Frequently asked questions related to the release of Ieng Thirith

On 16 September 2012, accused Ieng Thirith was released from detention following a court order. Below are answers to frequently asked questions on her release and fitness to stand trial.
Q. Why was Ieng Thirith released from detention?
 On 13 September 2012, the Trial Chamber affirmed that Ieng Thirith remains unfit to stand trial because she suffers from moderate to severe dementia, likely Alzheimer’s disease.  As there is no longer any prospect that she can be tried before the ECCC, the Trial Chamber lacks any legal basis to keep her in detention, and therefore ordered her immediate unconditional release. This followed an earlier decision of 16 November 2011 where the Trial Chamber had also found Ieng Thirith unfit to stand trial and followed the imposition of further medical treatment ordered by the Supreme Court Chamber following a Prosecution appeal of the Trial Chamber’s November 2011 decision.
The Trial Chamber concluded that due to her long-term and short-term memory loss, Ieng Thirith would be unable to understand sufficiently the course of proceedings to enable her to adequately instruct her defence lawyers and to effectively participate in her own defence. The Trial Chamber also noted that due to Ieng Thirith’s medical condition, it appeared unlikely that she would be able to testify at trial.
 Although the Co-Prosecutors agreed with the Trial Chamber that Ieng Thirith should be released, they sought to impose conditions on her release such as requiring her to surrender her passport and identity card and make herself available for a weekly security check. They appealed the Trial Chamber’s decision to release her without conditions, and requested the President of the Supreme Court Chamber to stay the release order.

As her release is unopposed, the President of the Supreme Court Chamber on 16 September 2012 found it unnecessary to keep the accused detained while the appeal is pending, and decided to release her on the following provisional conditions: Ieng Thirith must (1) provide her residing address to the chamber and seek authorization before moving; (2) surrender her passport and remain in Cambodia; (3) respond to any summons by the court. In addition, she is reminded not to interfere with the administration of justice.
Q. Does this mean Ieng Thirith is found not guilty on the charges brought against her?
No, neither the Trial Chamber nor the Supreme Court Chamber has determined the guilt or innocence of Ieng Thirith with regards to the charges of crimes against humanity, grave breaches of the 1949 Geneva Conventions and genocide for which she has been indicted.  While trial proceedings against Ieng Thirith have been stayed since November 2011 when she was initially found unfit to stand trial, the charges against her are not withdrawn. She remains an accused person before the ECCC.
Q. How can she be released if she is still charged?
In its ruling on the reassessment of Ieng Thirith’s fitness to stand trial, the Trial Chamber found that there is no reasonable possibility that Ieng Thirith will recover her cognitive function in order for her to become fit to stand trial in the foreseeable future. The continued detention of Ieng Thirith would violate her fundamental rights, notably the protection against indefinite detention in national and international law.

Neither the Prosecution nor the Defence has contested the Trial Chamber’s decision to release Ieng Thirith. Only the Trial Chamber’s powers to impose conditions surrounding her release are contested on appeal.
Q. Does Ieng Thirith’s release affect the ongoing trial of the three other co-accused in Case 002, namely Nuon Chea, Khieu Samphan and her husband Ieng Sary?
No, Ieng Thirith was separated from Case 002 in November 2011 and the trial proceedings against her have been stayed since that date. Trial proceedings against the remaining three co-accused have proceeded in the meantime.
Q. How did the ECCC determine Ieng Thirith’s fitness to stand trial?
The assessment of Ieng Thirith’s fitness to stand trial before the Trial Chamber began in April 2011 following a motion submitted by her defence team alleging that she was unfit to stand trial. Ieng Thirith’s counsel indicated that they experienced difficulties receiving instructions from the Accused as to how she wished them to conduct her defence. The Trial Chamber then appointed five medical experts to examine the Accused’s mental and physical fitness and held public hearings to examine the findings of the medical experts in August and October 2011. The court-appointed medical experts testified at that time that she was suffering from “mild to moderate” dementia, likely Alzheimer’s disease. 

The Chamber then evaluated the medical information provided by the experts in the light of several criteria contained in the international jurisprudence concerning fitness to stand trial.  In a first decision issued on 17 November 2011, the Trial Chamber unanimously found Ieng Thirith unfit to stand trial in light of this criteria, severed the proceedings against her from the other co-accused’s in Case 002 and stayed the proceedings against her, and ordered her unconditional release.
In its decision following an appeal of the decision to release the Accused, the Supreme Court Chamber ruled on 13 December 2011 that the ECCC was obliged to exhaust all measures available to help improve Ieng Thirith’s mental health such that she may become fit to stand trial. Following the expert opinion that there was treatment available which carried a slim chance of improving Ieng Thirith condition and that such option needed to be explored, the Supreme Court Chamber directed the Trial Chamber to identify, in consultation with the experts, additional medical treatment for Ieng Thirith and to re-assess her condition within six months of the start of the medical treatment.
Following the completion of medical treatment implemented in consequence of the SCC’s decision, the Trial Chamber re-appointed three of the five medical experts to examine Ieng Thirith on 27-28 August 2012. Following various examinations, tests and interviews of the accused and her carers, the experts – Dr. John Campbell  of New Zealand, Dr. Seena Fazel of United Kingdom and Dr. Huot Lina of Cambodia – testified during the hearings on 30-31 August 2012 that Ieng Thirith’s mental state had deteriorated despite the additional treatment and that she suffered from “moderate to severe” dementia that is permanent and irreversible. There are no additional medical treatments that may help improve Ieng Thirith’s mental condition such that she would become fit to stand trial.
On 13 September 2012, the Trial Chamber reaffirmed that Ieng Thirith remains unfit to stand trial and ordered that she be released without coercive conditions. The Prosecution appealed this decision, arguing her release should be subject to conditions.
Q. What does fitness to stand trial mean?
Fitness to stand trial is based on a general principle that an accused person can only be tried if he/she has sufficient mental and physical capacity to exercise his or her rights during trial. These rights include the capacity to understand the nature of the charges, the course and consequences of the proceedings, evidential details, the ability to instruct his or her lawyers, and the capacity to testify.
A decision on fitness to stand trial is a judicial decision. The judges make a decision after considering the findings from medical experts and relevant legal issues.
Q. What does the prosecution’s appeal entail?
On 14 September 2012, the prosecution appealed the Trial Chamber’s decision, arguing that the Trial Chamber has jurisdiction to impose coercive measures on Ieng Thirith’s release, and requested the Supreme Court Chamber to amend the Trial Chamber’s decision and require the accused to comply with specific conditions.
The Prosecution has proposed the following six conditions for release: that Ieng Thirith (1) resides at a specified home address; (2) be available for a weekly safety check by authorities and officials; (3) surrenders her passport and identification card; (4) refrains from contacting the other co-accused (except her husband, Ieng Sary); (5) refrains from contacting any witness or expert scheduled to testify before the Chamber; (6) and undergoes medical examinations once every six months.
Q. What is the next step?
The Supreme Court Chamber will rule on the prosecution’s appeal within three months of the Co-Prosecutors’ filing of the notification of appeal.

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