The death penalty as a tool in the fight against terrorism: international experience and Russian practice

Khimedenova Dina Nikolaevna ORCID: 0000-0002-1270-7447 PhD in Law Associate Professor; Department of Criminal Law; Southwest State University 305545, Kursk region, Kursk district, Khalino settlement, Achkasov str., 374, sq. 1 sadchikova.dina@yandex.ru Bukalova Mariya Andreevna Student; Faculty of Law; Southwest State University 445039, Russia, Samara region, Tolyatti, Avtozavodsky district, Voroshilova str., 41, block 87 masiabukalova@yandex.ru

Galaeva Liza Movlatgirievna Student; Faculty of Law; Southwest State University 6/13 Linetskaya St., Kursk, Central District, Kursk, 305040, Russia galaeva-liza2005@mail.ru

In today's globalized world, the problem of terrorism has become particularly acute, becoming a challenge not only for national security systems, but also for the entire international community. States' responses to terrorist threats range from preventive measures to harsh punitive practices, among which the institution of the death penalty occupies a special place. This legal phenomenon is located at the junction of several complex discourses: criminal policy, international law, ethics and criminology ^{[1, p. 34]}.

The relevance of the study is due to several interrelated factors. First, with the increase in terrorist attacks around the world (from Europe to Southeast Asia), discussions are intensifying in political and expert circles about the permissibility of using exceptional punishments. Secondly, the Russian legal system, while maintaining the death penalty in the list of punishments in the Criminal Code of the Russian Federation (hereinafter referred to as the RF), simultaneously observes a moratorium on its use, which creates a unique legal conflict. Thirdly, the analysis of foreign experience reveals fundamentally different approaches to this problem - from complete rejection to the active use of capital punishment ^{[2, p. 2]}.

The purpose of this study is a multidimensional analysis of the death penalty as a tool for countering terrorism, viewed through the prism of international practice and Russian legal realities. The methodological basis of the work includes comparative legal analysis, the study of judicial practice, the analysis of statistical data and international legal acts.

The problem of the legal definition of terrorism remains one of the most difficult in modern international law ^{[3, p. 1]}. The lack of a single universally recognized definition is explained by the political nature of this phenomenon - what some States consider terrorism, others may qualify as a struggle for freedom. Nevertheless, most international documents identify the key characteristics of the phenomenon under consideration: the use of violence for political purposes, aimed at intimidating the population and destabilizing public order. The Russian legislation (Article 205 of the Criminal Code of the Russian Federation) focuses on the socially dangerous consequences of terrorist acts, as well as their targeting against the foundations of the constitutional order and the security of the state.

The death penalty as a legal institution has a centuries-old history, but in the modern legal field its application faces serious limitations due to the development of the concept of human rights. International legal instruments such as the European Convention on Human Rights (art. 3) and the International Covenant on Civil and Political Rights (art. 6) establish strict limits for the application of capital punishment. At the same time, the debate between supporters and opponents of the death penalty continues in the scientific community.

The parties identify a number of fundamental problems related to the use of the death penalty. First of all, there is a risk of judicial errors, the consequences of which become irrecoverable if the sentence is executed. In addition, the lack of convincing evidence of the preventive effect of this measure on the level of serious crimes is emphasized. Finally, special attention is paid to ethical aspects, since from the standpoint of humanistic values, deprivation of life as a form of punishment raises serious moral objections ^{[4, p. 70]}.

An analysis of foreign experience in the use of the death penalty for terrorist crimes reveals fundamental differences in the approaches of different legal systems. In countries where the Islamic legal model operates (such as Iraq or Saudi Arabia), the death penalty is widely used for crimes classified as "war against God" (moharebeh) ^{[5, p. 390]}. However, the international community consistently criticizes the Iranian practice for systemic violations of the rights of the accused: lack of access to a lawyer, use of torture to extract confessions, holding closed trials without due process guarantees ^{[6, p. 261]}.

