CEDH · CASELAW;REPORTS;ENG — 19 janvier 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block }  EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 14038/88   Jens Soering   against   the United Kingdom   Report of the Commission     (adopted on 19 January 1989)     TABLE OF CONTENTS                                                                 Page   I.       INTRODUCTION         (paras. 1-17 ) ........................................    1-3           A.       The application                 (para. 2) .....................................    1           B.       The proceedings                 (paras. 3-12) .................................    1-2           C.       The present Report                 (paras.   13-17) ...............................    2-3     II.      ESTABLISHMENT OF THE FACTS         (paras.   18-88) ........................................   4-14           A.       The particular circumstances of the case                 (paras. 18-36 ) ................................   4-7           B.       Relevant law and practice                 in the United Kingdom                 (paras. 37-45) .................................   7-8           C.       Relevant domestic law in the United States                 (paras. 46-76) .................................   9-13                   The Law Relating to Murder                 (paras. 46-53) .................................   9                   Sentencing Procedure                 (paras. 54-63) .................................   9-11                   Diminished responsiblity                 (paras. 64-66) .................................   11                   Appeals in capital cases                 (paras. 67-73) .................................   11-12                   Legal assistance for appeals                 (paras. 74-76) .................................   12-13                   Prison conditions in                 Mecklenburg Correctional Center                 (paras. 77-81) .................................   13-14           D.       Relevant law of the                 Federal Republic of Germany                 (paras. 82-88) .................................   14       14038/88       - ii -     III.     OPINION OF THE COMMISSION         (paras. 89-170) ........................................ 15-31           A.       Points at issue                 (para. 89) ..................................... 15           B.       As regards Article 3 of the Convention                 (paras. 90-154) ................................ 15-27           C.       As regards Article 6 of the Convention                 (paras. 155-157) ............................... 27-28           D.       As regards Article 13 of the Convention                 (paras. 158-169) ............................... 28-30           E.       Recapitulation                 (para. 170) .................................... 31             Dissenting opinion of Mr.   J.A. Frowein ................. 32-33           Dissenting opinion of Mr.   S. Trechsel .................. 33-35           Dissenting opinion of Mr.   H. Danelius, joined by         Messrs.   G. Jörundsson and H. Vandenberghe .............. 35-38           Concurring opinion of Messrs.   J.C. Soyer and         A. Weitzel ............................................. 38-39           Concurring opinion of Mrs.   J. Liddy .................... 39   APPENDIX I       :   HISTORY OF THE PROCEEDINGS .................. 40-41   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ............... 42-63   I.     INTRODUCTION     1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant, Mr.   Jens Soering, born on 1 August 1966, is a German national.   He is at present detained at H.M. Prison, Wormwood Scrubs, London, England.   He is represented before the Commission by Messrs.   Powell Magrath and Spencer, solicitors, and Mr.   Colin Nicholls, Q.C., and Ms.   C. Montgomery of counsel and Mr.   P. Gardner, adviser.   The Government are represented by their Agent, Mr.   M.C. Wood, Foreign and Commonwealth Office.           The case concerns the imminent extradition of the applicant to the United States of America where he fears that he will be sentenced to death on charges of capital murder and subjected to the "death row phenomenon".   He invokes Articles 3, 6 and 13 of the Convention.   B.       The proceedings   3.       The application was introduced before the Commission on 8 July 1988 and registered on 21 July 1988.   On 11 August 1988 the President of the Commission decided, in accordance with Rules 28 para. 3 and 42 para. 2 (b) of the Rules of Procedure to give notice of the application to the respondent Government and to ask for their observations on the admissibility and merits of the application insofar as it raised issues under Articles 3 and 13 of the Convention. No observations were requested in respect of the complaint under Article 6 of the Convention.   The President of the Commission also decided on the same date to indicate to the Government of the United Kingdom, in accordance with Rule 36 of the Commission's Rules of Procedure, that it was desirable, in the interests of the parties and the proper conduct of the proceedings, not to extradite the applicant to the United States until the Commission had had an opportunity to examine the application.   