Pre-Trial Chamber Sends Us Back to the Pre-UNTAC Period
Editorial
Stan Starygin
Today's decision of the Pre-Trial Chamber (PTC) officially set the observance of human rights in Cambodia to the pre-UNTAC period when the Chamber disregarded all arguments of the defense including that of the defendant's previous excessive detention (8 + years) which was ordered and continued in anticipation of the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC). This decision will reverbarate throughout the Cambodian legal system and send a message that the rights of the accused in pre-trial detention can be ignored, if the offense is perceived as grave enough on the face of it.
This is the exact type of behavior Cambodian courts have projected over years which a small group of non-governmental organizations have, for years, been trying to counter. Some had been anticipating the Chamber's decision in Duch's case not necessary looking out for the benefit of this particular defendant, but for the benefit of those who are languishing in excessive pre-trial detention ordered by Cambodian courts as we speak. Had the Chamber established jurisdiction to examine Duch's prior detention ordered by the Military Tribunal of Phnom Penh (MTPP) and made a landmark decision showing zero tolerance to abuse of process, it would have validated the arguments of these organizations and made their job so much easier.
Why is a decision of this tribunal then so important considering this practice had been ongoing in Cambodia before its establishment? For several reasons, actually. One is the visibility of this tribunal. Two is the fact that this tribunal -- unlike any other Cambodian court -- publishes its decisions which makes them accessible to all stakeholders concerned. Three -- and this is probably the most important of the three -- is that the two international jurists on the PTC went along with this decision and, thus, granted it international legitimacy in the eyes of many in Cambodia.
As a remedy, the PTC suggested that the defendant file a separate appeal of his MTPP detention to the Courts of Appeals -- which according to the PTC is within "the structure of regular Cambodian courts" -- and then the Supreme Court, if satisfaction is not attained. The interesting issue that suggestion brings up is the fact that the Cambodian Co-Investigating Judge -- ordered Duch's ECCC detention in the first place -- happens to hold the position of President of the Court of Appeals, as well. Now that the PTC threw out Duch's appeal without examining the legality of his detention prior to the ECCC and in disregard of the transfer order on which, in part, the defense hinged its argument of the nexus between the ECCC and the MTPP, it will be twice as difficult to win the appeal in the Court of Appeals.
posted by Stan Starygin @ 5:05 AM
2 Comments:
"this decision will reverbarate throughout the Cambodian legal system and send a message that the rights of the accused in pre-trial detention can be ignored, if the offense is perceived as grave enough on the face of it."
Now that is quite a statement.
But really, how could a court designed to be a closed system from the Cambodian courts, make a ruling about a decision from another Cambodian court which was made before the ECCC even existed?
Maybe I am missing something, but its seems clear that the ECCC's judicial mandate is, and must be, limited only to the actions and decision its makes.
Contrary to your allegation that this "send a message that the rights of the accused in pre-trial detention can be ignored" the fact is that there is nothing stopping the accused from appealing to the military court for the actions of that court, or to the Cambodian appeals court for the actions of the Cambodian court system.
You may argue that the Cambodian military or Cambodian appeals court may not meet international standards when hearing these appeals, but it is not the role of the ECCC to augment or replace the wider Cambodian court system.
The PTC made the only decision it could.
Well, the PTC argued just that -- the ECCC was established autonomously from the rest of the Cambodian judicial system and, therefore, can't be held responsible for any actions of other Cambodian courts. There is a myriad of arguments that can be made -- and had been made prior to the decision -- to the contrary, but the most obvious and simple of them is if the ECCC is indeed an isolated tribunal simply located on Cambodian soil, why then the title "In the Courts of Cambodia". ICTY, for example, has its seat in the Hague and jurisdictionally has nothing to do with ordinary Dutch courts, hence there is no mention of 'Dutch' or 'Holland' or 'Netherlands' in the name of the ICTY. Nor does it operate on the basis of Dutch law, for that matter. These create a clear expectation of what the ICTY has set out to do, rather than the ECCC -- a part of which is "in the Courts of Cambodia" coupled with the relevant articles of the Agreement and the ECCC Law create a false expectation of what's about to happen. At least this was the outcome of the PTC's first decision.
Sure, agreed. As I said in the original post, the venue of appeal within the national jurisdiction is wide-open. Theoretically, anyway. In practice, this opinion was watched by many Cambodian judges and -- although I haven't had a chance to speak with any of them -- the message came across load and clear -- excessive detention bear no penalty for the government and no benefit for the accused.
The PTC made the only decision it could. I agree with this too. The only decision that was politically convenient for the judges to make, not the only decision which could be reasoned within the applicable law. This decision is safe -- supersafe I would argue -- and doesn't ruffle any feathers, which suits these judges quite well. A decision to the contrary -- or with significant alterations -- would have been balsy and doubtless rocked the boat, which is exactly what this decision managed to avoid.
In the end, everybody wins, except for the current detainee in other Cambodian courts and their lawyers who will have no chance of successfully arguing 'abuse of process' after the Black Monday of this week.
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