Rodrigo Duterte Can Participate In Pre-Trial Proceedings, Medical Experts Tell ICC Judges

The independent panel of medical experts appointed by the International Criminal Court (ICC) to examine former president Rodrigo Duterte has found him capable of participating in pre-trial proceedings, including the postponed confirmation of charges hearings, court filings showed.

Although they had different interpretations of the findings, both the ICC prosecutor and Duterte’s lawyers have confirmed that the panel found Duterte “competent for the purpose of the pre-trial proceedings.”

In his nine-page observation released on Thursday, ICC deputy prosecutor Mame Mandiaye Niang urged the ICC Pre-Trial Chamber I to conclude that Duterte is “capable of meaningfully exercising his procedural and fair trial rights, and that he is fit to participate in the pre-trial proceedings, including the confirmation hearing.”

“Upon completion of their assessments, panel members individually reached the same overall conclusion that, while frail and elderly, Mr. Duterte nevertheless possesses the necessary capacities to meaningfully exercise his procedural and fair trial rights,” wrote Niang.

He also called for the resumption of the proceedings on the confirmation of charges against the former president.

But Duterte’s lawyer Nicholas Kaufman maintained that while the former president is “capable of drawing on his personal long-term memory,” his short-term memory is already impacted and that “he cannot retain information for more than a short space of time.”

He challenged the panel’s findings and said the means by which each member reached their conclusions were in “conflict with those of the others.”

“Such internal inconsistencies undermine the overall weight of the general joint conclusion on fitness. Before rendering a decision on the matter, the Pre-Trial Chamber must seek further clarification,” Kaufman said in his 12-page observation.

Kaufman requested for an “evidentiary hearing” to allow parties to clarify the conclusions of the experts.  

‘Feigning’ cognitive impairments?

A copy of the report by the medical experts has yet to be released, but court filings from both the prosecution and the defense provided details on the procedure and the findings.

Based on Niang’s observation, the panel members interviewed, examined and assessed Duterte in person on Oct. 8, 9, 16 and 20 and on Nov. 18.

The medical experts, according to Niang, found that Duterte was able to understand the charges and evidence; understand the conduct, purpose and possible consequences of the pre-trial proceedings; and instruct his lawyer for the preparation and conduct of his defense.

“These findings are clear and unanimous, and should be relied upon by the Chamber as authoritative, to determine that Mr. Duterte is fit to stand trial,” said the prosecutor.

The deputy prosecutor also said that the medical experts found Duterte as an “unreliable historian concerning his health and mental functions.”

“The Prosecution submits that the Chamber should accept the unanimous view of the Panel given that they each employed specific tests to assess whether Mr. Duterte was underperforming while being assessed and they each found him to be unreliable,” he said.

“In the Prosecution’s view, it strongly appears that Mr. Duterte is feigning cognitive impairments in an attempt to avoid a trial on the merits,” added Niang.

Kaufman, however, stressed that nowhere in the report was it stated “that such underperformance is deliberate.”

“All experts appear to agree that Mr Duterte’s poor performance on the tests designed to assess cognitive faculties results from underperformance… Accordingly, the reason for such underperformance is left unresolved by the Panel,” the defense lawyer said.

The defense is claiming that Duterte is suffering from cognitive mental decline that renders him unfit to stand trial.

His confirmation of charges hearing, originally scheduled last Sept. 23, was postponed pending the court’s decision on the matter.