Appeals Appointment Causes Uncertainty at ECCC

Khmer Rouge tribunal Co-In­vestigating Judge You Bunleng was sworn in as president of the Cam­bodian Court of Appeals Aug 16 afternoon, amidst rising concern at the UN that his new appointment will un­dermine the work of the Extra­ordinary Chambers in the Courts of Cambo­dia.

“The national court system is very important, but I think the Extraordinary Chambers is very important also. Maybe at the ECCC, another person can take the case files,” You Bunleng said in an interview after the hour-long swearing-in ceremony at the Appeals Court in Phnom Penh.

The UN Assistance to the Khmer Rouge Trials, which represents the international side of the ECCC, said in a statement released Aug 16 evening that it was seeking “further clarification” from Cambodian authorities over You Bunleng’s Aug 9 appointment, by Royal Decree, to the Appeals Court presidency.

“The United Nations is concerned about the effect of the Decree’s implementation on the efficiency of the proceedings currently before the court. The United Nations is also concerned about the impact of the Royal Decree on the perceived independence of the ECCC,” the statement read.

In an Aug 16 statement of his own, You Bunleng vowed to avoid interruption or delay in the decade-old effort to try former Khmer Rouge leaders. “I will continue my mission at the ECCC until such time as an appropriate and smooth transition can be made,” he wrote.

He declined to specify the timetable of that transition.

Co-Investigating Judge Marcel Lemonde declined comment, and ECCC Public Affairs Chief Helen Jarvis said she had nothing to add to You Bunleng’s written statement.

Bun Yaynarin, the deputy cabinet chief at the Ministry of Justice, said that You Bunleng would begin work at the Appeals Court Aug 17.

Following the swearing-in ceremony, You Bunleng said he would streamline the Appeals Court’s administrative work to speed case flow, work with other authorities to ensure that summonses are delivered in a timely fashion, make audio recordings of trial proceedings, and computerize court records.

Canadian Co-Prosecutor Robert Petit said that You Bunleng’s new appointment would be a boon for the Court of Appeals but “unfortunate” for the ECCC.

“This will have a disruptive effect,” he said. “You have one year of accumulated institutional knowledge and established dialogue and procedures that will be affected. It’s an unfortunate event, the magnitude of which we’ll judge later.”

The legal agreements that established the court explicitly state that judges are to serve for the duration of proceedings.

In his Aug 16 statement, You Bunleng argued that the very existence of reserve judges indicates that the creators of the court envisaged the possibility of change.

Kompong Cham Provincial Court Judge Thong Ol, whose record has been questioned by human rights groups, currently serves as You Bunleng’s reserve replacement.

“The ECCC, as any other court, has to provide for the contingency in which any national or any international judge might be unable to continue their function, in exceptional circumstances,” You Bun­leng wrote.

The question now is how exceptional You Bunleng’s circumstances are. He was appointed to replace former Appeals Court President Ly Vuochleng, who was removed for her alleged connection to a bribery scandal surrounding the release of men convicted by a lower court on human trafficking charges.

But Petit maintained that reserve judges should only be called into service in case an individual is “unwilling or unable to serve.”

Rupert Skilbeck, the tribunal’s principal defender, said Aug 16 that the removal of a judge during ongoing proceedings could call into question the independence of the judiciary.

“International law clearly states there must be an independent and impartial judiciary if there is to be a fair trial,” Skilbeck said. “It’s up to the individual defense teams at the court to decide whether to raise this question of law before the Extra­ordinary Chambers. Now that we have an accused in custody, the primary duty of the court is to bring him to trial as soon as possible. We cannot have further delay.”


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