The Court Report SEPTEMBER 2012 The Extraordinary Chambers in the Courts of Cambodia Moving Forward Through Justice Kaing Guek Eav sentenced to life in prison Special Edition Ieng Thirith, minister of social affairs under the Khmer Rouge regime, is released from provisional detention. Ieng Thirith Released from Provisional Detention Former Khmer Rouge minister Ieng Thirith was Prosecutors, the Supreme Court Chamber ordered released on 16 September from the detention that she undergo additional treatment recom- facility of the Extraordinary Chambers in the Courts mended by medical experts and that her condition of Cambodia under conditions, following a ruling be reassessed within six months. On 13 Septem- by the President of the ECCC’s Supreme Court ber, the chamber reaffirmed its earlier ruling that Case 002: Release of Ieng Thirith Chamber. Her release is an interim measure while Ieng Thirith is unfit to stand trial due to her de- In this issue the Supreme Court Chamber considers the merits mentia, most likely Alzheimer’s disease. In view of of an appeal lodged by the Co-Prosecutors against her mental state, which rendered her incapable of the Trial Chamber’s decision to release Ieng Thirith understanding or complying with conditions, the FAQs on her unconditionally. Trial Chamber ordered that she be released with 2 release Three days earlier, on 13 September, the Trial no coercive conditions. However, it acceded to Chamber delivered its decision reassessing the some of the Co-Prosecutors’ requests by per- 4 Overview of proceedings fitness to stand trial of the accused. In November mitting certain administrative measures to accom- 2011, the Trial Chamber had found Ieng Thirith pany her release. unfit to stand trial. Following an appeal by the Co- Prior to reaching its decision, the Trial Chamber Article continues on page 2 The Court Report: Special Edition Frequently Asked Questions: Release of Accused Ieng Thirith On 16 September 2012, accused Ieng Thirith mons by the court. In addition, she is remind- was released from provisional detention in ed not to interfere with the administration of compliance with a court order. Below are justice. answers to frequently asked questions on her release and fitness to stand trial. Q. Does this mean Ieng Thirith is found not guilty on the charges brought against her? Q. Why was Ieng Thirith released from de- No, neither the Trial Chamber nor the Su- tention? preme Court Chamber has determined the On 13 September 2012, the Trial Chamber guilt or innocence of Ieng Thirith with regards affirmed that Ieng Thirith remained unfit to to the charges of crimes against humanity, stand trial because she suffered from moder- grave breaches of the 1949 Geneva Conven- ate to severe dementia, likely Alzheimer’s tions and genocide for which she has been disease. As there was no longer any prospect indicted. While trial proceedings against Ieng that she could be tried before the ECCC, the Thirith have been stayed since November Trial Chamber lacked a legal basis to keep her 2011 when she was initially found unfit to in detention, and therefore ordered her im- stand trial, the charges against her are not mediate unconditional release. This followed withdrawn. She remains an accused person an earlier decision of 16 November 2011 before the ECCC. where the Trial Chamber had also found Ieng Thirith unfit to stand trial and followed the Q. How can she be released if she is still imposition of further medical treatment or- Accused Ieng Thirith’s fitness to stand trial has been charged? evaluated by the Extraordinary Chambers in the dered by the Supreme Court Chamber follow- Courts of Cambodia. In its ruling on the reassessment of Ieng ing a prosecution appeal of the Trial Cham- Thirith’s fitness to stand trial, the Trial Cham- ber’s November 2011 decision. ber found that there is no reasonable possi- her passport and identity card and make her- bility that Ieng Thirith will recover her cogni- The Trial Chamber concluded that due to her self available for a weekly security check. tive functions in order for her to become fit long-term and short-term memory loss, Ieng They appealed the Trial Chamber’s decision to to stand trial in the foreseeable future. The Thirith would be unable to understand suffi- release her without conditions, and requested continued detention of Ieng Thirith would ciently the course of proceedings to enable the President of the Supreme Court Chamber violate her fundamental rights, notably the her to adequately instruct her defence law- to stay the release order. protection against indefinite detention in yers and to effectively participate in her own The President of the Supreme Court Chamber national and international law. defence. The Trial Chamber also noted that due to Ieng Thirith’s medical condition, it on 16 September 2012 found it unnecessary Neither the Prosecution nor the Defence has appeared unlikely