Psychological examination
| Notion(s) | Filing | Case |
|---|---|---|
| Contempt Appeal Judgement - 03.07.2009 |
JOKIĆ Miodrag (IT-05-88-R77.1-A) |
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18. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide specialised knowledge – be it a skill or knowledge acquired through training – that may assist the fact finder to understand the evidence presented.[1] Furthermore, Rule 74 bis of the Rules explicitly provides that a Trial Chamber may order a medical, psychiatric and psychological examination of an accused. While normally ordered in the context of sentencing,[2] the Appeals Chamber notes that on a number of occasions Trial Chambers have requested expert witnesses to provide psychological assessments of an accused and to report on his state of mind at the time of the commission of the crimes.[3] The Trial Chamber must determine itself whether an accused had the state of mind required by the applicable law (mens rea); however, a medical analysis of an accused’s mental state at the time of the crime is a distinct piece of evidence which may be relied upon in support of the Trial Chamber’s conclusion. In this respect, the Appeals Chamber notes the distinction drawn in the Delalić et al. Appeal Judgement between asking an expert to draw a conclusion of fact on behalf of the Trial Chamber versus providing medical information upon which the Trial Chamber may rely.[4] [1] Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-A, Judgement, 28 November 2007, para. 198; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 27. [2] See Prosecutor v. Darko Mrða, Case No. IT-02-59-S, Decision on the Defence Motion for Medical Examination and Variation of Scheduling Order, 15 September 2003 (“Mrða Decision on Defence Motion for Medical Examination”), p. 2; Prosecution v. Stevan Todorović, Case No. IT-95-9/1, Order on Defence Motion for Medical Examination and Variation of Scheduling Order, 27 February 2001; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Order for Psychological and Medical-Psychiatric Exam of the Accused Radić, 19 April 2000 (“Radić Order for Psychological and Medical-Psychiatric Exam”), p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Motion to Obtain the Assignment of Experts for the Accused Miroslav Kvocka [sic], 12 May 2000 (“Kvočka Decision on Defence Motion for Assignment of Experts”), p. 2; Prosecutor v. Miroslav Kvočka et al, Case No. IT-98-30/1-T, Decision on Defence Request for Assignment of Experts for the Accused Dragoljub Prcać, 19 May 2000 (“Prcać Decision on Assignment of Experts”), p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defence Request for Assignment of Medical and Psychiatric Experts for the Accused Zoran Zigić, 22 June 2000 (“Zigić Decision on Assignment of Medical and Psychiatric Experts”), p. 2. [3] Mrða Decision on Defence Motion for Medical Examination, p. 6; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Order for the Medical Examination of the Accused Milorad Krnojelac, 29 January 2001 (“Krnojelac Order for Medical Examination”), p. 2; Kvočka Decision on Defence Motion for Assignment of Experts, p. 3; Prcać Decision on Assignment of Experts, p. 2; Zigić Decision on Assignment of Medical and Psychiatric Experts, p. 2; Radić Order for Psychological and Medical-Psychiatric Exam, p. 3. [4] Prosecutor v. Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Delalić et al. Appeal Judgement”), fn. 994. |
ICTR Rule Rule 74 bis ICTY Rule Rule 74 bis | |
| Notion(s) | Filing | Case |
| Contempt Appeal Judgement - 03.07.2009 |
JOKIĆ Miodrag (IT-05-88-R77.1-A) |
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The Trial Chamber ordered two psychological examinations of the Accused which it then relied upon to convict him. It held that because the reports were ordered under Rule 74 bis of the Rules, they did not fall within the scope of Rule 94 bis of the Rules. 22. The Appeals Chamber considers that the Trial Chamber erred in finding that Rule 94 bis of the Rules was inapplicable in the particular circumstances of the case on the basis that the Chamber Expert’s reports were filed pursuant to Rule 74 bis of the Rules. The Appeals Chamber recalls that Article 21(4) of the Statute provides that: 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: […] (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; […] Rule 94 bis of the Rules expresses this right to challenge evidence more specifically with regard to expert witnesses and their reports and sets out the procedure to be followed. In the present case, the Chamber Expert was asked to report on Jokić’s state of mind when he refused to testify in the Popović et al. case, which goes to a central issue in the case against him, and the Trial Chamber then relied on this evidence in convicting him.[1] Thus while the reports were ordered pursuant to Rule 74 bis of the Rules rather than Rule 94 bis of the Rules, they should be properly understood as expert evidence in the case within the meaning of Rule 94 bis of the Rules and subject to cross-examination by Jokić. The Appeals Chamber notes that in a number of other cases where the Trial Chamber has ordered psychological reports pursuant to Rule 74 bis of the Rules, the parties have been given the opportunity to examine the expert.[2] It further notes that while Rule 94 bis is not directly applicable to the case as the Trial Chamber is not “a party” within the meaning of Rule 94 bis(A), the guarantees for the preservation of the procedural rights of the Accused provided under this Rule were applicable. Hence, in the circumstances of this case, the fact that the Trial Chamber ordered the reports pursuant to Rule 74 bis of the Rules does not place them beyond the scope of Rule 94 bis of the Rules. [1] Trial Judgement [Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1, Judgement on Allegations of Contempt (Public Redacted Version), 27 March 2009], paras 29, 34-35. [2] See Krnojelac Order for Medical Examination [Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Order for the Medical Examination of the Accused Milorad Krnojelac, 29 January 2001], in which a psychological expert was appointed pursuant to Rule 74 bis of the Rules and was examined (T. 7969-8025 (28 and 29 June 2001)); Radić Order for Psychological and Medical-Psychiatric Exam [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Order for Psychological and Medical-Psychiatric Exam of the Accused Radić, 19 April 2000], in which two psychological experts were appointed pursuant to Rule 74 bis of the and both were examined (Ana Najman: T. 8703-8741 (6 March 2001) and Dr. Bernard van den Bussche: T. 9325-9353 (14 March 2001)). |
ICTR Rule
Rule 74 bis; Rule 94 bis ICTY Rule Rule 74 bis; Rule 94 bis |
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| Notion(s) | Filing | Case |
| Decision on Psychological Examination - 06.12.2005 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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Pp. 4-5: CONSIDERING that medical, psychological, and psychiatric examinations pursuant to Rule 74bis are typically ordered to establish the accused’s fitness to stay in custody, his ability to stand trial,[1] his mental state at the time of the acts charged, as well as sentencing considerations such as ability to be reintegrated in society;[2] P. 5: FINDING that the Appellant has not demonstrated that any of these concerns are implicated, and specifically has not demonstrated any threat to the fairness of the proceedings on appeal; P. 5: FINDING therefore, that the Appellant has not demonstrated the need for an independent psychological examination under Rule 74bis; P. 5: FINDING that, in these circumstances and at this stage, the Appeals Chamber sees no reason to order a psychological or psychiatric examination of the Appellant pursuant to Rule 74bis of the Rules [1] Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on the Defence Motion for a Medical Examination of the Accused pursuant to Rule 74bis of the Rules, p. 2. [2] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Motion to Obtain the Assignment of Experts for the Accused Miroslav Kvočka, 12 May 2000, pp 2, – 3; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Request for Assignment of Experts for the Accused Dragoljub Prcać, 18 May 2000, p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Request for Assignment of Medical and Psychiatric Experts for the Accused Zoran Zigić, 21 June 2000, p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Additional Motion for Psychological Evaluation of the Accused Dragoljub Prcać, 14 December 2000, p. 2. |
ICTR Rule Rule 74 bis ICTY Rule Rule 74 bis | |