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| Ieng Thirith [image: blog.andybrouwer] |
“You see, they accuse me of being mad.
So no one can do anything to the mad person.”
- Ieng
Thirith
I OVERVIEW
On 23 August 2011, the Trial Chamber of the ECCC appointed
four psychiatrists to assess the state of Accused Ieng Thirith’s mental health. The four
Experts agreed on
their collective findings and submitted a report on 10 October
2011 to the Chamber. Two of the four, Dr. Hout Lina and Dr. Seena Fazel, subsequently
testified before the Chamber during a two-day fitness hearing
conducted on 19 and 20 October 2011. This report provides a summary of these proceedings.
The purpose of the hearing was to allow the Chamber and the
parties to scrutinize and challenge the Experts’ findings, as well as to determine any
issues arising from the joint report in conjunction with an earlier expert report
commissioned by the Trial Chamber from
Professor John Campbell, an expert geriatrician from
New Zealand. The
Chamber relied
primarily on standards articulated at the ICTY in Prosecutor
vs. Strugar to determine
Ieng
Thirith’s fitness to stand trial. In Strugar, the ICTY concluded that, in order to
effectively exercise his or her rights, an accused must be able to “meaningfully
plead, testify, instruct counsel, understand the nature of the charges, the course of
proceedings, the details of evidence, and the consequences of the proceeding.” The Trial
Chamber of the ECCC sought consultative medical assessments from the Experts to
assist the Judges
indetermining whether or not the Accused could “exercise
effectively his rights in the proceedings against him.” Moreover, the Judges
questioned the two Psychiatrists on their experience in forensic psychiatry, the methodology they
used, and their opinions on Ieng Thirith’s condition using the Strugar criteria as basis for
their conclusions.
II. SUMMARY OF EXPERT WITNESS TESTIMONY
The four Experts appointed by the Trial Chamber met with
Ieng Thirith on three occasions:
once on 12 September 2011 and twice the following day. During these examinations, they interviewed Ieng Thirith and conducted some tests to
determine her condition. Prior to meeting the Accused, the Experts reviewed all available
documents pertinent to Ieng Thirith’s health condition, including the prior report of Professor
Campbell, three available CT scans, a January 2006 medical report from Bumrungrad International
Hospital in Bangkok, and reports from Calmette Hospital in Phnom Penh (November
2007 and February 2008, respectively). The
Experts also consulted with a radiologist, the other doctors who previously treated the Accused
(Professor Ka and Dr. Brinded), and with the Chief of the Detention Facility.
The Experts considered Ieng Thirith’s fitness to stand trial
based on her physical and psychological health. Physically, the Experts noted that she
suffers from high blood pressure,
has pains in her knees and joints, and experiences occasional
digestive problems. These conditions are not surprising, considering Ieng Thirith’s
age, and in any case, she receives adequate treatment for each of these ailments. According to the Experts, moreover, Ieng Thirith has not suffered a stroke or any other form of brain
damage. In view of these findings, the Experts concluded that Ieng Thirith is
physically fit.
To assess Ieng Thirith’s mental health, the Experts
conducted a number of tests. They first
evaluated her mental state by examining her general
abilities, including her speech ability;
the second involved specific cognitive tests to examine her
ability to judge, decide and reason; and the third category covered questions relating to
memory. The Experts stressed
that with cognitive impairment, an individual’s mental
competence will fluctuate unpredictably as a person may perform better on some days and worse on
others.
The Experts likewise conducted tests to evaluate Ieng
Thitirth’s orientation regarding place
and time. According
to the results, Ieng Thirith could only remember that she was living in
Phnom Penh. She
reportedly thought she was on the first floor of a hospital in the city and
did not realize that she was held in a detention
facility. Overall, Ieng Thirith scored
only 2 out of 10 points on this orientation test. Another examination relating to memory
required Ieng Thirith to repeat words and identify objects presented to
her. Initially, she was able to repeat the words but was later unable to recall what the three
objects were. Further, the Accused was asked to spell the English word “world.” On the first day of the examination, she
named only one of the five letters but on the second day, she
spelled the entire word correctly. The Experts also conducted a paper-folding test consisting of
three steps, all of which Ieng Thirith performed successfully. When examined by Professor Campbell
in August, the Accused had only been able to follow the first two steps of the
test. She also showed improvement when asked to write a sentence in English. In October, she wrote the entire sentence in
English.
During her previous examination with Professor Campbell, she
could not do so. The Experts also tested Ieng Thirith’s long-term memory
during her interview. She reportedly could not recall certain facts, such as the number of
children she has, or her exact age. She knew the date of her birth, but not her age. She thought
that her husband, Ieng Sary, was her brother, and often did not know whether a friend or relative
she was questioned about was dead or alive.