4.       The Commission examined the application on 9 September 1988 and decided to prolong the above Rule 36 indication to the respondent Government until the Commission had had an opportunity to examine the case in the light of the parties' observations during its October session (3 - 14 October 1988).   5.        The respondent Government's observations were received on 9 September 1988.   The applicant's observations in reply were received on 4 October 1988.   6.       The Commission next considered the application on 13 October 1988 and decided to invite the parties to a joint hearing on the admissibility and merits of the case insofar as it raised issues under Articles 3 and 13 of the Convention.   7.       The Commission also decided at this time to prolong the above Rule 36 indication to the respondent Government until the Commission had had an opportunity to examine the application in the light of the parties' submissions at the oral hearing.   8.       At the hearing, which was held on 10 November 1988, the applicant was represented by Mr.   Colin Nicholls, Q.C., Ms.   C. Montgomery, of counsel and Mr.   R. Spencer, solicitor.   The Government were represented by their Agent, Mr.   M.C. Wood, and by Mr.   M. Baker, of counsel, Mr.   C. Osborne and Mr.   N. Parker, as advisers.   9.       Following the hearing, the Commission, having declared the application admissible, decided on the same day to prolong the above Rule 36 indication to the respondent Government until the Commission had had a further opportunity to examine the application in the course of its forthcoming December session (5 - 16 December 1988).   10.      The parties were then invited to submit their further observations on the merits.   The respondent Government submitted their supplementary observations on 1 December 1988 and the applicant submitted his observations on 13 December 1988.   11.      The Commission next considered the application on 10 December 1988 when it was decided to prolong the indication under Rule 36 concerning the desirability of not extraditing the applicant pending the proceedings until further notice from the Commission.   12.      After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.       The present Report   13.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS                   H. VANDENBERGHE              Sir   Basil HALL              Mrs.   J. LIDDY   14.      The text of this Report was adopted by the Commission on 19 January 1989 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   17.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   18.      The facts of the case as they appear from the parties' submissions may be summarised as follows:   19.      On 13 June 1986 a grand jury of the Circuit Court of Bedford County, Virginia, United States of America, indicted the applicant on charges of murdering the parents of his girlfriend.   The charges alleged capital murder of both of them and the separate non-capital murders of each.   20.      On 31 July 1986 the Government of the United States requested the applicant's extradition under the terms of the Extradition Treaty between the United States and the United Kingdom of 1972.   On 12 September 1986 a Magistrate at Bow Street Magistrates' Court was ordered by the Secretary of State for Home Affairs to issue a warrant for the applicant's arrest under the provisions of Section 8 of the Extradition Act 1870.   The applicant was subsequently arrested on 30 December 1986 at HM Prison Chelmsford after serving a twelve months' prison sentence for cheque fraud.   21.      On 16 December 1986 and 30 January 1987 the applicant's then legal representative (Dr.   Graupner) made representations to the Secretary of State that the Order to the Magistrate to proceed with the arrest of the applicant should have been made in respect of the offence of manslaughter and not the offence of murder.   He referred, in particular, to the opinion expressed in medical evidence that the applicant was suffering from a mental condition which would warrant a verdict at his trial that he was not guilty of murder but guilty of manslaughter by reason of diminished responsibility.   The Secretary of State rejected Dr.   Graupner's submissions in letters dated 12 February 1987 and 9 April 1987.   22.      On 11 February 1987 the local court in Bonn issued two warrants for the applicant's arrest in respect of the alleged murders. On 11 March 1987 the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the terms of the Extradition Treaty between the Federal Republic and the United Kingdom.   The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted consisted solely of admissions made by the applicant to a representative of the German Government which did not, in the Director's view, amount to a prima facie case against him and that the magistrate would not be able to commit the applicant to await extradition to Germany on the strength of them.   23.      In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr.   Updike), stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany.   24.      On 20 May 1987 the Government of the United Kingdom informed the Federal Republic of Germany of the United States request and indicated that they proposed to consider this request in the normal way.   