Lawyers representing former S-21 prison commander Kaing Guek Eav, alias Duch, are seeking his release from the Khmer Rouge tribunal’s detention center and compensation for supposed violations of his rights as a defendant.
In ordering his detention, the tribunal’s co-investigating judges have also offered no evidence in support of their claims that Duch’s release could endanger his safety or public order or that the 64-year-old might flee, according to a defense legal brief made public late Wednesday.
Duch’s lawyers did not, however, seek to challenge the court’s jurisdiction over their client, a defense strategy some observers had anticipated.
A public hearing over Duch’s detention appeal will be the first held at the Extraordinary Chambers in the Courts of Cambodia, but no date has yet been set, Pretrial Chamber President Prak Kimsan said Thursday, adding that the chamber’s five judges hope to confer on the matter next week.
“Perhaps next week they’ll be present and maybe there will be a decision on the hearing,” he said of the chamber’s two international judges, Katinka Lahuis and Rowan Downing.
The chamber’s decision will not be subject to appeal.
On July 31, the ECCC’s co-investigating judges ordered Duch’s transfer from the military prison to the tribunal’s pretrial detention center and charged him with crimes against humanity.
Legal observers have long anticipated that Duch’s defenders would make an issue of his detention by the Military Court without trial since May of 1999.
In their brief, defense attorneys Kar Savuth and Francois Roux assert that Duch’s detention violates both Cambodian law and international human rights guarantees to a speedy trial.
Arguing that Duch’s detention became illegal under Cambodian law in 2002, they note that Duch, whose name they spelt Kang Guek Eav, was then charged with a series of crimes under court orders that all refer to the 2001 law establishing the ECCC.
“[T]here is no doubt that new charges were brought against Mr Kang [sic] not because new circumstances had emerged…but in order to enable Mr Kang’s [sic] detention to be extended beyond the three-year legal time limit,” they wrote.
Duch’s 20 years as a free man following the Khmer Rouge’s expulsion from Phnom Penh in 1979 occurred without incident, demonstrating that his detention is unnecessary, the lawyers wrote.
The lawyers conclude by seeking Duch’s release, “if necessary under a bail order, which could take the form of house arrest.”
Roux and Kar Savuth also request financial compensation in the event of an acquittal and a reduction in sentence if Duch is convicted.
However, Jeffrey Kahan, legal and development adviser at the Cambodian Defenders Project, said Thursday that the apparent violations of Duch’s rights, due to his lengthy detention, were such that his lawyers could have opted to challenge the court’s very right to try him.
In their detention order, ECCC co-investigating judges Marcel Lemonde and You Bunleng ruled that they did not have jurisdiction to determine whether Duch’s years of detention were “so excessive…as to affect the very ability to bring this case within the jurisdiction of the Extraordinary Chambers.”
“I believe that there’s definitely an argument to claim that the ECCC should not accept jurisdiction over Duch’s case,” Kahan said.
The most commonly cited precedent is the trial of genocide suspect Jean-Bosco Barayagwiza before the International Criminal Tribunal for Rwanda. Barayagwiza ultimately received a reduced sentence, but appellate judges had initially ordered his release in 1999, citing his three-year pretrial detention.
“It’s by no means a frivolous argument,” Kahan said.
Kar Savuth said Thursday he was too busy to speak to a reporter and Roux did not respond to requests for comment.