“Fitness to Stand Trial Under International Criminal Law: The Ramifications of a Landmark East Timor Decision” Deputy General Prosecutor for Serious Crimes v Josep Nahak 1 March 2005, Judge Rapoza, Special Panels for Serious Crimes, Dili District Court, Democratic Republic of East Timor

Abstract

This paper reviews the circumstances under which Josep Nahak was found unfit to stand trial for offences with which he was charged during the lead-up to East Timor becoming an independent nation. The accused man was scheduled to be tried for war crimes by the East Timor Dili District Court within which special panels were established to deal with such matters. The paper discusses the expert evidence which was presented in the case and the considerations that led to Judge Rapoza's decision that the accused man was unfit to be tried. It also reflects upon the cultural issues which arise when assessors are imported to another country to undertake such evaluations, and it considers the options for “special hearings” when determinations of unfitness are made, especially in a situation where treatment options that might render the accused fit to stand trial cannot be pursued effectively.

Notes

1. See I Freckelton and M Karagiannakis, ‘Fitness to Stand Trial under International Criminal Law: the Historical Context’ (2014) 21 Journal of Law and Medicine 747.

2. See I Freckelton and M Karagiannakis, ‘Fitness to Stand Trial under International Criminal Law: Current Challenges for Law and Policy’ (2014) 12(4) Journal of International Criminal Justice (in press).

3. This was subsequently to become the leading judgment on the subject: Prosecutor v Strugar, ICTY, Appeals Chamber, IT-01-42-A, 17 July 2008, discussed by I Freckelton and M Karagiannakis, ‘Unfitness to Stand Trial under International Criminal Law: The Influential Decision of the International Criminal Tribunal of the Former Yugoslavia in relation to Pavle Strugar and its Ramifications’ (2014) 21(4) Psychiatry, Psychology and Law (in press).

4. Deputy General Prosecutor for Serious Crimes v Josep Nahak, Democratic Republic of East Timor Dili District Court Special Panels for Serious Crimes. Case Number 01A/2004, Findings and Order on Defendant Nahak's Competence to Stand Trial, 1 March 2005 <http://wcsc.berkeley.edu/wp-content/uploads/ET-Docs/CE-SPSC%20Final%20Decisions/2004/01a-2004%20Josep%20Nahak%20Final%20Decision.pdf> accessed 5 May 2014.

5. Prosecutor v Strugar, Decision Re The Defence Motion to Terminate Proceedings, IICTY, T. Ch., Case No. IT-01-42-T, 26 May 2004.

6. Prosecutor v Strugar, ICTY, Appeals Chamber, IT-01-42-A, 17 July 2008.

7. A Cassese, The Oxford Companion to International Criminal Justice (OUP, Oxford, 2009), at p 307.

8. See H Hill, Stirrings of Nationalism in East Timor: Fretilin 1974–1978: The Origins, Ideologies and Strategies of a Nationalist Movement (Otford Press, Otford, 2002).

9. See B Kiernan, Genocide and Resistance in South East Asia: Documentation, Denial and Justice in Cambodia and East Timor (Transaction Publishers, New Jersey, 2011), at p 111.

10. See Judicial System Monitoring Program, East Timor: Digest of the Jurisprudence of the Special Panels for Serious Crimes (Dili, April 2007) <http://www.locjkt.or.id/Timor_E/new/pdf/Digest%20of%20the%20Jurisprudence.pdf> accessed 25 April 2014.

11. See C Reiger and M Wierda, ‘International Center for Transitional Justice, The Serious Crimes Process in Timor Leste: In Retrospect’ (March 2006) <http://www.ictj.org/sites/default/files/ICTJ-TimorLeste-Criminal-Process-2006-English.pdf> accessed 30 April 2014.

12. Later he headed a United Nations Criminal Justice Advisory Team in Haiti and functioned in various capacities to support the Extraordinary Chambers in the Courts of Cambodia.

13. Prosecutor v. Strugar, Decision Re The Defence Motion to Terminate Proceedings, IICTY, T. Ch., Case No. IT-01-42-T, 26 May 2004 at [21].

14. This was later affirmed by the Appeals Chamber. Prosecutor v Strugar, ICTY, Appeals Chamber, IT-01-42-A, 17 July 2008 at [41, 55].

15. This assumes that in (3) “with a reasonable degree of rational understanding” applies to both of the previous qualities. This issue is not clarified in the discussion of Mr Nahak's circumstances at [147]-[150]. However, it seems to follow that the two components of (3) relate to communication directed to preparation for trial. The requirement of rationality at least applies to the preparation for trial which has to be a collaborative exercise between the accused and their legal representatives. If there is irrationality in one component, it will impact upon the other.

16. See I Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’ (1996) 19(1) International Journal of Law and Psychiatry 39.

17. See I Freckelton and M Karagiannakis, ‘Unfitness to Stand Trial in Decisions of the Extraordinary Chambers in the Courts of Cambodia’ (2014) 21(4) Journal of Law and Medicine 813.

18. Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, Decision on Immediate Appeal Against the Trial Chamber's Order to Unconditionally Release the Accused Ieng Thirith, Supreme Court Chamber, 14 December 2012 <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2013-01-04%2010:44/E138_1_10_1_5_7_EN.PDF> accessed 4 June 2014 at [49]; see also I Freckelton and M Karagiannakis, ‘Unfitness to Stand Trial in the Extraordinary Chambers in the Courts of Cambodia’ (2014) 21(3) Journal of Law and Medicine (in press).

19. See P Bartlett and R Sandland, Mental Health Law, Policy and Practice, 4th end (Oxford University Press, Oxford, 2014), at p 350.

20. The possibility of special verdicts exist also under New South Wales law by virtue of s22 of the Mental Health (Forensic Provisions) Act 1990 (NSW).