On November 14, 2007, the ECCC’s Co-Investigating Judges issued an order for Thirith’s provisional detention pending her trial for crimes against humanity (murder, extermination, imprisonment, persecution and other inhumane acts). In January of 2008, Thirith appealed the order to the Pre-Trial Chamber, which is the court of last resort for such matters within the ECCC. According to Rule 63 of the ECCC Internal Rules, provisional detention is appropriate where
The argument for provisional detention is that the case file, including witness statements, has now been made available for the defendant to review.
(a) there are well-founded grounds for believing that the accused committed the charged crimes and
(2) pre-trial detention is necessary to preserve public order; protect the accused, victims or witnesses; prevent collusion between co-accused; preserve evidence; or ensure the presence of the charged person at trial.
In their written and oral submissions, defense counsel argued that there are no well-founded grounds to believe that their client is responsible for crimes set forth in the indictment. They advanced the argument that Thirith is hardly one of those most responsible for the crimes of the Khmer Rouge era, notwithstanding her ministerial post, and that any criminal responsibility of her husband should not be attributed to her. Invoking the presumption of innocence and of liberty, defense counsel also set forth numerous arguments as to why pretrial detention was unnecessary. They indicated that their client had lived notoriously for many years and had travelled internationally (primarily for health care) since being identified as a potential defendant. In addition, it was argued that Thirith is effectively indigent, relying upon her children in Cambodia for support. They also insisted that the prosecution had yet to demonstrate a concrete basis for arguing that her release would disturb public order or lead to attacks against her or potential witnesses.
Another important factor is that Thirith’s health is fragile. In particular, there are indications in the record of both physical and mental illness, although the details are being kept confidential. As we were waiting in line at the security booth, her physician visited her in the nearby detention unit to determine her fitness to attend the hearing. She seemed very frail and needed assistance entering and leaving the courtroom. As the accused’s particulars were being gathered by the presiding judge H. E. Prak Kimsan, Thirith seemed confused and then indicated that she had three children. A young woman in the public gallery sitting in front of me—presumably her daughter as family members were present—held up four fingers. Thirith then corrected herself. Defense counsel ended their submission with the suggestion that house arrest, including the confiscation of Thirith’s passport, would adequately ensure her attendance at trial.
The Pre-Trial Chamber (PTC) has taken the matter under submission. An open question remains about the standard of review that will be employed by the PTC. The prosecution and the civil parties have argued for the equivalent of an abuse of discretion standard, such that the decision to deny bail would be overturned only where the prior adjudicator acted arbitrarily, by not applying the correct law, or rested his or her decision upon a clearly erroneous finding of material fact. Otherwise, the lower ruling should be given deference. This is essentially the approach adopted by the International Criminal Tribunal for the former Yugoslavia (Prosecutor v. Stanisic) and the Special Court for Sierra Leone (Prosecutor v. Fofana). Needless-to-say, defense counsel advocated a standard of review approaching a de novo review that would ensure a sufficiency of facts underlying the prior ruling. Three prior defendants were refused bail on appeal to the PTC, with the PTC essentially echoing the reasoning of the Co-Investigating Judges. This could suggest a certain degree of deference to the Co-Investigating Judges, who are closest to the case file and the relevant facts.
Thirith is represented by Cambodian lawyer Phat Pouvseang and British barrister Diana Ellis QC. Ellis (left) last represented Ferdinand Nahimana (right, co-founder of Radio Télévision Libre des Mille Collines (RTLM)) in the "Media Trial" before the International Criminal Tribunal for Rwanda. The staffing practice of the Defense Support Section mirrors the hybrid nature of the ECCC: each accused has four lawyers: two co-counsel (one Cambodian and one “international,” a legal consultant (usually an international), and a case manager (usually Cambodian)). Several victims have already constituted themselves as civil parties and were represented by counsel (four Cambodian and one German) during Thirith's hearing. A prior ruling gave civil parties the right to participate in appeals of provisional detention orders.
Under the circumstances, house arrest certainly seems appropriate. Indeed, if Thirith is not entitled to bail, no ECCC defendant is likely to be. There are media reports, however, that if Thirith is released on bail, people will lose faith in the ECCC and assume she was exonerated. This exemplifies the importance of public education about the rights of the accused here, where basic due process protections are lacking. This is a country in which pre-trial detention is the norm. Accordingly, seeing an international tribunal release someone during the pre-trial period might provide a strong lesson in the presumption of innocence.