Implications of the Age and Health of the Charged Persons & Accused Before the Extraordinary Chambers in the Courts of Cambodia

Spencer Cryder, Tulane University Law School

Legal Associate, Documentation Center of Cambodia



The Extraordinary Chambers in the Courts of Cambodia (ECCC) is unique among the international tribunals due to, inter alia, the advanced ages of the Charged Persons and the Accused and their corresponding declining health. Born 17 November 1942, and starting his trial at the age of 66, Kaing Guek Eav (alias “Duch”) is the youngest individual before the ECCC. The other four Charged Persons are at least ten years older than Duch, and their dates of birth are as follows: Ieng Thirith – 10 March 1932, Khieu Samphan – 27 July 1931, Nuon Chea – 7 July 1926, and Ieng Sary – 24 October 1925. An international tribunal dealing exclusively with Charged Persons/Accused in their late sixties, late seventies, or early eighties presents challenges to the ECCC’s objective of “bringing to trial senior leaders … and those who were most responsible” for the violations of international or Cambodian law during the reign of Democratic Kampuchea. In particular, because there are only five Charged Persons/Accused, the death or incapacity of one, or all, of them before the completion of their respective trial would inflict a serious blow to the ECCC as an institution and deny the rule of law from running its natural course.



This article will explore the implications of the age and health of the five Charged Persons/Accused on their mental fitness to stand trial, to be detained, and to be physically present or effectively participate at trial, as well as possible accommodations or proactive measures that the ECCC could implement to protect and respect the rights of the Accused to a fair trial while allowing the Court to reach a verdict before the inevitable organic death or mental or physical incapacitation of the elderly Charged Persons/Accused.



Internationalized courts have found that an Accused’s right to be mentally present is protected by the fitness to stand trial requirement, i.e., endowment with a mental capacity sufficient to exercise his or her implied or expressed procedural rights to make his or her defense. As well as defining fitness to stand trial, the 2004 ICTY Strugar decision also provided the now-widely-accepted standard for assessing an Accused’s fitness to stand trial: “[A]n accused is considered fit to stand trial … when an accused has those capacities, viewed overall and in a reasonable and commonsense manner, at such a level that it is possible for the accused to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights.” The main focus of the fitness to stand trial requirement is the capacity and functioning of an Accused’s mind. The mere presence of a physical or mental ailment and the corresponding possibility that it could affect the Accused’s mind or mental capacity is not determinative. A mental or physical ailment will only be relevant to the fitness assessment if it actually affects the individual’s mental capacity to exercise his or her procedural rights.



Furthermore, to be fit to stand trial the capacities of an Accused do not need to be present at their hypothetical highest level, or at the highest level that a particular Accused has ever enjoyed in respect of each capacity. Similarly, courts have found that it is a fact of nature that individuals vary as to their intelligence and understanding and these normal variations among individuals do not raise concerns about fitness for trial. Thus, a finding of incompetence to stand trial must be based on something more significant than merely low intelligence on the part of a defendant or a decrease in his or her capacity compared to the past.



If the issue of fitness to stand trial arises, the ECCC will presumably use the Strugar standard. At the ECCC, the advanced ages of the Charged Persons/Accused should not affect or alter the application of the clearly established Strugar standard. The Strugar standard essentially determines whether an Accused has the mental capacity to effectively utilize his or her express and implied procedural rights to make his or her case. The source that limits the mental capacity – be it purely physical, purely mental, a combination of both, or simply old age – is irrelevant. The determinative issue is the mental capacity of an Accused, i.e., the mental presence of an Accused during preparation for trial and at the trial itself. If a one-hundred-year-old individual can still participate effectively and exercise his or her procedural rights before the ECCC, then that person is mentally present before the court and fit to stand trial. Therefore, the Strugar standard, as currently stated, would be the most appropriate gauge of an Accused’s mental capacity to exercise his or her procedural rights.



