Vlasic Mountain, Prosecutor v. Mrda, Decision on the Defence Motion for Medical Examination and Variation of Scheduling Order, IT-02-59 (ICTY TC, Sep. 15, 2003)

Case: IT-02-59-S

IN THE TRIAL CHAMBER

Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joacquín Martín Canivell

Registrar:
Mr Hans Holthuis

Decision of:
15 September 2003

PROSECUTOR

DARKO MRDJA

_________________________________

DECISION ON THE DEFENCE MOTION FOR MEDICAL EXAMINATION AND VARIATION OF SCHEDULING ORDER

_________________________________

Office of the Prosecutor:

Mr. Alan Tieger
Mr. Timothy J. Resch

Counsel for the Defence:

Mr. Vojislav M. Dimitrijevic
Mr. Otmar Wachenheim

TRIAL CHAMBER I (the "Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the "International Tribunal");

NOTING the "Scheduling Order" issued in this case on the 1 August 2003 (the "Scheduling Order"), whereby the Trial Chamber ordered that the parties were to file their sentencing briefs and statements of witnesses on whom they intend to rely by 8 September 2003 and that a sentencing hearing shall be held on Monday 22 September 2003;

BEING SEIZED of the "Defence Motion for Appointment of Expert Witness and Medical Examination" filed by the Defence for Darko Mrdja on 28 August 2003 (the "Motion" and the "Defendant");

BEING SEIZED of the "Defence Motion to Amend Scheduling Order", filed on 28 August 2003, whereby the Defence requested that the Scheduling Order be amended in this case to allow the Defendant a full and fair opportunity to present mitigating evidence at his sentencing hearing;

NOTING the "Prosecution’s Response to Defence Motion for Appointment of Expert Witness and Medical Examination", filed on 2 September 2003 (the "Response");

NOTING that, at the hearing on 24 July 2003, the Defendant pleaded guilty to Count 2 (murder as a violation of the laws or customs of war) and to Count 3 (inhumane acts as a crime against humanity) and that the Trial Chamber, being satisfied that the plea was voluntary, informed and unequivocal, and that there was sufficient factual basis for the crimes and the Defendant’s participation in it, entered a finding of guilt;

NOTING the Amended Indictment filed on 4 August 2003, whereby Count 1 (extermination as a crime against humanity) was deleted;

NOTING that the Defence requests that:

a Rule 65ter hearing be scheduled in order to allow Counsels to fully present the grounds for their request for the appointment of Professor Gallwitz;

the Chamber appoints Professor Adolf Gallwitz as expert for the psychological examination of the Defendant; and

the Registrar be directed to permit Professor Adolf Gallwitz to conduct an examination of the Defendant at the UN Detention Center in The Hague;

TAKING INTO ACCOUNT that the Defence is arguing in particular that:

it is important that the Chamber have before it all the evidence relevant to the Defendant’s mental state on the day of the crime and that the assistance of a psychological expert is needed to effectively present mitigating evidence at the sentencing hearing;

the personal circumstances of the Defendant should be taken into consideration (such as the absence of prior criminal record, his age at the time of the crime, the absence of appropriate education…);

at the time of the crime, the Defendant acted as a policeman following orders of his superiors and that he would have been severely punished himself had he not followed these orders;

according to the statement of a witness, the Defendant was under the influence of alcohol at the time of the incident;

NOTING that, according to the Defence, all these circumstances, if proven, may be relevant to show both duress and diminished mental capacity, both of which would constitute mitigating evidence that should be considered prior to the imposition of sentence;

NOTING the indication from the Defence that the expert it intends to call is ready and willing to examine the Defendant;

NOTING that the Prosecution does not generally object to the relief requested in the Motion, but reserves the right to challenge any of the above mentioned factors should the Defence rely upon such factors in the sentencing briefs or during the meeting insofar as, according to the Prosecution, these factors do not have a basis in fact and nor do they identify issues relevant to mitigation of sentence or in support the Motion;

NOTING furthermore that the Prosecution understands the aim of the Motion to be limited to sentencing and if this understanding is not correct, it would oppose the Motion;

NOTING that the Prosecution is not opposed to the appointment of Professor Gallwitz if the Registrar accepts his credentials as satisfactory under the Registry’s criteria for approval as a medical expert;

