By sharing their experiences at the two workshops, four lawyers specialising in civil and Common Law demonstrated the major role of jurists in abolition of the death penalty. The representation of someone facing capital punishment largely rests on the creation of a good legal strategy. When this legal strategy bears fruit and prevents a death sentence, it can also lead to a reassessment of the death penalty nationally and even regionally.
Over the course of these two workshops, numerous strategies were discussed, among them use of internal law and international law, the theory of “death row syndrome” and a reassessment of the responsibility of the accused.
Tendai Biti, a Zimbabwean lawyer, recommended use of internal law above all. Use of the constitution, for example, can be a good strategy. It generally includes the right to life and the right to a fair trial. It also protects people from any form of discrimination and often prohibits torture and cruel, inhuman or degrading treatment. Such constitutional provisions can also be used to denounce the unconstitutional nature of the death penalty, mandatory application of the death penalty and long waits on death row. The decision of the Ugandan Constitutional Court in the case of Susan Kigula and 416 others vs. the Attorney General has become an example in this respect. The judges declared that mandatory application of the death penalty was unconstitutional because it is discriminatory and violated the right to a fair trial¹¹⁸ as the compulsory aspect of the sentence prevented the judge from taking into account attenuating circumstances. They established that, although the death penalty itself did not constitute cruel, inhuman and degrading treatment, the 3-year timeframe for execution did.
This legal strategy, denouncing a long wait on death row after sentencing before execution, is also known as “death row syndrome”¹¹⁹. This expression is reputed to have been used for the first time¹²⁰ in a decision by the European Court of Human Rights (ECHR) in the case of Soering vs. United Kingdom in 1989¹²¹.
On that occasion, the European Court had refused the extradition of Jens Soering to the United States, considering that there was a very strong probability that he would be sentenced to capital punishment and that, given the complex procedures following a death sentence in Virginia, the particularly harsh prison conditions and the tension experienced while awaiting execution would engender “death row syndrome”, a cruel, inhuman and degrading treatment”¹²².
The Privy Council¹²³ took up the theory of “death row syndrome” in the case of Pratt vs. the Public Prosecutor of Jamaica, a decision handed down on 2 November 1993, citing that, although various submissions enabled the prisoner to appeal the decision, he was not responsible for the length of the procedures which are established by the State, Consequently, the wait on death row imposed on the prisoner, which exceeded a certain number of years, in this instance at least 5 years, could be labelled cruel, inhuman and degrading treatment. Although this theory did not bear fruit in the United States (even though it has been mentioned by the Supreme Court judges in dissenting opinions), it has prospered in Jamaica¹²⁵ and Canada where it is used within the framework of extradition hearings¹²⁶.
The use of sources from international law is a strategy which has also often proved to be useful. The Law of Treaties¹²⁷, is applied when States are signatories to the relevant international treaties such as for example the International Covenant on Civil and Political Rights (ICCPR), the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to abolish the death penalty, and the Vienna Convention on Consular Relations.

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For countries which have not ratified the Second Optional Protocol, the ICCPR can be applied, particularly Article 6, paragraph 2, on the right to life, according to which “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.” This notion of the “most serious crimes” was used in the 1984 safeguards to protect the rights of people facing the death penalty which defines them as intentional crimes with mortal or extremely serious consequences¹²⁸.
In India for example, since the decision in the case of Bachan Singh vs. the State of Punjab in 1980, the Supreme Court has applied a principle according to which the death penalty should only be applied in cases of extreme rarity (the ‘rarest of rare principle’) when “an alternative option is incontestably excluded.”¹²⁹ The same Court clarified this principle in a decision in 1983¹³⁰, indicating that the death penalty should only be applied in the most serious cases of extreme guilt¹³¹. The criteria for the “most serious crimes” can therefore be used as a legal strategy to avoid a sentence. However, as no threshold has been defined to frame “the most serious” crimes, the success of this legal strategy is subject to the discretion of the national judge who will consider, arbitrarily, if the threshold has been reached or not.
A clear, objective and internationally recognised definition could lead to a reduction in the scope of application of the death penalty in a number of countries and, consequently, represent another step towards universal abolition of the death penalty. For example, this definition could be adopted through an additional resolution to the safeguards for the protection of the rights of those facing the death penalty adopted by the UN General Assembly.
That said, and as Julian McMahon, a lawyer and President of Reprieve Australia, recalled, some international provisions codified in treaties can also be applied by virtue of ordinary international law. It is therefore advised that all the strategies on offer be tried.
The lawyers attending the workshop also shared legal strategies for when the person charged is overseas. In particular, Ms Nedra Ben Hamida, a Tunisian lawyer, shared the strategy used for the defence of the Mauritanian national, Mohamed Cheikh Ould Mohamed, sentenced to death in Mauritania for apostasy¹³². It is interesting to see in this specific case that the legal strategy can rest in part on the understanding of the society where the alleged crime has taken place, as well as on the psychology of the judges. This can determine the most relevant legal strategy. International law can be an option, positioning oneself for example on the defence of particular rights such as freedom of expression and freedom of opinion and conviction. However, the defence actually opted for a strategy based on the internal law of the country, particularly appealing to the religion, repentance and lack of criminal intention of the accused, a strategy which would have a faster impact on the judges and Mauritanian society given the urgent nature of the case.
Finally, as Rafik Zakharia, a Lebanese lawyer, clarified, it is relevant to reassess the responsibility of the accused by highlighting any attenuating circumstances surrounding the crime committed. It is also important to consider the age and mental health of the accused. People who are under 18 at the time of the crime or those suffering from a mental illness are protected by safeguards for the protection of the rights of those facing the death penalty, prohibiting application of the death penalty for people suffering from a mental illness¹³³.
In Lebanon, for example, proven insanity at the time of committing the alleged crime can exclude criminal responsibility. It is therefore essential to demonstrate the mental illness or age of the person accused, where applicable, to avoid a death sentence. In practice, proving the mental health of the accused is not always self-evident due, in particular, to the lack of a correct diagnosis¹³⁴ or the lack of consideration by the court of the information proving the mental illness. Determining age can also be difficult when the accused does not have either a birth certificate or any other information proving his/her age¹³⁵.
It is important to bear in mind that, although these strategies are effective in some cases, that is not so on every occasion. Death Row Syndrome is not necessarily taken into account and the same is true for application of international texts or recognition of mental illness in the accused.
Moreover, the death penalty is discriminatory in that very often people charged with a crime subject to capital punishment and sentenced to death have very low incomes. Very often, they find themselves unable to obtain the services of an experienced lawyer and are therefore defended by young court-appointed lawyers whose lack of experience might not help the prisoner.
In the light of this injustice and the need to work on legal strategies to save prisoners and move towards abolition of the death penalty, it was decided during the workshop on “Legal representation of people facing the death penalty” to create an international network of lawyers specialising in the death penalty, providing global mutual assistance and offering support to the youngest of them as well. This network would work for more effective defence and progress towards universal abolition of the death penalty.