Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav
By Stan Starygin
In its analysis of the correctness of the Co-Investigating Judges (CIJs)’s decision to detain under Rule 63(3)(b)(v), the PTC asserts that if released the reappearance of Kaing Guek Iev in Cambodian society might jeopardize public order. The Chamber contends that “the impact of the Democratic Kampuchea regime on society […] has not diminished” and that “it may pose a fresh risk to the Cambodian society” which “may lead to the resurfacing of anxieties and a rise of negative social consequences that may accompany them”. This assertion is, for its greater part, based on an article written by Mr. Rob Savage for South Eastern Globe. We all understand that sources of evidence which can be entertained by the PTC are numerous – although are limited by the 2007 Criminal Procedure Law, however, not to a particularly great degree – the fact which gives the Chamber the authority to examine any reasonable source which might be of guidance. As I stated before (under “Assertion 5”), the PTC ignored the wealth of expertise on the matter, most of which available locally and clearly within the reach of the Chamber, but instead the judges elected to hinge their decision on the appeal of Kaing Guek Iev's detention on a coffeeshop type of magazine. I want to be clear that this is not an exercise in hair-splitting over a legitimate psychology peer-review journal that the PTC judges and I happen to have a divergence of opinion about. No, South Eastern Globe is no peer-review journal. It’s a magazine which is in the league with the People, for those of you from the United States, and which is available for sale in most restaurants and bars of Phnom Penh for the consumption of patrons who are in the process of waiting for their respective orders. The cover of the latest issue of this magazine can be viewed at http://www.se-globe.com/ which, as you may notice – among others things – features a popular artist of sorts wearing skimpy clothing which is a dead giveaway of what type of publication we are looking at here in its own right. This is the type of publication the PTC judges wants us to go back to for the full version of their footnote 22 which, ironically, is the strongest leg on which the Chamber “disruption of public order” argument rests. On the street we say, you have got to be kidding me! In the more reserved language of the law, we refer to such occurrences of judicial discretion on the question of admissibility of evidence as highly usual and inappropriately construed and attributed. However, this footnote is a great testament to the quality of the rest of decision which I have treated in this series of publications entitled "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”. Well, what would be the alternative, then? There are several which I – as one individual who does not have a full-time job designing such alternatives – can think of. Without boring the reader with all pertinent technical details, whatever these alternatives might be, they all should be based on one and the same foundation – a survey. This survey must be well-designed and reflect the demographic composition of Cambodia and such other matters which will come together as a survey sample. This concept has been around for the last couple of hundred years, hence, there is plenty of literature on the matter, should the Chamber be in the future interested. Since the PTC had given us coffeeshop quality reading as justification for “disruption of public order”, I decided – to the extent possible – to do conduct an amateur survey of this type myself to see what the answer to the question of whether the release of Kaing Guek Iev would result in a "disruption of public order" might be. By ‘an amateur survey’ I mean asking a medium-size group of Cambodians who I interact with professionally and socially about this matter on the sidelines of other activities. Out of approximately 50 people I so far have interviewed only 2 said they would be upset with the overwhelming majority of the interviewees saying that “due to the fact Kaing Guek Iev has no money and no place to live upon release pending trial, the PTC did the accused a favor by continuing to detain him and, thus, providing food and shelter”. Many – to my sheer amazement – added that releasing him and having him live with no means and no way to make a living would have been far more punitive than keeping him in prison where basic quality of life is sustained by the relevant resources of the tribunal. My survey is, of course, flawed in many ways and does not represent the opinions of a exhaustive cross-section of Cambodian society as it is mostly limited to reasonably educated Cambodians many of whom are NGO and government employees and college students. With the resources at its disposal the PTC could have done far better and produced a survey resultant in a fair treatment of this prong of the “necessity test”. This, regrettably, never took placed.