Fitness to stand trial
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 17.07.2008 |
STRUGAR Pavle (IT-01-42-A) |
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56. Finally, the Appeals Chamber notes its agreement with the Trial Chamber’s finding that an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance of the evidence.[1] In this regard, the Appeals Chamber notes that this approach is consistent with the one used in common law jurisdictions where the burden of proof generally lies on the party which alleges the accused’s unfitness to stand trial and is considered to be discharged if this party can show its claim on the balance of probabilities.[2] [1] Decision of 26 May 2004, para. 38; see supra, para. 43. [2] R. v. Podola [1959] 3 W.L.R. 718. The Appeals Chamber also takes note of the aforementioned Nahak Decision in which the SPSC determined that the preponderance standard governs determinations of an accused’s fitness to stand trial (Nahak Decision, paras 57-59 referring to the Decision of 26 May 2004, para. 38: “[…] competence to stand trial is not an element of the offence with which the Defendant is charged” and, consequently, “it is not required that a defendant’s competence be proved by 'a higher standard as is required of the prosecutor when proving guilt in criminal cases’”; and paras 59-60, 67, 152 referring to the requirement that “proof that it is more probable than not […] has been demonstrated.”). The Appeals Chamber finally notes that the SPSC declined to define who bears the burden of proof and decided to evaluate the evidence on the matter “without depending on any 'onus of proof’ that might otherwise be imposed on the Defendant.” (ibid., paras 61-67). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.07.2008 |
STRUGAR Pavle (IT-01-42-A) |
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34. The Appeals Chamber is of the opinion that the issue of an accused’s fitness to stand trial is of such importance that it may generally be regarded as “an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial” under Rule 73(B) of the Rules.[1] Absent certain exceptions, such as when an accused’s submissions in support of his inability to stand trial are frivolous or manifestly without merit, the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential in that any decision that an accused is not fit to stand trial would necessarily materially advance the proceedings. Correspondingly, the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand would amount to a miscarriage of justice.[2] [1] The Appeals Chamber notes that in a different case, Trial Chamber III also denied a request for certification against a decision concerning the accused’s fitness to stand trial (Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte) (“Stanišić Decision of 10 March 2008”)) on the grounds that the Defence in that case did not show that the criteria of Rule 73(B) of the Rules had been met - Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Defence Motion Requesting Certification for Leave to Appeal, 16 April 2008, paras 4-6. [2] Cf. R. v. Podola [1959] Cr. App. 3 W.L.R. 718: “If a convicted person appeals against his conviction on the ground that the hearing of the preliminary issue was open to objection for error in law, so that he should never have been tried on the substantive charge at all, we are of opinion that this court has jurisdiction to entertain the appeal. […] [A] convicted person is entitled to contend […] that he 'should not have been given in charge to the jury as he was, or have been made the subject of any verdict at all, but should have had the proceedings stopped at the outset.’” Ngatayi v. R [1980] 147 CLR 1, High Court of Australia, p. 14: “Before any trial on an issue of guilt, the issue of capacity is to be decided by a jury empanelled specially to try that issue of capacity […] The question of whether Mr Ngatayi was capable of understanding the proceedings was not an issue on the trial of his guilt. It is not satisfactory to excuse the holding of a trial at which this would be the issue because of conclusions based on evidence given at trial in which it was not an issue, Special leave to appeal should be granted. Because the statutory procedure intended for the applicant’s protection has not been followed, the appeal should be allowed.” Kesavarajah v. R [1994], 181 CLR 230, High Court of Australia, pp. 246-248: “There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried. Of course, that is not to exclude from the jury’s consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise. […] For our part, although the charge to the jury was almost complete, we do not consider that the appellant’s fitness to be tried became an immaterial consideration. […] Notwithstanding that the trial was drawing to its close, the possibility remained that the appellant might be called upon to participate in the proceedings to protect his own interests. […] Consequently, at this late stage of the trial, a serious question