Stan Starygin: Statement of Concern (filed with the Pre-Trial Chamber)

STATEMENT OF CONCERN CO-FILED TO THE PRE-TRIAL CHAMBER (PTC) WITH THE AMICUS CURIAE BRIEF SUBMITTED BY MR. STAN STARYGIN ON 24 SEPT, 2007








SUBMITTED BY STAN STARYGIN
15 OCT, 2007








Dear PTC,


I am writing this to bring an issue which arose in the process of writing of amicus curiae briefs solicited by the PTC to address Mr. Kaing Guek Eav’s defense team’s motion for release.

This solicitation was opened by a short statement of the PTC which announced that the hearing of Mr. Kaing Guek Eav’s appeal would be held in public and that the Chamber invited amicus curiae briefs relating to the appeal (No 07-09-001 ECCC/PTC). The public notice was issued 4 Sept, 2007. No other court documents were made public for the purposes of said notice with the exception of the publication of the order of provisional detention of 31 July, 2007 issued against Mr. Kaing Guek Eav by the Co-Investigating Judges. Although the appeal was entered by Mr. Kaing Guek Eav’s defense team against said order of provisional detention, the text of the appeal/motion for release was, to the best of my knowledge, never made a matter of public record by the PTC.

This created a fair amount of confusion and uncertainty for the amici who set out to respond to said solicitation, as it was not clear what the defense theory chosen by Mr. Kaing Guek Eav’s defense team was which prompted the amici writing in support of the accused to second-guess the defense’s arguments in order to attempt to supplement them.

However, as it was later revealed not all of the amici were in the midst of said predicament, as some of those who chose to submit a brief had had access to the defense’s motion for release from the beginning of the writing process. This opened up a myriad of opportunities for these individuals which, otherwise, were closed to the rest of the amici. Thus far, there have been two briefs which fit the bill, those of Dr. Sheffer and Miss Heindel who made them available – along with a scanned version of the defense’s motion for release -- on the following website
http://www.cambodiatribunal.org/index.php?option=com_content&view=category&layout=blog&id=25&Itemid=36.
Upon a close reading of said briefs, no doubt will remain that said amici had had access to the defense’s motion for release (it is inconclusive at this stage whether said amici had access to the case file of Mr. Kaing Guek Eav submitted by the Office of the Co-Prosecutors to the Office of the Co-Investigating Judges) throughout the entire process of writing of their briefs which expired on 4 Oct, 2007.

Although I appreciate the fact that the PTC has no time, resources, or jurisdiction to investigate the circumstances under which a court document otherwise closed to the public was made available to Dr. Sheffer and Ms. Heindel, the PTC might find the fact that both of these amici are affiliated with the same non-governmental organization, Documentation Center of Cambodia (DCCam), to be of concern. The PTC, and the ECCC at large, would greatly benefit from finding out under what authority Dr. Sheffer and Ms. Heindel had incorporated a closed-to-general-public court document into their briefs and what and who had given these amici the authority to publish this otherwise undisclosed document on a website jointly owned by DCCam and the Center for International Human Rights of Northwestern University School of Law.

The sections of said briefs written in support of the prosecution, therefore, if allowed during the appeal hearing, will prejudice the rights of the accused and strip him off of the arguments in favor of release which could have been advanced, had the rest of the amici -- and particularly those who wrote in suppose of the accused -- been granted the same access to the defense’s motion for release as were Dr. Sheffer and Ms. Heindel.

I sincerely hope that the PTC will find a time and a venue to address the issues raised in this letter and find inadmissible arguments which had been advanced on the basis of unfair access to court documents to avoid a possibility of breaching the principle of equality of arms of the prosecution and the defense. By doing so the PTC will also be able to send a clear message of unacceptability of selective sharing of privileged information of the ECCC.

Sincerely,

Stan Starygin