Khmer Rouge Now Held Illegally, Defense Says

Judges say reasoning will be given ‘in due course’

Lawyers for Khmer Rouge second-in-command Nuon Chea and head of state Khieu Samphan have demanded their immediate release, claiming their detention by the Khmer Rouge tribunal is now illegal.

The motions filed Tuesday were among defense protests against pretrial rulings last week, which continued the detentions of four Khmer Rouge leaders even though, more than four months after their indictments, they have yet to appear before trial judges.

In a case to be tried in the first half of this year, Nuon Chea and Khieu Samphan are accused along with Foreign Minister Ieng Sary and Social Action Minister Ieng Thirith of crimes against humanity, war crimes, genocide, murder, torture and persecution.

The rejection by the court’s Pre-Trial Chamber of defense appeals last week formally sent the case to the Trial Chamber, leaving de­fense lawyers 30 days to file preliminary objections.

In decisions last week, pretrial judges followed a practice used on several other occasions: making their orders known but saying only that the reasoning justifying the decisions would be given “in due course.”

Lawyers for Nuon Chea ar­gued that the failure to explain the reasoning behind the decisions rendered them invalid.

“As the decision by the [co-in­vestigating judges] to keep Nuon Chea in provisional detention ceased to have any effect on 16 January 2011, and the [Pre-Trial Chamber] failed to issue a ‘decision,’ […] his continued detention lacks an adequate legal basis and he must be released,” Nuon Chea’s lawyers wrote.

Anne Heindel, a legal adviser to the Documentation Center of Cam­bodia, said that although she did not expect Nuon Chea to be released, the lack of a public reasoned decision was nonetheless problematic.

“It’s important that this court, because it’s setting a model for the domestic system, hew to the rules very closely, and [here] it’s complying with the letter of the law but it does seem to be getting around its obligation to provide this decision within a four-month period,” she said.

The Pre-Trial Chamber has ef­fectively no time limit for issuing its reasoning, she noted.

In similar motions, lawyers for Ieng Thirith and Ieng Sary said that the “clock” marking the time limit for their preliminary objections should not start until the issuance of a reasoned decision.

Khieu Samphan’s lawyers in their motion for his release raised another issue, complaining that the court’s rules call for suspects to be physically “brought before the Trial Chamber” within four months of indictments.

However, the rule in question is ambiguous and could be interpreted to mean that suspects must be brought to the Trial Chamber within four months of the Pre-Trial Chamber’s decision.

Ms Heindel said this ambiguity had been a topic of discussion for quite some time and should have been clarified long ago.

“Nobody has ever seemed clear on what this rule means,” she said.

Lars Olsen, the court’s legal af­fairs spokesman, declined to comment yesterday on why the suspects had not been formally brought before the chamber, saying only: “The Trial Chamber is seized with these matters and will decide in due course.”

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