30 May 2017 :
The Consiglio Nazionale Forense (C.N.F.), with legal seat in Rome, via del Governo Vecchio, n. 3, represented by its President and Legal Representative pro tempore Andrea Mascherinand
Hands Off Cain, with operational seat in Rome, via di Torre Argentina, n.76, represented by its President and Legal Representative pro tempore Sergio D’Elia
Given that Hands Off Cain is the coordinating organization for the project “Containing the death penalty at times of war on terrorism in Egypt, Somalia and Tunisia”, approved by the European Commission (ENI/2016/376-926) for a duration of three years (2017-2019);
Considering that both parties share the general objective of the project to reduce recourse to the death penalty in Egypt, Somalia and Tunisia, starting from the containment of such recourse to the limits set by existing international standards which States are obliged to adhere to, to arrive at the introduction of a moratorium on executions in view of the abolition of the death penalty, as set forth by the United Nations General Assembly;
Acknowledging that the project is taking place in the particular historical context of “war on terrorism”, in which the logic of emergency and security laws risk compromising the protection of human rights and the Rule of Law, with arbitrary, illegal and discriminatory use of the death penalty as a result in violation of the founding principles of the international community (in primis the non-derogative principles of legality – art. 11 Universal Declaration of Human Rights and art. 15 ICCPR -; of limiting the death penalty to the “gravest crimes” – art. 6 n. 2 ICCPR, meaning blood crimes –; and the principles of fair trial – art. 14 ICCPR);
Given that lawyers play an essential role in the promotion of a dialogue based on solid legal arguments between all stakeholders, exactly at times of important challenges to the Rule of Law and human rights. Moreover, lawyers are key to identifying and working with critical death penalty cases, be it in the trial stage or the execution stage, before national, regional and international tribunals and bodies;
THE PARTIES HAVE AGREED Art. 1 Aim
With the present Memorandum of Understanding, the parties will work together on initiatives to promote:
- Reinforcing the Rule of Law, convinced that emergency situations should be addressed with the full respect of the principles contained in international conventions and fair trial measures;
- Cooperation with representative organizations of lawyers, and criminal lawyers in particular, in Egypt, Somalia and Tunisia, on the implementation of this project, with the aim of obtaining their patronage and their active participation in the implementation;
- A growing insight in international standards and obligations, as well as the most relevant aspects and critical issues on the use of the death penalty at the national level;
- Regional and global trends and jurisprudence on the death penalty;
- A larger institutional insight (Parliament, Magistrates, Penitentiary Administration, etc.) as well as in civil society on the effective usefulness of the death penalty in a system of just administration of justice;
- Parliamentary and Public debates, with publication of bills, guidelines for Magistrates, and guidelines on visits to prison, starting from the studies produced within the ambit of the project.
Art. 2 Objectives
To achieve the aims set out under Art. 1, in the present Memorandum the parties identify the operational terms and programme for the realization of the following common objectives:
- Definition and dissemination among the representative organizations for lawyers, and criminal lawyers in particular, in Egypt, Somalia and Tunisia, of a questionnaire on living conditions on death row and the experiences with capital trial cases of those who risk or have been condemned to the death penalty, to be included in an analytical study of the main critical points regarding the use of the death penalty in the country (2017);
- The organization of workshops dedicated to criminal lawyers on the protection of the rights of persons risking or having been condemned to the death penalty (2018), on the basis of a preliminary study and survey on the main issues and difficulties faced by lawyers in the defence of capital trial cases (2017);
- The creation of a group of lawyers for the pro bono defence of death penalty cases, starting from those cases which, if brought before the Supreme Courts, might lead to sentences that effectively reduce the general ambit of application of the death penalty (2017/19);
- Sensitization of public opinion on the death penalty, starting from the adoption of particularly significant cases (2017/19);
- Construction and reinforcement of alliances with international, regional and national bodies active in the protection of human rights;
- Actions aimed at verifying respect for obligations and commitments taken by the three target countries before the international community, inspired by the constant flow of standards, recommendations and reports of the United Nations, the European Union. The African Union, and various Special Rapporteurs, Independent Expert and Working Groups on the death penalty.
Art. 3 Data and Research
The Parties commit to actively share data, documents, information, studies and research in order to achieve close cooperation on the objectives set out in this Memorandum, and in particular with regard to the respect for fundamental human rights, the administration of justice and fair trial in particular, and conditions of detention with particular attention for those condemned to the death penalty.Art. 4 Implementation and Referents
Parties will make use of their own offices and organizational structure for the implementation of the aims and objectives set out in this Memorandum, as well as for the verification and monitoring of activities.
- Within thirty days of the signing of this Memorandum, each of the Parties will designate their referent(s) for the activities in the present Memorandum. Each Party may, at any time, substitute their referent(s), communicating such change in due time to the other Party.
- For the necessary technical and scientific support to the activities and the elaboration of studies and shared proposals, the Parties will make use of their own Research Team, without excluding the possibility of involving third bodies or creating a new dedicated research team on the basis of specific goals and to use their contributions with previous agreement from all Parties.
Art. 5 Common obligations
The Parties commit to guaranteeing maximum dissemination of the contents of the present Memorandum and the following initiatives in all Institutional activities.
Art. 6 Duration and changes
The duration of this Memorandum is the one foreseen for the implementation of the project “Containing the death penalty in times of war on terrorism in Egypt, Somalia and Tunisia”, approved by the European Commissione (ENI/2016/376-926) for a duration of three years (2017-2019) and, upon agreement by Parties, can be modified at any time.
Rome, May 26, 2017
CONSIGLIO NAZIONALE FORENSE HANDS OFF CAIN President Secretary General Avv. Andrea Mascherin On. Sergio D’Elia