The Progress of International Law: Strugar Court Sets Standard to Determine Competency to Stand Trial
The Progress of International Law: Strugar Court Sets Standard to Determine Competency to Stand Trial
Last week's Trial Chamber II ruling that Pavle Strugar is competent to stand trial on charges of war crimes committed during the December 6, 1991 Yugoslav People's Army attack on Dubrovnik brought to mind the decision of another war crimes court nearly 50 years ago. In 1945, the Nuremberg Military Tribunal (NMT) likewise concluded that defendants Rudolf Hess, Hitler's number three man, and Julius Streicher, propaganda chief, were fit to stand trial,* denying defence challenges. At least in Hess's case, the NMT may have made a mistake, according to Telford Taylor, chief Nuremberg prosecutor following Robert Jackson's departure. With the clearer standard set out by ICTY Trial Chamber II, such a mistake is less likely.
In Hess's case, a commission of psychological experts advised the Court that the Accused was suffering from memory loss. Hess, however, told the Court he had been faking it. 'Henceforth my memory will again respond to the outside world,' he declared when given the opportunity to address the Court himself. 'The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.' Needless to say, the Court denied the defence motion and declared Hess competent to stand trial.
Throughout the trial, defence counsel continued to file motions on his client's competency. The Court continued to deny them, at one point explaining, 'These [motions] the Tribunal denied, after having had a report from the prison psychologist. That Hess acts in an abnormal manner, suffers from loss of memory, and has mental deterioration during the trial may be true. But there is nothing to show that he does not realize the nature of the charges against him, or is incapable of defending himself. He was ably represented at the Trial by counsel appointed for that purpose by the Tribunal. There is no suggestion that he was not completely sane when the acts charged against him were committed.' As Prosecutor Taylor correctly pointed out in his analysis of the trial, sanity when the acts were committed is irrelevant to a determination of fitness to stand trial. It is the accused's condition at the time of trial that is relevant. Taylor also noted that Hess's legal representation was 'routine at best.'
After observing Hess throughout the trial, Taylor described the Accused's behaviour in the dock as bizarre, noting that he appeared apathetic and read novels during the trial. Referring to Hess's repetitive and muddled final statement, Taylor concluded, 'But his principal effect on me was to reinforce my belief that he was quite unable to defend himself and should not have been tried.' He suggested that the Russians, for political reasons, insisted that Hess stand trial. Without referring to the transcripts, it is not possible to tell whether the Court was aware that Hess had been diagnosed with schizophrenia while he was in Britain before being handed over for trial.
Streicher was also examined for fitness to stand trial. He was determined to be of low intelligence and so anti-Semitic that his defense counsel couldn't get anywhere with him, but nevertheless fit to stand trial.
Whether or not the Nuremberg Court erred in its judgment of Hess's (or Streicher's) competence is nearly impossible to determine in hindsight and is mostly of historical interest. The uncertainty -- especially since it was raised by one of the trial's prosecutors -- provided a caution to judges in future trials and called out for a clear standard by which to judge competency to stand trial.
The Strugar Trial Chamber did not refer to the Hess decision. It noted that neither the ICTY statute nor its rules of procedure and evidence address the issue of an accused's competency to stand trial. After reviewing how courts in other jurisdictions and the European Court of Human Rights determine the matter, the Court established its own clear standard.
First, the Trial Chamber reviewed the reports of defence and prosecution experts who examined the Accused and reached opposite conclusions as to his competency. Defense expert Professor Lecic-Tosevski concluded that Strugar showed 'symptoms of a number of somatic and psychiatric illnesses, including, among others, vascular dementia, post-traumatic stress disorder, depression, what may loosely be called arthritic disorders and chronic renal failure.' The Court went on to state that Professor Lecic-Tosevski considered that these disorders affect memory, attention span, concentration, abstraction and organising ability. As a result, '[s]he considered that he was unable to participate at a high level in the proceedings, or testify. She expressed the view that the Accused was able to participate in his defence only with great difficulty and was unable to advise his counsel about the trial.'
The prosecution's experts, Drs. Bennett Blum, Vera Folnegovic-Smalc and Daryl Matthews, concluded that Strugar 'suffers from 'uncomplicated' vascular dementia, has a mildly decreased memory, and experiences occasional word-finding difficulty. They did not find PTSD or Major Depressive Disorder. Nor did they find significant impairment of the Accused's ability to remember relevant information or to focus attention for extended periods. According to the Court, '[t]hey expressed the opinions that the Accused was able to understand what he was charged with, had a good general understanding of the trial process, and was able to communicate with his counsel, to testify, and to understand the consequences of conviction.'
