Health of the Accused and Fitness to Stand Trial in Case 002/01
A number of separate hearings were conducted on the fitness to stand trial in reference to health and age of the accused of Case 002 (Issue 2 and Issue 4). The Accused of Case 002 initially were Mrs. Ieng Thirith (81), Mr. Ieng Sary (87), Mr. Nuon Chea (86) and Mr. Khieu Samphan (82). Different decisions were made based on the ECCC legal frameworks, particularly ECCC IR 32 and IR 89ter, and international practices, especially the standard set by ICTY’s Strugar decision corresponding to the several medical expert evaluations.[i] Ieng Thirith was the first Accused who was found unfit to stand trial due to her mental condition (AIJI special report in November and December 2012). She received unconditional release and was severed from the main case.[ii]
The effective participation of the Accused in the trial related to mental capacity was discussed at length during Ieng Thirith’s case after she was first found fit to stand trial. Her Defense filed a submission regarding her poor health condition after which medical experts made a reassessment to identify her ability to participate in trial. The final order of the Supreme Court Chamber sought to ensure that Ieng Thirith would remain protected from arbitrary restrictions on her rights. It provided that the Trial Chamber would –annually, or upon request – review the measures of judicial supervision to confirm that they remain “suitable, necessary, and proportional.” (AIJI’s Special Report).
Ieng Sary (husband of Ieng Thirith), known to be of frail health with chronic heart issues, was found fit to stand trial based on expert geriatrician’s findings (Issue 42). The issue of Ieng Sary’s effective participation in the proceedings was discussed intensively as the Accused’s health deteriorated. The Counsels actively raised issue on the definition of “fit to stand trial”, because, despite the fact that Ieng Sary passed the tests pursuant to Strugar decision, they claimed that their client was constantly in pain and had intermittent periods of focus (See, for example, Issue 43, 44, 45, and 50). However, Ieng Sary passed away on 14 March 2013, ending the trial against him before this issue was decided upon.
In the first hearing after the death of Ieng Sary, the Court heard medical experts about Nuon Chea’s state of health. Thereafter, he was found fit to stand trial since his mental capacity has sufficient cognitive functioning to observe and take part in the proceedings (Issue 55). This issue was not too problematic for Khieu Samphan. Although he has been transferred once to the hospital, he frequently participated in most of the proceeding days and appears generally healthy (Issue 49 and 51).
The health problems of the accused of Case 002 have impeded the normal proceedings of the Court (45). In lieu with the Accused’s right to be present in their own trial barring provision of waiver pursuant to IR 81(5), their frail health status has forced the Chamber to reschedule hearings and amend the order of the witness testimonies (Issue 23, 37, 54) and further influence the course of the trial (Issues 49, 51, and 55). For example, when Ieng Sary was suddenly rushed to the hospital on 17 May 2012, the proceedings had to be scheduled to hear only the Witnesses and Civil Parties whose testimonies the Accused had waived his right to be present in (36 and 37).
The Chamber’s effort to both accommodate the health requirements of the Accused while ensuring their participation in trial included providing facilities in the holding cell and allowed the Accused, when their health status deems it necessary, to observe the proceedings through video link from the cell. This measure however was subject to criticism by the Defense. For example, Nuon Chea’s International Co-Lawyer argued the court ought to respect the rights of their client, given that Nuon Chea was absent during almost every afternoon session to observe proceedings from the holding cell. The counsel claimed that the availability of a video-link of the proceedings did not ensure that his client was participating effectively (36). Ieng Sary’s Counsel also voiced that to make his ailing client participate in the holding cell was only a sham, since the public could not see his incapacity to participate (Issue 44).
Authored by Noyel Ry, Aviva Nababan, Francisca Gilmore
[i] Abilities of the Accused states in Strugar decision as following: to (i) plead, (ii) understand the nature of the charges against her/him, (iii) understand the course of the proceedings, (iv) understand the details of the evidence, (v) instruct counsel, (vi) understand the consequences of the proceedings, and (vii) testify. See The Prosecutor v. Pavle Strugar. IT-01-42-A. ICTY Trial Chamber II. “Decision Re the Defence Motion to Terminate Proceedings” (26 May 2004). http://www.icty.org/case/strugar/4 [ii] Trial Chamber. “Decision on Ieng Thirith’s fitness to stand trial” (17 November 2011). E138.