30 Nov. 45

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:

If the Tribunal considers the Defendant Hess fit to plead, thereby overruling my opinion and what I think is also the conclusion of the medical reports, I request that additional medical experts be consulted to re-examine this question since as far as I saw from the reports, each of the doctors examined and talked to the defendant for only a few hours on one day, one of them on two days. In a case of such outstanding importance as this one I think it would be necessary to place the defendant into a suitable hospital to obtain a reliable picture based on several weeks of examination and observation. The experts themselves are, obviously, not quite sure whether Defendant Hess beyond his inability to plead, is insane or at least not of sound mind. That is clear from the fact that all the medical statements end by emphasizing that if the Tribunal does not consider the defendant unfit to plead, he should again be subjected to a psychiatric examination.

I think therefore that this suggestion of the psychiatrists who have already examined him should be followed, and I request, that if the Tribunal considers the defendant fit to plead another exhaustive medical examination be authorized.

THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?

DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts consider the Defendant Hess capable of following the proceedings. But, on the other hand, in answer to the questions put to them, they emphasize that the defendant is not capable of defending himself. The Tribunal asked the experts to give their opinion on the question--may I read it again, under the second point: "Is the defendant sane or not?" The question was answered in the affirmative by all experts, but that does not exclude the fact that the defendant might, at this moment, be incapable of pleading.