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.

Tuesday, August 20, 2013

Where Is the Beef?


 Fairly recently, this court handed down its most curious decision yet. Apparently, unbeknownst to most, the UN has created what can only be described as an ad hoc internal administrative justice mechanism within this court. Just when we thought we could not get into any more trouble than we already were in. This mechanism is presided over by one of the court’s own, Judge Downing (now that the Pre-Trial Chamber is on vacation he needed something to do) who fairly recently put out a decision on an application challenging an administrative decision of the Defense Support Section (‘DSS’).

Judge Downing first argued that his newfangled outfit was the applicant’s only hope of administrative justice. Research into the case law of the United Nations Dispute Tribunal (UNDT) and that of the United Nations Appeals Tribunal (UNAT) was hardly necessary (a simple citation of the unambiguous article of the UN Staff Rules would have sufficed) to determine that only UN staff members have standing before UNDT and UNAT. The applicant is a consultant, not a staff member, and is therefore not entitled to access to UNDT and UNAT (or the Management Evaluation Unit, for that matter). That is all quite simple, whether one chooses the scenic route to it through the UNDT and UNAT case law or just the way through the relevant article of the UN Staff Rules. This is where the simplicity ends. If Downing’s outfit titled ‘United Nations Administrative Judge’ (‘UNAJ’) acts where the current UN administrative law does not run (consultants), should the UNAJ still be bound to, mutatis mutandis, apply the UN administrative law? I am sure this will be an issue riven by the wealth of opinions. Mine is simple: of course, he should be. If the sole purpose of creating UNAJ was to extend the reach of the UN administrative law, possibly on an ad hoc basis, to those whom it routinely does not cover, naturally such an extension should mean that the UN administrative law makes the crossing fully intact (I am going to leave the question of why UNAKRT consultants are so special that the UN administrative law should run to them when it does not run to either Secretariat or special-agency consultants). This does not seem to be the case here as neither of the parties appears to be aware that the UN administrative law applies (in this regard, I will only briefly note that the DSS’s argument on the legal status of the Guide to the Legal Assistance Scheme is simply embarrassing and it is difficult to imagine that it was put together by a legal professional), yet the bench summarizes an odd selection of it (this selection has the feel of Downing dealing with the UNDT/UNAT case law for the first time) and then applies it very sparingly and in an even odder way (UNDT and UNAT natural justice and procedural fairness standard is taken to the moon – much rhetoric and none of the legal math which is exactly what separates lay onlookers from lawyers). There is no doubt that the DSS botched up its submissions regarding the standard of review. Whoever wrote them for the DSS, in my opinion, was right on the money, though, except that he or she is not very good at writing law. Let’s presume that if the author of the DSS submissions had been better at it, he or she would have arrived at “reasonable and necessary for the provision of legal advice and representation.” And he or she did. This is evident from the author of the DSS submission arguing that “the Applicant did not explain in the Travel Request what benefit would be gained from flying the Legal Consultant to Amsterdam at this stage, what can be done in Amsterdam that cannot be done in Phnom Penh and why now” (para. 81) (internal italics omitted). This shows that while the DSS author did not know how to properly extract a standard for review he or she satisfied that standard in this sentence which he or she intuitively knew should have been there. Good legal reasoning it is not but the DSS author landed right on the helipad nonetheless and Downing is hard-pressed to deny that. In the world of fast Internet, Skype and 40” computer screens (now available), it is becoming increasingly harder to justify flying across the world to sit in the same physical room while working on a motion as whatever the miniscule gains of that might be there they are greatly outmatched by the tremendous cost of the airfare and the DSA that such travel entails. It therefore would be very difficult to argue that the applicant’s fervent desire (engagement in this dispute with the DSS must have cost the applicant a considerable amount of time) to travel to Amsterdam was informed by the pressing necessity encountered in the course of discharging his contractual duties. This, in turn, necessarily compels the DSS’s suggestion as to the real motivation behind the request for travel. That is doubtless part of what the DSS author meant to convey. Downing alludes that he might have accepted a reasoned decision to support this argument of the DSS which he believes the DSS argument – and potentially any administrative decision that might be seen as adverse to the applicant – should have contained (he words it as “fully reasoned”). Downing is alone out there thinking that every administrative decision should contain a legal reasoning. It is so silly a postulation that I will leave it at that, with the exception of pointing out that Downing cites no authority to support his most outlandish a view. Downing further chimes in with ‘because it has been done this way before, it can’t be changed now to preserve equality before the law.’ That is a necessarily idiotic argument. By the same logic Downing would have us believe that once a court adopts a particular practice it can never substitute it with one that is less to the defense’s liking for fear of that practice being prejudicial to the subsequent defendants. This is such a silly argument that Downing is alone out there making it to which the absolute absence of citation of any precedent in the relevant part of Downing’s decision is a testament. Downing then tells us that the second prong of the two-part test should have been availability of funding and he believes that it was but he is not happy with the level of the DSS knowledge of the particulars of the budgetary situation contemporaneous to the request for travel. Downing rules in the applicant’s favor on the basis of, essentially, the DSS author botching up the two-part test. It is difficult to argue in support of the prowess of the DSS author’s legal reasoning. What is possible and reasonable to do is to say that the onus of proof for the first prong should rest upon the applicant and he has not met it (other than advancing some gobbledygook about confidentiality of defense strategy and the necessity to meet with experts in Amsterdam other than the International Co-Lawyer). The onus for the second prong too should rest on the applicant, i.e. he should have shown that there is sufficient money in the budget to fund his trip. He has not done so. The author of the DSS submissions is not a very skilled lawyer which cost him or her this application but the bench should have been more guarded than granting the better lawyer victory as this process was not about better lawyering but about questions of law. The upshot here is this: There was plenty in the record before Downing to satisfy the two-part test; Downing found for the applicant not because he believed that the factual basis of the case could not satisfy the two-part test but simply because he felt (and, once again, it is hard to disagree with him about that) that the DSS botched up its argument to satisfy the two-part test. Thus, Downing's decision is a fine for bad lawyering, not a decision on the factual basis of the case (it rings particularly odd given we are in the context of a civil law country).  

