Right of the Accused to Be Present
The right of the Accused to be tried in their own presence and to defend themselves in person or with the assistance of counsels of their own choosing is a fundamental right guaranteed by the ECCC Laws and Internal Rules, domestic Cambodian law, and the international level.
Internal Rule 81(1) outlines the requirement that the Accused shall be tried in his or her presence. The same rule also creates an exception where for “health reasons or other serious concerns,” the Accused cannot be physically present, proceedings may continue in her/his absence provided consent is given. On the first day of the Initial Hearing in Case 002/01, the Chamber informed the Parties that the Internal Rules allowed for two situations if the Accused were unable to be physically present in the courtroom. In one case, proceedings could continue if the Chamber received a formal written waiver outlining the reason for the absence. In the second situation, the Accused can be ordered to participate through audio-visual means, which has in practice meant that the Accused is enabled to follow the proceedings via video-link from the holding cell.
Presence of the Accused in Case 002/01
The below table provides a breakdown of the days each of the Accused was:
a) present in the courtroom;
b) participated via video-link in the holding cell; or
c) provided a waiver of the right to be present.
Upholding the right of the Accused to be present, the Chamber adjourned the proceedings on a number of occasions throughout Case 002/01. This was most notable during the hospitalization of Ieng Sary and Nuon Chea, when waivers could not be obtained from the Accused due to their health circumstances. See KRT Monitor Issue 23.
Throughout the course of Case 002/01, a range of issues emerged related to the Chamber’s attempt to balance the right of the Accused to be present with the mandate to ensure an expeditious trial. The continued health issues of the Accused, which have prevented them from being physically present in the courtroom on a number of occasions, has raised important legal questions including whether the Accused can be forced to participate when a waiver has been given, and the extent to which an Accused can participate effectively via audio-link, particularly during the testimony of important witnesses.
Effective Participation of the Accused
The effective participation of the Accused during Case 002/01 has been a recurring issue, particularly given the small number of days that the Accused Nuon Chea and Ieng Sary were physically present in the courtroom during the proceedings.
The Ieng Sary defense team emphasized the importance of the physical presence of an Accused in the courtroom, adding that limiting the ability of the Accused to confront important witnesses and experts only via audio-video link was inconsistent with the Accused’s right to be present in court. Accordingly, counsels for Ieng Sary provided only conditional waivers during the testimony of a number of witnesses, and explained that the waiver was only effective as long as the witness’ testimony did not incriminate their client.
Weighing in on the issue, the OCP argued that the use of video link is compliant with Internal Rule 26(1). Moreover, the OCP argued that the Chamber has accommodated the Accused by providing audio-visual facilities and unless a medical expert certifies that an Accused is not physically able to be present in court, proceedings should continue.
Non-Acceptance of Waiver
On a number of occasions throughout Case 002/01, the Chamber refused to allow the Accused to return to the detention center or participate via audio-visual means in the holding cell despite the fact they had provided a waiver. This was strongly contested by the defense teams who claimed that the Chamber should not prevent the Accused from choosing not to participate or to participate via video-link. AIJI monitors noted the issue on two notable occasions during Case 002/01. Firstly, in Issue 14 the Chamber prevented Ieng Sary from moving to the holding cell while the greffier read out the charges against him. Secondly, in Issue 2 the Chamber, relying on the assessment of court doctors, refused to allow Nuon Chea to return to the detention center, after concluding that there was no medical reason preventing Nuon Chea from participating remotely from the holding cell.
Authored by: Melanie Hyde, Kossal Sor, and Chhayrath Tan
 Article 35 of ECCC law establish new (d) and Internal Rules IR 81 (1). See also Art. 14.3 (d) of the International Covenant on Civil and Political Rights states that everyone is entitled “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing….”  Cambodian Constitution (1993), Art. 31.  ECCC Internal Rules (IR), Rule 81.  IR 81 (5) provides: Where, due to health reasons or other serious concerns, the Accused cannot attend in person before the Chamber but is otherwise physically and mentally fit to participate, the Chamber may either continue the proceedings in the Accused’s absence with his or her consent or, where the Accused’s absence reaches a level that causes substantial delay and, where the interest of justice so require, order that the Accused’s participation before the Chamber shall be by appropriate audio-visual means. In such cases, the Accused may be defended during the proceedings by his or her lawyer. Where the Accused refused to choose a lawyer, the Chamber shall order that the Accused be represented by a lawyer and request the Defence Support Section to assign him or her a lawyer, from the lists mentioned at Rule 11.  Initial hearing Transcript, E1/4.1 (27 June 2011). P. 75, line 1-20.  Hearing on Evidence Transcript, E1/160.1 (14 January 2013). P. 4-5, line 11-14 and P. 9, line 7-8.  See AIJI. KRT Trial Monitor case 002 Issue No. 23. Hearing on Evidence, Week 18 (18-21, 23 May 2012). 3-4. See  Hearing on Evidence Transcript, E1/49.1 (15 March 2012). P. 128, line 12-16. Also see AIJI. KRT Trial Monitor Case 002 Issue No. 14, week 9 (Hearing on Evidence, 12-15 March 2012). P.3.  See AIJI. KRT Trial Monitor Case 002 Issue No. 32. Hearing on Evidence, Week 31 (20-21 September 2012). 4-5.  Hearing on Evidence Transcript, E1/49.1 (15 March 2012). P. 71, line 12-22. Also see AIJI. KRT Trial Monitor Case 002 Issue No. 14, week 9 (Hearing on Evidence, 12-15 March 2012). P.3.  Hearing on Evidence Transcript, E1/49.1 (15 March 2012). P. 61, line 2-11. Also see AIJI. KRT Trial Monitor Case 002 Issue No. 14, week 9 (Hearing on Evidence, 12-15 March 2012). P.2.  See ECCC Transcript of Preliminary Hearing on Fitness to Stand Trial, E1/10.1 (31 August 2011), p. 42, line 27-5. See also ECCC Transcript E1/10.1 (31 August 2011), p. 43, Line 10-11. See also AIJI. KRT Trial Monitor Case 002 Issue No. 2 (Fitness to Stand Trial, 29-31 August 2011). P.4.