KR Tribunal Witnesses Secretly Interviewed by Court Investigators

Defense lawyers at the Khmer Rouge tribunal have raised concerns that at least two key witnesses were secretly interviewed “off the record” by investigators in 2008, and may have been influenced in their testimony.

In an August 23 filing, lawyers for former Foreign Minister Ieng Sary claim that witness Rochoem Ton, alias Phy Phuon, was interviewed twice by tribunal investigators in September 2008. The first interview was not recorded, and no written transcript was made. The next day, Mr. Phuon was allegedly given a script prepared by investigators and told to read his answers into a tape recorder.

Ieng Sary’s lawyers say they were alerted to the situation after Khmer-speaking members of the team listened to the audio recording of the second interview with Mr. Phuon and noted that the witness sounded like he was reading from a document rather than speaking spontaneously.

“On 1 August, 2012, the defense spoke to the interpreter who was present during the OCIJ [Office of Co-Investigating Judges] interview of Phy Phuon,” the lawyers said in their filing. “The interpreter indicated that the OCIJ investigators did conduct a lengthy interview with Phy Phuon that was not recorded.

“Written questions and answers were then prepared by the OCIJ investigators based on this unrecorded interview, and those questions and answers were read into a recording device. The interpreter stated that he read out the questions and Phy Phuon read out the answers. A written record of the interview was then prepared based on these recorded questions and answers.”

Ieng Sary’s lawyers have asked the Trial Chamber to summon the unnamed interpreter for questioning on the issue.

The lawyers also flagged another major inconsistency: although the written transcript of Mr. Phuon’s interview indicated that it went on for two hours, the audio recording lasts only 14 minutes.

Another recent witness, Pol Pot’s former security guard Oeun Tan, was also interviewed in a similar “off the record” fashion by investigators on October 8, 2008, according to a partial transcript of his witness interview released by the court last week. In the transcript, Mr. Tan is asked when he joined the revolution.

“I spoke all about that yesterday,” he protests in the recording.

“But I want you to enumerate them again because yesterday I did not make any audio recording,” the interviewer says.

Court rules say that a witness statement must be audio- or video-recorded, except when circumstances make it impossible to record. This is obviously not true in the cases of Mr. Tan and Mr. Phuon, who were both recorded shortly after their “off-the-record” interviews.

According to an advance copy of a filing the Ieng Sary team plans to submit on the issue, there is no written record of any interview conducted with Mr. Tan on Oct. 8. His official recorded interview was made the next day, Oct. 9.

Ieng Sary’s lawyers say that the fudged records amount to “nothing short of subterfuge,” and suggest that the daylong unrecorded interviews were meant to prime the witnesses’ memories and ensure that their testimonies adhered to OCIJ’s narrative.

This is not the first time that questions have been raised about irregularities in OCIJ witness interviews. Last year, the Nuon Chea defense team uncovered a number of inconsistencies during a review of 13 interviews, including interviews for which the written transcript did not match the audio recording, and others that were not recorded at all.

The Nuon Chea team named one investigator as responsible for a “pattern” of off-the-record interviews, of which no written or recorded trace can be found in the case file. That man is the same investigator who interviewed Phy Phuon.

Co-Prosecutor Andrew Cayley also raised the issue in October last year, saying in a filing that he had “noted a number of inconsistencies or omissions when comparing the written statements in cases 003 and 004 to the audio recordings of those interviews.”

Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said judges might ultimately be forced to place less weight on written statements and call more witnesses for oral testimony, thus prolonging the Case 002 trial.

“This undermines witness reliability and the reliability of the OCIJ process in taking witness statements overall,” she said.

“It creates the impression that there has been manipulation of the testimony, thereby making it necessary to call these witnesses to provide oral testimony…perhaps more witnesses than the court had been hoping to call.”

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