November 1998 were sentenced to death in December 1999 for murder, terrorism, weapons contraband and high treason54. Political trials mostly are closed to the public, and often are held not in courts, but in the prisons where the defendants are held. In general, capital punishment very often is applied in an arbitrary way by Tajik courts, with serious fair trial violations being reported by international observers55.

4.14 Turkey

 According to the Turkish statute books, capital punishment may be imposed for a broad range of 21 crimes. The Penal Code provides for the death penalty for nine offences, namely crimes against the territorial integrity of the State, collaboration with a State at war with Turkey, espionage, attempts to overthrow the existing constitutional system by force, armed rebellion against the Government, preventing the cabinet from performing its functions, inciting the people to revolt and kill one another, attempting to assassinate the President, and aggravated homicide. Other offences that carry the death penalty are included in the Military Criminal Code, the Law on the Prohibition and Prosecution of Smuggling, and the Law on Forestry. Pregnant women sentenced to death may not be executed before they have given birth. Mentally ill persons may not be executed before they have recovered. The Bill on a new Penal Code currently being examined by the Grand National Assembly no longer includes capital punishment56.

A de facto moratorium on executions has been in force since 1984, as the Grand National Assembly has not voted on any death sentences brought before it for final ratification. The finalized sentences are held without processing at the Justice Committee. However, following the verdict in the trial against Kurdish Workers' Party leader Abdullah Öcalan who was sentenced to death on 29 June 1999 it is not clear whether this practice will be further maintained. Öcalan's death sentence was confirmed by the Turkish Appeal Court in November 199957.

At least 21 death sentences were handed down by Turkish civil and military courts in 1998. In 1999, a total of at least 24 death sentences were passed, of which 3 were upheld by the Appeal Court58. According to official information, there were 40 prisoners under sentence of death in Turkish prisons as of 1 January 199959.

4.15 Turkmenistan

 The death penalty was formally abolished in Turkmenistan at the annual session of the People's Assembly (Halk Maslahaty) on 29 December 1999. In signing the law abolishing capital punishment, President Saparmurat Niyazov stated that existing death sentences would be automatically changed into prison terms60. A moratorium on executions had been in force since 1 January 1999. Since then, no executions have been reported.

Before the moratorium was introduced, the death penalty had been thought to be widely applied in Turkmenistan, very often in drug-related cases. No official statistics had been available, however, as, in violation of paragraph 17.8 of the Copenhagen Document, the death penalty had been classified as a state secret. Executions had been reported to be often carried out promptly following the court's decision, with only a perfunctory appeal and clemency process61.

Given the poor prison conditions in Turkmenistan, which have led to numerous deaths from untreated disease and overcrowding, international observers have questioned the meaningfulness of the recent move to abolish capital punishment.

4.16 Ukraine

 On 30 December 1999, the Constitutional Court of Ukraine decided that capital punishment is unconstitutional and thus de facto abolished the death penalty for all crimes. In its ruling, the Court referred to, inter alia, the provisions in the Constitution protecting the inherent human right to life and the freedom from torture or other cruel, inhuman, or degrading treatment or punishment62.

A de facto moratorium on executions had been introduced by President Leonid Kuchma in March 1997, but Ukrainian courts had continued to pass death sentences. Ukraine had committed itself to abolish capital punishment and to ratify Protocol No. 6 to the European Convention on Human Rights upon accession to the Council of Europe in 1995. The deadline for ratification set by the Council of Europe expired in November 1998. Subsequently, the Parliamentary Assembly of the Council of Europe warned Ukraine that it would commence the procedure for the annulment of the credentials of the Ukrainian delegation if substantial progress concerning the abolition of the death penalty and some other fields were not made by 21 June 1998. On 24 June 1999, however, this deadline was extended to the next session of the Parliamentary Assembly in January 200063.

According to the Chairman of the Supreme Court, 146 people were sentenced to death in 1998. Within the same time period, the Supreme Court cancelled three death sentences passed by regional and military courts, and commuted 13 to long term imprisonment64. As of 1 January 1999, 388 persons sentenced to death were being held in prison65. During the first six months of 1999, Ukrainian courts passed 35 death verdicts66. No executions were reported during 1998 and 1999.

