The Prosecutor v. Pavle Strugar - Case No. IT-01-42-T

“Decision Re The Defence Motion to Terminate Proceedings”

26 May 2004
Trial Chamber II (Judges Parker [Presiding], Thelin and Van Den Wyngaert)

Procedural Background

· On 15 December 2003, at the final pre-trial conference, the Defence for Pavle Strugar ( “Accused”) requested that he be submitted to a medical examination pursuant to Rule 74 bis of the Rules of Procedure and Evidence (“Rules”)¹ in order to inter alia assess his fitness to stand trial. The pre-trial Judge heard oral submissions from both parties, took into account the medical documentation relied upon by the Defence, and decided not to delay the start of the trial.

· On 16 December 2003, the trial started. The Defence requested that the Trial Chamber deal with its request and both parties made further oral submissions. The Chamber orally decided that there was nothing in the medical documentation that would require a delay in the commencement of the trial.

· On 19 December 2003, the Trial Chamber rendered its “Decision on the Defence Motion for a Medical Examination of the Accused Pursuant to Rule 74 bis of the Rules ”. Considering the written report of Dr. de Both, General Practitioner, dated 16 December 2003, and the medical record of the Accused, the Trial Chamber saw no reason to order further medical examination. It recalled that it was open to the Defence to commission a report on the health condition of the Accused. The Trial continued.

· On 3 February 2004, the Defence requested that the proceedings be terminated. It relied on the previous medical record of the Accused and on a medical report by Professor Lecic-Tosevski (“Defence’s expert”) filed confidentially the previous day.²

· At the 4 February 2004 hearing, the Prosecution submitted that the request of the Defence lacked adequate foundation and support, and should therefore be dismissed. The Trial Chamber invited the Defence to supplement the medical report and invited the Prosecution to arrange for its own medical examination of the Accused. It decided that the trial would continue pending determination of the issue.

· On 12 February 2004, the Defence filed confidentially a further report of its expert and requested a discontinuance of the trial.

· On 17 February 2004, the Trial Chamber issued, following a motion by the Prosecution, a confidential order for a magnetic resonance imaging scan (“MRI”) of the Accused to facilitate the examination by Prosecution’s experts (a MRI scan had been conducted in 2002 and the Defence’s expert had relied on it).

· On 22 March 2004, the Prosecution filed a medical report of the Accused prepared by its experts Drs. B. Blum, V. Folnegovic-Smalc and D. Matthews (“Prosecution’s experts”).

· On 30 March 2004, the Trial Chamber heard oral submissions of the parties.

· On 28 and 29 April 2004, the Trial Chamber heard evidence from Professor Lecic-Tosevski and Drs Blum and Matthews. The parties filed written submissions which they supplemented on 6 May 2004 by brief oral submissions.

Decision

The Trial Chamber dismissed the motion of the Defence. It saw no grounds for either discontinuing the proceedings or adjourning them, did not find it necessary to consider the provision to the Accused of any special assistance on account of any limitations in his capacity to stand trial, found the Accused fit to stand trial, and held that this had been the position throughout the trial to the time of the present Decision.³

Reasoning

Applicable law

Tribunal’s law

Neither the Tribunal’s Statute nor the Rules contain provisions regulating the fitness or competence of an accused to stand trial. The Trial Chamber nevertheless found some support in the Report of the Secretary-General of the United Nations presenting the draft Statute of the Tribunal which addresses in paragraph 58 the possible personal defences:

“The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognized by all nations.”⁴

Despite the lack of specific provisions, the Trial Chamber found “material assistance ” in the Statute of the Tribunal, “by way of implication”.⁵ It referred to the procedural rights enshrined in Articles 20⁶ and 21⁷, the “enjoyment [of which] would appear to presuppose that an accused has a level of mental and physical capacity”:

- confirmation by an accused, at the beginning of the trial, that he/she understands the indictment (Article 20(3));

- right of an accused to self-representation (Article 21(4)(d))⁸;

- right of an accused to examine witnesses against him/her (Article 21(4)(e));

- right to have the free assistance of an interpreter if he/she cannot understand or speak the language used in the Tribunal (Article 21(4)(f)).⁹

With regard to the right to self-representation and the right to examine witnesses, the Trial Chamber found that it implies that accused persons:

