ِِِِAt the invitation of Lebanese NGO Association Justice et Miséricorde (AJEM), lawyers made public submissions before the Court of Cassation on May 20, 2014 in defense of a Syrian worker held in custody and accused of murder. The defendant was convicted of killing Mohammed al-Natout, a money-changer in the southern town of Saida, by stabbing the victim eleven times. The death sentence meted out by Saida’s criminal court was overturned by the Court of Cassation, with the latter devoting the May session for a retrial. The head of the Paris Bar Association, Pierre-Olivier Sur, took part in the submission, alongside Lebanese lawyers Ziad Ashour and Lama al-Aya. It was the first time a foreign lawyer had argued a case relating to human rights in the Court of Cassation. The process illustrated a new instrument that 'cause lawyers'[1] –lawyers who support social causes– can use. After the submissions, the court set June 26, 2014 as the date for a ruling. The outcome will serve as an indication of how receptive the Lebanese judiciary is to this new form of litigation.

The cooperation between AJEM and the French lawyer began during a national seminar on the abolition of the death penalty that took place on January 24 and 25, 2014. At the seminar, one of the members of the Paris Bar Association promised to support Lebanese lawyers in cases where the defendant is at risk for being sentenced to death.[2] The submissions had important implications beyond the significance of a Paris Bar Association member arguing a case in a Lebanese court, to include the fact that strategic litigation was being used as an instrument to support social causes through the courts.

Why the Head of the Paris Bar, NGOs, the Press and a Former Justice Minister Were in Court

The fact that the head of the Paris Bar Association traveled from France to Beirut to voluntarily defend, alongside Lebanese lawyers, a Syrian worker accused of a horrific crime that shocked the Lebanese public and who was later sentenced to death, was likely to draw attention to the court and to the problematic nature of the death penalty. And it did draw such attention. On May 20, those present at the Court of Cassation during trial included not only lawyers and judges, but also former Justice Minister Ibrahim Najjar, who has put forward a proposal to abolish the death penalty, and a member of parliament, Ghassan Moukheiber, who has been active in the field of human rights. Journalists and representatives of civil society organizations were also present. Interpreters were brought in and sat in a small room that had been specially prepared for the occasion, and headphones were distributed to anyone who needed translation from French to Arabic, and vice versa. The hearing was an unusual event rarely seen in other human rights cases.

The Model Brief and Strategic Litigation Against the Death Penalty

In the hearing the two Lebanese lawyers dealt with the facts and legal aspects of the case, while Sur tried to undermine the principle of capital punishment in his submission by mainly invoking the principles of natural and international law. This enabled his submission to stand as a model brief that can be used in other cases. The concept of model briefs is often used in strategic litigation that is designed to change a legal or social reality, or a particular practice, that harms a broad sector of society. Model briefs are generally prepared for use in several cases, either by the lawyers themselves or by colleagues who wish to use them. Judges who obtain copies of such briefs through their work or through the media can use them as a resource in similar cases that arise in their courts, in the absence of any lawyer and even if the defendant's lawyer decides against using them. Such briefs can be seen as a useful starting point for systematic and sustained action in courts by lawyers and NGOs seeking to abolish the death penalty.

The Strategy for Choosing the Lawyers and the Defendant

In strategic litigation the lawyers and the other parties (in this case, the defendant) are usually selected in a way that is consistent with the objectives of the litigation.

From this perspective, the choice of the lawyer, the head of the Paris Bar Association, and his decision to participate voluntarily and pro bono, appeared to introduce a new and significant component in strategic litigation in general. It also appeared to persuade the judges as well as public opinion that the case was highly significant.

The defendant, on the other hand, was chosen in a way to highlight the problematic of the death penalty. Sur indicated that the choice of the client was not arbitrary. Sur told the court it was a great honor for any lawyer to defend a foreigner who had no one else to help him, and who had no possessions in a case where all the evidence was against him. The submissions by the lawyers mentioned that the defendant had a difficult childhood and had suffered serious economic hardship.

