Opinion: Trial Chamber Brings Rights Dimension into the ECCC Process

In its ruling of June 15, 2009 the Trial Chamber (TC) of the Extraordinary Chambers in Courts of Cambodia (ECCC) dazzled observers with a recognition of the broad application of the doctrine of abuse of process previously so vehemently denied by the Pre-Trial Chamber (PTC). In stark contrast to the relevant ruling of the PTC – which tried to play it safe – the TC agreed to examine the actions which had been taken in furtherance of detention of Kaing Guek Iev by the Military Tribunal (MT). TC plainly found that Kaing’s detention by the Military Tribunal constitutes a violation of domestic and international laws. Although supporting PTC’s tenuous argument that there could be no collusion between the MT and the ECCC at the time of the commission of the violation of the detainee’s rights because the ECCC had then yet to be established, the TC correctly found that the doctrine of abuse of process is not limited to such collusion and instead attaches to the ECCC through a number of other aspects. TC equally correctly found that every violation of a detainee/accused’s rights warrants a remedy which this court must consider. As a consequence of this the TC held that the violations of Kaing’s rights by the MT would factor into his sentencing which would be reduced accordingly and counted in addition to the credit stemming from the time already served (10 years by now).

Putting rights of the accused back into the context of the ECCC – where they doubtless belong – the TC stopped short of recognizing the fact that the collusion between the MT and the ECCC in fact was much more pronounced than the Co-Prosecutors (CP) and the Co-Investigating Judges (CIJ) were willing to let on and which clearly manifested itself at the time of the transfer of Kaing to ECCC custody. Nor did the TC examine the connection between the legislative drive to extend pre-trial detention in cases of crimes against humanity and the delays at the time occurring in the negotiating process between the Royal Government of Cambodia (RGC) and the United Nations (UN) which were the driving force behind said legislation. The TC equally did not give full force of application to the ICTR Appeal Chamber’s decision in Barayagwiza, although the TC acknowledged that it was in general compelled by the court’s reasoning in this case. It is unfortunate that the TC did not launch a thorough examination into the existence of circumstances which the PTC had claimed satisfied the pre-trial detention test; had such an examination been undertaken, the TC would have found the groundlessness of such previously made assertions.

Regardless of these shortcomings, the TC’s decision of June, 15 presents a true rights landmark in these proceedings as it brings the notion of rights of the accused previously and mercilessly trampled by the PTC decisions back into the process. It is hopeful that this is the beginning of a larger trend of respect for human rights in the proceedings before the ECCC.