as to the appellant’s fitness to be tried again arose, requiring the determination of a jury. […] The object of s 393 is to ensure that a trial does not proceed in the case of an accused who is unfit to be tried; in other words, a person who is unfit to be tried should not be subject to trial resulting in the risk of his or her conviction. […] In the result, the appeal should be allowed, the conviction quashed and a new trial ordered.” Malaysia, High Court of Muar, Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495, p. 504: “It should be observed that though s 342(1) of the CPC appears to cover a situation where the question of the accused's unsoundness of mind arises when the trial has already commenced, the inquiry by the court as to the fitness of the accused person ought to be determined forthwith when it comes to the knowledge of the court, and ought not to be postponed until after the close of the prosecution's case. It is the duty of the court either at the commencement of the trial, or at any stage during the course of the trial, when the question of fitness to stand trial is raised, to determine that issue immediately.” |
ICTR Rule Rule 73(B) ICTY Rule Rule 73(B) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 17.07.2008 |
STRUGAR Pavle (IT-01-42-A) |
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To arrive at the conclusion below, the Appeals Chamber relied on a variety of legal sources. These sources include the ICTY & ICTR jurisprudence;[1] IMT decisions;[2] ECtHR decisions;[3] normative provisions of the ICC,[4] ECCC,[5] SCSL;[6] SCSL[7] and SPSC jurisprudence;[8] as well as numerous national sources (normative and jurisprudential) from civil and common law systems (for detailed analysis, see paras 44-54 of the Appeal Judgement). 55. In light of the discussion above, the Appeals Chamber is satisfied that, in assessing Strugar’s fitness to stand trial, the Trial Chamber correctly identified the non-exhaustive list of rights which are essential for determination of an accused’s fitness to stand trial.[9] The Appeals Chamber is further satisfied that, on this basis, the Trial Chamber applied the correct legal standard. This is not changed by the Trial Chamber’s reference to a “minimum standard of overall capacity”[10] which the Appeals Chamber finds is not the best way of enumerating the correct standard. As noted above, the applicable standard is that of meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings.[11] In this regard, the Trial Chamber applied the standard correctly, as evidenced by its conclusion that an accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.[12] 60. […] In particular, the Trial Chamber was correct in rejecting the approach according to which an accused “should have capacity to fully comprehend the course of the proceedings in the trial, so as to make a proper defense, and to comprehend details of the evidence”.[13] The Appeals Chamber emphasizes that fitness to stand trial should be distinguished from fitness to represent oneself.[14] An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer.[15] Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal. The Appeals Chamber therefore agrees with the Trial Chamber that what is required from an accused to be deemed fit to stand trial is a standard of overall capacity allowing for a meaningful participation in the trial, provided that he or she is duly represented by Counsel.[16] 61. […] However, considering that the test for fitness to stand trial is quite different from the definition of a mental or physical disorder,[17] the Appeals Chamber finds that the Trial Chamber correctly emphasized that medical diagnoses alone, no matter how numerous, do not suffice to assess a person’s competency to stand trial.[18] […] For application of the legal standard to the facts of the present case, see paras 57-63. [1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte); Prosecutor v. Milorad Trbić, Case No. IT-05-88/1-PT, Order in Regard to the Preparation for Trial, 21 March 2007 (confidential), p. 3; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Stanišić Defence’s Motion on the Fitness of the Accused to Stand Trial with Confidential Annexes, 27 April 2006, pp. 3-5; Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-I, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial, 12 April 2006, paras 21-29; Prosecutor v. Momir Talić, Case No. IT-99-36/1-T, Decision regarding Fitness of the Accused to Stand Trial, 29 April 2003 (confidential); Prosecutor v. Žejnil Delalić et al., Case No. IT-96-21-T, Order on the Prosecution’s Request for a Formal Finding of the Trial Chamber that the Accused Landžo Is Fit to Stand Trial, 23 June 1997; Nahimana et al. Trial Judgement, para. 52, referring to Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, [Decision on] Motion by the Defence in Accordance with Rule 74 bis, 20 February 2001 (confidential). [2] The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics against Hermann Wilhelm Göring et