Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Assertion 3


The judges of the PTC, inter alia, ruled that as long as the pre-trial detention did not exceed the maximum penalty for the crimes with which the accused had been charged, there could be no mandate of the law to order release of the accused from pre-trial detention (the exact language of the Chamber appeared as follows: “The release from provisional detention due to the mere fact of the length of such detention should only be considered when it would clearly exceed any likely sentence that may be given” ). This statement asserts that the PTC does not believe that the concept of ‘abuse of process’, if applied successfully and is well-founded in fact and in law, can in itself be a predicate for the accused’s release. Judges are, of course, entitled to their vision of the law which in some cases may lead to their interpretation of such a law, if a particular provision of the law lacks clarity. The applicable law does have to lack clarity to necessitate its interpretation, though. It is unfortunate for this decision that the relevant provisions of Cambodian law do not lack clarity and do not necessitate interpretation. Art. 22 of the UNTAC Law entitled “Release for Procedural Error” clearly mandates that “the accused [be] immediately released” […] “in case of non-compliance with the procedures set out in articles 10-21 that seriously interferes with the right of defense”. It is, of course, within judicial discretion to determine what constitutes “seriously interferes” in each individual case, but it is my understanding of the law that if “the reasonable man’s opinion” test is applied a period of 8 + years would be considered to be well within “seriously interferes” by most jurists acting along the lines of the principles of independent judiciary adopted by the UN. Art. 22 goes further than the “seriously interferes” test and provides an important safeguard from unbridled judicial discretion by introducing a “violation by public officials” section which, inter alia, does two important things: (1) allows rights-related challenges and (2) makes it the responsibility of the competent judicial authority to attribute and review such challenges. In the case of Kaing Guek Iev, the defense did intend to obtain such a remedy, however, the PTC chose to ignore the relevant provision of Cambodian law and instead based its decision on an obscure – to say the least – principle of international law. In such a short essay it is not my intention to prove beyond reasonable doubt that the principle applied by the PTC is indeed a virtual unknown in international criminal law, nor will the performance of such legal acrobatics be necessary, as it will suffice to point out the ECCC’s stipulation that its operation must be based on Cambodian law with international law being relegated to the position of supplementarity. As applied to the case of Kaing Guek Iev this merely means that the available resources of Cambodian law should have been entertained and exhausted before any forays were made into international law.