An Old Man's Desire for Comfort or A Snub at the Court?

At the outset of his trial Noun Chea requested that he be allowed to wear what looks like skiing attire (see picture; AFP PHOTO/HO/MARK PETERS/ ECCC). He noted his health concerns and the overall climate of the courtroom. The Trial Chamber permitted. While highly unusual, there would be nothing wrong with letting the old man be comfortable particularly as he is about to stand the trial of his life but for the remark Noun made shortly after his wardrobe request was approved. It turns out he is not happy with the court. Could it be that the attire of choice is part of his way of showing the court exactly how unhappy he is (his attire does stick out like a sore thumb and it is impossible not to look at when looking at the courtroom as a whole)?

Trial in Case 002 Begins

Perhaps, ECCC's most important trial begins today on June 27, 2011. Four defedants will stand accused of crimes against humanity (including genocide), war crimes, and crimes under the domestic Cambodian law of the period. The complexity of this case is likely to result in the trial proceedings (not including the inexorable appeal to the Supreme Court Chamber) lasting in excess of a year (including the period it will take the Trial Chamber to write a judgment). While not an exercise in historical inquiry, Case 002 is expected to shed light on a number of ambiguities of the Khmer Rouge history.   

Statement from the Co-Investigating Judges Related to Case 003 Requests from the International Co-Prosecutor

In a reasoned decision issued on 7 June 2011, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) have rejected a request for an extension of the deadline for filing Civil Party Applications in Case 003 and three investigative requests filed by the International Co-Prosecutor alone as invalid.

Having examined the applicable legal framework and the Internal Rules governing the ECCC proceedings, the Co-Investigating Judges concluded that the Internal Rules leave no room for (a) solitary action by one Co- Prosecutor, unless either a delegation of power had taken place according to Internal Rule 13 (3), or a Disagreement between the Co- Prosecutors had been recorded pursuant to Rule Internal 71 (1).

As both the National and the International Co-Prosecutor have confirmed that neither a delegation of power had taken place nor a disagreement had been recorded, the Co-Investigating Judges consequently rejected the requests from the International Co-Prosecutor on the basis that they were invalid.

However, the Co-Investigating Judges have on their own motion, pursuant to Internal Rule 39 (4) (b), decided to recognise the validity of any Civil Party Application received within three weeks after the original deadline on 18 May 2011.

Silence of the National Co-Prosecutor and Can One Break That Which Does Not Exist?

International observers of the dispute over Case 003 (and Case 004 by analogy and extension) might be quick to dismiss the National Co-Prosecutor’s refusal to participate in Cases 003 and 004 and her current silence on the matter as yet another act of subservience of the Cambodian judiciary to the executive. While the Cambodian judiciary is notorious for such subservience and the Cambodian executive is equally notorious for exerting the pressure with great frequency, this situation is more complicated than a mere executive interference into the province of the judiciary.


The first question which needs to be answered is what law governs the ECCC proceedings. The law on the establishment of the ECCC (ECCC Law + ECCC Agreement) states that it is the Cambodian law with 3 exceptions spelled out in the law. The judicial officer-created (with no legal authority to do so) ECCC Internal Rules reverberate this pronouncement, at least in letter. The second question is whether under the Cambodian law, the Department of Public Prosecutions is part of the judiciary. Comparative analyses of civil law jurisdictions show that in most cases departments of public prosecutions are a part of the judiciary. Cambodia was established as a civil law jurisdiction and has not been altered significantly enough since to conclude otherwise. Therefore, theoretically, the Cambodian system should have followed the lead of the rest of the countries the judicial systems of which were established on this basis, with the exception of France. This, however, did not happen. The UN Special Rapporteur on Human Rights notes (2010) the ongoing dispute between the Ministry of Justice and the Supreme Council of the Magistracy. In what is much more than a mere contretemps between the two entities, the Ministry of Justice insists on following the French model which places the Department of Public Prosecutions within the executive; the Supreme Council of the Magistracy counterpoints by arguing that “since the prosecutors are judges and judges are independent under the [Cambodian] Constitution, they [the prosecutors] should come under the control of the Supreme Council of the Magistracy. These two irreconcilable positions are the reason for the stalemate in the enactment of a constitutionally-mandated statute defining the role of the prosecutors. In the absence of a law clarifying the matter, there is no legal basis to argue either way. But, there is a way to argue persuasively (albeit without a legal basis) by examining the 100 years of operation of the French model-based judicial system in Cambodia. If undertaken, the development of this argument will take time and academic effort, whereas in the meantime it is a free for all. The executive happens to be the far stronger part of the “all” and to the victor belong the spoils. For reasons of legitimacy, the executive might argue the Ministry of Justice’s position which is sound, even if without legal grounding. If a subsequent statute places the Department of Public Prosecutions within the executive, the leadership of the executive will be able to legally enjoin the prosecutors, as it is done in a great number of other countries, be they civil or common law. The last question to answer is whether the Cambodian executive has broken the law by directing the National Co-Prosecutor not to participate in Cases 003 and 004. The answer to this is simple: it is impossible to break that which does not exist.

Civil Parties' Regional Forum

MEDIA ALERT

Fifth Regional Forum for 300 Civil Parties in Case 002

to be Organized in Siem Reap

The Victims Support Section (VSS) of the Extraordinary Chambers in the Courts of Cambodia

(ECCC) organizes its Fifth Regional Forum for 300 Civil Parties in Case 002, from Paillin, Banteay

Meanchey, Kampong Thom, Kampong Cham, Kampong Speu, and Siem Reap Provinces. The Forum

is to be held at

Allson Angkor Paradise Hotel, Siem Reap Town, on Thursday, 19 May 2011 from

7:30 a.m;

(Civil Party’s identity is protected).

The Regional Forum is one of the means through which the VSS implements its project on wider

Victims’Improved Participation in the Proceedings of ECCC 2011 for empowering Civil Parties in

judical proceedings of Case 002. The purpose of the Regional Forum is to promote victims’ articipation by providing a safe venue and opportunity dialogue for CPs from those provinces:

- To meet Civil Party Lawyers to discuss their rights at the trial stage, as well as, to generate ideas

from Civil Parties on collective reparations in order to formulate their civil claim ;

- To meet officials from various offices of the ECCC and civil society representatives in order to

learn about recent progress of ECCC; and

- To meet CPs of Case 001 in order to learn about their experiences for a better involvement in

Case 002.

Regional Civil Party Forums had been successfully organized respective in 2011: Kratie, Kampot,

Svay Rieng, Kampong Chhnang and now in Siem Reap Province. From 2009 to 2011, the VSS had

organized 9 Regional Forums for 2,615 Civil Party applications and Civil Parties, who are from the 24

provinces of Cambodia.

For further information, please contact:

IM Sophea

Outreach Coordinator of VSS/ECCC

Mobile: +855 (0) 77 777 367

Land line:+855(0) 23 219 814 ext. 6602

Email:

im.sophea@eccc.gov.kh

Lars OLSEN

Legal Communications Officer, ECCC

Mobile: +855 (0) 12 488 023

Land line: +855 (0) 23 219 814 ext. 6169

Email:

olsenl@un.org

Cayley Pleads for Victims, Public Trust (Part II)

Cayley Pleads for Victims, Public Trust (Part I)