Notwithstanding these indications
of a confused mental state, Ieng
Thirith demonstrated an ability to recall spoken English and French
during the interview. She also
read an English newspaper, which she reportedly does on a
regular basis. Significantly, Ieng
Thirirth even mentioned certain specific topics she was reading about in the newspaper,
indicating comprehension.
According to the scale the Experts followed, scores between
21 and 26 points indicate mild mental impairment; scores between 10 and 20 points indicate
moderate mental impairment;
and scores below 10 indicate severe mental impairment. All
tolled, the Experts stated that
Ieng Thirith scored 15 out of 30 points on the first day and
18 out of 30 points on the second
day, placing her on the upper-middle end of “moderate mental
impairment.”
In addition to directly testing Ieng Thirith, the Experts
also met with the Chief of the Detention Facility who interacts with her every day, and scrutinized
the quality of medical care she receives. According
to the Chief, Ieng Thirith has difficulties with her daily activities, such as finding her clothes in the detention cell. Once, she was reportedly lying naked on her
bed, which is considered peculiar behavior for a Cambodian
woman. She is likewise said to
haveoccasionally misplaced things in her cell and accused the staff of stealing
them. With regard to medical care, the Experts shared the view of Professor
Campbell that the present measures for her care and treatment were appropriate.
In diagnosing Ieng Thirith’s specific mental conditions, the
Experts used the International Statistical Classifications of Diseases, last revised in
2010 (ICD-10). This is used worldwide and provides criteria for the diagnosis of diseases. The
ICD-10 guideline lists the following criteria for dementia, all of which are present in Ieng
Thirith’s case: (i) a decline in memory;
(ii) a decline in other cognitive abilities such as
organizing or planning; (iii) a different awareness of the environment; (iv) a decline in emotional
control, for example with regards to social behavior or to mood or apathy; and (v) the symptoms
of memory decline present for at least six months.
Based on the foregoing, the Experts concluded that Ieng Thirith is
likely suffering from Alzheimer’s Disease but they could not
provide a definitive diagnosis, because one can only be certain after examining brain tissue during
an autopsy. The previous findings of other experts on Ieng Thirith’s cognitive
condition were all consistent with the opinion the Experts delivered in court.
During the course of the proceedings, the Chamber inquired
whether Ieng Thirith could simply be pretending to be mentally incapacitated. According to all the Experts, including Professor Campbell, it is highly unlikely that Ieng Thirith
is misleading or deceiving them. The Experts explained that they crafted the questions in
their examinations differently, so that feigned responses would have been obvious to the
psychiatrists. They also noted that the Accused had scored better on the second day of the
examination, which is inconsistent with a person feigning mental impairment.
III. LEGAL ISSUES
A. The Applicability
of the Strugar Criteria to the Present Case
To comply with basic fair trial standards, it is of utmost
importance that Ieng Thirith is able to participate meaningfully in the proceedings and present an
adequate defense. The Chamber requested the Experts to help it determine Ieng Thitirth’s
fitness to stand trial by applying the Strugar criteria to
the facts in their own assessment report, and evaluate whether, in their professional opinion, Ieng Thirith has the capacity to
participate meaningfully in the proceedings against her.
Using the Strugar criteria as basis, the Experts considered the ability of the Accused to (i) plead, (ii) understand the
nature of the charges against her, (iii) understand the course of the proceedings, (iv) understand
the details of the evidence, (v) instruct counsel, (vi) understand the consequences of the
proceedings, and (vii) testify. An accused person will be considered fit to stand trial when he
or she possesses these capacities, viewed from a general perspective and in a
reasonable and commonsensical manner. The Experts reported that they believe the Accused is
capable of pleading her case before the Court. However, they noted that, during their interview,
Ieng Thirith tried to defend herself with rather unconvincing arguments. For example, in response
to the charges against her, she stated that, “Cambodian women do not do harm” and that
she was “too young” at the time the crimes occurred, when she was actually in her early
forties in 1975 to 1979. Such statements, however, may simply indicate that the Accused
suffers from lack of ability to reason, rather than from diminished capacity to plead her
own defense.
Significantly, Ieng Thirith defined “murder” as “a man
killing another human being” and stated that she has not killed anyone. While she refused to discuss some of the
charges against her, she made comments relating to torture and
genocide. Consequently, the Experts
concluded that the Accused has a general understanding of
the terms and charges against her.The Experts were less confident with Ieng Thirith’s
capacity to understand the consequences of the proceedings against her. She reportedly can appreciate the role of a
judge, but did not understand what adversarial proceedings entail, even after
it was explained to her.
