ECCC Co-Investigators Grapple with Thorny Case; Appeal Possible

Longstanding concerns reemerged Wed­nesday that the case against former S-21 prison director Kaing Guek Eav, whose name is also transliterated as Kaing Khek Iev, may suffer from substantial weaknesses.

In their decision to detain Kaing Guek Eav, or Duch, which was made public Wednesday, the Khmer Rouge tribunal’s co-investigating judges considered arguments that Cambodian authorities’ handling of the case may frustrate his prosecution.

Until Duch’s transfer to the tribunal’s detention center Tuesday morning, the Military Court had held him without trial since May of 1999 on a string of charges including treason, genocide, the killing of foreigners, crimes against humanity and war crimes.

“The issue may be phrased in these terms,” Co-Investigating Judges Marcel Le Monde and You Bun Leng wrote in their decision. “Does the more than eight-year detention of the charged person in separate proceedings before another jurisdiction taint the present proceedings?”

“Or rather, is such detention so excessive and prejudicial to the rights of the defense as to affect the very ability to bring this case with the jurisdiction of the Extraordinary Chambers?” the judges added.

Under tribunal rules, Duch has 30 days to appeal the detention order, which held that the acts of which he stands accused are so grave that possible violations of his rights to due process pale in comparison.

Le Monde said Wednesday that he was un­aware of whether Duch planned an appeal and Duch’s lawyer Kar Savuth said court officials had instructed him not to comment on the case.

According to the documents released by the investigating judges, Kar Savuth has claimed Duch’s detention is illegal and requested his release on bail.

The tribunal’s five-judge Pretrial Chamber, which would hear any such appeal, includes Military Court Director Ney Thol. Tribunal rules state that judges with prior associations with a case may be disqualified. Ney Thol could not be reached for comment on Wednesday.

Inconsistencies in Duch’s prosecution at the Military Court and his treatment in the eight subsequent years of detention will give his defenders much to sink their teeth into, according to legal experts with knowledge of the case.

However Ngin Sam An, the Military Court investigating judge assigned to Duch, said Wednesday that the case had been handled properly and that Duch was held without trial as officials were awaiting the creation of the Extraordinary Chambers. “We detained him according to the law,” he said.

While international tribunals have in the past considered remedies for the abuse of defendants’ rights to due process, Duch’s case would likely represent the longest instance of pretrial detention, making it difficult to compare to other trials, Pannasastra University law professor Stan Starygin said.

“I am not aware of any scenario in which an individual has been held in pretrial detention for eight years awaiting the creation of a particular court,” said Starygin, who has studied Duch’s case and stresses that his views are his own and not those of his university.

Outraged Rwandan officials in 1999 claimed prosecutorial incompetence when International Criminal Tribunal for Rwanda’s Appeals Chamber ordered the release of genocide suspect Jean-Bosco Barayagwiza, finding that his three-year pretrial detention had so seriously violated his rights that trial could not proceed.

The court reversed itself five months later, however, noting additional information about the detention that it said relieved prosecutors of the burden, prompting charges and trial.

According to the International Covenant on Civil and Political Rights, to which Cambodia is a signatory, all defendants are entitled to trial “within a reasonable time or to release.”

However a legal defense based on the cov­enant is not rock solid, said Ohio State University law professor John Quigley, who testified at the 1979 show-trial, in absentia, of Pol Pot and Ieng Sary.

“The international standards on this matter are far from clear,” he wrote in a recent e-mail. “There is no explicit rule on speedy trial as one finds in some domestic systems.”

“It is unclear how the court might characterize that reason for not bringing Duch to trial sooner and whether it would find this factor an adequate reason,” he added. “It is further unclear how the court might characterize the period of detention, that is, whether it was an ordinary pretrial detention, or whether it was for Duch’s own safety.”

Scott Worden, an adviser to the United States Institute of Peace’s rule of law program who has written about the Extraordinary Chambers, said whatever the sticking points, judges were unlikely to order a release.

“If the charges seem credible, the court may be persuaded that it is better to go forward and see if Duch is guilty and assign any remedies, rather than risk the greater harm of letting a person accused of the most serious crimes go free,” he wrote in an e-mail.

“If Duch is let off on a technicality, it will seriously undermine the public credibility of the court, which is a fact that the judges will be well aware of.”


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