Whether the narco-synthesis treatment suggested by the medical experts will bring about the desired effect is uncertain. It is also uncertain within what period of time this treatment would result in the complete recovery of the defendant’s health. The medical reports accuse the defendant of deliberately refusing to undergo such medical treatment. The defendant himself, however, tells me that, on the contrary, he would readily undergo treatment but that he refuses the suggested cure because firstly, he believes that he is completely sound and fit to plead, that therefore this cure is unnecessary; secondly, because he disapproves on principle of such violent intervention, and finally because he thinks that such an intervention at this time might render him unfit to plead and to take part in the proceedings—and that is the very thing he wishes to avoid.
If, however, the defendant is incapable of pleading, or of defending himself, as is stated in the medical report, and if this condition is likely to last for a long time, then in my opinion, a basis exists for the temporary suspension of the proceedings against him.
Coming now to my second application:
If the Tribunal accepts my arguments and declares the Defendant Hess unfit to plead, then, according to Article 12 of the Charter, it would be possible to proceed against the defendant in absentia. Article 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if for other reasons the Tribunal deems it necessary in the interests of justice. The question then is whether it is in the interest of justice to proceed against the defendant in absentia. In my opinion it is incompatible with real justice to proceed against the defendant if he is prevented by his impaired condition—namely, amnesia which is recognized by all the medical experts—from personally safeguarding his rights by attending the proceedings.
In a trial in which charges being brought against the defendant are so grave that they might entail the death penalty, it seems to me incompatible with real justice that the defendant should on account of his impaired condition, be deprived of the rights granted him under Article 16 of the Charter. This Article of the Charter makes provisions for the defendant’s own defense, for the opportunity of giving evidence personally, and for the possibility of cross-examining every witness called by the Prosecution. All this is of such great importance for the Defense, that exclusion from any of these rights would, in my opinion, constitute a grave injustice to the defendant. A trial in absentia could therefore not be regarded as a fair trial.
If as I have stated the defendant’s capacity to defend himself is reduced for the reasons agreed on and to the extent established in the reports of the experts, then he is also not in a position to give his counsel the information necessary for a defense conducted in the defendant’s absence.
Since the Charter has clearly laid down these rights of the defendant’s, it seems unjust to me as defense counsel, that the defendant should be deprived of them because his illness prevents him from personally safeguarding them by attending the proceedings.
The provisions in Article 12 of the Charter for trying a defendant in his absence must surely be looked upon as applying in an exceptional case of a defendant who endeavors to evade the proceedings although able to plead. But the Defendant Hess has told me, and he will probably emphasize it to the Tribunal, that he wishes to attend the proceedings; that he will therefore consider it particularly unjust if the proceedings are conducted in his absence, despite his good will, despite the fact that he wishes to attend them.
I therefore request the Tribunal, if it declares the defendant unfit to plead, that it will not proceed against him in his absence.
And now my third application: