Fitness to stand trial

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Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

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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Appeal Judgement - 17.07.2008 STRUGAR Pavle
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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.”

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
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Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

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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Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 POPOVIĆ et al.
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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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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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