4.17 United States of America

 As of December 1999, legal provisions allowing for the use of the death penalty existed in 38 states as well as under federal and military law67. The scope of the death penalty legislation varies from state to state. In 15 states and at federal level capital punishment may not be imposed for crimes committed by individuals less than 18 years old. The remaining 23 non-abolitionist states have either no minimum age or a minimum less than 18 years, thus making the USA the only OSCE participating State retaining the death penalty for crimes committed by persons under 18. Twenty-six states do not forbid the execution of mentally retarded offenders.

Sixty-eight persons were executed in 1998. In 1999, the number of executions reached 98, thus making it the year with the highest execution rate since the reintroduction of the death penalty in 1976. As of 1 September 1999, 3,625 prisoners were on death row, including approximately 70 inmates who had been sentenced to death for crimes they committed before reaching the age of 18.

Four offenders were executed during 1998 and 1999 for crimes committed before they reached age 18. Article 6(5) of the ICCPR explicitly prohibits the imposition of the death penalty for crimes committed by persons below 18 years of age. The United States ratified the ICCPR in 1992, but entered a reservation on this clause. However, the legitimacy of this reservation is widely questioned. The UN Human Rights Committee, for instance, deplored the practice of imposing the death penalty on persons who were younger than 18 years when committing the crime. It called upon the USA to withdraw the reservation to Article 6(5), and to take appropriate steps to ensure that persons are not sentenced to death for crimes committed before they were 1868. This view was shared by the UN Special Rapporteur on extrajudicial and summary or arbitrary executions in a 1998 report on the use of the death penalty in the USA, which stated that the US practice of imposing the death penalty on those under 18 at the time of the crime was a "very serious and disturbing practice that inherently conflicts with the prevailing international concensus"69.

Among those executed in 1998 and 1999 were seven foreign nationals who, in violation of Article 36 of the Vienna Convention on Consular Relations, had not been notified by the authorities after arrest of their right to communicate with their consular representatives. In one case, the execution was carried out despite an order by the International Court of Justice that the execution be suspended. Meanwhile California has become the first US state to pass legislation requiring full compliance with the notification provisions of the Vienna Convention70.

4.18 Uzbekistan

 The death penalty remains in active use in Uzbekistan. Following a decision by the Uzbek parliament in August 1998 to reduce the scope of the death penalty and remove it as a punishment for five offences, the Criminal Code now contains eight crimes that are subject to capital punishment: aggravated murder, rape of a female aged under 14 years, waging aggressive war, genocide, terrorism involving death or serious injury, treason, organizing a criminal conspiracy and illegal sale of large quantities of narcotics. The death penalty may not be applied to women or persons under 18 years of age at the time of committing the crime71.

In violation of paragraph 17.8 of the Copenhagen Document, Uzbek authorities do not disclose information on the use of the death penalty. According to unofficial information, at least 10 persons were sentenced to death in 1998. Other death sentences were believed to have been passed and carried out. At least one death sentence was handed down during trials against alleged "Wahhabi" Islamic extremists accused of being responsible for murders in the Fergana Valley in 199772.

During 1999 at least 29 men were sentenced to death73, 17 of whom were found guilty of having organized bombings in the capital, Tashkent, on 16 February 1999, which resulted in the death of 16 people. Only the first of the three trials that were held in connection with the bombings was open to the public. All six men sentenced to death after this first trial in June 1999, which according to international observers failed to be in line with international standards, had been executed by January 200074. Information on the status of the remaining death sentences is not available. There are numerous reports of torture in detention, extractions of confessions under duress, and other serious irregularities in connection with trials that have resulted in death sentences75.


Notes

1 Prior to the entry into effect of a moratorium on executions on 8 December 1998.

2 Prior to the entry into effect of a moratorium on executions on 1 January 1999.

3 See Annex for full reference.

4 Except for Andorra, the Holy See, Kazakhstan, and Turkey, all OSCE particpating States are parties to the ICCPR. See: www.unhchr.ch/tbs/doc.nsf.

5 General Comment 6, adopted at the 16th session of the Human Rights Committee on 27 July 1982.

6 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, UN Economic and Social Council Resolution 1984/50, adopted on 25 May 1984.

7 Commission on Human Rights resolution 1999/61, adopted on 28 April 1999 by a roll-call vote of 30 votes to 11, with 12 abstentions.