The Court held that the defense expert applied too high a standard. It is not required that an accused 'fully' comprehend the proceedings. '[W]hat is required is a minimum standard of overall capacity below which an accused cannot be tried without unfairness or injustice.' [emphasis in original] The defense expert erred also by including 'possible' effects of the Accused's disorders, whether or not manifested to date. Fitness to stand trial, the Court said, is not determined by mental and somatic disorders from which an accused suffers, but by the accused's capacity to exercise his rights at trial, i.e. to plead, understand the nature of the charges, understand the course of the proceedings, understand the details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify. In other words, an accused can have a mental illness yet still be competent to stand trial.
The burden of proving incapacity is on the defence. In Strugar's case, the Court held incapacity had not been proven, noting that the Accused recounted in detail to the Prosecution experts the history of changes to the indictment, the nature of the trial process and his role, the nature and purpose of cross-examination, as well as recounting and rationally discussing recent and past evidence. Any impairment in his capacity to testify, should he choose to do so, due to deficiencies in memory or concentration, 'may be alleviated to some degree because he has the assistance of two experienced counsel,' the Court ruled.
The Court's own observations inclined it to accept the conclusions of the prosecution's experts. The Court has had nearly five months to observe Strugar during his trial which began in January. In addition, the Accused addressed the Court on more than one occasion. 'On each occasion,' the Court noted in its decision, 'the comments of the Accused appeared to the Trial Chamber to be quite collected, relevant, well structured and comprehensive.' Though acknowledging there have been periods where the Accused sat with his eyes closed, the Court pointed out that his demeanor changed when a matter of greater interest to him was addressed. The Court also noted that Strugar took notes, reacted appropriately to positive and negative evidence, raised issues with his counsel and generally behaved 'appropriately and well.'
Their experience with the Accused as well as the Prosecution experts' conclusions led Trial Chamber II to conclude that Strugar has sufficient, if not high level, capacity to exercise the rights of an accused at trial. The advance from Nuremberg is at least two-fold: one, the ICTY Court issued a 20 page written opinion explaining its reasoning, and two, the accused has the right to appeal to a higher court. International humanitarian law continues to develop.
The Prosecution rested its case against Strugar on May 18. The Accused has a little more than a month before he must begin his defence. In addition to the right to appeal the Chamber's competency decision, Strugar's counsel may approach the Court with a renewed competency motion should his ability to understand and participate in his defense change substantially.
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*A third defendant, 75-year-old armaments manufacturer Gustav Krupp, was severed from the case, his trial postponed after the Court agreed with its medical commission's conclusion that he could not be moved without endangering his life and his condition was not likely to improve. He died in 1950, proceedings never having resumed.
In Hess's case, a commission of psychological experts advised the Court that the Accused was suffering from memory loss. Hess, however, told the Court he had been faking it. 'Henceforth my memory will again respond to the outside world,' he declared when given the opportunity to address the Court himself. 'The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.' Needless to say, the Court denied the defence motion and declared Hess competent to stand trial.
Throughout the trial, defence counsel continued to file motions on his client's competency. The Court continued to deny them, at one point explaining, 'These [motions] the Tribunal denied, after having had a report from the prison psychologist. That Hess acts in an abnormal manner, suffers from loss of memory, and has mental deterioration during the trial may be true. But there is nothing to show that he does not realize the nature of the charges against him, or is incapable of defending himself. He was ably represented at the Trial by counsel appointed for that purpose by the Tribunal. There is no suggestion that he was not completely sane when the acts charged against him were committed.' As Prosecutor Taylor correctly pointed out in his analysis of the trial, sanity when the acts were committed is irrelevant to a determination of fitness to stand trial. It is the accused's condition at the time of trial that is relevant. Taylor also noted that Hess's legal representation was 'routine at best.'
After observing Hess throughout the trial, Taylor described the Accused's behaviour in the dock as bizarre, noting that he appeared apathetic and read novels during the trial. Referring to Hess's repetitive and muddled final statement, Taylor concluded, 'But his principal effect on me was to reinforce my belief that he was quite unable to defend himself and should not have been tried.' He suggested that the Russians, for political reasons, insisted that Hess stand trial. Without referring to the transcripts, it is not possible to tell whether the Court was aware that Hess had been diagnosed with schizophrenia while he was in Britain before being handed over for trial.
Streicher was also examined for fitness to stand trial. He was determined to be of low intelligence and so anti-Semitic that his defense counsel couldn't get anywhere with him, but nevertheless fit to stand trial.