The United Kingdom Government further indicated that they had sought an assurance from the United States authorities on the question of the death penalty and that "in the event that the court commits Mr.   Soering, his surrender to the United States' authorities would be subject to the receipt of satisfactory assurances on this matter".   25.      On 1 June 1987 Mr.   Updike swore an affidavit in his capacity as Attorney for Bedford County in which he certified as follows:   "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out."   26.      In a diplomatic note dated 17 May 1987 the Federal Government of the United States undertook to ensure that the undertaking given by the Attorney for Bedford County to make representations on behalf of the United Kingdom would be honoured.   27.      On 16 June 1987 at the Bow Street Magistrates' Court committal proceedings took place before the Chief Stipendiary Magistrate.   The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William Reginald Haysom (aged 72) and Nancy Astor Haysom (age 53) at their home in Bedford County, Virginia.   Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body.   The applicant was then 18 years old and his girlfriend, Miss Haysom, was then 20 years old.   Both were students at the University of Virginia.   28.      Evidence was given that in October 1985 the applicant and Miss Haysom travelled to Europe.   They were subsequently arrested on 30 April 1986 in England on charges of cheque fraud.   The Deputy Sheriff of Bedford County travelled to Richmond to interview the applicant and stated that the applicant admitted the killings in his presence and in that of two United Kingdom police officers.   A similar admission was apparently made to a German Public Prosecutor who also interviewed the applicant.   The applicant had stated that he was in love with Miss Haysom and that her parents were opposed to the relationship and that they had planned to kill them.    They rented a car in Charlottesville and travelled to Washington where they set up an alibi.   The applicant then went to the parents' house, discussed the relationship with them and when they told him they would do anything to prevent it, a row developed during which he killed them with a knife.   29.      At the committal proceedings, the applicant adduced inter alia psychiatric evidence from a consultant forensic psychiatrist (Dr. Bullard) that the applicant was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman.   In Dr. Bullard's opinion the applicant was suffering from a "folie à deux" - a well recognised state of mind where one partner is so suggestible that he believes in the psychotic delusions of the other.   She concluded that such a mental condition substantially impaired his responsibility for his acts and, under United Kingdom law, would constitute a defence of diminished responsibility reducing the offence from murder to manslaughter.   30.      The Chief Magistrate found that the evidence of Dr.   Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of State's Order for his return to the United States.   31.      The applicant had also been examined by Dr.   Hamilton, Medical Director of Broadmoor Hospital, who in a report dated 11 December 1986 stated as follows:   "I therefore believe that at the time of the homicides Jens Soering was suffering from an abnormality of mind in which the predominant feature was an impaired appreciation of reality in this circumscribed but crucial area.   It is my opinion that at the time he was suffering from such an abnormality of mind (arising from disease of the mind) as to substantially impair his mental responsibility for his acts.   Were he to be tried for the homicides in England I would be prepared to give evidence that he suffered from diminished responsibility in terms of section 2 of the Homicide Act 1957 and that he should therefore be liable to conviction for manslaughter rather than murder.   On all occasions when I interviewed him I found Jens Soering to be fit to plead and not under disability in relation to trial."   32.      On 29 June 1987 the applicant applied to the Divisional Court for a writ of habeas corpus in respect of his committal.   On 11 December 1987 this application was refused.   In the course of his judgment in the Divisional Court rejecting the application, Lord Justice Lloyd commented that an assurance under Article IV of the Anglo-United States Extradition Treaty "must mean an assurance by or on behalf of the Executive Branch of Government, which in this case would be the Governor of the Commonwealth of Virginia.   The certificate sworn by Mr.   Updike, far from being an assurance on behalf of the executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge.   I cannot believe that this is what was intended when the Treaty was signed."   33.      On 30 June 1988 the House of Lords rejected the applicant's petition for leave to appeal against the decision of the Divisional Court.   34.      On 10 March 1988 the Department of Justice of the United States forwarded to the Government of the United Kingdom a further affidavit sworn by Mr.   