Established international standards prohibit imposition of the death penalty for individuals with mental disorders but these are rarely implemented.

A number of international standards aiming to protect people with mental disorders from application of the death penalty have been adopted. In 1984, the UN Economic and Social Council (ECOSOC) adopted safeguards for the protection of the rights of people facing the death penalty (the safeguards)⁵⁷. Safeguard 3 sets out that “persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane”.

In 1989, ECOSOC specified in Resolution 1989-64 (adopted on 24 May 1989) that these safeguards should be applied for people with mental disorders, recommending that Member States eliminate the death penalty “for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution”.⁵⁸
Similarly, the UN Human Rights Commission (since replaced by the Human Rights Council), urgently asked States which continue to apply the death penalty “not to impose the death penalty on a person suffering from any mental or intellectual disabilities”⁵⁹.
A number of national courts and regional and international human rights mechanisms have also recognised this prohibition⁶⁰.
The problem lies in the implementation of such a prohibition. Legally, several problems arise in practice:
• Few countries have adopted measures for effective protection of people with mental disorders from application of the death penalty, particularly when mental disorders develop after sentencing;
• The possibility of pleading incompetence to face trial is restrictive because it is only applied in the event of serious mental illness;
• The defence of insanity is very limited and, although the interpretation of this defence varies from one State to another, it is generally admitted that it rests on criteria which are too restrictive based on an extremely severe mental illness. Most of those accused invariably fall below the required standard.
• The less restrictive defence of reduced responsibility was introduced in numerous jurisdictions. However, it too has its limits, in particular because it can only be put forward if the accused accepts it and many of the accused with mental disorders cannot appreciate the necessity of exercising such a defence.

In any case, in the event of disagreement on the subject of a person’s mental health, the execution should not take place.

Another significant problem is countries where application of the death penalty is mandatory. In those cases, the only solution is for the Pardons Committee/Commission (the name varies depending on the country) to grant a commutation of sentences due to mental disorders. This issue is currently before the Judicial Committee of the Privy Council or JCPC of the Republic of Trinidad and Tobago in the cases of Pitman⁶¹ and Hernandez⁶².

The difficulty of obtaining precise forensic expertise for people facing the death penalty

The medical information required to draw up a diagnosis and the understanding of concepts such as the ability to plead, insanity and reduced responsibility vary greatly, both in terms of legal and medical definitions. The lack of qualified medical staff is also a problem for obtaining medical assessments of the accused.

The difficulty of implementing the prohibition also stems from:
• difficulties categorising the various types of mental disorders and making a relevant diagnosis;
• the fact that psychiatric disorders evolve and it is therefore difficult to assess mental disorders at any given moment of the legal procedure;
• the fact that legal concepts do not necessarily have an equivalent in medicine.

In any case, in the event of disagreement on the subject of a person’s mental health, the execution should not take place. Abolition of the death penalty is therefore the only solution.

The case of Indonesia

One example of the difficulties related to implementing prohibition of the death penalty is Indonesia. One of the challenges for lawyers is firstly to communicate with people suffering from mental disorders and make them understand the procedure, possible defences and the impact of certain decisions on the judicial procedure.
Those working in the legal system lack knowledge about mental health; lawyers do not have the necessary training and education to understand and recognise mental disorders. Added to that is the lack of psychiatrists and a reluctance among certain psychiatrists of being associated with cases connected to drugs for example, something which does not allow for effective protection of people with mental disorders, as witnessed by the execution of Rodrigo Gularte (a Brazilian citizen) in Indonesia after his death sentence in 2005 for importing cocaine into the country. Rodrigo had been diagnosed with bipolar affective disorder in the 1990s and had been hospitalised at the time. He had also been diagnosed with paranoid schizophrenia in prison. Rodrigo’s state of health was ignored, as was his request to be transferred to a mental health establishment, and he was executed in 2015.
As Indonesia does not have legislation prohibiting the execution of people suffering from mental disorders, prosecutors and judges rarely take international standards into account. It is therefore urgent to legislate into this area. More generally, it is also important to ensure that people accused of crimes punishable by death and sentenced to death are regularly assessed as to the state of their mental health.

The perspective of an organisation defending the rights of disabled people

The protection of people with an intellectual disability constitutes a dilemma for some organisations defending the rights of disabled people. Although the latter defend abolition of the death penalty for all, nonetheless such protection remains based on stereotypes as it supposes that people with an intellectual disability cannot be held responsible for their actions.
The Convention on the Rights of Persons with Disabilities⁶³ asserts that we cannot automatically concede that people with an intellectual disability are incapable of intention or are irresponsible. They can have the capacity to understand and act. Above all, the important thing is to ensure that trials are fair. To do that, appropriate training of staff in justice administration, the police and the penitentiary system on how to manage cases involving people with an intellectual disability is necessary.