Law Review 3

Stan Starygin, Was There Good Reason to Order Pre-Trial Detention of the ECCC defendants: ECCC in Pre-Trial Action, Human Rights Brief, Apr, 2011 at http://hrbrief.org/2011/02/newedition18-2/
(the pdf at the bottom of the page is not the current issue but an earlier one; as such it does not include this article).

INTRODUCTION

To date, the Extraordinary Chambers in the Courts of Cambodia (ECCC) have denied all motions for pre-trial release. On July 31, 2007 the reputed commandant of the central security prison (S-21) of Democratic Kampuchea (popularly known as the “Khmer Rouge regime”), Kaing Guek Iev, was transferred into ECCC custody from the military prison of Phnom Penh where he had been held without trial for eight years prior on orders from the Military Tribunal of the Kingdom of Cambodia (Military Tribunal). The Co-Investigating Judges (CIJs) promptly ordered Kaing’s pre-trial detention. On December 3, 2007 the Pre-Trial Chamber (PTC) denied Kaing’s appeal.

Noun Chea, the Democratic Kampuchea’s alleged Communist Party of Kampuchea (CPK) Secretary and presumed second in command to Pol Pot, was the first person arrested directly on orders by the ECCC. On March 20, 2008 the PTC rejected Noun’s appeal of a CIJ order for his pre-trial detention. Similarly, on orders of the ECCC, Ieng Thirith, Democratic Kampuchea’s Minister of Social Affairs (Action), and Ieng Sary, Democratic Kampuchea’s Deputy Prime Minister for Foreign Affairs were arrested and ordered to pre-trial detention. The PTC rejected appeals against pre-trial detention in both cases in decisions on July 9 and October 17, 2008, respectively.

Finally, on November 19, 2007,the ECCC also arrested Khieu Samphan, who had allegedly held numerous high-level positions, within Democratic Kampuchea. Khieu filed an appeal with the PTC which was later withdrawn as part of defense counsel’s pre-trial strategy, but subsequently filed an additional appeal requesting his release on the basis of an alleged abuse of process. Despite Khieu’s appeals, the CIJs’ decision by the CIJs to detain has stood throughout the process.

On account ofBecause the Internal Rules of the ECCC that limit orders for pre-trial detention to a maximum length of one year at a time, defendants continue to appeal extension of orders for pre-trial detention without success. Operating in an environment of endemic abuse of legal process and abuse of the state power to detain individuals pending trial in particular, the ECCC hasve sought to set clear standards of the rule of law and resist the coercive powers of the State. This paper seeks to examine the reasons by which the ECCC have substantiated ittheirssuch denials of appeal against pre-trial detention, and attempts to answer the question of whether such reasons had a solid legal foundation in the ECCC’s pre-trial detention test.