Lack of defenders in cases 003, 004 a violation of international fair-trial rights
In September 2009, prosecutors at the Khmer Rouge tribunal forwarded the names of five mid-level Khmer Rouge leaders suspected of genocide and crimes against humanity to investigating judges.
Two years later, the five suspects—whose identities are now widely known, although they have never been named by the court—still have no defense lawyers, a lapse that is in explicit violation of the tribunal’s own rules as well as international fair-trial standards.
The lack of defenders is one of a number of ways in which interested parties in the tribunal’s cases 003 and 004 have been shunted aside by the court’s investigating judges, who have reportedly agreed to dismiss both cases in the face of public disapproval of those cases by Prime Minister Hun Sen.
In September last year, the judges quashed a bid by the court’s Defense Support Section to appoint lawyers for each of the five Khmer Rouge regime suspects named in cases 003 and 004.
In November, the Defense Support Section tried to appoint a lawyer to represent the five suspects jointly, saying they were “at risk of being seriously affected” by the ongoing investigation against them. But four hours after the appointment was announced, it was retracted by the court’s press office, which said the defender would not be recognized.
At that time, the identity of the five suspects was still a secret. Now, 10 months later, prosecutors’ allegations against them have been leaked from the court, and their names are regularly in the news. Four of the suspects have been interviewed multiple times and at length by local and international media, as well as NGOs collecting information on the tribunal. One of the suspects, Ta An, was even questioned by journalists while sick with typhoid fever.
“If they had lawyers, I guaranteed you they’d be saying, ‘Don’t speak to anyone,'” said Clair Duffy, a court monitor with the Open Society Justice Initiative. “What is their interest in speaking to the media? None. It’s purely because of ignorance of their rights on their part that they’re doing it.”
Those rights include a right to remain silent and a right against self-incrimination. But in addition to advising suspects on their conduct, defense lawyers also scrutinize the course of the judicial investigation against their clients and provide a counterbalance against it.
During the investigation phase of Case 002, for example, lawyers for the four accused filed scores of motions on their clients’ behalf dealing with a broad range of legal issues, as well as questioning the conduct of the court’s judicial officers.
The suspects in cases 003 and 004 will have no such opportunity, as they have never even been formally informed of the charges against them. The investigation in Case 003 against Khmer Rouge air force commander Sou Met and navy commander Meas Muth was closed in April with no defense input.
“Because Sou Met and Meas Muth were never officially informed that they were under investigation, never offered the opportunity to put forth their respective versions of the facts, and never assigned counsel of their own choosing, the co-investigating judges appear to have made additional errors in their conduct of the investigation, therefore failing to adhere to international legal norms and the ECCC law,” the Open Society Justice Initiative wrote in a June report.
Tribunal spokesman Lars Olsen said he could not comment on the issue of defense lawyers because it is currently under consideration by judges.
Nisha Valabhji, the officer-in-charge of the Defense Support Section, wrote in an e-mail yesterday that her section believed the five suspects were entitled to legal representation under the ECCC Law, the court’s internal rules, and the International Covenant on Civil and Political Rights.
The law says suspects are “unconditionally entitled” to a lawyer of their choice, free of charge if they cannot afford it.
“In 2010, the DSS assigned counsel to represent the general interests of the suspects, in accordance with international law and best practice,” she wrote. “Measures taken by the DSS since then to arrange for the assignment of counsel to individual suspects remain confidential at this stage and therefore cannot be disclosed.”
However, Ms Duffy of OSJI said that even if a lawyer were working on behalf of all five suspects together, this would likely not hold up in court as each charged person has competing interests. She suggested that there might be another motive for the court’s attempts to block the appointment of individual defense lawyers, citing the much-criticized investigations in cases 003 and 004 conducted by Investigating Judges Siegfried Blunk and You Bunleng.
“The more eyes that are on this case file legitimately, the more questions that are going to be asked and there will be more information in the public domain for the public to demand more,” she said.
“It’s about a suspect’s right to a fair trial in and of itself, but it’s also just another example in a bigger picture about denying access to what the judges are doing to a number of interested people or parties.”
Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said the lack of defense lawyers at this point could have serious repercussions down the road.
“They definitely are in a vulnerable position with all these media outlets contacting them, and that reality is very disturbing for their rights as potential accused,” she said. “If there is a potential that they could be brought to trial, they could argue there had been a violation of their rights.”
At worst, this could sink a case against them, she said. More likely, it would force judges to knock off time from a potential jail sentence to remedy the violation.
Im Chaem, whom prosecutors have accused of coordinating mass executions and purges in the Northwest Zone of Democratic Kampuchea, said yesterday that she does not need a lawyer because she does not believe she is a suspect at the tribunal, having never been officially informed of that fact.
“I don’t think I need a defense lawyer to defend me because I haven’t done anything wrong, and I have no intention of going to the court,” she said. “So just keep those lawyers to defend others, not me.”
(Additional reporting by Kuch Naren.)