Judges at the Khmer Rouge tribunal have dismissed the latest efforts by a suspect in the court’s pending Case 004 to participate in the investigation, reviving concerns that the court is denying suspects their fair trial rights.
In a redacted decision dated September 30, the tribunal’s Pre-Trial Chamber dismisses an appeal to overturn a decision by the international co-investigating judge, Mark Harmon, to deny the unnamed suspect’s requests for investigative action.
Though the name is redacted, the appeal appears to be on behalf of Ta An, a Case 004 suspect who served as a deputy secretary in the Central Zone of Democratic Kampuchea and is accused of committing crimes against humanity and genocide.
Goran Sluiter, a lawyer on Ta An’s defense team, declined to confirm or deny whether the suspect in the decision was his client, whose identity is officially confidential. But he adamantly rebuked the ruling.
“We were and remain deeply concerned about the total lack of involvement by the defense in [tribunal] investigations,” he said by email.
“It is in violation of our client’s right to a fair trial and the rules and principles of international crimi- nal law,” Mr. Sluiter said. “Investigations in which the role of the defense is fully marginalized are one-dimensional, one-sided and have no value. Not only our client deserves much better, but also the Cambodian people.”
The court has so far turned down multiple efforts by suspects in cases 003 and 004, both of which the government has said should not go forward, to gain access to case files, on the grounds that they have yet to be officially charged.
A similar appeal drew a split decision from the five-judge panel in January, upholding Judge Harmon’s decision not to allow suspects to file requests for investigative action. The pretrial judges dismissed the latest appeal without even considering its admissibility because it was essentially the same.
Not all the judges agree. As outlined in their latest ruling, the two international judges in the Pre-Trial Chamber said the suspect had been named in the prosecutors’ introductory submission to the court and so should be considered a charged person, with every opportunity to take part in the investigation.
But the three Cambodian judges disagreed, leaving the chamber without the four votes it needed to make a decision back in January.
Heather Ryan, a tribunal monitor for the Open Society Justice Initiative, said it was unorthodox that the court had yet to charge the suspects in cases 003 and 004, all under investigation since 2009, and troubling that it had yet to explain the reasons for the long delay.
If the investigating judges decide in the end not to indict the suspects for a lack of evidence, Ms. Ryan said, concerns about fair trial rights will be moot.
But if they are indicted, she added, “they should have had a reasonable chance to participate in the investigation to both ensure the inclusion in the record of potentially exculpatory evidence—they may be the only persons aware of such evidence—and to guard the fairness of the investigation more generally.”
“Timely participation in the investigation is critical as witnesses may die or evidence otherwise disappear or become contaminated with time.”
American lawyer Michael Karnavas is defending Meas Muth, a suspect in Case 003. He said his own requests to access his client’s case file and to participate in the investigation have also gone ignored.
“Since we have not had any opportunity to participate in the judicial investigation, in the event that our client is charged the [investigating judges] will need to grant us access to the case file and sufficient time to review it and to file investigative and other requests before they may close the investigation,” he said.