8 UN ECOSOC reference: E/CN.1/1999/39, 6 January 1999, paragraph 63.

9 See footnote 6.

10 See footnote 7.

11 See footnote 5.

12 See footnote 7.

13 Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty. Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989.

14 See Annex 2. Addendum: Turkmenistan became Party to the Second Optional Protocol on 11 January 2000.

15 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, ETS No. 114, 28 April 1983.

16 See: www.coe.fr/tablconv/114t.htm.

17 See footnote 1.

18 See footnote 2.

19 Information received from the OSCE Presence in Albania.

20 Europe: A Death Penalty-Free Continent, report by the Committee on Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly, Doc. 8340, 8 April 1999.

21 Capital Punishment: Information Submitted by States, prepared by Monitoring Unit of the Secretary General of the Council of Europe, AS/Inf (1999) 2, 26 April 1999.

22 Information received from the OSCE Presence in Albania.

23 State Party Report under Article 40 of the ICCPR, submitted to the UN Human Rights Commission by Armenia on 30 April 1998, CCPR/C/92/Add.2 and Amnesty International (AI) report EUR 54/03/97 (Armenia: Time to Abolish the Death Penalty).

24 State Party Report under Article 40 of the ICCPR (see footnote 23).

25 Information received from the OSCE Office in Yerevan.

26 AI ACT 53/02/98 (Death Penalty News, March 1998) and AI Report 1999, p. 86.

27 Unpublished information received from Amnesty International.

28 Information received from the OSCE Advisory and Monitoring Group in Belarus.

29 Ibid.

30 Ibid.

31 See, for example, AI EUR 49/10/98, AI EUR 49/14/99.

32 Information received from the OSCE Mission to Bosnia and Herzegovina.

33 AI Report 1999, p. 104.

34 Information received from the OSCE Mission to Georgia - AI EUR 01/01/00.

35 Information received from the OSCE Centre in Almaty.

36 AI ACT 50/04/99 (The Death Penalty World Wide. Developments in 1998, May 1999).

37 Information received from the OSCE Centre in Almaty.

38 Ibid.

39 Interfax, 7 December 1999 and AI ACT 53/01/99 (Death Penalty News, December 1998).

40 Information received from the OSCE Centre in Bishkek - AI EUR 01/01/00.

41 Interfax, 1 June 1999 and information received from the OSCE Mission to Latvia.

42 See footnote 21.

43 Information received from the Prosecutor of Transdniestria by the OSCE Mission to Moldova (6 July1999).

44 RFE/RL Newsline, 8 July 1999 and AI Report 1999, p. 251.

45 See footnote 21.

46 Ibid. and AI EUR 46/05/99

47 Ibid. See also footnote 20.

48 See footnote 21.

49 RFE/RL Newsline, 3 June 1999.

50 AI EUR 46/13/98 and RFE/RL, 1 July 1999.

51 IHF Annual Report 1999, p. 241 and AI ACT 50/04/99 (The Death Penalty World Wide. Developments in 1998, May 1999).

52 AI Report 1999, p. 326.

53 Unpublished information received from Amnesty International. See also: AI Report 1999, p. 326, and IHF Annual Report 1999, p. 242.

54 Reuters, 26 March 1999, 22 June 1999, Interfax, 30 December 1999.

55 Information received from the OSCE Mission to Tajikistan.

56 See footnote 21.

57 Addendum: Following a controversial internal debate, the Government decided in January 2000 to halt the presentation of the death sentence for final approval to the parliament until the European Court of Human Rights, which had issued a stay of execution order in November 1999, decides on the case.

58 Unpublished information received from Amnesty International.

59 See footnote 21.

60 Interfax, 29 December 1999, and information provided by the OSCE Centre in Ashgabat.

61 AI EUR 61/12/98

62 Interfax-Ukraine, 30 December 1999, Council of Europe Press Service, 5 January 2000. _ Addendum: On 22 February 2000, the parliament brought legislation in line with the Constitutional Court's ruling and removed the death penalty from the statute books. The parliament also ratified Protocol No. 6 to the ECHR. Interfax-Ukraine, 22 February 2000.

