The Khmer Rouge tribunal on Monday declined to release on bail crimes against humanity suspect Kaing Guek Eav, but found that he had been “illegally” detained by a different Cambodian court and will reduce any possible prison sentence against him by more than eight years.
The court said that it was required to offer some remedy for the violation of the rights of the accused, best known as Duch, who was held without trial by the Military Court in Phnom Penh from his arrest in May 1999 until he was transferred to the tribunal in July 2007.
Prosecutors had argued that the Military Court’s detention of the accused occurred in a separate jurisdiction and was thus irrelevant.
However, according to the decision handed down Monday, Duch’s final sentence, if he is convicted, may be reduced in recognition of the violation of his rights while in detention at the Military Court.
Duch’s defense lawyers on April 1 asked the court to reduce Duch’s sentence in light of the violation of his rights.
In a statement released on Monday, lawyers for 56 civil parties to the tribunal announced that they had asked the court to guarantee that, over defense objections, that the civil parties will be heard on the question of sentencing.
Judges retain wide discretion in deciding how much, or how little, to grant as a remedy for earlier violations. The Rwanda tribunal has significantly reduced sentences in light of similar rights violations.
At trial on Monday, Duch also again rejected evidence that the Khmer Rouge secret police, which he commanded from 1976 to 1979, had in fact released nearly 180 people from S-21, offering instead a convoluted explanation that prison personnel had instead “faked” some documents to cover their insubordination.
Evidence of the prisoner releases, publicized in August by the Documentation Center of Cambodia, could contradict Duch’s claim that everyone who entered the prison was killed. Duch also claims that he had no direct say in the decisions on who lived or died at S-21 and that he had no choice but to carry out the orders of his superiors.
Among the 93 civil parties at trial, at least one claims to have been released from detention at S-21 and is named on a list of S-21 detainees who were released.
Prosecution witness Craig Etcheson testified last month that he found the documents that prisoners were released to be persuasive.
However, Duch insisted that all those named on the release list had been executed, and claimed that some documents had been “faked” to hide indiscretions by his predecessor In Lorn, alias Nat, who left S-21 in March 1976.
Those appearing on the Nov 1977 list of 100 detainees marked “released” were in fact Division 920 combatants who were killed, Duch told the court. A list of 49 prisoners from 1975 were also never released, he said.
Judge Jean-Marc Lavergne asked Duch why anyone would fake records of detainees’ release.
“Why would written documents bear the statement to the effect that these persons had been released? Was it a covert way of saying that actually these people had been executed?” Mr Lavergne asked.
Duch said that in at least one case, Nat had been trying to hide his own personal use of S-21 to eliminate people involved in a supposed attempt to kill him.
Nat’s actions were later discovered by former Defense Minister Son Sen who reacted angrily, as would all senior leaders to actions taken independently, according to Duch.
“The word used by Nat as a release is a facade to conceal his offenses that he violated the organizational line of the party,” Duch said.
“Nobody could be released when they were already sent to security office and already presumed enemies,” he said.
DC-Cam Director Youk Chhang said Monday that the documents’ authenticity was no longer in doubt for him.
“It took us less than a day to find three of them,” he said of those released.
“The file exists. It’s been authenticated. They did release these people and they’ve been found.”
DC-Cam had hoped the tribunal would seek to locate the others, Mr Chhang said.
Under questioning by Judge Silvia Cartwright, Duch also told the court that he was aware of only four “Westerners” among those detained at S-21.
Ms Cartwright cited a list that indicated that an Arab, five Indians, 29 Thais, one Javanese, three US nationals, three French nationals, two Australians, one Briton, a Laotian, a New Zealander and a Franco-Indian had been detained.
Lists of prisoners also indicate that 1,698 women, or 21.8 percent of the total population, had been detained at S-21.
“I think that more than 50 percent of the women who were arrested did not commit any offenses,” Duch told the court.
At trial today, prosecutors and other parties are expected to begin their questioning of Duch on the subject of the functioning of S-21 and the Choeung Ek, the execution site on the outskirts of Phnom Penh.