Questions have been raised at the ECCC about when, i.e., at what stage of the proceedings, a party can request an assessment of the Charged Person’s fitness to stand trial. A Charged Person/Accused can request that the Pre-Trial or Trial Chamber appoint an expert to assess his or her fitness to stand trial during the Investigation and Trial stages of the ECCC. However, the Chambers require an adequate reason to question the Charged Person’s capacity to participate before appointing an expert to assess fitness to stand trial. While the ECCC has previously denied both of the requests for the appointment of an expert to assess the fitness of Nuon Chea and Ieng Sary, the ECCC has yet to consider recent jurisprudence from the International Criminal Tribunal for the Former Yugoslavia (ICTY) that suggests doctors and experts should comment only with respect to issues that fall within their area of expertise. The ICTY Chamber provided a concrete example of how an expert appointed to comment on the physical ailment should not comment on psychological issues, “[L]imited weight will be given to … a gastroenterologist's comments about the mental health of the Accused.” The ECCC previously allowed cardiologists to comment on the mental health of the Accused, something not allowed under the ICTY’s latest jurisprudence. Furthermore, if the ECCC adopts the ICTY’s reasoning, the Trial Chamber should also consider whether the medical reports relied on in its decisions are the product of a primary care physician or a medical specialist, because the two should not be accorded the same weight.



If the question of an Accused’s fitness to stand trial arises before the ECCC, one party will be assigned the burden of proof. There are essentially two options when assigning the burden of proof: the burden is on the Prosecution to prove that an Accused is fit to stand trial or the burden is on the Defense to prove that an Accused is not fit to stand trial. As the ECCC has already indicated in its PTC decisions, it will presumptively adopt the Strugar reasoning and allocate the burden of proof to the Defense. However, according to the more recent and nuanced Nahak reasoning, when determining which party has the burden of proving fitness to stand trial, the Court should consider whether the PTC or TC appointed an expert and whether the Prosecution supported or objected to such an appointment. If the PTC or TC appointed an expert to evaluate the detainee’s condition, thus acknowledging doubt as to the Accused’s fitness, then the burden should be shifted to the Prosecution. Similarly, if the Prosecution initially raised or supported a request by the Defense to assess the Accused’s fitness to stand trial, then the burden should be shifted to the Prosecution. It would be consistent with Nahak’s interpretation of Strugar for the ECCC to place the burden on the Prosecution to prove the Accused’s fitness to stand trial in all circumstances, even when the Chambers did not appoint an expert and the Prosecution did not raise or support the appointment of an expert. In this instance, the Chamber could rely on the language and structure of the Strugar assessment itself to justify its decision to place the burden on the Prosecution. Additionally, the Chamber could note that, since the arrest and detention of the Charged Persons, an inherent doubt has always existed about the Charged Persons’ fitness to stand trial due to their extraordinarily advanced ages and deteriorating health. Moreover, any unstated “presumption of fitness to stand” that might exist, would hold little weight considering the age and health of the Charged Persons.



While waiting to stand trial, all of the Charged Persons before the ECCC are currently provisionally detained. Consensus exists among the internationalized tribunals on releasing pre-trial detainees on humanitarian grounds when they are diagnosed with a terminal or life-threatening disease. Additionally, an Accused can be conditionally released for health reasons if effective medical treatment is not available at the detention unit or inside the host country. In either of these situations, an Accused does not need to be released to a hospital or private residence in the Accused’s hometown or province. Currently, no evidence exists showing that either the Accused or Charged Persons before the ECCC suffer from a life-threatening or terminal disease, and according to the general practice of the ECCC, they will continue to be detained during the pre-trial phase. However, a shift is occurring at international tribunals toward a presumption that detainees should be provisionally released unless clear circumstances warrant their detention. The ECCC’s presumption to detain Charged Persons could be challenged on the grounds that the detention of aging and infirm Charged Persons’ would be more appropriate – and more in line with the shift occurring at internationalized courts – in the form of “house arrest” at a hospital or private residence.



The mental presence of an Accused during the proceedings, protected by the fitness to stand trial requirement, and the right to be physically present at trial are both mechanisms that guard against trials where an Accused is absent – be it in mind or body. The general prohibition of international law against trials in absentia would be void of any substance if it only required the physical – without the mental – presence of an Accused at trial. But does the same logic apply when an Accused is mentally fit to stand trial, but physically unable to attend the trial because of illness or disease? In those circumstances, courts must decide whether to proceed in an Accused’s absence (i.e., a trial in absentia), implement accommodating measures that may derogate from the Accused’s right to be present (e.g., require an Accused to participate using a videoconference link from the hospital or detention unit bed), or adjourn the proceedings. Internationalized courts have grappled with this question and no fully satisfactory answer has materialized.



