The second day of opening statements at the Khmer Rouge Tribunal opened with Ieng Sary’s lawyers accusing the Trial Chamber of abusing their client’s fair trial rights by forcing him to stay in court.
“You have forced Ieng Sary to be in court all day yesterday despite the fact that he was sick, had a headache all day and could not participate,” the legal counsel for the former Khmer Rouge Minister of Foreign Affairs said at the opening of court today.
“The president of this Trial Chamber has denied him fair trial rights,” Karnavas said. “Forcing him to participate makes this trial a sham trial – a mockery – and he cannot advise his lawyers because of his ill health.”
The Tribunal has constructed holding cells in a basement below the courtroom where the accused can retire and participate in the trial through audio visual facilities in a room that includes a bed and other comfortable furnishings.
“What did we spend all the taxpayers’ money on the holdings cells for if they are not to be used?” Karnavas asked. “Because of the advanced age [of the accused], we have other ways for them to participate. An accused is not participating if their mind is not involved in the facts.”
Three of the four elderly defendants in Case 002 have raised issues regarding their fitness to stand trial, including former Khmer Rouge Social Affairs Minister Ieng Thirith, whom has been declared unfit to stand trial due to a degenerative mental illness experts believe is most likely Alzheimer’s.
Nuon Chea, who suffered a stroke in 1995 was also the subject of examinations regarding his fitness to stand trial in August, however, the Trial Chamber has ruled him fit to stand trial.
Yesterday at the trial, Ieng Sary did not wear the headset used for translation though he did intermittently raise an earpiece close to his head in an attempt to listen. Today, he did utilize his headset at all, despite the majority of the morning session being conducted in English, a language Ieng Sary claims not to speak.
The co-prosecutors today argued that Ieng Sary’s physical presence in the courtroomis necessary.
“Our position is that it is fundamental that the accused should be present in court for the proceedings,” British prosecutor Andrew Cayley said. “If Ieng Sary is permitted to participate in the trials from the holding cells, we will need a written waiver, so that evidence will not later be disputed.”
Civil party lead co-lawyer Ang Pich also fought for Ieng Sary’s presence during opening statements.
“It is absolutely necessary for the civil parties to have Ieng Sary in the court room,”Ang Pich said. “They have been waiting more than 30 years to be in this court room. It is imperative for Ieng Sary to hear the charges against him in this case.”
Trial Chamber President Nil Non rejected the defence’s request.
“The accused is therefore required to be in this courtroom to follow proceedings,” Nil Non said.
While the judge’s order for Ieng Sary to remain in the courtroom will apply for the opening statements this week, the participation of the elderly accused over the ensuing months, and possibly years, of evidence will be a constant issue in the courtroom.