Whether or not the Nuremberg Court erred in its judgment of Hess's (or Streicher's) competence is nearly impossible to determine in hindsight and is mostly of historical interest. The uncertainty -- especially since it was raised by one of the trial's prosecutors -- provided a caution to judges in future trials and called out for a clear standard by which to judge competency to stand trial.
The Strugar Trial Chamber did not refer to the Hess decision. It noted that neither the ICTY statute nor its rules of procedure and evidence address the issue of an accused's competency to stand trial. After reviewing how courts in other jurisdictions and the European Court of Human Rights determine the matter, the Court established its own clear standard.
First, the Trial Chamber reviewed the reports of defence and prosecution experts who examined the Accused and reached opposite conclusions as to his competency. Defense expert Professor Lecic-Tosevski concluded that Strugar showed 'symptoms of a number of somatic and psychiatric illnesses, including, among others, vascular dementia, post-traumatic stress disorder, depression, what may loosely be called arthritic disorders and chronic renal failure.' The Court went on to state that Professor Lecic-Tosevski considered that these disorders affect memory, attention span, concentration, abstraction and organising ability. As a result, '[s]he considered that he was unable to participate at a high level in the proceedings, or testify. She expressed the view that the Accused was able to participate in his defence only with great difficulty and was unable to advise his counsel about the trial.'
The prosecution's experts, Drs. Bennett Blum, Vera Folnegovic-Smalc and Daryl Matthews, concluded that Strugar 'suffers from 'uncomplicated' vascular dementia, has a mildly decreased memory, and experiences occasional word-finding difficulty. They did not find PTSD or Major Depressive Disorder. Nor did they find significant impairment of the Accused's ability to remember relevant information or to focus attention for extended periods. According to the Court, '[t]hey expressed the opinions that the Accused was able to understand what he was charged with, had a good general understanding of the trial process, and was able to communicate with his counsel, to testify, and to understand the consequences of conviction.'
The Court held that the defense expert applied too high a standard. It is not required that an accused 'fully' comprehend the proceedings. '[W]hat is required is a minimum standard of overall capacity below which an accused cannot be tried without unfairness or injustice.' [emphasis in original] The defense expert erred also by including 'possible' effects of the Accused's disorders, whether or not manifested to date. Fitness to stand trial, the Court said, is not determined by mental and somatic disorders from which an accused suffers, but by the accused's capacity to exercise his rights at trial, i.e. to plead, understand the nature of the charges, understand the course of the proceedings, understand the details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify. In other words, an accused can have a mental illness yet still be competent to stand trial.
The burden of proving incapacity is on the defence. In Strugar's case, the Court held incapacity had not been proven, noting that the Accused recounted in detail to the Prosecution experts the history of changes to the indictment, the nature of the trial process and his role, the nature and purpose of cross-examination, as well as recounting and rationally discussing recent and past evidence. Any impairment in his capacity to testify, should he choose to do so, due to deficiencies in memory or concentration, 'may be alleviated to some degree because he has the assistance of two experienced counsel,' the Court ruled.
The Court's own observations inclined it to accept the conclusions of the prosecution's experts. The Court has had nearly five months to observe Strugar during his trial which began in January. In addition, the Accused addressed the Court on more than one occasion. 'On each occasion,' the Court noted in its decision, 'the comments of the Accused appeared to the Trial Chamber to be quite collected, relevant, well structured and comprehensive.' Though acknowledging there have been periods where the Accused sat with his eyes closed, the Court pointed out that his demeanor changed when a matter of greater interest to him was addressed. The Court also noted that Strugar took notes, reacted appropriately to positive and negative evidence, raised issues with his counsel and generally behaved 'appropriately and well.'
Their experience with the Accused as well as the Prosecution experts' conclusions led Trial Chamber II to conclude that Strugar has sufficient, if not high level, capacity to exercise the rights of an accused at trial. The advance from Nuremberg is at least two-fold: one, the ICTY Court issued a 20 page written opinion explaining its reasoning, and two, the accused has the right to appeal to a higher court. International humanitarian law continues to develop.
The Prosecution rested its case against Strugar on May 18. The Accused has a little more than a month before he must begin his defence. In addition to the right to appeal the Chamber's competency decision, Strugar's counsel may approach the Court with a renewed competency motion should his ability to understand and participate in his defense change substantially.
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*A third defendant, 75-year-old armaments manufacturer Gustav Krupp, was severed from the case, his trial postponed after the Court agreed with its medical commission's conclusion that he could not be moved without endangering his life and his condition was not likely to improve. He died in 1950, proceedings never having resumed.