- understand the purpose, including the consequences, of the proceedings;

- understand the course of the proceedings, including the nature and significance of pleading to the charges;

- understand the evidence;

- testify (should they so choose).¹⁰

With regard to representation by counsel, “a feature of trials before the Tribunal ”¹¹, the Trial Chamber recognised that the availability of counsel “may certainly enable an accused to more adequately deal with the above matters, and in a particular case may well adequately compensate for any deficiency of a relevant capacity”.¹² It found, however, that the use of counsel requires that the accused has the “capacity […] to instruct counsel sufficiently […]”.¹³

The Trial Chamber found that the nature of the above-mentioned rights, as it non -exhaustively listed, “indicates that their effective exercise may be hindered, or even precluded, if an accused’s mental and bodily capacities, especially the ability to understand, i.e. to comprehend, are affected by mental or somatic disorder”.¹⁴ In its view it follows from Articles 20 and 21 and their implications that an accused “will have these capacities or, with assistance of counsel, interpretation or otherwise, will be able to exercise these capacities […] in a sufficient degree to enable the defence of the accused to be presented”.¹⁵

The Trial Chamber added that the question of fitness to stand trial is, “by nature of the subject matter, one which may possibly change in the course of a long trial ” and that, further, there are “some cases in which a temporary unfitness may be remedied with treatment so that the trial could continue after a delay or interruption ”.¹⁶

The Trial Chamber found itself competent to determine whether in the present case the Accused was competent or fit¹⁷ to stand trial and found further legal arguments, both at the national and international levels, to justify its Decision.

National and international law

The Trial Chamber noted that while the “precise formulation, scope and operation of the law” with regard to fitness of an accused to stand trial “inevitably varies between national jurisdictions”, the “underlying principle appears to enjoy general acceptance”.¹⁸

It inter alia referred to: the position of the Supreme Court of the United States of America according to which the right not to stand trial while incompetent was considered fundamental¹⁹; to the position in common law jurisdictions that a person may be tried for a criminal offence only where there is sufficient mental capacity to present a defence²⁰; and also to the position of the European Court and the European Commission of Human Rights that, pursuant to Article 6 of the European Convention on Human Rights²¹, an accused has the right to “participate effectively in a criminal trial”²², which presupposes that he is “capable, from a mental and physical point of view, of taking part in the criminal proceedings against him”.²³

The Trial Chamber observed that in a number of jurisdictions, such as Canada, the decisive factor for evaluation of an accused’s fitness to stand trial is the presence of a mental disorder.²⁴ Nevertheless it noted that in some national jurisdictions the mental disorder factor has been interpreted widely, such as in Reg. v Podola²⁵, to include physical and mental condition precluding an accused from following the proceedings and properly defending himself.

The Trial Chamber noted that the issue of the fitness of an accused to stand trial is not addressed in the Statutes of the International Criminal Tribunal for Rwanda (“ICTR”) and of the International Criminal Court (“ICC”). The ICTR Trial Chamber in the Nahimana case did order that one of the Accused be submitted to a medical, psychiatric and psychological examination to determine whether he was fit to stand trial, but did not address the elements of such fitness.²⁶ Rule 135 of the ICC Rules of Procedure and Evidence, in paragraph 4, does envisage that a trial may be adjourned where an accused is unfit to stand trial, but does not expand on the definition of the underlying incompetence of the accused.

With specific reference to the proceedings before the Tribunal, the Trial Chamber noted that the fact that trials in absentia are not permitted “would appear to be devoid of any substance if it related to the mere physical presence of the accused in court”.²⁷

To complete its analysis, and before determining the legal test for fitness to stand trial, the Trial Chamber turned to the jurisprudence of “those many national jurisdictions” which place emphasis on a direct assessment of particular capabilities relating to an accused’s participation in his trial.²⁸ In Dusky v United States, the United States Supreme Court held that “the test must be whether [the Defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him”.²⁹ In English common law, as formulated in Reg. v Pritchard, the criteria is “[f]irst, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend³⁰ the course of proceedings [during] the trial, so as to make a proper defence – to know that he might challenge jurors to whom he might object – and to comprehend the details of the evidence.”³¹ In Australia, the capacity of an accused to understand the trial has been described as whether or not he comes up to “certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him” ³², and not whether he has an intelligence of a high order.

