Appeal for a heavier penalty for Duch is also announced
Prosecutors at the Khmer Rouge tribunal yesterday submitted their final arguments in the court’s second case, asking that four senior Khmer Rouge leaders be indicted and tried for genocide, war crimes and crimes against humanity and crimes under Cambodian law.
Prosecutors also announced they would seek a heavier penalty in the murders of an estimated 14,000 secret police detainees by former S-21 Chairman Kaing Guek Eav, also known as Duch. The relatively lenient 35-year sentence imposed last month, of which just 19 years remain to be served, provoked a public outcry.
The sentence was “arbitrary and manifestly inadequate,” prosecutors said yesterday, as it had subsumed certain crimes against humanity, including enslavement, torture, rape and extermination, into crimes of persecution and torture, rather than penalizing Duch separately for each charge.
A defense lawyer said yesterday his team was also preparing to mount a jurisdictional appeal this week.
In announcing their final recommendations yesterday, prosecutors also said they had asked that charges be dropped against Duch, who has already been convicted in the court’s first trial.
In addition to his conviction, Duch remains a suspect in the court’s second case file, along with the four senior leaders—Brother Number Two Nuon Chea, Foreign Minister Ieng Sary, Social Action Minister Ieng Thirith and Khieu Samphan, the former chairman of the state presidium.
However a dismissal of the charges against Duch appeared almost certain as the court’s co-investigating judges in February rejected a prosecution request to notify Duch of any additional charges, saying a second trial for Duch was “not foreseen.”
In their statement yesterday, prosecutors said a second Duch indictment “would not be in the interests of justice” as a dismissal would make the coming trials more expeditious.
The prosecutors’ final arguments in the investigation, a 931-page document known as a final submission, capped the investigation they opened in 2007 and cited more than 2,800 documents and witness statements.
“The co-prosecutors believe that the evidence collected in the judicial investigation demonstrates that the charged persons committed these crimes through a joint criminal enterprise, a mode of collective liability, the purpose of which was to enforce a political revolution in Cambodia and systematically destroy any opposition to the [communist party’s] rule,” they wrote.
“Through this joint criminal enterprise, the Charged Persons enslaved the Cambodian population, deprived them of their fundamental human rights and freedoms and orchestrated mass killings of individuals…”
Lars Olsen, legal communications officer at the tribunal, said the court’s co-investigating judges were well on their way to delivering a ruling on three years of work.
“They are working on a schedule to issue a closing order in September,” said ECCC legal affairs spokesman Lars Olsen.
Arrested three years ago, Nuon Chea is set to reach the time limit for provisional detention next month.
Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said she expected judges would agree with prosecutors and drop charges against Duch in the second case.
“I think they’ve been planning to drop them all along. It doesn’t serve any purpose. The case is already too complex with four accused and they’ve already got a guilty verdict for him. So there’s really nothing to add,” she said.
In their notice of appeal against Duch’s sentence, prosecutors argued that 35 years in prison did not adequately reflect the “particularly shocking and heinous character” of the prison chief’s crimes, and that judges had given “undue weight” to mitigating circumstances.
They had previously sought a sentence of 40 years in prison after subtracting time for rights violations and time served.
In addition to a longer sentence, prosecutors asked for additional crimes against humanity convictions, saying that judges erred by choosing to subsume enslavement, imprisonment, torture, rape and extermination under the crime of persecution.
Prosecutors now have 60 days to file arguments in support of their appeal.
This now opens the door for civil parties to file appeals of their own, according to Mr Olsen, the legal affairs spokesman.
“They can now appeal the decision on reparations if they want,” he said. “They can appeal in respect to their civil interests.”
In the Duch verdict, 66 civil parties were recognized but given little more than the inscription of their names in the judgment.
Mr Olsen said he did not know whether the four civil party groups would file a joint appeal, but civil party lawyer Silke Studzinsky said she believed this was unlikely.
“The reparations requests were different, so I assume that we will not all do one appeal together,” she said. “I can only speak for group two, but our clients want to appeal, so we welcome the [prosecutors’] appeal, which now allows us to appeal reparations.”
Civil party Hong Kimsuon said two civil party groups would be filing appeals against the reparations decision, perhaps as early as the end of this week. He said his clients would demand the erection of a marble monument at S-21 engraved with the names of Duch’s victims.
Kim Mengkhy, a lawyer in the third team representing civil parties, said his group would also appeal.
Duch’s newly appointed Cambodian defense lawyer, Kang Ritheary, said he planned to file his own appeal against the verdict in the next two or three days.
“The appeal will talk about jurisdiction and argue the court has no jurisdiction over Duch,” he said.
(Additional reporting by Van Roeun)