Former French president Jacques Chirac, 78 years old, was diagnosed with the symptoms of dementia last month, two days before the trial for the “bogus jobs” affair opened, a trial in which Chirac is one of the defendants . Just a few days ago in Cambodia, Ieng Thirith, the only woman to be tried for the crimes against humanity committed in Cambodia, aged 79, was also said to be suffering from health issues including Alzheimer’s which, according to her defence team, make her unfit to stand trial .
These cases raise judicial and ethical problems as one can question whether it is fair to judge a person who is suffering from dementia for crimes they may not even remember. Dementia is characterised by loss of or decline in memory and other cognitive abilities, results in damaged brain cells and becomes more severe over time. In other words, people suffering from dementia lack what Kant called “rationality”, the capacity to make reasonable choices, including the capacity to defend themselves. Many legal systems, including UK common law, usually grant people suffering from dementia with incompetency to stand trial, which means that they are either excused, or removed from court proceedings.
Dropping the charges against a defendant who is not capable of understanding the nature of the charges against them or to answer questions about their past is another option available to courts. It is the solution that the Extraordinary Chambers in the Courts of Cambodia (ECCC) will opt for if they choose to follow the case of Ieng Thirith’s defence. In international criminal law, fitness to stand trial is usually assessed by the “Strugar test”, first coined in the International Criminal Tribunal for the case of former Yugoslavian war criminal Pavle Strugar. This test states that a defendant should be able to plea; to understand the nature of the charges; court proceedings; details of the evidence; the consequences of the judgment; to communicate with counsel; and to testify in order to be deemed fit to stand trial. According to the opinions provided by Ieng Thirith’s defence team, her current condition precludes her from being able to satisfy most, if not all of the Strugar fitness requirements.
The French criminal court has decided to choose the other option: the trial of Jacques Chirac has started without him and he will be judged in absentia. He will not be present in the courtroom, but his lawyers will represent him during the proceedings and will possibly be sentenced. This situation follows a letter written by the former president, in which he expresses his wish to be tried in absentia to the court, a procedure in accordance to French criminal law. However, this provision was initially introduced for persons who are physically incapable to be in a court rather than defendants who show symptoms of dementia (commentators believe that it might be a vascular form of dementia, due to the stroke he had in 2005). Judging someone in their absence is always problematic both for the prosecution (the defendant is not present in court to testify) and the defence (the exchange of information between the defendant and his counsel is easier if the defendant is in court). For these reasons, judging defendants in absentia it should only occur after careful consideration. Some may deem it regrettable that the court did not order another medical examination to determine if Jacques Chirac’s mental capacities do indeed keep him from understanding the consequences of the judgement, regardless of his willingness to be judged. Dementia is often characterised by anosognosia –the lack of awareness of one’s disease – and Jacques Chirac’s letter purporting his competence to be tried in this way may not account for this. If he is sentenced to a prison term (he currently risks being sentenced up to 10 years in prison), the court might then consider adapting the sentence to reflect his apparent dementia by confining him to his home, for example.
Regardless of their outcome, what the cases of Jacques Chirac, Ieng Thirith and others do highlight is the extraordinarily difficult questions that arise in the trials of those who may have broken the law in the past, but who are now suffering from cognitive impairments. Viewing these issues through the lens of human rights can provide a framework through which legislators can address these issues in an ethical manner. In particular following guidelines set by the Universal Declaration of Human Rights (UDHR) and the European Convention of Human Rights (ECHR) can help to ensure that all defendants, regardless of health status, can receive a fair trial.
Lilly Diener was an intern at ILC-UK. ILC-UK would like to congratulate Lilly on her recent success in achieving a distinction in her Masters. The law, dementia and human rights were the subject of her dissertation.