The Judiciary and Strategic Litigation

This case was a clear example of the fact that many ‘cause lawyers’ rely on the judiciary in addressing human rights issues, especially those that political institutions have not yet been able to solve. This is attested to by the fact that the hearing was attended by politicians who were among the most prominent advocates for abolishing the death penalty through legislative channels, but had failed to make it happen. The judiciary thus emerges as the arena for addressing such a failure in the political realm.

It is notable that the hearing dealt with, albeit in passing, the transformative role of the judiciary and the extent to which the latter is prepared to view with favor the briefs and similar techniques. During the hearing, the prosecution appeared to be anxious to set clear limits on the powers and role of the presiding judge, arguing that carrying out a death sentence is a political decision and the judge's role was simply to apply the law.[3]

Meanwhile, the president of the circuit that was examining the case who did allow for bringing in the interpretation equipment, said that “the case has drawn more attention that it deserves”. Naturally, the brief sought to project a different role for judges: when the prosecution said that the decision to suspend the implementation of death sentences for the past ten years was not the basis for a law because it was a political decision, Sur insisted in his response that the penalty should be abolished by law. “We don't want a political position. We want a legal one”, he said. Sur said that the abolition of the death penalty was inevitable and called on the judges to be pioneers in bringing it about.

A News Conference After the Hearing

A press conference was held after the hearing at the medical faculty of St Joseph’s University. Speakers included Hady Aya, the founder of AJEM, lawyer Ziad Ashour and Sur. All three were careful not to mention the case in which they had just submitted briefs and confined their remarks to the question of the death penalty. This illustrated one of the obstacles to strategic litigation – the fact that the Beirut Bar Association considers that any discussion of cases that are pending before the courts is a violation of professional rules.

Earlier Conference Tackles Strategic Litigation

In July 2013, The Legal Agenda, in partnership with the Global Network for Public Interest Law (PILnet), organized a regional conference to explore the extent to which the concept of the cause or public interest lawyer had developed in Lebanon and the Arab world. The conference specifically examined the extent to which lawyers resort to litigation as an instrument for social and legal change in matters of public interest and human rights – a practice that has come to be known as strategic litigation. In parallel with this conference, a study was completed on ‘cause lawyers’ – the nature of their work, the special features of their professional practices, and the techniques and methods of support that they resort to.[4]

This article is an edited translation from Arabic.

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[1] L. Israël, Usages militants du droit dans l’arène judiciaire: Le Cause Lawyering, Droit et Société, no. 3 (2001): 793–824; B. Gaïti and L. Israël, Sur l’engagement du droit dans la construction des causes, Politix 16, no. 62 (2003): 17–30; A. Sarat and S.A. Scheingold, Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press, USA, 1998); A. Sarat and S.A. Scheingold, Cause Lawyering and the State in a Global Era (Oxford University Press, USA, 2001); S.A. Scheingold and A. Sarat, Something to Believe in: Politics, Professionalism, and Cause Lawyering (Stanford Law & Politics, USA, 2004).

[2] See: Alaa Mroueh’s, “The Death Penalty: Lebanon Joins the Moratorium Countries. What is the Role of the Judiciary and What Implications Does This Have for the Work of the Judiciary?”, The Legal Agenda website, January 31, 2014.

[3] See: Alaa Mroueh’s, “The Model Brief Against the Death Penalty Before the Court of Cassation”, The Legal Agenda website, May 24, 2014.
[4] For the study, see: Lama Karame’s, “Causes Seeking Lawyers: Lawyers in Support of Social Causes in Lebanon, A Preliminary Study of a Marginal Professional World”, The Legal Agenda, 2014 (full report to be published); Also, see: Lama Karame’s, “Causes Seeking Lawyers: Lawyers in Support of Social Causes in Lebanon. Between Government and the Profession”, The Legal Agenda, July 31, 2013.