A completely different approach is demonstrated by the United States, where federal legislation provides for the death penalty for particularly serious terrorist crimes. A striking example is the case of Timothy McVeigh, convicted of organizing the Oklahoma City bombing in 1995. The American legal system provides for a complex multi-stage death penalty appeal system that can last for decades. It is noteworthy that the FBI statistics do not confirm the thesis about the deterrent effect of the death penalty - an analysis of the dynamics of terrorist acts over the past 30 years has not revealed a correlation between increased penalties and a decrease in the number of crimes ^{[7, p. 78]}.

Chinese counterterrorism practices deserve special attention, especially in the Xinjiang Uygur Autonomous Region. The Chinese authorities apply an integrated approach combining harsh repressive measures (including the death penalty for separatism and "religious extremism") with large-scale "vocational training" programs ^{[8, p. 57]}. However, the complete lack of transparency of the judicial system and numerous reports of violations of the rights of the Uighur population cause sharp criticism from international organizations ^{[9, p. 49]}.

A completely different model is demonstrated by the countries of the European Union, where the death penalty is prohibited as contrary to the fundamental values of the EU (art. 2 of the EU Charter). European states focus on preventive measures: monitoring radical groups, social adaptation programs, and international cooperation in the field of anti-terrorist activities. Research shows that such an integrated approach is more effective in the long run than harsh punitive measures.

In Russian legislation, the death penalty is formally retained as a form of punishment for particularly serious crimes against life (Article 59 of the Criminal Code of the Russian Federation), but since 1996 there has been a moratorium on its use. The Constitutional Court of the Russian Federation, in its Decision No. 3-P of 1999, stated that the use of the death penalty was impossible until the introduction of jury trials throughout the country, which created the legal basis for an indefinite moratorium ^{[10, p. 208]}.

In the context of the fight against terrorism, Russian legislation (Article 205 of the Criminal Code of the Russian Federation) provides for punishment up to life imprisonment. Judicial practice shows a tendency to impose maximum sentences for terrorist crimes. For example, the organizers of the terrorist attacks on the Moscow metro (2010) and Domodedovo Airport (2011) were sentenced to life in prison. At the same time, proposals are periodically made in the political and expert community to resume the use of the death penalty for particularly serious terrorist crimes, especially after high-profile terrorist attacks ^{[11, p. 320]}.

Russia's international legal obligations, despite its withdrawal from the Council of Europe, continue to have an impact on the legal system. The European Convention on Human Rights (in particular, Protocol No. 6 prohibiting the death penalty in peacetime) has long served as an important guideline for Russian legislation. Currently, the issue of the possible resumption of the death penalty remains the subject of intense debate among lawyers and human rights defenders ^{[12, pp. 154-155]}.

Criminological analysis casts doubt on the effectiveness of the death penalty as a means of countering terrorist activities ^{[13, p. 93]}. Numerous international studies demonstrate that there is no direct correlation between the use of capital punishment and a decrease in terrorist activity. On the contrary, there is evidence that such measures can contribute to the radicalization of certain groups and increase the number of violent acts, since executed criminals often acquire the status of martyrs in the eyes of their supporters.

The issue of judicial errors is of particular concern. An analysis of American practice shows that since 1973, those sentenced to death have often been posthumously acquitted due to new evidence or DNA examination ^{[14, pp. 269-271]}. A striking example is the case of Timothy Brian Cole (1960-1999), who was convicted of rape in Texas in 1986 and sentenced to 25 years in prison. The basis for the conviction was the identification of the victim, despite the lack of physical evidence. Cole died in prison on December 2, 1999 due to an acute attack of bronchial asthma, without waiting for a review of his case. The subsequent development of genetic examination methods allowed for DNA analysis in 2008, which definitively ruled out Cole's involvement in the alleged crime. A significant circumstance was the voluntary confession of another convict, Jerry Wayne Johnson, who confirmed his involvement in the crime. Based on the newly discovered circumstances, Cole's official judicial rehabilitation took place in 2009.

