A little lesson about the Khmer Rouge Trial with co-Investigating Judge Marcel Lemonde: who does what?

By Stéphanie Gée

The judicial system of the Extraordinary Chambers in the Courts of Cambodia (ECCC) leaves more than one perplexed, and even has some of the Court’s protagonists baffled. The hybrid tribunal is indeed the first internationalised jurisdiction based on Civil Law, also known as Romano-Germanic legal system, when until now what always prevailed was Common Law. Landmarks are somewhat changed, particularly with the introduction of Investigating Judges and the possibility for victims to constitute themselves as Civil Parties. The court’s Internal Rules, amended and completed with every Plenary Session of the judicial staff, set the rules of the game step by step and the limits of each party’s role. However, a few elements still remain unclear to this day. In order to shed some light on the whole process, co-Investigating Judge Marcel Lemonde, who trained in Civil Law, accepted to evaluate the system and focus on 4 themes elaborated by Ka-set, so as to provide, in the most pedagogical way, some clarity on some of the court’s main mechanisms.

Ka-set: Investigating Judges and Prosecutors: what are the roles of each?
Marcel Lemonde: After a preliminary investigation is carried out, co-Prosecutors decide to prosecute. They must determine, in an “Introductory Submission”, facts which will be referred to the co-Investigating Judges (who cannot investigate any other facts). Then, Prosecutors temporarily put the case aside and entrust it to the responsibility of Investigating Judges. The latter’s role is to gather the required evidence, with a view to decide, on the one hand, whether those cases mentioned in the Introductory Submission do or do not constitute one or several crimes falling within the jurisdiction of the ECCC, and on the other hand, whether the charged person(s) must or must not be sent back before the Trial Chamber, where the trial will be held. The final decision of the co-Investigating Judges will be issued as a “Closing” order, which will then either be an “indictment” or a “dismissal order”. The finality of the investigation is somehow and above all to sort out important questions and make a summary of the incriminating and discriminating elements so that, if a Closing order for indictment is issued, the debate before the Trial Chamber will be limited to essentials and the whole process is therefore more efficient when the trial hearing is held, which is obviously of great importance in trials relating to mass murder. This is the main difference between Common Law proceedings, according to which the investigation is made orally by Parties at the court hearing, and Civil Law proceedings, along which the ECCC work, where the investigation is written down: it leads to the establishment of a case file in which all the elements gathered by the co-Investigating Judges will be placed. In the event of indictment before the Trial Chamber, the case file will be taken as the basis of the trial proceedings.

During the investigation, co-Prosecutors are regularly informed of any new document added to the case file. They can take part in proceedings by attending interrogations of the charged persons and asking questions, provided Judges grant them authorisation for that. More generally speaking, they can ask co-Investigating Judges to accomplish the investigative tasks which they think are useful. Judges accede to these requests or, on the contrary, refuse to accomplish the tasks, in which case they are required to issue as soon as possible and at the latest before the end of the investigative phase, an Order Refusing the Request, which is likely to be subject to appeal before the pre-Trial Chamber. Typically, co-Prosecutors can lodge an appeal against all the decisions issued by the co-Investigating Judges, including Closing Orders. Finally, concerning certain deeds (e.g. the issuing of an arrest warrant, a decision concerning the detention or release of the charged person, the closing of the investigation…), co-Investigating Judges must ask for the opinion of the co-Prosecutors beforehand.

Once the co-Investigating Judges have issued their Closing Order, the proceedings do not pertain to them any more and their role is over. This is when Prosecutors take over: they become again the first protagonists responsible for the use of case files by defending the prosecution at the court hearing.

K7: Judges at the Trial Chamber: which part do they play in the hearing and which control do they have over Parties?
M. L.: Judges at the Trial Chamber have the main and essential role in the conducting of debates at the court hearing. This is another important difference with Common Law proceedings. Not only do Judges act as “referees” by listening to Parties and making sure that the rules of the game are respected, but they also play an active part in the search for truth and, in particular, they question the accused and witnesses themselves, since Parties only play a subsidiary part on that point. They can even order the opening of new investigations. By and large, they are the only protagonists responsible for the outcome of the trial, something which escapes Parties: whether the accused pleads guilty or not, the proceedings will remain the same; and even if the Prosecutors decided to drop the charges, Judges could still condemn the person! ... It will be interesting to watch how, in practice, Judges will use their own powers, in front of lawyers more used to working along the completely different rules of other international tribunals.

K7: Civil Parties: what are the limits in their participation?
M. L.: The ECCC are the first jurisdiction which accepts Civil Party applications, i.e. not only does the jurisdiction allow victims to make their voice heard – as it is the case at the International Criminal Court (ICC) for example – but it also allows them to have access to the case file, to make requests related to the investigation, to appeal and to be represented at the court hearing as Parties. They have real rights, just like the Prosecution and the Defence. This innovation is without any doubt a very important progression in terms of transitional justice. However, it is clear that this trial must remain a criminal trial and not become a civil trial; otherwise it would bring down the whole meaning of it. This is why the Internal Rules make provision for those rights and stipulate that they are strictly monitored and more limited than they would be before ordinary jurisdictions: victims cannot initiate the prosecution themselves; they cannot appeal a Dismissal Order or a decision related to the basic judgement unless Prosecutors themselves decide to appeal; they cannot obtain any financial compensation, etc.

The fact that a victim is a Civil Party does not forbid them to recount the story of what they saw. Indeed, it would be obviously paradoxical to prevent victims from speaking up and in the meantime say more rights are granted to them. But as this is about a Party, nobody can require from them the impartiality imposed on witnesses. Therefore, the Party will not take the oath and their version will be collected in the same way as the defendant’s version would be listened to. The defendant does not take the oath either. Judges then have to take all that into account in order to bring out their own intimate conviction.

K7: What can be said regarding the strength imbalance between the Defence and Civil Parties?
M. L.: Civil Parties are clearly more numerous than defendants. It is therefore no wonder their lawyers are also more numerous... Having said that, it is the sole responsibility of Judges to ensure that “a balance between the rights of the Parties” is preserved, as indicated by the ECCC Internal Rules. It is up to them to take that element into account, especially when it comes to dividing up speaking time, and, once again, making sure that the trial is not pulled away from its main goal, which is to give a ruling on a criminal accusation.

If you wish to find out more about the Khmer Rouge Trial and the role of the different protagonists or the ongoing proceedings, check the regularly updated Tribunal’s website: http://www.eccc.gov.kh/english/