Co-investigating judges accused of serious professional lapses
tribunal’s cases 003 and 004, which are opposed
Co-investigating judges at the Khmer Rouge tribunal badly mishandled a politically sensitive civil party application and may be guilty of judicial misconduct, according to a bombshell opinion issued yesterday by two UN judges at the court.
The judges, Rowan Downing and Katinka Lahuis, dissented from their three Cambodian colleagues in the Pre-Trial Chamber in writing the decision, which found that Co-Investigating Judges Siegfried Blunk and You Bunleng had committed major procedural irregularities, including backdating documents, secretly altering documents and failing to send proper notifications to lawyers.
Lawyers for Rob Hamill, the victim whose civil party application to the Khmer Rouge tribunal sparked the review, called for a criminal investigation into possible obstruction of justice by the two investigating judges.
Yesterday’s decision also blasted the investigating judges’ entire approach to the tribunal’s cases 003 and 004, which are opposed by the Cambodian government. Critics have long accused Judges Blunk and Bunleng of not conducting serious investigations of the two cases, which involve key Khmer Rouge-era commanders.
After months of mounting criticism aimed at his office, Judge Blunk resigned earlier this month, citing government interference in his work.
Case 003 was closed in April before the investigators had even interviewed regime suspects Sou Met and Meas Muth or visited key crime scenes. The judges also put a damper on public information leaving the court, and even refused to divulge crime scene sites prosecutors had asked them to investigate.
Judges Downing and Lahuis said such actions constituted a violation of victims’ rights, as civil party applicants must demonstrate they have suffered concrete harm from a crime being investigated.
They also said the lack of information emerging from the Office of the Co-Investigating Judges (OCIJ) made it difficult even for them to understand the course of the investigation.
Judges Downing and Lahuis also questioned why the judges failed to inform Sou Met and Meas Muth of the charges against them, though prosecutors first accused them of war crimes and crimes against humanity more than two years ago.
“The Co-Investigating Judges’ approach in conducting this judicial investigation is on the whole unclear,” they wrote.
Their words echoed complaints made by rights groups, court observers and victims.
One of the most vocal has been Mr Hamill, whose brother Kerry was captured off the coast of Cambodia and murdered by the Khmer Rouge. Mr Hamill filed a civil party application in April and was almost immediately rejected for what rights groups said were vague and unlawful reasons. He appealed the rejection to the Pre-Trial Chamber, resulting in Judges Lahuis and Downing’s examination of misconduct and poor practices within the OCIJ.
Seemingly, the most egregious lapse occurred when Judges Blunk and Bunleng quietly modified their rejection of Mr Hamill’s civil party application without notifying him or anyone else. The modified rejection was then backdated from July 6 to April 29. Mr Hamill’s lawyer, Lyma Nguyen, filed an appeal against the original rejection without having seen the secretly changed version.
“We note that the modifications were aimed at improperly curing fundamental defects in the Impugned Order [the original rejection],” Judges Lahuis and Downing said.
They also said they had uncovered “significant unexplained delays in processing documents and placing these in the case file” in Case 003.
Mr Hamill’s civil party application was registered in the court’s electronic system, Zylab, over a week before it was actually filed in the Case File. Thirty minutes after it was physically filed, the co-investigating judges rejected it.
Other court documents connected to the case were also subjected to significant delays, including filings by the tribunal’s International Co-Prosecutor Andrew Cayley and rogatory letters. One person’s civil party application was rejected and an appeal against the rejection had reached the Pre-Trial Chamber before the application had even been placed on the Case File.
These lapses, the judges wrote, were serious violations of court procedure and victims’ rights.
“Delays in filing documents may adversely impact on the exercise of rights provided to parties or applicants in the proceedings under the Internal Rules, as this seems to have occurred in [Mr Hamill’s] case, whereby the filing of the Appellant’s civil party application a few minutes before rejecting it may be seen as an attempt to prevent him from exercising his right to have access to the case file and to participate in the judicial investigation.”
The decision also noted that documents related to Case 003 were mailed out to victims through the courier service TNT without proof of receipt, a violation of court policy. And it said OCIJ had refused to send notifications to victims’ lawyers, even though those lawyers had power of attorney.
“Given all the procedural mistakes committed in this case, reconsideration of the Appellant’s civil party application should be seriously considered by the Co-Investigating Judges after having followed the proper procedure,” they wrote.
Yesterday’s decision “provides the first judicial recognition of procedural irregularities by the OCIJ and buttresses calls for an immediate and thorough UN investigation of the work in that office,” said Anne Heindel, a legal adviser to the Documentation Center of Cambodia.
“Also important is the international judges’ emphasis on the overall procedural irregularities in Case 003,” she added.
In a statement, Mr Hamill called himself “astounded by the revelations divulge by the international [Pre-Trial Chamber] judges.”
“The inference that tampering with legal documents has occurred reinforces one’s belief that all is not well at the ECCC,” he said.
His lawyers, Lyma Nguyen and Sam Sokong, said that although they were pleased with Judges Lahuis and Downing’s investigation into OCIJ irregularities, they remained “deeply perturbed” at the conduct of the co-investigating judges and called for a criminal investigation into possible obstruction of justice.
And they pointed out that despite the attention being paid to the dissenting opinion, Mr Hamill’s appeal was nonetheless rejected due to the majority opinion of three Cambodian judges that he should not be allowed to file civil claims in Case 003.
Judges Prak Kimsan, Ney Thol and Huot Vuthy ruled that victims could not attach themselves to the case as civil parties because the two accused Khmer Rouge leaders had never been formally charged.
“The division within the [Pre-Trial Chamber] between the national and international sides has become a tradition in cases 003 and 004,” Ms Nguyen and Mr Sokong said. “We can only infer that this is due to an influence by various statements of senior government officials who have indicated that they oppose the continuation of these cases and have expressed that these cases are ‘not allowed.’”
The Pre-Trial Chamber also split along national-international lines on Monday in deciding on another sensitive issue related to Case 003. The chamber’s three Cambodian judges agreed with Judges Blunk and Bunleng that Mr Cayley should retract a statement he published in May informing victims of the crime scenes in the case.
Judges Lahuis and Downing disagreed, saying the information was already in the public domain and had in fact been parroted by the Co-Investigating Judges when they ordered Mr Cayley to retract the statement. A retraction at this point would be meaningless, they said.