Since the expert establishment of his mental disorder which impairs the defendant in the full execution of his defense, makes proceedings against him inadmissible, the statement of the defendant that he thinks himself capable of being tried has no significance.
According to expert opinion, the impairment of the defendant cannot be removed within a measurable space of time. It is not sure whether treatment through Narco-Analysis, as proposed by the medical experts, will have the desired result. The defendant has refused to submit to this treatment only because he thinks of himself as capable of being tried and consequently not in need of such treatment. Furthermore, because he is opposed to any forcible influence upon the body, and finally, he is afraid of physical disturbances which would prevent him from participating in the trial if such method of treatment is used at this time. The proceedings would have to be dropped in case of an illness of long duration which excludes his fitness to be tried.
| ad 1-b: | According to Article 12 of the Statutes, the Tribunal has the right to proceed against a defendant in absentia if |
he, the defendant, cannot be located or if the Tribunal thinks it necessary, for other reasons, in the interests of justice. If the Tribunal, on the basis of convincing expert opinions, establishes that the defendant is not in a position to put up a pertinent defense and consequently decides not to proceed against him, proceedings in absentia, according to Article 12, could then only be carried on if this is in the interest of justice. It would not be compatible with objective justice, in case that actual proof of this fact is available, if the defendant is impeded by an impairment based upon health reasons, in personally standing up for his rights and in being present at the trial.
In proceedings which accuse the defendant of such serious crimes and possibly carry the death penalty, it would not be compatible with objective justice if he were personally denied the opportunity to look after his rights as stated in Article 16 of the Statutes. These rights provide for his self-defense. The possibility to “personally present evidence for one’s defense and to cross-examine each witness of the prosecution” is of such importance that any exclusion of such rights has to be considered an injustice toward the defendant. Proceedings in absentia can, under no circumstances, be accepted as a “fair trial.”
The same is true for the exclusion of the defendant from the rights which are granted him during the proceedings according to Article 24.
If the defendant is impaired in his ability to defend himself for the reasons of the expert opinions, and to the extent explained therein, then he is just as little in a position to give his Counsel the necessary information and to enable him to take care of the defense in his absence.
Since the Statutes establish the rights for the defense in this precise manner, it does not seem fair to withhold these from a defendant in a case when he is prevented from personally taking care of his defense during the proceedings. The rules in Article 12, regarding the proceedings against an absent defendant, have to be considered as an exception which should only be used against a defendant who tries to dodge in spite of his being in a position to be tried. The Defendant Hess has always been prepared to be tried in order to avoid proceedings in absentia, which he considers an injustice of the highest measure.
| ad 1-c: | In case the Court should not agree with the explanations and should not consider the statements of the expert |
opinion in the sense of the defense, and therefore come to a denial of the Application ad a, it seems necessary to obtain the super opinion because the opinions testify to the fact that the defendant is a psychopathic personality who suffers from hallucinations and still today shows, in the loss of memory, clear signs of a serious hysteria. If the Tribunal does not consider these sentiments alone as sufficient for the establishment of incapability to be tried, a more intensive examination would have to follow which would not be confined to an examination of only one or two hours on several days, but require a clinical observation.