ICC postpones Duterte confirmation of charges hearing

MANILA, Philippines — The International Criminal Court (ICC) has postponed the confirmation of charges hearing against former president Rodrigo Duterte, pending a ruling on a defense request claiming he is unfit to stand trial.

In a 2-1 decision released Monday, September 8, the ICC's pre-trial chamber I ruled the September 23 hearing would be vacated and rescheduled “until further notice.” The judges said the postponement was necessary “to determine whether Mr Duterte is fit to follow and participate in the pre-trial proceedings.”

The decision came after Duterte's lawyers filed a motion claiming the 80-year-old former president was mentally or physically unable to participate in the proceedings.

Specifically, Duterte's defense team on August 18 filed a request seeking that "all legal proceedings, including the hearing on the confirmation of charges, be adjourned indefinitely" based on their assertion that Duterte "is not fit to stand trial." 

The prosecution opposed the indefinite delay in a filing on August 28, but stated it "accepts that a short adjournment may be necessary, but this should be limited to the time necessary for the Chamber to expeditiously render its decision" on the request. The Office of Public Counsel for Victims also opposed the indefinite adjournment.

2-1 decision

Judge Iulia Antoanella Motoc and Judge Reine Adélaïde Sophie Alapini-Gansou formed the majority in favor of postponement.

Judge María del Socorro Flores Liera dissented, arguing the court should have rejected the defense request and proceeded with the hearing.

The majority stated they considered "that a limited postponement of the hearing on the confirmation of charges is warranted to allow sufficient time" to decide on the defense's request, while noting the chamber's "duty pursuant to rule 121(1) of the Rules of Procedure and Evidence to ensure the enjoyment of the suspects' rights under article 67 of the Rome Statute."

In her dissenting opinion, Flores Liera argued that determining the fitness of the accused belong exclusively to trial chambers, not pre-trial chambers, writing: "[Under] the Statute, matters of fitness and the assessment of the same are exclusively within the competence of the Trial Chamber."

Flores Liera emphasized that pre-trial and trial proceedings are different in nature, "each held independently with clearly differentiated objectives," while arguing that the confirmation hearing serves only to determine whether there is sufficient evidence to establish substantial grounds to proceed to a full trial.

Limited postponement

In the decision released Monday, the two other judges who ruled in favor of a postponement ("the majority") noted that it would only be limited to the "time strictly necessary to determine whether Mr Duterte is fit to follow and participate in the pre-trial proceedings, including the confirmation of charges hearing, and to adjudicate the Adjournment Request."

The judges ruled that because prosecutors have already finished disclosing evidence and submitted both the Document Containing the Charges and the Pre-Confirmation Brief, all parties must be prepared to immediately resume the confirmation hearing if Duterte is found fit to participate.

A new schedule for the confirmation hearing will be issued if and when the chamber rules that Duterte can take part in the proceedings, according to the decision.

The prosecution has been directed to file public redacted versions of the charges document and pre-confirmation brief by September 22.

What came before. During Duterte's first appearance before the court on March 14, Motoc said the court doctor had found Duterte "fully mentally aware and fit." 

The court, for that initial appearance hearing, had allowed Duterte to appear virtually, with judges citing his long journey to The Hague and the time difference with the Philippines as justification for the accommodation.

A total of 303 drug war victims have sought to participate in the pre-trial proceedings against Duterte, who was brought to The Hague in March following an arrest by Philippine authorities.