In the interests of justice, it is now “imperative” that a new trial panel be established to hear genocide charges against Nuon Chea and Khieu Samphan as soon as possible, the Khmer Rouge tribunal’s Supreme Court Chamber said in a decision released Tuesday.
The decision, dated Monday, assesses arguments put before it by co-prosecutors and Nuon Chea’s defense team, who had appealed against a decision by the Trial Chamber to split up the case against the former Khmer Rouge leaders into multiple, smaller trials.
The Trial Chamber’s decision had failed to provide a plan for further trials after the first mini-trial, which dealt almost entirely with forced evacuations, but the Supreme Court Chamber ordered the next trial to commence as soon as possible, and to include a more representative array of crimes, including charges related to S-21 prison, a Khmer Rouge-era worksite, a cooperative, and genocide.
“With the Trial Chamber’s express projection of a timeline of at least eight months to issue its judgment in Case 002/01…the Supreme Court Chamber considers that the establishment of a second panel has now become imperative,” it said in the decision.
The decision followed the release of a memo last week in which the court’s Office of Administration said there would be no financial or administrative constraints to forming a second panel of judges. A trial management meeting on the establishment of the second mini-trial is to begin on December 11.
“The trial management meeting must…be promptly followed by an actual trial on those remaining charges that would render the scope of Cases 002/01 and 002/02 reasonably representative of the indictment,” the Supreme Court Chamber wrote.
If another trial is not held immediately, the chamber said, the court risked infringing on Nuon Chea’s and Khieu Samphan’s rights to a speedy trial, and making their continued pre-trial detention “unjustified.”
The court has long been plagued by financial difficulties, exacerbated by a failure of the Cambodian government to honor its agreement to pay the salaries of national staff. However, the Supreme Court Chamber chastised the Trial Chamber for allowing its decision on severance to be influenced by the “profanum of budgetary savings” rather than the “sacrum sphere of the law.”
“The Supreme Court Chamber considers the Trial Chamber’s reliance on the ECCC’s financial malaise to be irrelevant and inappropriate in the present decision-making process,” it said.
But it added that the ongoing funding crisis must ultimately be resolved, because “[i]f there is insufficient funding to guarantee a trial driven by law, all ECCC proceedings must be terminated and the court must close down.”
“Barring this, proceedings must go on without individual decisions on matters of law and fact being unduly influenced by financial considerations,” it said.
The court has not released any information pertaining to new pledges since the $59 million proposed budget for the next two years was presented to donors in New York.
Long Panhavuth, a program officer for the Cambodian Justice Initiative that monitors the court, said that while the decision comes several weeks after the end of the first trial, “it is better late than never.”
“It is indicating that funding should not be a problem for the establishment of a new panel, but whether there is enough funding for 2014 or not…we don’t know,” he said.
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