The hearing in relation to the Civil Party Lead Co-Lawyers' presentation of their reparations submissions shall be public and will commence on 19 October 2011 at 9.00 a.m. in the ECCC Main Courtroom. The Civil Party Lead Co-lawyers will be allocated 3 hours for this purpose. As was the case during the Initial Hearing reparations submissions, all parties are entitled to attend this hearing.
Upon the conclusion of the Lead Co-Lawyers' submissions, the Chamber will proceed to consider via a separate hearing the Accused IENG Thirith's fitness to stand trial. The Trial Chamber will commence by questioning the Psychiatric Experts and will then permit these Experts to be questioned by the parties. The Chamber will also hear oral argument concerning the appropriate legal standard to be applied in determining the Accused IENG Thirith's fitness to stand trial, if sought by the parties. This hearing shall commence at 1.30 p.m. on 19 October 2011 in the ECCC Main Courtroom and continue over the following day, if required.
In accordance with Internal Rule 79(6), this hearing will be presumptively public and conducted to the maximum extent possible in open session. The Chamber has, however, already indicated a need to balance the rights of the Accused to privacy concerning medical information, against the public's right to know the basis on which an application on fitness to stand trial will be determined (E62/3/10). The hearing on Accused IENG Thirith's fitness to stand trial will in consequence commence in open session. Where any party considers there to be a need to proceed only in closed session, an oral motion may be made to the Chamber.
These applications will be heard in open session and granted by the Chamber where it considers the interests ofjustice to so require.
On 10 October 2011, the English version of the Psychiatric Experts' Report was communicated to the parties on a strictly confidential basis, pending ultimate determination by the Chamber o f its classification (E 111/8). The Khmer and French versions o f this Report will be similarly notified as soon as possible and prior to the hearing.
To ensure the expeditiousness ofthese proceedings, all parties shall each be represented by no more than four lawyers at anyone time (two national and two international). Other Defence teams and Civil Parties are not required to be at the Accused IENG Thirith's fitness hearing, but may attend all public portions of this hearing if they so wish. Should any other Defence team wish at this hearing to be heard on question (iv) posed by the Chamber (below), they are requested to inform the Trial Chamber Senior Legal Officer as soon as possible.
The Chamber clarifies that the purpose of the hearing concerning Accused IENG Thirith's fitness to stand trial is consideration of the issues arising specifically from the Psychiatric Experts' report when read together with Professor CAMPBELL's earlier report, and is intended to grant the relevant parties the opportunity for adversarial argument in relation to them. The Chamber considers the following questions to be relevant to its determination of the Accused's fitness to stand trial and invites the parties to specifically address them during oral argument:
i. May an accused be considered mentally unfit to stand trial if anyone of the criteria for this determination identified in Strugar is found to be lacking, or must all criteria instead be viewed together when making this assessment?8
ii. Does the Accused IENG Thirith's impaired memory as identified by both Professor CAMPBELL and the Psychiatric Experts render her unable to exercise her fair trial rights to the standard required by the Strugar test?
iii. Does the degree of impairment identified by Professor CAMPBELL and the Psychiatric Experts in relation to the Accused IENG Thirith's capacity to a) enter a plea, b) instruct counsel, c) testify, and d) understand the nature of the charges, course of the proceedings, details of the evidence and consequences of the proceedings indicate that she is unfit to stand trial, taking account of the fact that the Accused is represented and thus able to some extent to exercise these rights through counsel?
iv. As found by the Experts, the nature of the Accused IENG Thirith's condition is degenerative and 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. 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 tennination of the proceedings against her in the event of a finding o f unfitness to stand trial)?
v. What consequences for the Accused lENG Thirith would stem from a severance order pursuant to this Rule?