that she would be able to to keep the accused detained while the ap- contested the Trial Chamber’s decision to peal is pending, and decided to release her on testify at trial. release Ieng Thirith. Only the Trial Chamber’s the following provisional conditions: Ieng powers to impose conditions surrounding her Although the Co-Prosecutors agreed with the Thirith must (1) provide her residing address release are contested on appeal. Trial Chamber that Ieng Thirith should be to the chamber and seek authorization before released, they sought to impose conditions on moving; (2) surrender her passport and re- Q. Does Ieng Thirith’s release affect the on- her release such as requiring her to surrender main in Cambodia; (3) respond to any sum- going trial of the three other co-accused in Ieng Thirith’s Release (continued from page 1) heard in late August court-appointed medical unfit to stand trial but the Prosecution re- that in consequence of there being no pro- experts who testified that Ieng Thirith’s condi- quested that several conditions be imposed spect of the accused ever being tried, the tion had deteriorated further despite the upon her release. Trial Chamber also lacked jurisdiction to additional treatment ordered in consequence Having considered the medical experts’ impose coercive measures for her release. In of the Supreme Court Chamber’s decision, conclusions and legal arguments from all par- response to measures sought by the Co- that treatment options had been exhausted ties, the Trial Chamber affirmed its previous Prosecutors, the chamber nonetheless re- and that there is no reasonable prospect of finding that Ieng Thirith is unfit to stand trial. quested that she remain within Cambodia the accused’s mental state improving such The chamber ordered her immediate release and to inform the court of her address of that she could instruct her lawyers and partic- as in consequence of the indefinite stay of residence. ipate in her defense. Neither the Prosecution proceedings against the accused, there was On the following day, the prosecution nor the Defence disputed that Ieng Thirith is no legal basis to further detain her. Noting appealed the Trial Chamber’s decision, argu- The Court Report: Special Edition 2 2 Frequently Asked Questions on Ieng Thirith’s Release (continued from page 2) Case 002, namely Nuon Chea, Khieu Sam- that the ECCC was obliged to exhaust all course and consequences of the proceed- phan and her husband Ieng Sary? measures available to help improve Ieng ings, evidential details, the ability to instruct No, Ieng Thirith was separated from Case 002 Thirith’s mental health such that she may his or her lawyers, and the capacity to testi- in November 2011 and the trial proceedings become fit to stand trial. The Supreme Court fy. against her have been stayed since that date. Chamber directed the Trial Chamber to iden- A decision on fitness to stand trial is a judicial Trial proceedings against the remaining three tify, in consultation with the experts, addi- decision. The judges make a decision after co-accused continue. tional medical treatment for Ieng Thirith and considering the findings from medical ex- to re-assess her condition within six months perts and relevant legal issues. Q. How did the ECCC determine Ieng Thirith’s of the start of the medical treatment. fitness to stand trial? Following the completion of medical treat- Q. What does the prosecution’s appeal en- The assessment of Ieng Thirith’s fitness to ment implemented in consequence of the tail? stand trial before the Trial Chamber began in SCC’s decision, the Trial Chamber re- On 14 September 2012, the prosecution April 2011 following a motion submitted by appointed three of the five medical experts to appealed the Trial Chamber’s decision, argu- her defence team alleging that she was unfit examine Ieng Thirith on 27-28 August 2012. ing that the Trial Chamber has jurisdiction to to stand trial. Ieng Thirith’s counsel indicated Following various examinations, tests and impose coercive measures on Ieng Thirith’s that they experienced difficulties receiving interviews of the accused and her carers, the release, and requested the Supreme Court instructions from the Accused as to how she experts – Dr. John Campbell of New Zealand, Chamber to amend the Trial Chamber’s deci- wished them to conduct her defence. The Dr. Seena Fazel of United Kingdom and Dr. sion and require the accused to comply with Trial Chamber then appointed five medical Huot Lina of Cambodia – testified during the specific conditions. experts to examine the accused’s mental and hearings on 30-31 August 2012 that Ieng physical fitness and held public hearings to The prosecution has proposed the following Thirith’s mental state had deteriorated de- examine the findings of the medical experts in six conditions for release: that Ieng Thirith spite the additional treatment and that she August and October 2011.