According to the Experts, since she has considerable
difficulty understanding the legalprocess she is involved in, she will have problems in commenting
on what will be said during trial. Her ability to follow the proceedings will be
compromised. As regards the ability to instruct counsel, the Experts
concluded that Ieng Thirith was able to cooperate with her lawyers, but was of no substantial
assistance due to her impaired longterm memory, which prevents her from
recalling events that occurred between 1975 and 1979. The Experts responded in the affirmative to the
Co-Prosecutors’ inquiry whether it is possible to refresh Ieng Thirith’s memory by, for instance,
showing her pictures from the past.
With respect to the final
Strugar criterion, the Experts
noted that gaps in Ieng Thirith’smemory may undermine her ability to comprehend the details
of the evidence and to testify if she so chooses.
During her assessment, Ieng Thirith appeared to have understood the questions posed to her but her answers were, at times,
non-responsive and as Dr. Fazel indicated, “may not credible.” The Experts opined that the capacity to
testify requires more than just understanding the question asked, as one has to
apply one’s mind in order to answer a question rationally. This is something with which
the Accused has considerable difficulties.
The Experts also questioned Ieng Thirith about whether she
could understand the consequences of her possible conviction, but she refused to
answer. However, at another point of the interview, she remarked, “[t]hey accuse me of
being mad. They cannot do anything to the mad person.”
a. Observations by the Experts
Dr. Hout Lina and Dr. Seena Fazel both testified that Ieng
Thirith suffers from dementia, most likely Alzheimer’s Disease.
The latter likewise
pointed out on several occasions that the Chamber’s decision on Ieng Thirith’s fitness to stand trial
should be a “finely-balanced one,” as it would depend largely on its appreciation of the
Experts’ findings that the Accused has difficulties in understanding, and that her cognitive
ability fluctuates. They advised the Chamber that her condition will likely affect the smooth
flow of proceedings. In addition, the
Experts explained that they did not expect any significant
improvement in Ieng Thirith’s condition
(notwithstanding implementing changes in her intake of medicine) since
she is not
suffering from a treatable type of dementia. Using the Reisberg Scale, which plots out
seven
stages of deterioration, the Experts classified Ieng
Thirith’s condition as Stage 5.13
In the event that the Court finds her fit, the Experts recommended
the further conduct of assessments every three months to monitor her mental state. In addition, cognitive stimulation – a rather difficult task in a detention center
– is important, as it might slow down the process of dementia.
The Experts’ findings are
consistent with Professor Campbell’s conclusions, although Dr. Fazel reiterated that the degree of certainty of any
forensic assessments depend on the various methodologies and guidelines used.
b. Arguments of the Parties
The Defense urged the Court to consider Ieng Thirith unfit
to stand trial, on the grounds that she does not meet the threshold criteria set out in the
Strugar case. They argued that the function of counsel is to assist, not
to replace or
substitute for the
participation of the Accused in defending herself. Since Ieng Thirith’s memory is impaired, they
argued, she cannot assist her lawyer in mounting an adequate defense to
the charges against her. Ms. Diana Ellis, Ieng Thirith’s International
Defense Counsel, emphasized
that, “Madame Ieng Thirith is unfit to stand trial and the proceedings against
her should be discontinued.” In their final statement, the
Ieng Thirith Defense asked, “how
can she reflect if she cannot remember?” Further, they inquired, “how can she defend
herself if she has absolutely no clue where she was in April 1975?” The Co-Prosecutors countered that because the Accused does
not lack all the capacities enumerated in Strugar, she is legally fit to stand
trial. They asserted that at this stage,
there is no certainty as to the extent of Ieng Thirith’s cognitive
impairment. As Ieng Thirith possesses five out of the seven capacities set out in
Strugar (she can plead, understand the charges against her, understand the evidence, testify, and
comprehend the results of the proceedings), she should be deemed fit to stand trial. The Co-Prosecutors conceded that, if any one of the Strugar criteria were found to be completely
lacking, the fair trial rights of the Accused would be violated.
However, they maintained that this is not the case with Ieng Thirith because while she experiences difficulties, these
capacities are not completely absent. The OCP noted
that her memory
may improve if
she is treated
with the right medication, and provided with facts or pictures from the
past in order to stimulate recall. Moreover, noting the potential impact this decision could
have on the overall legacy of the Court, OCP also
asked the Chamber
to exhaust all
possible treatment measures recommended by the Experts, in an attempt to improve Ieng
Thirith’s health before the Chamber rules on this matter.
International Deputy Co-Prosecutor Mr. Tarik Abdulhak
further argued that the ECCC’s
Internal Rules do not allow discontinuance, citing the Djukic
and Talic cases 26 before the ICTY as precedents.
