The Shoe Might Now Be On the Other Foot But the Court Continues to Wear the Same Worn-out Pair

Just a few days ago, on Feb, 16, the defense scored the biggest pre-trial detention victory yet as after over 3 years of frustration and continual appeals against the CIJs’ detention orders, the defense was given what appears to be a roadmap to provisional release (more likely during trial than during pre-trial) of their clients in the Trial Chamber (TC)’s decision of the most recent motion for immediate release filed by the defense teams of Noun Chea, Khieu Samphan and Ieng Thirit (as Ieng Sary’s defense team chose to opt out of collection action on the matter, it presumably does not stand to reap the benefits of this decision).

While the defense continued to appeal every pre-trial detention extension order (‘extension order’) of the CIJs regardless of the fact that it would appear that the defense’s arguments would have no effect on the content and format of the subsequent extension orders of the CIJs. This time the defense saw an opening in a procedural blooper made by the Pre-Trial Chamber (PTC) when the Chamber failed to give reasons for its yet another denial of the defense’s appeal against the CIJs’ extension orders (the PTC’s subsequent explanation hinted that the Chamber was merely overloaded with defense motions, an implicit admission which is particularly surprising in the context of the other international criminal tribunals (ICTs) which have a pre-trial chamber powered by a single judge responsible for the same load of work as the ECCC’s 5-judge strong pre-trial chamber). Jumping at the opportunity, the defense claimed abuse of process for which they argued provisional release was the only fitting remedy and took the issue to the TC. Prosecution very correctly argued that the TC does not have an appellate relationship with the PTC. TC hurtled right passed this argument of the prosecution offering a very frivolous interpretation of R. 82(2) of the ECCC Internal Rules (IRs)’s “the Trial Chamber may at any time during the proceedings, order the release of an Accused, or where necessary, release on bail, or detain an Accused in accordance with these IRs” to declare that it had jurisdiction of the dispute (it is not difficult to see that by “at any time during the proceedings”, the drafters meant ‘at any time during the proceedings before the TC’ not proceedings in general (there is a reason why PTC was established as a separate organ of the Court). Perhaps, realizing that claiming provisional release as the only fitting remedy for such a minute procedural violation as mere delay (not denial) of a reasoned decision, the architects of the defense’s joint motion in the alternative and very adroitly chose to re-open the debate regarding the legal and factual bases of their clients’ pre-trial detention. The prosecution seemed to have felt that their position regarding provisional detention was fortified by the PTC’s upholding of the CIJs’ original detention orders following which the prosecution was on easy street as the onus of proof would be shifted on to the defense (R. 82/4’s “change of circumstances” requirement). TC was careful to avoid stepping on the thin ice of the defense’s demand of provisional release as the only fitting remedy for the PTC’s slipup. In doing so, the TC did not err as there is not a morsel of support that can be found for the defense’s contention in the ICT jurisprudence or any of the most defense-friendly proportionality tests. TC, however, did not stop there and accepted the defense’s invitation to re-examine the legal (framed into the ECCC pre-trial detention test) and factual (evidence adduced by the prosecution and tested by the CIJs and the PTC to demonstrate the existence of the circumstances required by the pre-trial detention test) bases of the accused’s detention. The following of what is a fairly uncomplicated pre-trial detention test has been plagued with inadequacies throughout the process (CIJs, for one, have had one hell of a time fumbling through the test). Regrettably, the TC did not set an example on the matter and added generously to the flurry of confusion associated with the test by doing exactly what this appeal was against – it failed to give reasons for its decision on the existence of a factual basis for the prosecution’s arguments. The decision cut very deep into the bone of the prosecution’s extremely tenuous argument (filled with hallucinatory abstractions such as “the fragile context of today’s Cambodian society” developed by the PTC into the haze of “great public interest”) making it lose 4 out of 5 elements of prong 2 of the ECCC pre-trial detention test. TC did not stop there, either, and implicitly invited the defense to file a fresh appeal which might lead to the provisional release of their clients if the defense managed to alley the TC’s concerns regarding the risk of flight by proffering what the Chamber referred to as “viable alternatives” to detention (once these concerns are allayed, release will have to be ordered as prong 1 of the test cannot stand alone). In addition, what appears to be part of the remedy granted by the TC for the PTC’s procedural error, the TC relieved the defense from the “change of circumstances” requirement in the defense’s subsequent motions for provisional release (it is not clear under what law the TC has the authority to do this; while I have always argued that the IRs were adopted not “pursuant” but ‘contrary’ to the law on establishment of the ECCC, I am still convinced that for as long as they are in use by the ECCC, an individual Chamber cannot suspend the ones that it does not like for a particular set of circumstances as this will have very grave rule of law implications). The decision left the defense with the first real opportunity to get provisional release of their clients ordered and the prosecution in the position the defense has been until now – appealing decisions with little or no reasoning in them thus preventing them from arguing against articulated judicial findings, rather than abstractions of unknown origin. It is regrettable that the defense’s first pre-trial detention victory of significance comes with the aftertaste of continuation of the culture of unreasoned decisions at the ECCC.