Medical grounds

Notion(s) Filing Case
Decision on Severance - 19.06.2009 KAREMERA et al.

17. The state of Mr. Ngirumpatse’s health and his prognosis for recovery lie at the core of the Trial Chamber’s decision to deny the request for a further stay of proceedings and instead to sever him from the case. In refusing to order a further stay, the Trial Chamber dismissed as “highly speculative” Mr. Ngirumpatse’s claim that his health might sufficiently improve within three months to allow him to more actively participate in his defence from his hospital bed.[1] […]

18. Rule 82(B) of the Rules provides that a “Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” In severing Mr. Ngirumpatse, the Trial Chamber concluded principally that there was a conflict of interests among the Appellants as a result of the prejudice Mr. Karemera and Mr. Nzirorera would suffer if the proceedings were stayed until Mr. Ngirumpatse became fit to attend trial.[2] The Trial Chamber noted that, “according to the doctor’s assessment”, Mr. Ngirumpatse “will, in the best case, not be fit to attend trial before nine months.”[3] The Trial Chamber also considered the interests of justice, namely, the interests of the victims and the international community that trials concerning serious crimes be completed without unnecessary delays.[4] It also noted that severance “significantly serves judicial economy”.[5]

19. The Appeals Chamber notes that, in practice, Trial Chambers generally consider various professional opinions before taking an important procedural decision arising from an accused’s medical condition which may impact the course of a trial.[6] In this respect, Rule 74bis of the Tribunal’s Rules of Procedure and Evidence (“Rules”) expressly provides that “a Trial Chamber may, proprio motu or at the request of a party, order a medical […] examination of the accused.”

20. In the present case, the Trial Chamber relied exclusively on the assessment of the Tribunal’s Chief Medical Officer.[7] As a preliminary matter, the Appeals Chamber finds no merit in Mr. Nzirorera’s submission that the Trial Chamber erred in not requiring the Chief Medical Officer to take the oath prescribed for witnesses in Rule 90(B) of the Rules.[8] The Chief Medical Officer did not appear as a witness, rather, her assessment, like other information submitted by the witness protection or defence counsel management section, is akin to a submission under Rule 33(B) of the Rules.

22.     It is appropriate to take proper account of an assessment made by the Chief Medical Officer and, in some cases, to rely exclusively on it. However, the Appeals Chamber considers that particular care is warranted where, as here, the assessment is provisional and lacking in detail, is disputed by the parties, and plays a significant role in the Trial Chamber’s assessment of prejudice. The Appeals Chamber also observes that the Trial Chamber had no specific information concerning the nature of Mr. Ngirumpatse’s medical problem. While a Trial Chamber may adopt reasonable measures to protect the privacy interests of an accused, these measures cannot serve to deprive it of information essential to reaching an informed decision. In view of the foregoing, the Appeals Chamber finds that, in this instance, the Trial Chamber reached its conclusions on prejudice without having assessed all relevant factors. It therefore committed a discernible error in the exercise of its discretion. […]

[1] Impugned Decision, paras. 25, 26.

[2] Impugned Decision, para. 43.

[3] Impugned Decision, para. 54.

[4] Impugned Decision, para. 54.

[5] Impugned Decision, para. 54.

[6] See, e.g., Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Prosecution Motion for Re-Assessment of Jovica Stanišić’s Health and Re-Commencement of Trial and Decision on Prosecution Motion to Order Further Medical Reports on Jovica Stanišić’s Health, 17 December 2008, para. 6 (“Stanišić and Simatović Trial Decision”) (in assessing whether to further adjourn proceedings based on the chronic health problems of Jovica Stanišić, the Trial Chamber considered at least 11 medical reports from numerous experts); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses, 19 April 2007, paras. 4-6, 13 (considering several detailed medical reports on the Accused’s fitness to stand trial submitted by the Tribunal’s Chief Medical Officer, surgical consultants, and the Accused’s personal physician); Slobodan Milosević v. Prosecutor, Case No. IT-02-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 6 (in assigning Slobodan Milosević court appointed counsel based on “mounting health problems”, the Trial Chamber ordered two separate medical examinations by his treating physician and an independent cardiologist with no prior involvement in the case); Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002, paras. 5-10 (in severing Momir Talić based on health consideration, the Trial Chamber considered reports from the Medical Officer at the detention unit, which it confirmed after appointing two medical experts and holding an evidentiary hearing).

[7] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Continuation of Trial, 3 March 2009], para. 23. The Trial Chamber noted that the Chief Medical Officer’s assessment was made “in consultation and agreement” with Mr. Ngirumpatse’s treating physicians. The Trial Chamber did not consult directly with the attending doctors.

[8] Nzirorera Appeal [Édouard Karemera et al v. The Prosecutor, Case No. ICTR-98-44-AR73.16, Joseph Nzirorera’s Appeal from Decision to Sever Case of Mathieu (sic) Ngirumpatse, 2 April 2009], paras. 41-49.

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Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko

10.     The Appeals Chamber recalls that an applicant for provisional release on medical grounds bears the burden of establishing that appropriate medical treatment is unavailable or cannot be performed in the Netherlands.[1] An applicant’s preference to obtain medical care in a hospital where he had been formerly treated does not satisfy this requirement.[2] […]

[1] See Šainović et al. Decision of 13 May 2013 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013], p. 2; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Motion for Provisional Release, 3 April 2013 (“Šainović et al. Decision of 3 April 2013”), p. 2; Prosecutor v. Vujadin Popović et al., Case No. IT-88-AR65.8, Decision on Prosecution’s Appeal Against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (public redacted version), para. 13.

[2] See, e.g., Šainović et al. Decision of 3 April 2013, p. 2. 

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