Law Review 2

Stan Starygin, Judicial Discretion in ECCC Decisions on Pre-trial Detention against the Backdrop of the Case-law of the International Criminal Tribunals, International Criminal Law Review, Mar, 2011 at http://www.ingentaconnect.com/content/mnp/icla/2011/00000011/00000002/art00006

ABSTRACT

This article examines the issue of the exercise of judicial discretion in deciding motions for pre-trial release at the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a comparative prism of other existing and past International Criminal Tribunals (ICTs). Th e issue of pre-trial detention has been one of the most contentious in international criminal justice, with many questioning the ICTs’ insistence on abiding by the self-imposed principle of “detention is the rule, pretrial release is the exception”. Th is article off ers an answer to the question of the extent to which the relevant statutory pronouncements have led to the creation of the foregoing principle, and the extent to which such has been achieved by the statutorily prescribed or the extra-statutory exercise of judicial discretion. Further, this article examines the extent to which the relatively newly established ECCC has followed the patterns of judicial discretion in deciding motions for pre-trial release created by its predecessors.