The Sary Defense Team Changes the Format In Which It Communicates with the Public but Perserveres Despite the Strictures of the CIJs' Recent Order

Summary of Ieng Sary’s Appeal Against the OCIJ Order on Breach of Confidentiality of the
Judicial Investigation & Request for Expedited Filing Schedule and Public Oral Hearing, 10
March 2009
Introduction
The Co-Investigating Judges issued its Order on Breach of Confidentiality of the Judicial Investigation on 3 March 2009. The Co-Lawyers for Mr. IENG Sary, Ang Udom and Michael G. Karnavas today filed an appeal against this Order as based on misconceptions, factual errors and flawed legal reasoning which drastically undermine the principle that “the applicable ECCC Law, Internal Rules, Practice Directions and Administrative Regulations shall be interpreted so as to […] ensure legal certainty and transparency of proceedings” (Internal Rule 21(1)).
Summary of arguments
The Defence Appeal was based on the following 4 main arguments:
1) The principle of publicity of judicial proceedings ensures that not every document filed before
the OCIJ is protected by the confidentiality of the judicial investigation;
2) Any allegedly confidential document posted on the Defence website was only confidential to
protect the rights of Mr. IENG Sary, rights which he may waive;
3) The letter warning the Defence team about its intention to produce its own website and publish its own filings does not constitute a decision, nor does it constitute a warning pursuant to Rule 38(1); and
4) The failure of the OCIJ and Pre-Trial Chamber to sanction their own repeated violations of their obligations of confidentiality displays discrimination in treatment between the Defence team and other organs of the ECCC.
Essence of submission
- The Co-Lawyers have, at all times, abided by the CPC and the Internal Rules of the ECCC.
- The Co-Lawyers have acted in accordance with their obligations as set out in Article 24 of the
Cambodian Code of Ethics the Co-Lawyers by making accessible to the public all of its submissions on behalf of Mr. IENG Sary which contain non-confidential information for the purpose of protecting and furthering Mr. IENG Sary’s constitutionally guaranteed fair trial rights.
- The Co-Lawyers request the Pre-Trial Chamber to grant the Defence’s Appeal Against the Order on Breach of Confidentiality of the Judicial Investigation, vacate the Order and permit the
Defence to maintain a website throughout the entirety of the ECCC proceedings which posts the
Defence team’s public filings before the ECCC together with any public decisions issued on those filings.
- The Co-Lawyers request an order for expedited filing by the parties and that it schedule a public oral hearing to be held on 3 April 2009 so that the issues concerning the confidentiality breach alleged by the OCIJ can be discussed freely, openly and transparently.