NOTING that the Prosecution requests, in the event the Trial Chamber grants the Motion, that:

all correspondence between a party and the medical expert will be disclosed to the opposing party, including oral discussions;

the Prosecution shall have the opportunity to meet with the medical expert prior to and following any medical examinations of the Defendant;

any reports or commentary of the medical expert be disclosed to the Prosecution and the Defence at the same time;

NOTING Article 24 (1) of the Statute of the International Tribunal (the "Statute") which provides that "[i]n imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offences and the individual circumstances of the convicted person”;

CONSIDERING that pursuant to Rule 101(B) of the Rules of Procedure and Evidence (the "Rules"), “[i]n determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2 of the Statute, as well as such factors as […] (ii) any mitigating circumstances […]”;

NOTING that pursuant to Rule 74bis of the Rules, the Trial Chamber "may […] order a medical, psychiatric or psychological examination of the accused" and, in such a case, the Registrar shall entrust this task to one or several experts whose names appear on a list previously drawn up by the Registry and approved by the Bureau;

CONSIDERING that the Defence does not intend to rely on the expert’s findings to argue the existence of a possible lack of mental responsibility but requires the assistance of a psychological expert in order to be able to "effectively present such evidence at the sentencing hearing"¹,

TAKING INTO CONSIDERATION that this meaning was confirmed by the Defence during a meeting on 11 September 2003 with the Senior Legal Officer, in the presence of the Prosecution;

CONSIDERING therefore that this evidence is sought to support the mental state of the Defendant as mitigating factor with respect to sentencing;

CONSIDERING that the Defendant’s diminished mental responsibility is relevant to the sentence to be imposed;²

CONSIDERING that it is in the interests of justice that the Trial Chamber be in possession of all factors that would assist its evaluation of the appropriate sentence to be imposed on the Defendant;

CONSIDERING that it is appropriate, in those circumstances, to order the appointment of a psychological expert;

CONSIDERING, as a consequence, that it is necessary to vary the time limits set by the Trial Chamber in its Scheduling Order;

NOTING that the Prosecution is seeking full transparency of the communications between the expert and the Defendant to the extent relevant to the findings of the expert;

CONSIDERING that such request for transparency is legitimate in view of the reservations expressed by the Prosecution;

CONSIDERING however that full transparency will be guaranteed if 1) a full report of the communications between the expert and the parties is ordered and 2) counsel are instructed to communicate with the expert exclusively in writing through the intermediary of the Registrar;

CONSIDERING furthermore that if the Trial Chamber orders a psychological examination of the Defendant, the expert appointed for that purpose is independent and acts in accordance with the mandate set out in the Order of the Chamber;

CONSIDERING therefore that the three above mentioned requests from the Prosecution are not justified;

FOR THE AFOREMENTIONED REASONS,

PURSUANT to articles 24 (2) of the Statute and to Rules 74bis, 101(B) and 127 of the Rules;

HEREBY grants the Motion and ORDERS that:

a psychological examination of the Defendant, Darko Mrdja, shall be carried out in conformity with the regulations of the profession, with the purpose of, in particular, providing the Chamber with the necessary information and findings concerning the psychological state of mind of the Defendant at the time of the crime;

the expert shall also provide any information and/or observations pertaining to the Defendant’s present psychological state of mind;

the expert shall report on any communication he has with sources other than the Defendant, including counsel for the Defence and the Prosecution;

counsel communicate with the expert exclusively in writing through the intermediary of the Registrar, the Registrar keeping record of any communication passed through his intermediary;

a written report of the evaluations, observations and recommendations formulated by the psychological expert shall be filed no later than 3 October 2003;

the Order of 1 August 2003 is hereby varied such that all submissions and details of witnesses shall be filed by the parties by 13 October 2003 and the sentencing hearing shall be held on 22 October 2003;

INSTRUCTS the Registrar to entrust this task to Professor Adolf Gallwitz, should the Registrar be satisfied that Professor Adolf Gallwitz meets the criteria stipulated in Rule 74bis of the Rules to have his name included on the list;

Done in English and French, the English version being authoritative.

Done this 15^th Day of September 2003.
At The Hague,
The Netherlands.

_____________
Alphons Orie
Presiding Judge

[Seal of the Tribunal]

1. Motion, para. 4.
2. The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landžo, Judgement, Appeals Chamber, 20 February 2001, para. 590.

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