Braving the public’s disbelief, lawyers for former S-21 Chairman Kaing Guek Eav asked Wednesday that he be released for the remainder of his trial. They also asked that any future prison sentence be reduced by the decade he has already served in detention and again for the alleged violations of his rights that this incarceration caused.
Following his elaborate admission of guilt Tuesday, Kaing Guek Eav, alias Duch, also followed page by page, marking passages with a yellow highlighter as the prosecution read out a list of 238 individual facts which he either admits or does not contest.
Defense lawyer Francois Roux repeatedly indicated the defense’s assent as international Co-Pros-
ecutor Robert Petit listed findings that Duch was universally feared at S-21, that he had the power to order executions, that prisoners were deliberately starved and served as human subjects to test poisons.
Duch has admitted or does not dispute the bulk of the case against him. However, more than 100 additional factual allegations are to be debated at trial.
Given that the case is largely un-
contested, parties have settled on the sentence as the principal dispute concerning Duch’s trial.
The prosecution said Wednes-
day that the court was not responsible for the actions of other Cam-
bodian courts and Duch continued to meet several grounds for detention, including ensuring his personal safety.
Reason to believe the accused was responsible for the alleged crimes, to which Duch has largely confessed, is also grounds for his continued detention, prosecutors said.
Roux told the court Wednes-
day that recognizing the illegality of Duch’s detention could be difficult but was called for by the law.
Duch has been held without trial since May 1999. On renewing the charges against Duch in 2007, the Military Court said it was merely holding him until the Khmer Rouge tribunal began operations.
Judicial investigators and pretrial judges both found in 2007 that they did not have jurisdiction over the actions of the Military Court, which Roux said Wednesday was not acceptable.
“You can no longer say this is not our problem. I am sorry to bring this now before you. It is now your problem, and you cannot avoid it,” Roux said.
“We come before you to request that you put an end to the detention of Duch because it is well beyond the acceptable time limits set by Cambodian law and we have also exceeded the time limits provided for in international legal instruments,” he added.
Roux cited the well-known decisions of the International Criminal Tribunal for Rwanda concerning genocide suspect Jean-Bosco Bara-
yagwiza, one of the founders of Radio Television Libre des Mille Collines, a government radio station used to organize the massacres of the Rwandan Tutsi minority in 1994.
Due to a three-year detention, the Rwanda tribunal initially drop-
ped the charges against Bara-
yagwiza. Appellate judges allowed trial to proceed but ordered that his sentence be reduced.
In 2003, Barayagwiza’s life sentence was reduced to 35 years in recognition of the violation of his rights, and he was given credit for time served, further reducing his sentence to 27 years.
“To say that the state can commit offenses to secure the conviction of a criminal would lead to a terrible boomerang effect,” Roux said. “What do we ask of you today? Primarily, to bring immediately to an end the detention of Duch for the duration of the trial.”
The defense also had two further requests, he added.
“The defense is requesting from you to say as of now two things: on the one hand, that in the case of sentencing that the time spent in detention since May 1999 should be taken into account and subtracted from the sentence,” he said.
“And on the other hand, that he will be entitled to a reduction of the sentence to compensate for the violation of his rights,” Roux said.
Cambodian Co-Prosecutor Chea Leang said Wednesday that the Khmer Rouge tribunal is distinct from the Military Court.
“The co-prosecutors consider that, as regards the detention of the accused at the military court from 10th May 1999, we would like to ask whether we, the Extraordinary Chambers in the Courts of Cam-
bodia, have to be responsible for that detention,” she said.
“The co-prosecutors would like to submit that the ECCC is an institution that is independent, separate from the Military Court and this chamber has not been in operation in relation to or in agreement with the Military Court, which is a local court.”
She said a decision on whether to reduce Duch’s sentence was within the judges’ discretion. The trial is to resume Monday.