63 Council of Europe Press Service, 24 June 1999. See also footnote 20 and: Honouring of Obligations and Commitments by Ukraine, report by the Monitoring Committee of the Council of Europe's Parliamentary Assembly, Doc. 8424, 1 June 1999.

64 Interfax, 21 January 1999.

65 See footnote 20.

66 IHF 1999 Report to the OSCE on Human Dimension Issues (http://www.ihf-hr.org/reports/osce99-2/osce2.htm).

67 See Death Penalty Information Center (http://www.essential.org/dpic).

68 UN Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant: United States of America, comments adopted at the 1413th meeting (53rd session) on 6 April 1995.

69 UN ECOSOC Reference: E/CN.4/1999/39/Add.1, 6 January 1999.

70 See Death Penalty Information Center (www.essential.org/dpic/foreignnatl.html). AI AMR 51/27/98.

71 Information received by the OSCE Centre in Ashgabat and AI ACT 50/04/99 (The Death Penalty World Wide. Developments in 1998, May 1999).

72 AI Report 1999, p. 356.

73 Information received from the OSCE Liaison Office in Central Asia, and Interfax, 7 July 1999.

74 OSCE Liaison Office in Central Asia, Human Rights Spot Report, 2 July 1999, and Reuters, 31 January 2000.

75 See e.g. AI EUR 62/29/99.


ANNEX 1

OSCE COMMITMENTS RELATING TO CAPITAL PUNISHMENT

Concluding Document of the 1989 Vienna Follow-up Meeting

Questions relating to security in Europe

(24) With regard to the question of capital punishment, the participating States note that capital punishment has been abolished in a number of them. In participating States where capital punishment has not been abolished, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to their international commitments. This question will be kept under consideration. In this context, the participating States will co-operate within relevant international organizations.

Document of the 1990 Copenhagen Meeting of the Conference on the Human Dimension of the CSCE

17. The participating States

17.1 recall the commitments undertaken in the Vienna Concluding Document to keep the question of capital punishment under consideration and to co-operate within relevant international organizations;

17.2 recall, in this context, the adoption by the general Assembly of the United Nations, on 15 December 1989, of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;

17.3 note the restrictions and safeguards regarding the use of the death penalty which have been adopted by the international community, in particular Article 6 of the International Covenant on Civil and Political Rights

17.4 note the provisions of the Sixth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty;

17.5 note recent measures taken by a number of participating States towards the abolition of capital punishment;

17.6 note the activities of several non-governmental organizations on the question of the death penalty;

17.7 will exchange information within the framework of the Conference on the Human Dimension on the question of the abolition of the death penalty and keep that question under consideration;

17.8 will make available to the public information regarding the use of the death penalty;

Document of the 1991 Moscow Meeting of the Conference on the Human Dimension of the CSCE

(36) The participating States recall their commitment in the Vienna Concluding Document to keep the question of capital punishment under consideration and reaffirm their undertakings in the Document of the Copenhagen Meeting to exchange information on the question of the abolition of the death penalty and to make available to the public information regarding the use of the death penalty.

(36.1) They note

(i) that the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty entered into force on 11 July 1991;

(ii) that a number of participating States have recently taken steps towards the abolition of capital punishment;

(iii) the activities of several non-governmental organizations concerning the question of the death penalty.

Concluding Document of the 1992 Helsinki Summit

Capital Punishment

The participating States

(58) Confirm their commitments in the Copenhagen and Moscow Documents concerning the question of capital punishment.

Concluding Document of the 1994 Budapest Summit

Capital Punishment

19. The participating States reconfirm their commitments in the Copenhagen and Moscow Documents concerning the question of capital punishment.