Legal test

The Trial Chamber held the following:

- “a mental disorder is not a prerequisite for finding a person unfit to stand trial […];

- […] fitness to stand trial is a matter which, although undoubtedly connected with the physical and mental condition of an accused person, is not confined to establishing whether a given disorder is present […];

- […] the issue is not whether the accused suffers from particular disorders, but rather is better approached by determining whether he is able to exercise effectively his rights in the proceedings against him.”³³

Capacities of an accused

The Trial Chamber drew the following non-exhaustive list of capacities from Articles 20 and 21 of the Statute:

- “to plead,

- to understand the nature of the charges,

- to understand the course of the proceedings,

- to understand the details of the evidence,

- to instruct counsel,

- to understand the consequences of the proceedings, and

- to testify.”³⁴

Assessment of capacities

The Trial Chamber noted that it is difficult to objectively measure the capacities of an accused and to set a threshold beyond which an accused is considered fit to stand trial. It further noted that such assessment is even more difficult when assistance of counsel is provided, and observed that the capacities will “vary considerably between individuals as a matter of nature and without the influence of any physical or mental disorder.”³⁵ Nevertheless such an assessment remains necessary. The Trial Chamber held the following:

- “[i]t would be entirely inappropriate, and unjustified, and antithetical to the application of international criminal law, to require that each of these capacities must be present at their notionally highest level, or at the highest level that a particular accused has ever enjoyed in respect of each capacity […];

- […] what is required is a minimum standard of overall capacity below which an accused cannot be tried without unfairness or injustice […];

- […] the threshold is met when an accused has those capacities, viewed overall and in a reasonable and commonsense manner, at such a level that it is possible for the accused to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights, i.e. to make his or her defence.”³⁶

Burden of proof

The Trial Chamber held that “the burden of proving that the Accused is not fit to stand trial should be on the Defence, and the standard of that burden should be merely ‘the balance of probabilities’ […].”³⁷

Consequences

The Trial Chamber held that “the consequences of finding an accused unfit to stand trial are likely to vary according to the circumstances”.³⁸ It noted the various possibilities when an accused is declared unfit to stand trial :

- discontinuance of the trial,

- appropriate treatment should the court become satisfied that he committed the charged acts,

- continuance of the trial with mandatory representation of the accused (European civil law).³⁹

- With respect to the proceedings before this Tribunal, the Trial Chamber held the following:

- “[…] there appears no statutory or other basis for a trial before this Tribunal to continue while an accused is unfit to stand trial […];

- […] in cases where the unfitness to stand trial is a temporary condition, it may prove appropriate to merely adjourn the trial and to continue when the accused has sufficiently recovered […];

- [o]ther cases may require that the trial be abandoned […];

- [i]t may also be the case that an impairment of capacity is of such a nature that measures can be taken to sufficiently alleviate the impairment, or its effect, so that the trial can continue. An obvious example would be the provision of special technical equipment to enable an accused with a hearing impediment to follow the proceedings […];

- [i]n some cases, legal assistance to an accused may be a sufficient measure to compensate for any limitations of capacity of the accused to stand trial.”⁴⁰

In the present case, the Trial Chamber found the approach of the Prosecution “better directed and the result more persuasive” as the Prosecution focused not on the diagnosis of the mental and somatic disorders from which the Accused suffers but rather on the impact of the Accused’s health on his capacities to stand trial.⁴¹ The Trial Chamber referred to the criteria used by the Defence expert that an accused must “fully comprehend” the course of the proceedings in the trial. It found that the Defence had set “too high a standard of comprehension”⁴² and had misquoted and misunderstood the New Oxford Textbook of Psychiatry which relevant part reads as follow:

“In its traditional formulation the test of unfitness to plead is whether the defendant is of sufficient intellect to comprehend the course of the proceedings in the trial, so as to make a proper defence, to know that he might challenge jurors, and to comprehend details of the evidence. Specific considerations are whether the defendant understands what he is charged with, the nature of the prosecution evidence, and the difference between a plea of guilty and not guilty. The defendant should also be able to follow the proceedings and be able to instruct lawyers so that the defence case can be made. It should also be remembered that in some cases defendants will need to be able to give evidence themselves, and their ability to do so will need to be considered.”⁴³

The Trial Chamber turned to the assessment of the capacities relevant to the present case, as identified early in its Decision, and dismissed the motion of the Defence.

