Co-Prosecutors' Response to Khieu Samphan's Appeal against the Order of Extension of Provisional Detention

Syllabus

The Co-Prosecutors request that the Pre-Trial Chamber (the “PTC”) dismiss the Appeal on the following grounds:

(a) The CIJs had no obligation to deter their decision; on the contrary, they had to make a decision on the extension of provisional detention before its expiry;
(b) This is not the proper forum to hear Appellant’s contentions regarding the impartiality of the CIJs which in any event are baseless. Rather, the Appellant should file an application for disqualification under Rule 34 of the Internal Rules and in any event is baseless;
(c) The Appellant has failed to demonstrate any material change in circumstances since he was originally detained by the CIJs on 19 November 2007 (“Detention Order”) and since the CIJs issued their Order Refusing Provisional Release on 28 October 2008. In the Extension Order, which evaluated evidence on the Case File, the CIJs noted that the requirements of Rules 63(3)(a) and 63(3)(b)(i), (ii), (iv), and (v) were met and provisional detention was still a necessary measure on the basis of those grounds.
(d) The Case File today contains evidence capable of satisfying an objective observer, at this stage of investigation, that the Appellant may have committed the crimes for which he is currently under investigation. In addition, four of the five disjunctive conditions necessitating detention under Rule 63(3)(b) are satisfied so as to justify provisional detention. Specifically, the Appellant’s detention is still a necessary measure (1) to protect victims and witnesses; (2) to preserve evidence and protect the destruction of evidence, (3) to protect his security, and (4) to preserve public order.