International law provides an Accused with the general right to be tried in his or her physical presence. The right to be present protects the right of an Accused to be physically present in the courtroom and therefore able to personally confront witnesses and mount a defense utilizing his or her procedural rights. Furthermore, the physical presence of an Accused at trial is of vital importance, not only because it is one of the minimum guarantees of the International Covenant on Civil and Political Rights (ICCPR), but for the practical considerations of establishing the facts of the case and, if an Accused is convicted, to enable an appropriate and enforceable sentence to be passed.



The right of an Accused to be physically present at trial is not absolute. Internationalized courts and the ECCC have specific rules allowing them to proceed in the absence of an Accused if he or she is intentionally disrupting the trial or refusing to attend. However, the analysis becomes much more complex when a delay, disruption, or absence of an Accused is due to an unintentional act – e.g., a health condition. If absent for health reasons, the ECCC is in a particularly difficult situation because the ECCC Internal Rules require the consent of the Accused before the Trial Chamber can implement accommodating measures that prevent the physical presence of the Accused or continue the trial in absentia. While the Chamber can proactively implement an adjusted trial regime to accommodate the Accused’s physical inability to participate in long trial sessions taking place several days a week, the trial schedule can only be adjusted to a certain point before the trial comes to an effective halt (e.g., trial for half a day, one day a week). Likewise, an Accused can always waive his or her right to be present, but it is highly unlikely to occur when an Accused alleges that he or she is ill and believes that the proper course of action is the adjournment of the proceedings. If this situation arises, the ECCC will have to weigh the medical reports and decide whether or not an Accused’s illness or ailment in fact prevents him or her from being physically present at trial or participating via a video-link. At least one court has held that an Accused who claims to be too unwell to attend court on a particular day bears the burden of showing that that is indeed the case.



If the Trial Chamber finds that an Accused is capable of being physically present or effectively participating via a video-link, but the Accused refuses to attend, the ECCC will most likely be forced to derogate from the Accused’s right to be physically present at trial. In order to derogate from a fundamental right, the ECCC must be satisfied that no reasonable alternative exists – e.g., adjourn the proceedings to facilitate recovery – and the derogation serves a sufficiently important objective – e.g., avoiding substantial trial delays. If derogation is required, then the restriction or derogation must impair the right no more than is necessary to accomplish the objective.

A Trial Chamber’s determination of whether an Accused’s condition or act is intentional – in the form of a delay, refusal to attend, or disruption of trial – or unintentional, is of great significance. While intentional acts may be held to be implied waivers of the right to be present, unintentional acts or conditions that are no fault of an Accused, but delay the trial, generally lead to a trial or appeals chamber emphasizing that derogation of the right to be present should be avoided if at all possible. The ECCC Trial Chamber will have to walk a fine line between “over” restricting the right of an Accused to be present and achieving the objective of a reasonably expeditious resolution of the trial.



If the ailment is not of the nature that recovery is possible or probable, the ECCC will most likely be forced to require an Accused to participate effectively via video link. Furthermore, if the Accused refuses to participate via the video link, then the ECCC will have to continue in absentia. The ECCC will be able to justify the trial in absentia because at some point an Accused who claims to be incapable of attending trial due to an alleged illness or medical condition may be found to be refusing to attend trial, one of the enumerated exceptions in the ECCC Internal Rules that allows trials in absentia when an Accused refuses to attend trial. On whatever grounds the Trial Chamber justifies a potential trial in absentia, it will likely tarnish the appearance of a fair trial. While by no means the ideal solution, continuing the trial in absentia may be the only option that allows for the trial to continue and preventing it from grinding to an effective halt.



Finally, while a trial proceeding with the joinder of multiple Accuseds may ostensibly appear to save time, it should be noted that the right to be present requires the contemporaneous physical presence of all of the Co-Accused at trial. If the Chamber is required to sever the cases of one or more of the Co-Accuseds due to trial delays as a result of health issues, an adjusted trial regime could be implemented. For example, trying some of the Co-Accuseds in the morning session and trying the remaining Co-Accuseds in the afternoon session.



The advanced ages and deteriorating health of the Charged Persons/Accused will undoubtedly place unique strains on the ECCC. However, those inevitable strains can be proactively countered by acknowledging and implementing mechanisms that will decrease the likelihood of trials in absentia. While an Accused may legitimately reach the point where he or she cannot physically attend trial, accommodating measures should be ready for implementation from the outset. Even if a trial in absentia is required because the Accused refuses to participate, the act of providing accommodating measures throughout will increase the appearance of a fair trial and signal a genuine effort by the ECCC to honor an Accused’s right to be present.