A similar case of miscarriage of justice is related to the case of Joseph Arridi (1915-1939), who was executed on January 6, 1939 in Colorado on charges of raping and murdering 15-year-old Dorothy Drain. The 1936 trial was based on the confessions of Arridi himself, which, as it was later established, were obtained under pressure from the investigating authorities. Medical examinations confirmed that Arridi had severe mental retardation (IQ about 46), which cast doubt on the reliability of his confession and his ability to fully participate in the trial. Modern criminological research (Perske, 1995) indicates systemic violations during the investigation, including ignoring the defendant's alibi and the lack of material evidence of his guilt. In 2011, Colorado Governor John Hickenlooper signed a posthumous pardon for Arridi, admitting that the miscarriage of justice was the result of a combination of procedural violations and discriminatory treatment of persons with mental disabilities in the judicial system of the first half of the 20th century ^{[15, p. 1]}.

In the context of terrorist crimes, where investigations often operate under conditions of information scarcity and time pressure, the risk of miscarriage of justice is particularly high.

Alternative approaches to combating terrorism include a set of preventive measures. Scandinavian countries demonstrate successful experience in social adaptation programs for former terrorists. Germany and France have achieved significant results in monitoring radical communities on the Internet. International cooperation within the framework of Interpol, the UN counter-terrorism structures and regional organizations is of great importance ^{[16, p. 833]}.

The conducted research allows us to conclude that the death penalty is questionably effective as a tool for combating terrorism. International experience shows that countries that use capital punishment do not significantly reduce the terrorist threat, but they face serious criticism for human rights violations. The Russian legal system, while maintaining a balance between the need to counter terrorism and compliance with international standards, demonstrates a balanced approach through the application of maximum terms of imprisonment while maintaining a moratorium on the death penalty ^{[17, p. 156]}.

In conditions when the issue of applying the death penalty to persons who have committed terrorist crimes remains the focus of legal and public discussion, it seems advisable to consider alternative measures combining the principles of justice, prevention and humanism. In international practice, the most common option for replacing the death penalty is life imprisonment without the possibility of parole, which ensures public safety while maintaining the possibility of rehabilitation in the event of a proven change in the personality of the convicted person. For Russian legislation, where such a measure is already provided for in Part 2 of Article 105 of the Criminal Code of the Russian Federation in relation to particularly serious crimes, including terrorism, it remains relevant to improve the mechanisms for its implementation. For example, strengthening control over the behavior of convicts in places of punishment, the introduction of psychological and pedagogical correction programs aimed at the destruction of radical worldviews, as well as limiting the right to amnesty or pardon for this category of persons.

Preventive measures aimed at preventing terrorist activity at an early stage are of particular importance. In this context, the Russian system can borrow from the experience of countries where de-ideologization programs are actively used, including working with relatives of potential radicals, integrating people prone to extremism into social and professional projects, as well as monitoring online space with the subsequent counteraction to terror propaganda. Cooperation with religious and public organizations is also recognized as an effective tool to reduce the risk of ideological mobilization ^{[18, p. 155]}.

It is equally important to modernize the conditions of detention of suspects and convicted of terrorist crimes. The introduction of strict isolation, communication control, and regular psychological support helps minimize threats inside and outside correctional facilities. At the same time, it is important to maintain a balance between the need to ensure security and respect for human rights, which is confirmed by the practice of the European Court of Human Rights, which points to the inadmissibility of ill-treatment even against persons accused of serious crimes.

An integrated approach also involves strengthening international cooperation in the field of countering terrorism, including the exchange of information on methods of recruitment, financing and planning attacks ^{[19, p. 198]}. For Russia, where the terrorist threat is often cross-border, participation in such initiatives can increase the effectiveness of preventive measures and reduce the risk of repeat crimes.

Thus, an alternative to the death penalty in the fight against terrorism should be based on a combination of strict repressive measures aimed at isolating dangerous individuals and predictive strategies aimed at eliminating the root causes of radicalization ^{[20, p. 4]}. This allows not only to deter terrorist activity, but also to preserve the potential for the integration of individuals into society, which corresponds to the principles of humanistic law and modern trends in international justice.

Ultimately, an effective fight against terrorism requires not so much tougher punishments as systematic work to eliminate the social, economic and political causes that give rise to this dangerous phenomenon ^{[21, p. 47]}. International experience shows that a State governed by the rule of law can successfully counter terrorist threats while remaining within the framework of humanistic principles and international legal standards.