Pre-Trial Chamber Sends Us Back to the Pre-UNTAC Period
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.