Former S-21 prison director Kaing Guek Eav will remain behind bars until the start of his trial, likely in June of next year, the Khmer Rouge tribunal’s Pre-Trial Chamber ruled Monday.
The unanimous decision by the five-judge chamber, the first substantial ruling issued by any of the court’s chambers, allowed for the pretrial detention of Kaing Guek Eav, better known as Duch, to be continued for a ninth year. Arrested in 1999, Duch was held without trial at the Military Court before being transferred to a tribunal detention facility in July.
The ruling, which cannot be appealed, nevertheless left open the possibility that his lengthy pretrial detention, among the longest of any crimes against humanity suspect, could be revisited at a later stage in the trial process.
In charging Duch in July, the tribunal’s co-investigating judges acknowledged that his eight-year detention by the Military Court raised the question of whether a fair trial was in fact possible. However they ruled that they did not have jurisdiction to address his prior detention.
Speaking for the bench Monday, Pre-Trial Chamber President Prak Kimsan delivered a concise ruling that hewed closely to the prosecution’s arguments for continuing Duch’s detention.
The Extraordinary Chambers in the Courts of Cambodia are a separate, internationalized court, which cannot review the actions of other Cambodian courts, Prak Kimsan said.
“The jurisdiction of the Pre-Trial Chamber and other organs of the ECCC is expressly limited to the subject matter of the ECCC law,” he said. “There is no provision for interaction between the ECCC and any other judicial body in the Cambodian court system.”
The tribunal is furthermore not responsible for the actions of the Military Court as the two had not acted in concert when detaining Duch, according to the chamber’s ruling.
“As the ECCC has no direct relation to the Military Court, it has no direct jurisdiction to review the actions of that court,” Prak Kimsan said. “There is similarly no evidence that the military court acted on behalf of the ECCC in detaining the charged person.”
The defense had argued that Duch should be released pending trial and compensated or given a reduced sentence, if convicted.
While allowing for the possibility that Duch’s detention could be addressed at trial or when appealing that trial’s verdict, the Pre-Trial Chamber ruled that prosecutors had satisfied the grounds for holding him until then.
Detention was necessary to ensure both Duch’s safety and his presence at trial, as well as to preserve evidence and prevent him from exerting pressure on witnesses.
Following the announcement of the decision Monday, Duch’s French attorney Francois Roux said the court had not heard the last of his client’s long wait for a trial.
“Obviously we will raise again the issue of the eight-year pretrial detention,” he said.
Monday’s decision also contradicted the balance of independent legal opinion submitted to the court for the hearing. Four of six “friend of the court” briefs had argued that the court is part of the Cambodian court system and should address the Military Court’s actions.