ANNEX 2
Participating states Total abolition Number of death sentences Number of persons on death row (as of 30/6/99, unless otherwise stated)
 Number of Executions
  Protocol No. 6 2nd Optional Protocol
signedratified signedratified
Additional information (including reference to retention in internationally unrecognized separatist entities)
 
Albaniano6 (1998)
0 (1999) 		00nonono no
Moratorium in force since 1995, death penalty de facto abolished for peacetime offences in December 1999
Andorrayesn/an/an/ayes yesno no
Armeniano3 (1999)310n/an/anono
De facto moratorium since 1991
Austriayesn/an/an/ayesyesyesyes
Azerbaijanno1 (1998)00n/an/ayesyes
Moratorium in force since 1993, death penalty for peacetime offences abolished in February 1998 (with the exception of Nagorno-Karabakh)
Belarusno47 (1998)at least 84 (X/98)40 (1998)
14 (1999)		n/an/anono
Belgiumyesn/an/an/ayesyesyesyes
Bosnia-Herzegovinano02 0nononono
Death penalty abolished in the Federation in November 1998
Bulgariayesn/an/an/ayesnoyesyes
Death penalty abolished in December 1998
Canadayesn/an/an/an/an/anono
Death penalty completely abolished in December 1998
Croatiayesn/an/an/ayesyesyesyes
Cyprusyesn/an/an/ayesnoyesyes
Death penalty abolished for all crimes in February 1999
Czech Republicyesn/an/an/ayesyesnono
Denmarkyesn/an/an/ayesyesyesyes
Estoniayesn/an/an/ayesyesnono
F.Y.R. of Macedoniayesn/an/an/ayesyesyesyes
Finlandyesn/an/an/ayesyesyesyes
Franceyesn/an/an/ayesyesnono
Georgiayesn/an/an/ayesnoyesyes
Death penalty has not been abolished in Abkhazia and South Ossetia
Germanyyesn/an/an/ayesyesyesyes
Greeceyesn/an/an/ayesyesyesyes
Holy Seeyesn/an/an/an/an/anono
Hungaryyesn/an/an/ayesyesyesyes
Icelandyesn/an/an/ayesyesyesyes
Irelandyesn/an/an/ayesyesyesyes
Italyyesn/an/an/ayesyesyesyes
Kazakhstannoat least 51 in 1998,
63 (1999)		??n/an/anono
Kyrgyzstanno55 (1998)
20 (1999)		about 607 (1998)n/an/anono
Moratorium in force since 8 December 1998
Latviano5 (1998)00yesyesnono
Prot. No. 6 ratified with effect from 1 June 1999, national legislation not yet amended accordingly
Liechtensteinyesn/an/an/ayesyesyesyes
Lithuaniayesn/an/an/ayesyesnono
Death penalty abolished in December 1998, all nine pending death sentences commuted
Luxembourgyesn/an/an/ayesyesyesyes
Maltanon/an/an/ayesyesyesyes
Death penalty abolished for peacetime offences
Moldovayesn/an/an/ayesyesnono
Death penalty has not been abolished in Transdniestria
Monacoyesn/an/an/an/an/anono
Netherlandsyesn/an/an/ayesyesyesyes
Norwayyesn/an/an/ayesyesyesyes
Polandyesn/an/an/ayesnonono
Portugalyesn/an/an/ayesyesyesyes
Romaniayesn/an/an/ayesyesyesyes
Russian Federationno67
(I-VI/98)		00 yesnonono
Moratorium in force since 1996, all death sentences commuted in June 1999; death penalty in active use in Chechnya
San Marinoyesn/an/an/ayesyesnono
Slovak Republicyesn/an/an/ayesyesyesyes
Sloveniayesn/an/an/ayesyesyesyes
Spainyesn/an/an/ayesyesyesyes
Swedenyesn/an/an/ayesyesyesyes
Switzerlandyesn/an/an/ayesyesyesyes
Tajikistannoat least 24 in 1998 and 15 in 1999??n/an/anono
Turkeynoat least 21 in 1998 and 24 in199940
(I/99)		0nononono
De facto moratorium since 1984
Turkmenistanyes? 0? (1998)
0 (1999)		n/an/anono
Moratorium in force since 1 January 1999, death penalty de facto abolished on 29 December 1999
Ukraineno146 (1998)
35 (I-VI 99)		388 (I/1999)0yes nonono
Moratorium in force since March 1997, death penalty de facto abolished since 30 December 1999
United Kingdomyesn/an/an/ayesyesyesyes
Death penalty completely abolished in November 1998
United States of Americano3625 (IX/99)68 (1998)
98 (1999)		n/an/anono
Uzbekistannoat least 10 in 1998 and 29 in 1999??n/an/anono

As of 31 December 1999.
The table does not contain figures relating to the use of the death penalty in separatist, internationally unrecognized entities within OSCE participating States