ASIL: Prosecutor v Duch

Prosecutor v. “Duch” – Decision on Request for Release (E.C.C.C. June 15, 2009

The Extraordinary Chambers in the Courts of Cambodia (ECCC) denied the defendant Kaing Guek Eav's (“Duch”) request for release, holding that there was an existing risk of flight, a continued need “to preserve public order,” and real threat to the security of the accused.

As we previously reported, Duch is charged with crimes against humanity, grave breaches of the Geneva Conventions, and several offences of homicide and torture under Cambodian criminal law. Duch was indicted by the ECCC for alleged offences committed while he was chief of the notorious S-21 camp, “where numerous Cambodians were unlawfully detained, subjected to inhumane conditions and forced labour, tortured and executed in the late 1970s.”

The decision notes that the defendant's detention, which began in 1999 when Duch was taken into custody by the Cambodian military before being transferred to the ECCC in 2007, was in violation of the defendant's right to a fair trial under both Cambodian and international law. As a result, the ECCC declared that Duch was entitled to a remedy under international and Cambodian law “for the time spent in detention under the authority of the Military Court and the violation of his right.” In case of conviction, the Tribunal stated, the defendant's remedy will be taken into account in calculating his term of imprisonment; and in case of acquittal the defendant will be able to seek a remedy under domestic law.

The Tribunal relied on the jurisprudence on this issue of both the International Criminal Tribunal for Former Yugoslavia and the International Criminal Court.