Ho Ho Ho: Defense Support Section (DSS)’s Christmas Dream of Fair Trial Guarantees and Pre-Trial Chamber (PTC)’s Diving Expedition

DSS petitioned the Pre-Trial Chamber (PTC) with a request to order a stay of the proceedings in Case 003 and to compel the Office of Administration (OA) to cooperate with the DSS on recruiting counsel for the suspects in Case 003 “in order to provide effective legal representation to the suspects in Case 003 for the purpose of proceedings before the [PTC]. The DSS argued that, essentially, the suspects must be represented in all disputes which may arise during the investigating stage of the proceedings and which are lodged with the PTC for resolution.

The PTC groped around for any authority to admit this type of motion and found it in the case law of the Special Tribunal for Lebanon (STL). From there the PTC, in full scuba diving gear, plunged itself into the depths of the ocean only known to the bottom dwellers and sunk pirate ships leaving the safe, comfortable and most importantly prescribed by law harbor of Cambodian law. At the depths of the ocean through which the sun shines the PTC picked up an International Covenant for Civil and Political Rights (ICCPR) article which the Chamber found relevant but as many things superficial unsatisfactory. The PTC dove deeper and deeper and yet deeper at which level it dug up an antic from the European Court of Human Rights (ECtHR) case law which it had to pry from underneath a lanternfish. With the antic in tow the PTC rushed back up to the surface by a float cord (ECHR First Commentary) making a safe return, albeit ending up on the wrong side of the harbor. During all these impressive calisthenics and a contortionist’s tricks, art. 98 (assistance of lawyers in police custody) and art. 143 (notification and placement under judicial investigation) of the Cambodian Criminal Procedure Code (CPC) were sitting at the harbor in bewilderment wondering if Vegas might be taking bets on whether the PTC would ever notice them (even if it had to be after they resurfaced with the treasure trove pried from underneath the lanternfish) and what kind of odds Vegas might give them. As Vegas wouldn’t take their call, art. 98 and art. 143 got pensive; art. 98 got off to wonder what in its text was so irreparably wrong that it sent off the PTC on a scuba diving expedition despite the fact that the PTC would have needed to show that either art. 98 (1) did not deal with the matter the PTC was looking at or (2) there was uncertainty regarding art. 98’s interpretation or application or (3) there is a question regarding art. 98’s consistency with international standards to be able to check out the scuba diving equipment. Art. 98 felt slighted as neither it, nor the French Criminal Procedure Code on the basis of which it was drafted saw what the PTC saw. Art. 98 will never find out the reasons for which the PTC leapt over it in full scuba gear. Sliding deeper into the pensive mood art. 98 began to wonder whether anyone noticed, cared or held it in any regard at all and finally whether there was any point to its existence at all. On this downward spiral of self-esteem, art. 98 wrecked its head about what type of miracle it would take for the DSS to notice that the right to counsel only kicked in when the suspect was already in detention and what holiday season miracle it would take for the DSS to notice that the right to counsel was activated only upon the detained person’s request and that the DSS being an administrative organ had no authority to make such request instead of the detained person or a suspect who has not been detained and possibly will never be detained (such is the nature of the investigative stage: it determines which dogs will hunt and which won’t). Sitting next to it and waiting for the PTC to resurface art. 143 got off to its own thinking. Art. 143 grabbed a pair of high definition binoculars and cranked them up to the finest grade looking for a charged person to whom the right to counsel at government expense would apply. The binoculars seemed to work fine and art. 143 could make out individual grains of sand on the other side of the harbor but not the charged person thinking the PTC must have taken him/her into the depths of the ocean with it. Art. 98 and art. 143 kept sitting on this side of the harbor and in plain view when the PTC hurtled past them at breakneck speed with its bottom of the sea treasure in tow. Art. 98 and art. 143 started to think “how the hell did it all get so wrong” and “it will take a miracle to un… this” as they saw the PTC beeline back to the ocean and come back out with pieces of the International Criminal Court (ICC) and International Criminal Ttribunal for the former Yugoslavia (ICTY) case law. Exhausted by the schlepping of bulky deep-sea finds, the PTC was lying on its back ashore resting when it noticed that there was no charged person. “Damn”, said the PTC, “what are we going to do with all this loot that we don’t need now?” The PTC pondered. “We will use it anyway! Like with food, it would be a shame to let this good stuff go to waste.” Miracles do happen and the PTC did get it right after hours of redundant diving, after a few tanks of oxygen (which isn’t cheap locally), and hours of superfluous pulling and dragging and stacking and restacking. In this season when Temple lights go on for 8 days on 1-day’s worth of oil and a fat man fits through a chimney anything is possible. It is even possible that the CPC will come to the DSS in a Christmas night dream and that the DSS will wake up the next morning and read the damned thing (it is a long document but, folks, you have been at it for over 5 years now; give us all a break). It is also possible that Santa Claus will bring copies of the CPC and the ECCC Law and Agreement and say “ho, ho, ho, there is more where these came from”. It is possible or at least we have to believe that it is or the spirit will wane and the hope will die.

I chose the anthropomorphic means of narration to make my point in this note as this means has a proven record of working well for a certain demographic and for it being the last means available to me to make this point: it is a Cambodian process, whether we like it or not, that statutorily uses Cambodian law as its legal basis with international law (just because it is easy to research does not mean you have to do it) playing backup – not second -- fiddle and only when the main fiddle is shattered into such small pieces that it can’t be glued back together or when the whole town is out of glue.