Updike, Attorney for Bedford County, in which he repeated the terms of the assurance previously given in the event of the applicant's conviction for capital murder. 35.      On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his discretion not to make an order for the applicant's surrender under Section 11 of the Extradition Act 1870.   36.      This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the Governor of HM Prison Wormwood Scrubs to surrender the applicant to the United States authorities.     B.       Relevant domestic law and practice in the United Kingdom   37.      The law relating to extradition between the United Kingdom and the United States of America is governed by the Extradition Acts 1870-1935, the Extradition Treaty signed by the two States on 8 June 1972, and an Exchange of Notes between the United Kingdom and the United States, dated 24 September 1987.   38.      After receipt of an extradition request, the Secretary of State may decide to request a Magistrate to issue a warrant for the arrest of the fugitive criminal (Extradition Act 1870, Sections 7 & 8).           Extradition proceedings in the United Kingdom consist of an extradition hearing before a magistrate, and Section 11 of the Extradition Act 1870 provides that decisions taken in those proceedings may be challenged by way of application for habeas corpus.   In practice, such application is made to a Divisional Court and, with leave, to the House of Lords.   Section 12 of the 1870 Act provides for the release of a prisoner, if not surrendered, at the conclusion of such proceedings or within two months of committal unless sufficient cause is shown to the contrary.   39.      In addition, it is established that the Secretary of State enjoys a discretion in the exercise of his powers under Section 11 of the 1870 Act not to sign the surrender warrant (Atkinson v.   United States [1971] AC 197).   This discretion may override a decision of the courts that a fugitive should be surrendered, and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of State for that purpose. In considering whether to order the fugitive's surrender, the Secretary of State is bound to take account of fresh evidence which had not been before the magistrate (Schtraks v.   Government of Israel [1964] AC 556).   40.      Furthermore, it is open to the prisoner to challenge both the decision of the Secretary of State rejecting his petition and the decision to sign the warrant in judicial review proceedings.   In such proceedings the court may review the exercise of the Secretary of State's discretion on the basis that it is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and Others v. Minister for the Civil Service [1984] 3 All ER 935).   41.      Under the rule of speciality a defendant can only be tried on his return to the United States for any offence which is disclosed by the facts on which his surrender has been based.   42.      There is no provision in the Extradition Acts relating to the death penalty, but Article IV of the Anglo-United States Treaty provides that:         "If the offence for which extradition is requested is         punishable by death under the relevant law of the         requesting Party, but the relevant law of the requested         Party does not provide for the death penalty in a similar         case, extradition may be refused unless the requesting Party         gives assurances satisfactory to the requested Party that         the death penalty will not be carried out."   43.      In the case of a fugitive requested by the United States who faces a charge carrying the death penalty, it is the Secretary of State's practice, pursuant to Article IV of the Anglo-United States Extradition Treaty, to accept an assurance from the prosecuting authorities of the relevant State that a representation will be made to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should be neither imposed nor carried out.   This practice has been described by Mr.   David Mellor, then Minister of State at the Home Office, in the following terms:   "The written undertakings about the death penalty that the Secretary of State obtains from the federal authorities amount to an undertaking that the views of the United Kingdom will be represented to the judge.   At the time of sentencing he will be informed that the United Kingdom does not wish the death penalty to be imposed or carried out. That means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases.   It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances" (Hansard, 10 March 1987, Col. 955).   44.      Concurrent requests for extradition in respect of the same crime from two different States are not a common occurrence.   If both requests are received at the same time, the Secretary of State decides which request is to be proceeded with, having regard to all the facts of the case, including the nationality of the fugitive and the place of commission of the offence.   This latter factor is likely to weigh heavily with the Secretary of State since the evidence which would be necessary for the trial will be most readily available there.   45.      