al., Order of the Tribunal Granting Postponement of Proceedings Against Gustav Krupp Von Bohlen, 15 November 1945, 1 Trial of the Major War Criminals, p. 143; Order of the Tribunal Regarding a Psychiatric Examination of Defendant Streicher, 17 November 1945, 1 Trial of the Major War Criminals, p. 153 and Proceedings, Third Day, 22 November 1945, 2 Trial of the Major War Criminals, p. 156; Order of the Tribunal Rejecting the Motion on Behalf of Defendant Hess and Designating a Commission to Examine Defendant Hess with Reference to his Mental Competence and Capacity to Stand Trial, 24 November 1945, 1 Trial of the Major War Criminals, pp. 166-167 and Proceedings, Ninth Day, 30 November 1945, 2 Trial of the Major War Criminals, pp. 478-496, Proceedings, Tenth Day, 1 December 1945, 3 Trial of the Major War Criminals, p. 1; The United States of America, the Republic of China, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, the Commonwealth of Australia, Canada, the Republic of France, the Kingdom of the Netherlands, New Zeland, India, and the Commonwealth of the Philippines against Sadao Araki et al., 42 Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East 19637-19638 (R. John Pritchard ed., 1998). [3] S.C. v. the United Kingdom, no. 60958/00, para. 29, ECHR 2004-IV; T. v. the United Kingdom [GC], no. 24724/94, para. 83, 16 December 1999; V. v. the United Kingdom [GC], no. 24888/94, para. 90, ECHR 1999-IX; Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, para. 26. [4] Rules 133 and 135 of the Rules of Procedure and Evidence (ICC-ASP/1/3). [5] Rule 32 of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, adopted on 12 June 2007. [6] Rule 74 bis of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, adopted on 16 January 2002 (last amended on 19 November 2007). [7] The Prosecutor against Foday Saybana Sankoh a.k.a Popay a.k.a. Papa a.k.a. Pa, Case No. SCSL-2003-02-I, Order for Further Physiological and Psychiatric Examination, 21 March 2003, p. 1; The Prosecutor against Foday Saybana Sankoh a.k.a Popay a.k.a. Papa a.k.a. Pa, Case No. SCSL-2003-02-I, Ruling on the Motion for a Stay of Proceedings Filed by the Applicant, 22 July 2003 (“Sankoh Decision of 22 July 2003”), p. 5. [8] Deputy General Prosecutor for Serious Crimes v. Joseph Nahak, Case No. 01A/2004, Findings and Order on Defendant Nahak’s Competence to Stand Trial, 1 March 2005 (“Nahak Decision”), paras 54-56, 135. [9] See supra, para. 41 [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]. [10] Decision of 26 May 2004 [Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision re Strugar Motion to Terminate Proceedings, 24 May 2004], para. 37. [11] See Stanišić Decision of 10 March 2008, para. 60. Cf. also, see also Hansard 2 March 2000 col 665-667; R. v. Secretary of State for the Home Department, ex parte The Kingdom of Belgium; R. v. Secretary of State for the Home Department, ex parte Amnesty International Limited and others, Queen’s Bench Division, CO/236/2000, CO/238/2000, 15 February 2000, 2000 WL 461 (QBD) (“Pinochet Decision of 15 February 2000”), para. 20: “In referring to Senator Pinochet's fitness to stand trial, the Secretary of State is referring to his capacity to participate meaningfully in a trial. The Home Secretary has proceeded on the footing that the decisive criteria are the quality of his memory, his ability to process verbal information and to follow the proceedings, his ability to understand the content and implications of questions put to him, his ability to express himself coherently and comprehensibly, and his ability to instruct his legal representatives” (emphasis added); Dusky v. United States, 362 U.S. 402 (1960),pp. 402-403: “the 'test must be whether he 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’”; R. v. Presser [1958] VR 45, p. 48: “[…] [the accused] need not, of course, understand the purpose of all the various court formalities”; “[h]e need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence […] The question is whether "the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him". See also supra, paras 47, 52 (fn. 140) and infra, para. 60. [12] See supra, paras 41-42. [13] Decision of 26 May 2004, para 48, citing Lečić-Toševski Report, p. 14, as well as the relevant passage of the New Oxford Textbook of Psychiatry referred to therein, which in reality reads as follows: “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 detail of the evidence”. [14] Cf. Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Order Concerning Further Medical Report, 11 November 2005 (confidential), p. 2: “[A]ny further report should […] distinguish between the degree of fitness necessary to attend courts as an Accused person, and that required to additionally conduct one’s own case.” See also, Milošević Decision of 1 November 2004, para 14: “How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it.” (footnotes omitted). [15] See supra, para. 52 (fn. 140). [16] See supra, para. 55. Cf. S.C. v. the United Kingdom, no. 60958/00, para. 29, ECHR 2004-IV: “Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which take place in the courtroom.” The representation by skilled and experience lawyers can however be found insufficient to guarantee effective participation of an accused in the proceedings against him where he or she is incapable to cooperate with his or her lawyers for the purposes of his or her defence due to, for example, his or her immaturity and/or disturbed emotional state (T. v. the United Kingdom [GC], no. 24724/94, para. 83, 16 December 1999; V. v. the United Kingdom [GC], no. 24888/94, para. 90, ECHR 1999-IX); German Federal Constitutional Court holding that the impact of psychological or physical shortcomings on the actual exercise of the accused’s procedural rights can be sufficiently compensated by counsel support (NJW 1995, p. 1952); Japanese Supreme Court holding that even if the relevant abilities of the accused are considerably limited he may not be considered to lack them if he enjoys the appropriate assistance of his counsel and/or interpreters who play the role of his guardians (Japanese Supreme Court Judgement 1996(A)No.204, pp. 23-24). [17] See supra, paras 52, 55; cf. R. v. Whittle, [1994] 2 S.C.R. 914; Wilson v. United States, 391 F.2d 460 (1968); see also Missouri Institute of Mental Health Policy Brief, June 2003, p. 1: “no psychological symptoms (e.g., sensory hallucinations, dementia, or amnesia) can be considered an automatic bar to competency”; Steele c. R. Cour d’appel du Québec, No. 500-10-0004418-853, 12 February 1991, p. 59. [18] Decision of 26 May 2004, para. 46; See also Pinochet Decision of 15 February 2000, paras 20-21 stating with approval that the criteria set by the Home Secretary for determination of Augusto Pinochet’s fitness to stand trial were not used in the sense of “general physical debility”. |
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| Notion(s) | Filing | Case |
| Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 |
POPOVIĆ et al. (IT-05-88-A) |
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21. […] An appellant claiming to be unfit to participate in the proceedings bears the burden of so proving by a preponderance of the evidence.[1] [1] See Strugar Appeal Judgement, para. 56. |
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| Notion(s) | Filing | Case |
| Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 |
POPOVIĆ et al. (IT-05-88-A) |
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21. The Appeals Chamber has held that an appellant’s ability to participate in the appellate proceedings is contingent upon whether he possesses the mental capacity to understand their essentials, and the mental and/or physical capacity to communicate, and thus consult, with his counsel.[1] It has further clarified that the following standard of fitness (“Standard of Fitness”) applicable to trial proceedings also applies mutatis mutandis with regard to an appellant's fitness to exercise his right to consult with counsel concerning the preparation of his appellate submissions: […] meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings. [… A]n accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, [are] at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.[2] […] 22. […] [T]he Standard of Fitness focuses on an appellant’s ability to understand the essentials of the appellate proceedings. Processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients. Indeed, the Standard of Fitness indicates that a defendant may sometimes require assistance to participate in the proceedings.[3] [1] Decision of 20 April 2011 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Decision on Prosecution’s Motion Seeking Clarification of Neurologist’s Conclusions, 20 April 2011 (confidential and ex parte)], p. 3; Decision of 13 December 2010, para. 11; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), para. 55. [2] See supra para. 21: “[…] possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 3: CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;[1] CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;[2] RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3] RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;[4] CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;[5] CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;[6]
[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30. [2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. [3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55. [4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11. [5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity. [6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56. |
