The Extraordinary Chambers in the Courts of Cambodia has rejected an attempt by Nuon Chea’s lawyers to annul records of the former Khmer Rouge leader’s first three appearances before the tribunal.
Nuon Chea, commonly known as Brother Number 2, has been detained at the tribunal since his September arrest on charges of war crimes and crimes against humanity.
The 81-year-old’s lawyers—Cambodian Son Arun and Dutch attorney Michiel Pestman—had argued in their Dec 21 application that ECCC co-investigating judges You Bunleng and Marcel Lemonde should not have conducted Nuon Chea’s initial appearance and adversarial hearing in the absence of defense counsel Sept 19.
According to the decision issued by the co-investigating judges Friday, the defense had claimed that Nuon Chea’s waiver of his right to counsel at the time was “involuntary, uninformed, ambiguous and therefore ineffective.”
They followed that Nuon Chea’s first interview by the co-investigating judges on Sept 26 should not have taken place because of Son Arun’s then-limited familiarity with the case file and Nuon Chea’s delicate state of health.
Ultimately calling the defense’s annulment application “manifestly unfounded,” the order concluded that Nuon Chea had been clearly and unambiguously informed of his rights, and that those rights had been respected throughout the investigative actions by the court.
“At no time in the course of the initial appearance, the adversarial hearing or the interview on September 26, were there any threats, promises or incitement, whether implicit or explicit, aimed, in particular, at pressuring Nuon Chea to speak without the presence of his lawyer,” the order read.
And far from the fragile figure that Nuon Chea’s defense team painted him as, the order describes him as having been well capable of arguing his case during these initial appearances.
In a detailed account of the court’s actions during initial detention, the order states how Nuon Chea was transferred from Pailin to Phnom Penh by helicopter to reduce the fatigue caused by the trip and his initial appearance was rescheduled to allow him time to rest.
During that appearance, according to the order, Nuon Chea had been clearly informed of his right to have a lawyer present but had declined and insisted on making a statement.
“[I]t appears difficult to imagine a situation where the waiver could have been clearer and more deliberate than in this case, without questioning the intellectual capacity of Mr Nuon Chea, which does not appear to have been in question here,” the order stated.
While admitting that the judicial mechanism is difficult for most people, the order also argued that Nuon Chea’s intellect equipped him better than most.
“It must be recalled that a political leader, even if elderly, undoubtedly has a capacity for comprehension superior to that of the average person appearing before the courts,” it stated.
With regard to the adversarial hearing, organized to decide whether Nuon Chea was to be placed in provisional detention, the order said that Nuon Chea had reiterated his decision not to have a lawyer present at least three times and confirmed his understanding of the scope of his decision.
“I want to enlighten the Cambodian people and the world to show who are their friends and who are their [enemies],” the ruling quotes Nuon Chea as saying.
During the hearing, he had argued firmly and systematically against the co-prosecutors’ arguments, according to the court order.
“The terms in which he did so demonstrate, to any impartial observer, that he was in full possession of his faculties,” it added.
With regard to the interview by the co-investigating judges on Sept 26, the order states that Son Arun requested an adjournment to have more time to review the case file, but pledged to respect the decision of the judges, who subsequently decided there was no reason to adjourn.
Nuon Chea then complained of ill health before responding to any questions, so the session was halted following a brief medical examination.
“Even assuming that the refusal by the judges immediately to adjourn this interview to a later date could be open to criticism, it is hard to see what harm this refusal could have caused to the charged person, since he did not make any statement,” the order stated.
Son Arun declined on Sunday to speak about the judges’ ruling or whether he believed the decision would weaken the defense’s chances at the upcoming appeal hearing on Nuon Chea’s detention order. “The judges will hear more from me” during the Feb 4 appeal hearing, he said.
According to the co-investigating judges’ order, the annulment application and the detention appeal share many similar arguments.
Reiterating his case for the release of Nuon Chea on bail or under house arrest, Son Arun claimed that his client’s arrest had been inhumane and had not complied with legal procedure.
“If the ECCC releases him on bail, he will be able to live longer,” Son Arun said.
Describing Friday’s order as “significant,” ECCC spokesman Reach Sambath said by telephone Sunday that its main benefit would be to clear up some of the confusion among the public as to Nuon Chea’s fitness to stand trial in advance of his February court appearance.
“It shows he has been treated fairly and with due process so far,” he added.