Former Khmer Rouge Foreign Minister Ieng Sary made his first public appearance before the Khmer Rouge tribunal Monday for a bail hearing that was adjourned early after the defendant withdrew from the courtroom, complaining of dizziness.
A doctor testified that Ieng Sary’s continued presence in the courtroom could exacerbate his high blood pressure and put his health in greater jeopardy, causing the court’s Pre-Trial Chamber to end arguments in mid-afternoon.
After his lawyers asked the court to allow him to rest, Ieng Sary, 82, suspected of war crimes and crimes against humanity, told judges that continued participation was draining him of his strength.
“I strongly agree with my co-defense lawyers because I’ve been struggling to attend this session, and I don’t want any delay…. I mean I don’t want any session without my presence,” he said. “That’s why I wish to participate in all hearing sessions so that I am well informed of the process.”
“I can continue the session, but I’m afraid that if I used so much energy today, I would not be able to come back tomorrow, for example,” he said.
Ieng Vichida, Ieng Sary’s daughter, was present in the courtroom but declined to comment.
During morning arguments, Ieng Sary appeared attentive and, using a cane, walked to take his seat in the dock with assistance of guards. However, he left the courtroom during a brief afternoon recess after judges asked to hear testimony from a court doctor.
Dr Neth Phalla, a general practitioner at the tribunal, testified that during a lunchtime examination, Ieng Sary had a pulse of 87 beats per minute, a temperature of 37 degrees Celsius, but appeared to have liquid in his left lung, had developed a cough and complained of dizziness.
In January, doctors at Calmette Hospital found that Ieng Sary suffered from high blood pressure and lumbago. He has undergone four heart operations since being diagnosed with coronary disease in 1992.
“From a medical point of view, if you continue the proceedings, it may affect the health, or the condition may get more serious,” Neth Phalla told the court.
“In my experience, if any patient has developed such conditions, that patient has to avoid any tension or stress, otherwise it will be dangerous,” he said.
Before Neth Phalla was called to testify, Deputy Co-Prosecutor William Smith said any adjournment should be based on a professional opinion.
“I think it’s too easy to say, look I don’t feel like coming to the trial this afternoon or I don’t feel like coming to the trial tomorrow. That can be a position that can be taken by an accused,” he said.
Michael Karnavas, Ieng Sary’s US defense lawyer, argued in response that any decision to adjourn should not be based on appearances.
“There’s an insinuation of confabulation and malingering, and I don’t think that that’s the case, because the flip side could be said as well. While he may look healthy, in reality he could be suffering,” he said.
Karnavas also said Ieng Sary was insisting on his right to be present.
“Mr Ieng Sary has made it abundantly clear that he does wish to participate in all hearings, that he’s not waiving any of his rights,” he said. “So that’s that. I hope we don’t have to deal with this issue for the rest of trial.”
The defense had been scheduled to argue Monday that Ieng Sary is doubly protected from prosecution by the Khmer Rouge tribunal due to his 1979 genocide conviction by the Vietnamese-backed People’s Revolutionary Tribunal and a royal pardon granted by then-King Norodom Sihanouk in 1996. Monday’s developments entirely pre-empted arguments about the 1979 conviction and the pardon.
His defense lawyers began Monday by instead asking the Pre-Trial Chamber to appoint an independent expert to determine whether Ieng Sary is mentally and physically fit to stand trial, something they say the court’s co-investigating judges had failed to do despite months of requests.
Karnavas said the co-investigating judges had told the defense they would examine Ieng Sary’s fitness to stand trial at the end of their investigation, which could be more than a year away. But in the absence of a ruling by the investigating judges, the defense was unable to appeal to the Pre-Trial Chamber to appoint a medical expert.
“It seems that we are at their mercy. They will determine if and when Mr Ieng Sary will enjoy his fair trial rights,” Karnavas said.
Tribunal Deputy Co-Prosecutor Yet Chakriya said defense arguments could be a pretext for delaying the hearing.
“I think they should have raised this matter three days before the actual hearing so the co-prosecutors [could have] been…prepared to respond,” he said.
After a midday recess, the Pre-Trial Chamber ruled it could not appoint a medical expert as the defense had not filed a formal pleading for this. However, the defense can appeal against the co-investigating judges’ failure to respond, they said.
“This conduct amounts to a constructive refusal of an application,” Chamber President Prak Kimsan said, speaking for the bench.
Following the hearing, Karnavas said the defense intended to file a motion for appeal today.
Civil party lawyer Silke Studzinsky complained that lawyers for the nine civil parties had been granted only an hour to speak, while the defense and prosecution were given 90 minutes.
“I wish to recall that civil parties are parties, and they are vested with equal rights,” she said.
Karnavas said the hearing dealt with discretionary matters for the judges and that civil party argument on pretrial release, granted by the Chamber in March, was unnecessary.
Deputy Co-Prosecutor Smith said victims were also partly represented by the prosecution.
Civil party lawyer Hong Kimsuon requested that a civil party, Theary Seng, be allowed to speak, as she had done during a previous hearing for Nuon Chea. However, when Theary Seng rose to speak, she was silenced by Judge Katinka Lahuis.
“The Pre-Trial Chamber has not yet ruled on that request, so you’re not allowed to address the court now in person,” Judge Lahuis said.
In a friend-of-the-court brief, Anne Heindel, a legal adviser to the Documentation Center of Cambodia, wrote that international tribunals have allowed provisional release on medical grounds, often restricting suspects to confinement at hospitals, which Ieng Sary’s lawyers have requested.
Chum Mey, a survivor of the S-21 detention center and a civil party, said he felt Ieng Sary was only claiming to be sick.
“It’s the trick of the suspect who wants to delay, and I demand that the court continue to detain Ieng Sary,” he said.
Legal arguments are expected to begin again at 9 am today.