He cautioned that since the Trial Chamber cannot determine Ieng Thirith’s fitness to stand trial, it must consider her
application carefully in light of the impact of its ruling on the Civil Parties and the rest of Cambodia.
The OCP likewise asked the Chamber to take into account the fact that Ieng Thirith
might potentially be of substantial assistance to the proceedings, since her testimony may
provide an important link to the other Defendants.
In general, the arguments of the Civil Party Co-Lawyers
reflected those made by the OCP. Ms. Simmoneau-Fort emphasized that although Ieng Thirith
denied responsibility for and the consequences of the crimes charged against her, refused to
speak about some of the charges, and declined to discuss about the consequences of
against her, she spoke freely of the consequences of her inability to face trial on account
of her being a “mad woman.” This, the International CPLCL argued, showed that Ieng Thirith was
capable of understanding the
proceedings against her. Her statements amounted to
expressions of will, and showed an opportunistic approach. Accordingly, the Civil Parties
maintained that Ieng Thirith is fit to stand trial.
B. Burden of Proof
In addition to the substantive arguments of the Parties,
there was some disagreement over
where the burden of proof lay in this matter. Ieng Thirith’s Defense Counsel, Mr. Phat Pouv
Seang, asked the Chamber to shift the burden of proof to the
Prosecution, arguing that they
must show that the Accused is fit to stand trial, not the
other way around. Phat Pouv Seang
cited two cases that
he claimed supported this burden of proof: (i) the ICTY Appeals
Chamber’s Judgment in the Strugar case, 14 which the Defense
argued placed the burden of proof on the Prosecution; and (ii) the case of Prosecutor
vs. Nahak.
In Nahak, he argued, the court evaluated the evidence of the accused person’s
mental capacity without imposing the “onus of proof” on the defendant.
A review of this
jurisprudence, however, indicates that Phat Pouv Seang arguments are misguided. In Strugar, the ICTY Appeals Chamber ruling upheld and reiterated the Trial Chamber’s finding
that “an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance
of the evidence.”
The Appeals Chamber further emphasized that this approach is
consistent with what is followedin common law jurisdictions, where the burden
of proof lies with the party alleging unfitness to stand trial. This
onus is considered satisfied if the alleging party substantiates its claim with a preponderance of evidence.
C. Severance of Charges Against Ieng Thirith
Under Internal Rule 89ter,
the Chamber may
sever proceedings in
the interest of
justice. Since Ieng Thirith’s condition “may entail ongoing delays to
the proceedings due, for
example, to the need for additional or ongoing medical
testing or day-to-day fluctuations in
her condition,” the Chamber
is considering the
merits of severing
her case from
the proceedings against the three other Accused. Before deciding this matter, the Chamber asked the Parties to make submissions on the following
question: “Given the impact of these factors on the rights of the other Accused to an expeditious
trial and the likely overall lengthening of proceedings in Case 002, do the parties
consider it to be in the interests of justice that the Accused Ieng Thirith be severed from these
proceedings pursuant to Internal Rule 89ter (as an alternative to termination of the
proceedings against her in the event of a finding of unfitness to stand trial)?”
The Defense Teams of Ieng Sary, Nuon Chea and Ieng Thirith
all expressed support for the
severance of Ieng Thirith’s case over joint proceedings in
the interest of an expeditious trial.
However, both Ieng Thirith’s and Ieng Sary’s International
Co-Lawyers made it very clear that they believed the proceedings against Ieng Thirith must not
only be severed but terminated altogether, in light of her cognitive incapacity. “If Ieng
Thirith were to remain in trial, it would be an injustice, as she is with psychiatric certainty unable
to participate sufficiently”, said Ieng Sary Defense Co-Lawyer Mr. Michael Karnavas. He further warned the Chamber, stating that, “(y)our decision will not reflect objective truth but
your subjective intentions.” Nuon Chea’s International Co-Lawyer, Mr. Michiel Pestman, opted
for a “two-speed trial,” where persons who are not entirely fit, such as Ieng Thirith, would
be tried at a slower pace with shorter sittings. He went so far as to argue that his own
client, Nuon Chea, should also be severed from the main case.
The Co-Prosecutors, on other hand, argued
against severance. They
submitted that consideration of potential delays, and the impact of such
delays to Accused, are merely speculative and therefore do not substantiate a decision to
sever one defendant’s case from the rest. As such, it
is premature and inappropriate to sever the Ieng Thirith’s case at this point.
The Civil Party Lead Co-Lawyers, on the other hand, were not
entirely unified in their submissions to the Court.
The National CPLCL disagreed with the Co-Prosecutors on this issue, and supported the severance of the case. However, the International CPLCL warned that severance might backfire and unwittingly prolong the
trial.
Source: wcsc.berkeley.edu
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