In this respect Article X of the Extradition Treaty between the United Kingdom and the United States provides as follows:   "If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offence or for different offences, the requested Party shall make its decision, in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting State, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State."   C.       Relevant domestic law in the United States of America           The Law Relating to Murder         -------------------------- 46.      The laws relating to the definition and classification of murder and sentencing for murder are governed by the Code of Virginia of 1950, as amended, and the decided cases in the State and Federal Courts.   47.       Section 18.2-31 of the Virginia Code provides that eight types of murder constitute capital murder, punishable as a Class 1 felony. Section 18.2-31 (g) provides that "the wilful, deliberate and premeditated killing of more than one person as a part of the same act or transaction" constitutes capital murder.   48.      The punishment for a Class 1 felony is "death or imprisonment for life" (Virginia Code, Section 18.2-10 (a)).   49.      The prosecutor has no discretion to charge anyone but the actual "triggerman" with capital murder except in cases involving murder for hire (Johnston v.   Commonwealth, 220 Va. 146, 255 S.E.2d 525 (1979)).   50.      Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate, and premeditated killing, or in the commission of, or attempt to commit arson, rape, forcible sodomy, inanimate object sexual penetration, robbery, burglary, or abduction, except as provided in Section 18.2-31, is murder of the first degree, punishable as a Class 2 felony.   A Class 2 felony is punishable by imprisonment for life or for any term not less than twenty years (Virginia Code, Section 18.2-10 (b)).   51.      All murder, other than capital murder and murder in the first degree, is murder in the second degree and is punishable as a Class 3 felony (Virginia Code, Section 18.2-32).   A Class 3 felony is punishable by a term of not less than five years and not more than twenty years (Virginia Code, Section 18.2-10).   52.      An accused may be tried on a charge of capital murder at the same time as he is being tried on separate charges of murder of the same victims (Bradshaw v.   Commonwealth (Supreme Court of Virginia) 228 Va. 484, 323 S.E. 2d 567 (1984)).   If a person is convicted of capital murder, he may not be convicted of the lesser included charges of murder.   On the other hand, if he is not convicted of capital murder he may be convicted on the separate charges of murder.   53.      Under Virginia law a person reaches the age of majority when he becomes eighteen years of age (Virginia Code, Section 1.13.42). The imposition of the death penalty on a young person who has reached the age of majority is not precluded under Virginia law.   Age is a fact to be weighed by the jury (Peterson v.   Commonwealth, 225 Va. 289, 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S Ct 202, 78 L Ed 2d 176 (1983)).           Sentencing Procedure         -------------------- 54.      The sentencing procedure in a capital murder case in Virginia is a separate proceeding from the determination of guilt.   Following a determination of guilt of capital murder, the same jury, or judge sitting without a jury, will forthwith proceed to hear evidence regarding punishment.   All relevant evidence concerning the offence and the defendant is admissible.   Evidence in mitigation is subject to almost no limitation, while evidence of aggravation is restricted by statute (Virginia Code, Section 19.1-264.4).   55.      Unless the prosecution proves beyond a reasonable doubt the existence of at least one of the statutory aggravating circumstances - vileness or future dangerousness - the sentencer may not return a death sentence.   In order to establish "future dangerousness" under Virginia law, the prosecution must prove beyond a reasonable doubt that there is a probability that the defendant would commit "criminal acts of violence" in the future such as would constitute a "continuing serious threat to society" (Virginia Code, Section 19.2-264.2).   56.      In order to establish the "vileness" aggravating circumstance, the prosecution must prove beyond a reasonable doubt that the crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" (Virginia Code, ibid.).   The words "depravity of mind" mean "a degree of moral turpitude and physical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated battery" mean a battery which "qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder" (Smith v.   Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979)).   57.      Proof of multiple wounds sustained by the victim, particularly a neck wound, which even considered alone, constituted an aggravated battery in the light of the savage, methodical manner in which it was inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the test of "vileness" under this Section (Edmonds v.   Commonwealth, 229 Va. 303, 329, S.E.2d 807, cert. denied U.S. S Ct 339, 88 L Ed 2d 324 (1985)).   58.      Even if the aggravating circumstances are shown, however, the sentencer still remains at liberty to impose a life sentence instead of death for no reason other than mercy (Smith v.   Commonwealth, loc. cit.).   59.      