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 4: CONSIDERING FURTHER that, following the conclusion of the trial proceedings, the means to address an alleged violation of a procedural right – including matters related to fitness to participate in trial proceedings[1] – is an appeal from judgement;[2] [1] See supra, n. 14. [2] Cf. Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mi}o Stani{i}’s Motion Requesting a Declaration of Mistrial and Stojan @upljanin’s Motion to Vacate Trial Judgement, 2 April 2014, paras. 21, 26, 33. See also Strugar Appeal Judgement, paras. 25‑64, where the ICTY Appeals Chamber adjudicated the issue of Pavle Strugar’s fitness during trial in the appeal judgement. |
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| Notion(s) | Filing | Case |
| Decision on Appeal of a Decision on Félicien Kabuga’s Fitness to Stand Trial - 12.08.2022 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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11. […] The Appeals Chamber further recalls that the applicable standard for determining whether an accused is fit to stand trial is that of “meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings”.It is the accused, claiming to be unfit to stand trial, who bears the burden of so proving by a preponderance of the evidence. 12. The non-exhaustive list of capacities to be evaluated when assessing an accused’s fitness to stand trial include the ability to: (i) plead; (ii) understand the nature of the charges; (iii) understand the course of the proceedings; (iv) understand the details of the evidence; (v) instruct counsel; (vi) understand the consequences of the proceedings; and (vii) testify. What is required for an accused to be deemed fit to stand trial is an overall capacity allowing for a meaningful participation in the trial, provided that he is duly represented by counsel. […] 20. […] [M]edical diagnoses alone, no matter how numerous, do not suffice to assess an accused’s competency to stand trial. [1] Hadžić Decision of 4 March 2016 [Prosecutor v. Goran Hadžić, Case No. IT-04-75-AR73.1, Decision on Prosecution’s Urgent Interlocutory Appeal from Consolidated Decision on the Continuation of Proceedings, 4 March 2016], para. 7, citing Strugar Appeal Judgement, para. 55. [2] Strugar Appeal Judgement, para. 56. [3] Strugar Appeal Judgement, paras. 41, 55. [4] Strugar Appeal Judgement, para. 60. [5] Strugar Appeal Judgement, para. 61. |
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| Notion(s) | Filing | Case |
| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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24. The Appeals Chamber further recalls that an accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer.[1] Processing the wealth of complex information, inherent in international criminal proceedings, is the role of defence counsel in order to advise their clients.[2] Indeed, the standard of fitness to stand trial indicates that “a defendant may sometimes require assistance to participate in the proceedings”.[3] […] 28. […]The Appeals Chamber recalls that an accused’s ability to meaningfully participate in trial is contingent on whether he or she possesses the mental capacity to communicate, and thus consult, with counsel.[4] Indeed, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has expressly acknowledged that an accused’s capacity to instruct counsel is among a non-exhaustive list of rights “essential for determination of an accused’s fitness to stand trial”.[5] […]. [1] Strugar Appeal Judgement, para. 60. [2] Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Public Redacted Version of the “Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings” Filed on 30 April 2018, 8 June 2018 (“Mladić Decision of 8 June 2018”), p. 3; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), para. 22; Strugar Appeal Judgement, para. 60 (wherein the Appeals Chamber of the ICTY held that “[e]ven persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”). [3] Popović et al. Decision of 16 January 2013, para. 22. [4] Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. See also Popović et al. Decision of 16 May 2011, para. 14. [5] Strugar Appeal Judgement, paras. 41, 55. |
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| Notion(s) | Filing | Case |
| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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64. The Appeals Chamber further recalls that it is bound to interpret the Statute and the Rules of the Mechanism in a manner consistent with the jurisprudence of the ICTR and the ICTY.[1] Mindful of its obligation in this regard, the Appeals Chamber observes that the elements of the “alternative finding procedure”, as defined by the Trial Chamber, appear to circumvent certain statutory guarantees afforded to all accused appearing before the Mechanism. In particular, the Trial Chamber’s conclusion that Kabuga’s attendance would be unnecessary in the course of the “alternative finding procedure” appears incompatible with the plain reading of Article 19(4)(d) of the Statute, which provides accused appearing before the Mechanism with the right to be tried in their presence. Binding jurisprudence has interpreted this statutory guarantee to mean that an accused has the right to be physically present at trial.