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1. Rule 74 bis (Medical Examination of the Accused) reads: “A Trial Chamber may, proprio motu or at the request of a party, order a medical, psychiatric or psychological examination of the accused. In such a case, unless the Trial Chamber otherwise orders, the Registrar shall entrust this task to one or several experts whose names appear on a list previously drawn up by the Registry and approved by the Bureau.”
2. Defence Notice and Confidential Annex, 2 February 2004.
3. On 2 June 2004, the Defence for General Strugar requested leave to appeal the present Decision. Its Motion was denied by the Trial Chamber on 17 June 2004 (Strugar, IT-01-42-T, Decision on Defence Motion for Certification, 17 June 2004).
4. Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), presented 3 May 1993, (S/25704). For an analysis of the law relating to diminished mental responsibility, see Delalic et al., IT-96-21-T, Judgement, 16 November 1998, Judicial Supplement No. 1, paras. 1156-1172.
5. Para. 21.
6. Article 20 (Commencement and conduct of trial proceedings) reads:
“1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.”
7. Article 21 (Rights of the Accused) reads:
“1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.”
8. On the issue of self-representation, see Milosevic, IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003. See also Seselj, IT-03-67-T, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence, 9 May 2002. Both decisions have been summarised in Judicial Supplement No. 41.
9. Para. 21.
10. Para. 22.
11. Only two Accused are representing themselves before the Tribunal: Slobodan Milosevic and Vojislav Seselj. See supra note 8.
12. Para. 22.
13. Ibid.
14. Para. 23.
15. Para. 24 (emphasis added).
16. Para. 27.
17. The Trial Chamber used both terms interchangeably.
18. Para. 29.
19. Copper v Oklahoma, 517 US 348 (1996).
20. Dashwood v Reg., [1943] KB. 4.
21. Article 6 of the European Convention on Human Rights reads : “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
22. Stanford v United Kingdom, European Court of Human Rights, Judgement, 23 February 1994, Series No. 282-A, pp. 10-11, para. 26: “Article 6 (art. 6), read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general this includes, inter alia, not only his right to be present, but also to hear and follow the proceedings.”
23. Mielke v Germany, application No. 30047/96, European Commission of Human Rights, Decision, 25 November 1996.
24. Under the Criminal Code of Canada, “unfit to stand trial” is defined as “means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel […]”.
25. Reg. v Podola (1960), 1 QB 325 at 353.
26. Nahimana et al., ICTR-99-52-T, Judgement, 3 December 2003, para. 52.
27. Para. 32.
28. Para. 34.
29. Dusky v United States, 362 US 402
30. “Comprehend” meaning “understand” (Reg. v Podola (1960) 1 QB 325 at 354).
31. Reg. v Pritchard (1836) 7 C. & P 303 at 304 (174 ER 135).
32. Ngatayi v The Queen (1980) 147 CLR 9. See footnote 34 of the Decision for further details on the minimum standards set by the High Court of Australia.
33. Para. 35, footnote omitted.
34. Para. 36.
35. Para. 37.
36. Ibid.
37. Para. 38 (footnotes omitted). The Trial Chamber referred in footnote 36 to an order in the Delalic et al. case (IT-96-21-T, Order on Esad Landzo’s Submission Regarding Diminished or Lack of Mental Capacity, 18 June 1998) in which the Trial Chamber decided that “the Defence offering a special defence of diminished or lack of mental responsibilities carries the burden of proving this defence on the balance of probabilities.”
38. Para. 39.
39. Ibid.
40. Ibid.. Footnote omitted.
41. At para. 48, the Trial Chamber held: “While they accepted for example that there was a level of dementia being experienced by the Accused, the Prosecution experts […] sought to identify the effects and degree of that dementia, and were persuaded in the end that it was only minor in degree and effect.”
42. Para. 48.
43. Ibid. New Oxford Textbook of Psychiatry, Oxford University Press, 2000 (emphasis added by the Trial Chamber).