Following a sentence of death fixed by a jury, or by a judge sitting without a jury, the trial judge must order the preparation of an investigative report detailing the defendant's history and other relevant facts (Virginia Code, Section 19.2-264.5).   Upon presentation and review of the report, the court may set aside the sentence of death and impose a life sentence.   60.      The sentencing judge in a capital case considers "any and all" relevant facts in order to assure that the penalty of death is "appropriate and just" (Virginia Code, Section 19.2-264.5).   61.      The Virginia death penalty statutory scheme has been judicially determined to be constitutional.   It was considered to prevent the arbitrary or capricious imposition of the death penalty and to narrowly channel the sentencer's discretion (Smith v. Commonwealth, loc. cit.; Turnver v.   Bass, 753 F.2d 342 (4th Cir. 1985); Briley v.   Bass, 750 F.2d 1238 (4th Cir. 1984)). 62.      The death penalty statute in Virginia has also been held not to constitute cruel and unusual punishment nor deny a defendant due process or equal protection (Stamper v.   Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972, 100 S Ct 1666, 64 L.Ed.2d 249 (1980)).   The Supreme Court of Virginia rejected the submission that death by electrocution would cause "the needless imposition of pain before death and emotional suffering while awaiting execution of sentence" (ibid.).   63.      The Supreme Court reviews automatically every case in which a capital sentence has been passed.   In addition to consideration of "any errors in the trial" alleged by the defendant on appeal, the Supreme Court reviews the death sentence to determine whether it was imposed "under the influence of passion, prejudice or any other arbitrary factor" or whether it is excessive or disproportionate "to the penalty imposed in similiar cases" (Virginia Code, Section 17-110.1).           Diminished responsibility         ------------------------- 64.      The law of Virginia generally does not recognise a defence of diminished capacity (Stamper v.   Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985)).   No person, however, may be tried for a criminal offence while he is insane or feebleminded (Virginia Code, Section 19.2-167). At any point before the end of trial, a defendant's mental condition may be evaluated to determine whether he lacks substantial capacity to understand the proceedings or to assist his attorney (Virginia Code, Section 19.2-169.1).   65.      A plea of insanity is recognised as a defence in Virginia and, if successful, is a bar to conviction.   Such a plea will apply where the defendant knows that the act is wrong, but is driven by an irresistible impulse to commit it (Thompson v.   Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952)) or where he does not understand the nature, character and consequences of his act or is unable to distinguish right from wrong (Price v.   Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)).   66.      In a capital murder trial, the defendant's mental state at the time of the offence is admissible as a mitigating factor to show that the defendant was under the influence of extreme mental or emotional disturbance (Virginia Code, Section 19.2-264.4B(ii)).   Additionally, indigent capital murder defendants are entitled by statute to the appointment of a mental health expert to assist in the preparation and presentation of information concerning the defendant's mental condition (Virginia Code, Section 19.2-264.3:1).   Upon presentation of evidence of the defendant's mental state, the sentencer may elect to impose life imprisonment rather than the death penalty.           Appeals in capital cases         ------------------------ 67.      The automatic direct appeal to the Supreme Court of Virginia is governed by the Rules of the Supreme Court of Virginia and encompasses various time limitations for the filing of briefs.    In addition, Rule 5:23 gives precedence to the review of sentences of death before any other case (see also Virginia Code, Section 17-110.2). Normally the time taken by this appeal does not exceed six months. 68.      After this appeal process is completed, the sentence of death will be executed unless a stay of execution is entered.   As a practical matter, a stay will be entered when the prisoner initiates further proceedings.   69.      The prisoner may apply to the United States Supreme Court for certiorari review of the decision of the Supreme Court of Virginia and, if unsuccessful, may then begin collateral attacks upon the conviction and sentence in both State and Federal courts.   The prisoner may file a habeas corpus petition in either the Supreme Court of Virginia or the trial court, with appellate review, by petition, in the Supreme Court of Virginia.   He may then again apply to the United States Supreme Court for certiorari review of the State's habeas corpus decision.   He may then file a petition for a writ of habeas corpus in the Federal District Court, followed by an appeal to the Federal Circuit Court of Appeals, and by a petition for certiorari review in the United States Supreme Court.   At each stage of his collateral attacks, he may seek a stay of execution pending final determination of the petition for a writ of habeas corpus.   70.      