Counsel for three ageing defendants in the Khmer Rouge tribunal’s second case have requested examinations to determine whether their clients are mentally and physically fit to stand trial in the court’s longest and most complicated case.
Ang Udom, a lawyer for former KR Foreign Minister Ieng Sary, 85, said yesterday that he thought his client would be “unable” to attend hearings before the court’s Trial Chamber.
His defence team submitted a request to the court last month for an examination of Ieng Sary’s physical and mental health to evaluate his ability to participate in the trial.
“What we can see from his situation is that he is frail. I believe that at the public hearing, my client would be unable to attend,” Ang Udom said. “Maybe he can show up at the hearing for 15 minutes and then leave, or not attend or watch from the outside.”
Ang Udom added that the court “cannot force [Ieng Sary] to show up” to hearings.
Anne Heindel, a legal adviser at the Documentation Centre of Cambodia, said yesterday that the standard of unfitness has to be “quite high to get a case dismissed”, and that it was “unlikely” that the court would rule that way.
“What they generally look at is … whether you are able to effectively exercise your rights in the proceedings,” she said.
“The trouble here [is] you have elderly people who … could be having progressive degeneration, both mental and physical, and that will have to be constantly evaluated,” Heindel said.
Defence counsel for former KR Brother Number 2 Nuon Chea, 84, filed a request to the Trial Chamber in February for an examination of their client’s ability to stand trial, noting that the case will likely be “of extreme duration and complexity”.
Son Arun, a lawyer for Nuon Chea, said yesterday that he had “no confidence” that his client would be fit to attend full hearings. “He’s lost some parts of his memory – only 60 or 70 percent remains,” Son Arun said. He suggested that Nuon Chea might be able to attend “half” of the full-day sessions scheduled for later this year.
“He has a problem with sitting. He cannot sit for long hours. He has a problem with his eyes, back and head. He had a stroke one time at his home in Pailin before he was taken to Phnom Penh,” Son Arun said.
During four days of initial hearings in the case last week, Nuon Chea donned sunglasses to protect his eyes from the glare of the courtroom lights and a ski hat because, his lawyers explained, he was uncomfortable in the air conditioning.
Nuon Chea, Ieng Sary and former KR Social Affairs Minister Ieng Thirith excused themselves early from hearings at various times last week, citing health concerns. Ieng Thirith, 79, appeared to have fallen asleep on numerous occasions.
Attorneys for Ieng Thirith have requested that she be excused from the trial due to health complications including knee problems, poor eyesight and insomnia, the Voice of America news service reported yesterday.
If the court finds the others unfit and excuses them from proceedings, former KR head of state Khieu Samphan may be the only defendant consistently in the courtroom at the upcoming hearings. Sa Sovan, a lawyer for Khieu Samphan, said yesterday that he believed his client would be “fine” for the trial.
“His health is good and he is ready to testify at the court,” Sa Sovan said.
In their February filing, Nuon Chea’s lawyers argued that the court’s options in the case that their client is found unfit to stand trial could range from halting proceedings entirely to shortening hearings.
United Nations court spokesman Lars Olsen said yesterday that although all accused receive regular medical check-ups, “no decision” on their fitness for trial has been made.
“A decision to declare someone unfit would be a judicial decision, but of course there would normally be a medical assessment as one of the bases for a judicial decision,” Olsen said. He added that the Trial Chamber will rule on the issue ahead of the so-called “substantive hearings” in the case, which are expected in August or September.
Olsen said it was “speculative to talk about what would be the consequences of whether someone is found unfit”. Proceedings against a suspect who dies during the trial would be dropped, he said.
Heindel said it was premature to count the defendants out of their own trial. “It’s always a loss to not have somebody participate actively in the trial, to leave out their contribution… but we’re not there yet,” she said.