[2] The Appeals Chamber has emphasized that the accused’s right to be tried in his or her presence is an “indispensable cornerstone of justice” and that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial.[3] 65. The Appeals Chamber is cognizant that the right of an accused to be present at trial is not absolute as it may be waived or forfeited by the accused or otherwise restricted based on substantial trial disruptions on the part of an accused that are unintentional in nature.[4] However, in assessing a particular limitation on the right of an accused to be physically present, trial chambers are required to take into account the proportionality principle, pursuant to which any restriction of a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[5] The Appeals Chamber considers that, under the Mechanism’s legal framework, this assessment can be made only in relation to an accused who is fit to stand trial.[6] For to continue a trial against an unfit accused is to deny him or her the statutory guarantee to be tried in his or her presence.[7] Indeed, the Appeals Chamber of the ICTY and the ICTR has cautioned against holding proceedings in the absence of an accused falling under the primary jurisdiction of the ad hoc tribunals, unless the accused has waived his or her right to be present.[8] Combined with the inability of an unfit accused to instruct counsel,[9] the jurisprudence is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit to stand, would amount to a miscarriage of justice.[10] 66. The Appeals Chamber further notes that, under the “alternative finding procedure”, the Prosecution would be required to prove beyond reasonable doubt both the actus reus and mens rea of the charged crimes without, however, the possibility of Kabuga being convicted.[11] The Appeals Chamber recalls that, under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a trial chamber must deliberate and decide separately on each charge contained in the indictment on whether it is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if it finds the accused guilty on one or more of the charges. As the Appeals Chamber has previously held, the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond a reasonable doubt, a finding of guilt follows.[12] The jurisprudence is clear that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[13] The “alternative finding procedure”, as delineated by the Trial Chamber, appears incompatible with this requirement. In addition, while the difference between a trial resulting in a conviction and proceedings in which all elements of the offence are proven but no conviction entered may appear marginal on its face, the second scenario essentially runs counter to the prohibition of holding trials in absentia.[14] The Appeals Chamber recalls that trials in absentia were intentionally excluded from the statutory framework of the Mechanism and its predecessor tribunals.[15] 67. The incompatibility of the “alternative finding procedure” with the existing Mechanism’s legal framework is also highlighted by the potential consequence that, if Kabuga were to be found responsible for the charged crimes but not convicted, he would be precluded from challenging such finding on appeal or from seeking a review. Significantly, under Articles 23 and 24 of the Statute, such remedies are afforded only to convicted persons and the Prosecution. It is uncertain in these circumstances how, under the “alternative finding procedure”, the accused’s right to an effective remedy would be ensured.[16] […] [1] Ngirabatware Appeal Judgement, para. 6; Munyarugarama Decision of 5 October 2012, para. 6. [2] See Hadžić Decision of 4 March 2016, para. 8; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008 (“Stanišić and Simatović Decision of 16 May 2008”), para. 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision of 30 October 2006”), paras. 11-13. [3] Zigiranyirazo Decision of 30 October 2006, paras. 8, 11, referring to Milošević Decision of 1 November 2004 [Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004], paras. 11, 13. [4] Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, paras. 6, 15; Zigiranyirazo Decision of 30 October 2006, para. 14. The Appeals Chamber notes that the right of an accused who is fit to stand trial to be present can be restricted on the basis of substantial trial disruptions, which need not be intentional. See Milošević Decision of 1 November 2004, para. 14, n. 42 (wherein the Appeals Chamber of the ICTY considered the assignment of counsel to an accused who was considered fit to stand trial but “whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work”). [5] See Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on the Scheduling of the Appeal Hearing and a Status Conference, 17 July 2020, para. 15; Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, para. 6; Zigiranyirazo Decision of 30 October 2006, para. 14. [6] See Hadžić Decision of 4 March 2016, para. 31 (wherein the Appeals Chamber of the ICTY invited the trial chamber to “reassess, based