The Virginia and Federal statutes and rules of court set time-limits for the presentation of appeals following conviction or appeals against the decisions in habeas corpus proceedings.   There are, however, no time-limits for filing the initial State habeas corpus petition or the initial Federal habeas corpus petition.   71.      The grounds which may be presented and argued on appeal are restricted by the "contemporaneous objections rule" to those which have been raised in the course of the trial.   The rule was adopted in support of the principle that the real issues between the parties should be canvassed and determined at the trial and not on appeal or in any subsequent review proceedings.   Grounds of appeal which are procedurally barred for this reason before the State courts will also, with certain exceptions, be procedurally barred before the Federal Court.   The rule has been upheld by the Federal Courts (Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984)).   72.      Errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice.   In death penalty cases, the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion, prejudice or other arbitrary factor, is reviewed without regard to whether objection was made at trial to the issue.   73.      The Eighth Amendment to the Constitution of the United States prohibits, inter alia, "cruel and unusual punishments".   The United States Supreme Court has not as yet considered or ruled on the issue of the "death row phenomenon".           Legal assistance for appeals         ---------------------------- 74.      All prisoners who have been sentenced to death have individual lawyers to represent them, whether privately recruited or court-appointed. Legal assistance is not available to the indigent prisoner to file habeas corpus petitions.   However, it has recently been affirmed by the United States Court of Appeal for the Fourth Circuit that indigent prisoners who have been sentenced to death are entitled to the assistance of lawyers to pursue challenges to their death sentences in State habeas corpus actions (Giarratano v.   Murray, 847 F.2d 1118 (4th Cir. 1988)) (en banc). 75.       Virginia inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys. The institutional attorneys are available to assist inmates in "any legal matter relating to their incarceration" (Virgina Code, Section 53.1-40) including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file.   76.      A prisoner is not obliged to proceed with counsel, and he may litigate in both State and Federal courts pro se.           Prison conditions in Mecklenburg Correctional Center         ---------------------------------------------------- 77.      Mecklenburg Correctional Center is a maximum security institution, having a capacity of a total of 335 inmates.   The majority of inmates under the sentence of death in the State of Virginia are also detained in Mecklenburg.   Institutional Operating Procedures (IOP 821.1) establish uniform operating procedures for the administration, security, control and delivery of necessary services to death row inmates in Mecklenburg.   In addition conditions of confinement are governed by a comprehensive consent decree handed down by the United States District Court in Richmond in the case of Alan Brown, et al. v.   Allyn R. Sielaff, et al (5 April 1985).   Both the Virginia Department of Corrections and the American Civil Liberties Union monitor compliance with the terms of the consent decree.   The United States District Court also retains jurisdiction to enforce compliance with the decree.   78.      The size of a death row inmate's cell is 10ft. by 7½ft. Prisoners have an opportunity for approximately 7½ hours recreation per week in summer and approximately six hours per week, weather permitting, in winter.   The death row area has two recreation yards, both of which are equipped with basketball courts and one is equipped with weights and weight benches.   Inmates are also permitted to leave their cells on other occasions, such as to receive visits, to visit the law library or to attend the prison infirmary.   In addition death row inmates are given one hour out-of-cell time in the morning in a common area.   Each death row inmate is eligible for work assignments, such as cleaning duties.   79.      Death row inmates receive the same medical service as inmates in the general population.   An infirmary equipped with adequate supplies, equipment and staff provides for twenty-four-hour inpatient care, and emergency facilities are provided in each building.   Mecklenburg also provides psychological and pychiatric services to death row inmates. The United States District Court (Eastern District of Virginia) has recently upheld the adequacy of mental health treatment available to death row inmates in Mecklenburg (Stamper, et al v.   Blair, et al, decision of 14 July 1988).   80.      Inmates are allowed non-contact visits in a visiting room on Saturdays, Sundays and holidays between 8.30am and 3.30pm.   Attorneys have access to their clients during normal working hours on request as well as during the scheduled visiting hours.   Death row inmates who have a record of good behaviour are eligible for contact visits with members of their immediate family two days per week.   Outgoing co