But, the above interests me only peripherally and only to the extent it gives rise to the following question: why is the applicant being paid by this court?

It might seem like there is a simple answer to this but I assure you that there is not. First, we need to find out at what point in the process the right to counsel at government expense becomes available in the Cambodian criminal process. Article 98 of the Criminal Procedure Code informs that after the expiry of the first 24 hours of police custody the detainee can request to “speak with a lawyer or any other person selected by the detainee.” Nothing is said of a right to be assigned a lawyer at government expense. The applicant’s client is not – and never was – in police custody (or custody of the ECCC). Even if he had been or were, he would only have a right to counsel at his own expense available to him, not a right to counsel at government expense (it is entirely irrelevant that this court jacked up legal fees to the level of Western countries which makes them unaffordable to all but, perhaps, 1% of Cambodians (which is not the case in the domestic legal system where there is much greater affordability). Second, article 47 of the Criminal Procedure Code states that a detainee acquires a right to counsel at government expense upon immediate appearance before a court of first instance (it is the prosecution’s responsibility to read him or her his or her rights that include the right to counsel at government expense). The applicant’s client was not ordered immediate appearance. Article 143 of the Criminal Procedure Code states that during the suspect’s first appearance before the investigating judge the latter must read the former his or her rights which include the right to counsel at government expense. This has not happened in Case 004 yet. Now, if the previous two do not apply to the suspect in Case 004 and the third has yet to happen (Harmon is putting out some sort of humbuggery in the amounts that keep You happy that no real progress is being made while the latter is on his mission to implement Hun Sen’s edict – no more trials after 002), why has the suspect in Case 004 had two sets of lawyers for the last 4 years and has had an international consultant for a year now. Had Case 004 suspect been paying these lawyers’ fees out of pocket, this would have been none of our business. But he is not. The Western and Japanese taxpayers have been paying salaries of these people to the services of whom the Case 004 suspect has yet to acquire a right. This bothers me – and should bother others – far beyond anything contained in Downing’s treatise or the applicant’s trouble getting money for a ticket to Amsterdam. It is kind of like a pedestrian and a car on the sidewalk arguing who has the right of way – the car has no business being on the sidewalk to begin with! Case closed. It is exactly how I feel about Downing’s argument – it is irrelevant to me whether or not the applicant was unlawfully denied a ticket to Amsterdam; what is relevant to me is that the position he presently encumbers should not exist (at least not yet). As the position should not exist a fortiori it should not be encumbered and as it should not be encumbered a fortiori there should be no travel necessary for it and consequently no application for such travel should exist. If the Office of Administration is still looking where to cut corners, this is it (and this would not even be a corner but a legitimate cut based on eliminating a prematurely created position), cut the services that are not required under Cambodian law as it is after all the Cambodian law that governs these proceedings (although 7 years on it is now hard to believe that it does given how much abuse it has taken from the parties and, most importantly, from the bench).

My title question therefore stands: where is the applicant’s beef? He did not get a ticket to Europe paid for. In summer. Small price to pay for being hired to provide a service that is not due his client (and likely will never be due considering Hun Sen’s position on Cases 003 and 004). Champaign is in order, not kvetching.