on the available and updated medical records, whether Hadžić is fit for trial, and if it finds this to be the case”, it ordered the trial chamber to “assess all reasonably available modalities for continuing the trial under the proportionality principle” (emphasis added)). [7] See Zigiranyirazo Decision of 30 October 2006, para. 11 (wherein the Appeal Chamber of the ICTR held that the physical presence of an accused before the ICTR “as a general rule, is one of the most basic and common precepts of a fair criminal trial”). [8] See Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010, n. 19; Nahimana et al. Appeal Judgement [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (original filed in French, English translation filed on 16 May 2008)], paras. 96-109 and references cited therein; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Decision of 29 October 1997”), para. 59. [9] See Popović et al. Decision of 16 May 2011, para. 11; Zigiranyirazo Decision of 30 October 2006, para. 21 (wherein the Appeals Chamber of the ICTR held that the attempts of the trial chamber in that case “to give full respect to both the right to counsel and the principle of equality of arms do not compensate for the failure to accord the accused what is a separate and distinct minimum guarantee: the right to be present at his own trial”). Moreover, it is in circumstances where an accused’s refusal to communicate or instruct counsel frustrates the fair and expeditious trial that “[w]hat is required of counsel is that they act in what they perceive to be the best interests of the Accused” and that this “is […] all that can be reasonably expected of counsel in such circumstances”. See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 45. [10] Strugar Appeal Judgement, para. 34 (wherein the Appeals Chamber of the ICTY considered that the issue of an accused’s fitness to stand trial is of such importance that the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential as “the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand trial would amount to a miscarriage of justice”). [11] Impugned Decision, para. 57. [12] See Prosecutor v. Marie Rose Fatuma et al., Case No. MICT-18-116-A, Judgement, 29 June 2022, para. 93. [13] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Judgement, 29 November 2017, para. 399; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 538; Jean Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012, para. 261. See also Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 711, referring, inter alia, to Strugar Appeal Judgement, para. 324, citing Stakić Appeal Judgement [Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006], para. 358. [14] See supra paras. 64 [Impugned Decision, nn. 65, 79, 124, referring, inter alia, to Witness Mezey, T. 23 March pp. 9-12, Witness Kennedy, T. 15 March 2023 p. 7, First Joint Monitoring Report, p. 4 (confirming that there was “evidence of vascular disease affecting the brain and previous cerebrovascular accidents, evidenced on the MRI by patchy ischemic and other age related changes to Mr. Kabuga’s brain”). See also Decision of 13 June 2022, para. 25], 65 [Impugned Decision, nn. 76, 78, 79, 124, 151, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 7, Witness Mezey, T. 23 March 2023 p. 10, First Joint Monitoring Report, p. 4, Joint Statement of Dr. Kennedy and Dr. Mezey, 16 May 2022, p. 2. See also Decision of 13 June 2022, paras. 14, 15, 25, 35, 50, referring, inter alia, to Dr. Mezey’s Report of 28 January 2022, pp. 19, 20, paras. 53, 56, 57, 64, Witness Mezey, T. 1 June 2022 pp. 4, 5]. [15] See Secretary-General’s Report of 3 May 1993, para. 101 (stating that “[t]here is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence” (internal reference omitted)). [16] See Article 14(5) of the International Covenant on Civil and Political Rights. See also Articles 13 and 14 of the Convention on the Rights of Persons with Disabilities. |
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| Notion(s) | Filing | Case |
| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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74. Having upheld the Trial Chamber’s finding that Kabuga is not fit to stand trial and that it is very unlikely he would regain fitness in the future,[1] the Appeals Chamber considers that the most appropriate way to proceed in the circumstances of the present case is to remand the matter to the Trial Chamber with an instruction to impose an indefinite stay of proceedings. Imposing an indefinite stay of proceedings is consistent with prior practice and strikes the appropriate balance between upholding the statutory guarantees afforded to all accused before the Mechanism and ensuring that an accused, who is allegedly responsible for some of the most egregious crimes and who has evaded justice for over two decades, remains under the Mechanism’s jurisdiction. [1] See supra para. 48 [Prosecution Appeal, paras. 3, 31]. |
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