ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Thursday, February 9, 2012

Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part VI

On the meaning of ‘life imprisonment’. The SCC reviewed the defense’s contention that the TC had made an error of law by imposing a sentence in access of 30 years which is the maximum period allowed with mitigating circumstances ordered under art. 95 of the Criminal Code. It is so happens that the defense is correct and there is no two ways about it. Art. 95 states the following: “[w]hen an offense is sentenced to a life imprisonment, the judge who grants mitigating circumstances may pronounce the penalty of imprisonment of between 15 years to 30 years”. First, the English ‘may’ is an approximation of the translator and his/her way of dealing with the fact that there is no clear difference between ‘may’ and ‘shall’ in legal Khmer. Second, even if ‘may’ is to be accepted as an indication of discretion this discretion is not untrammeled but is confined by the “15 years to 30 years” clause the purpose of which cannot be construed as being anything other than setting out a minimum sentence and a maximum one. Hence, the drafters did not want to give judges the authority to mitigate life sentences to below 15 but they also did not want them to be able to go above 30. Third, it can be gauged from the Criminal Code with a fair degree of certainty that the drafters thought of 40 years as the numerical value of a life sentence in which case their rationale of capping a mitigated life sentence at 30 makes perfect sense. The TC therefore was not permitted to impose a sentence of over 30 years imprisonment if it chose to order mitigating circumstances (if the TC had chosen not to order any mitigating circumstances this conversation simply would not be happening). SCC blundered in with the prevalence of the founding law of the ECCC over ‘ordinary’ domestic law argument. Arguendo, let’s say it is correct (which it isn’t) and things are this black and white (which they aren’t), how does this alter the above rule which caps mitigated life sentences at 30? What is the conflict here that the SCC tried to resolve by measuring … baseball bats? The founding law of the ECCC simply says that “[t]hose who have committed any crimes under Articles 3,4,5,6,7 and 8 shall be sentenced to a prison term from five years to life imprisonment” with the drafters including ‘life imprisonment’ to ensure that the Cambodians wouldn’t change their Constitution and that the whole thing wouldn’t end up in a Robespierre-esque bloodbath and, of course, to reflect the contemporaneous maximum punishment under the Cambodian Constitution. The Criminal Code is not in conflict with this provision of the founding law as it merely elaborates the relevance provision of the founding law, not contradicts it. If what the Criminal Code requires is a mere elaboration which there is absolutely no reason to believe the drafters of the founding law sought to prohibit through the innocuous language of art. 39 of the ECCC Law, what is the beef with the defense’s contention, ladies and gentlemen of the bench? The prosecution had no point in their contention. They got almost what they wanted but they decided to stand on their toy and make sure the convicted person was not only stripped off of every shred of sympathy of this court but also of every provision of the law he could legally and clearly benefit from. They told you a story about the preeminence of treaty law over domestic law and tried to spin it in a way that treaty law prevails over the domestic law, even if there is no conflict of laws but there is a conflict of what the prosecution read into a broad prescription of one law with a narrow and clear prescription of another which does not happen to work for them. And you bought this, hook, line and sinker. The legal unsoundness of the decision on the matter aside, let’s talk equity for a second (which is not an unreasonable sentencing principle; I am not saying that there was a tie that could have been broken by this principle but merely by way of a reminder). Do you believe the convicted person wouldn’t have paid enough, had he been sentenced to 30 years?  Are the fact that he had to live in fear every day of his life expecting to be either arrested by this government or killed by his now co-defendants, the fact that he spent 8 years in the Military Prison waiting for this Court to kick off, the fact that he has been on trial for the last 5 years and the fact that he would have spent another 17 years in prison following the Appeal Judgment (he would have been eligible for parole in 7 years but the Cambodian government would never parole him out) putting him at liberty at 87 years of age leaving him a very slim chance of enjoying freedom if only for a couple of days not enough?           


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