Another Procedure That
The prosecution initiated yet another procedure for which
there is absolutely no support in Cambodian law, nor do the circumstances of
this procedure pass the test for accessing “procedural rules established at the
international level,” thus, making said procedure unlawful. Said procedure is the
determination of uncontested facts in Case 002/02, a procedure widely used at
common law but never in the courts of Cambodia.
The oddity of this procedure is not limited to the fact of
its unlawfulness but also includes its timing and its very nature.
The timing of the prosecution’s initiation of this procedure
is a period before any judgment, trial or appellate, in Case 02/001. This means
that by stipulating to certain things proffered as facts by the prosecution,
the defense would be causing itself prejudice insofar as the judgment and the
appeal judgment in Case 02/001 are concerned as Case 02/001 and 02/002 are so
interconnected that a stipulation is 02/001 can have direct impact on 02/002.
The very nature of said procedure makes it a poor fit with
the circumstances of this process. This procedure exists in the national common
law jurisdictions because there is much interest in it all around for it saves
time: Parties direct their lawyers to attempt this procedure to save the
parties costs, the bench wants this procedure for it helps it cut the case time
and move along the docket, contingency lawyers want it because they do not get
paid by the hour and are motivated to keep things moving, etc. At this Court
there is absolutely no interest in this procedure as all officers of the court –
including the defense – depends on these proceedings for a living, and after 8
years of this Court’s operation, for a career (it is important to note that the
vast majority of the international officers of the Court are not guaranteed continued
UN employment upon the completion of the Court or their work with it, whichever
happens first; the Cambodian officers of the Court will not be able to make anywhere
near what they are now making at the Court practicing law in Cambodia).
Did I mention the procedure is unlawful under the law applicable
to the ECCC?
The defense stipulated to nothing. Given the above, was that
not to be expected?