Concerns are mounting over serious violations of suspects’ rights in the Khmer Rouge tribunal’s government-opposed cases 003 and 004, which could jeopardize the success of the cases were they ever to be tried.
More than two years after the cases were opened, their five suspects-Sou Met, Meas Muth, Ta Tith, Ta An and Im Chaem-have still not been informed of the charges against them. They have also not been told of their right to retain legal counsel of their choice-for free, if they cannot afford it-which is explicitly provided for in the law establishing the tribunal.
What is more, a lawyer hired by the Defense Support Section (DSS) in 2010 to represent the interests of all five suspects was unable to get his contract renewed in April after a legal tussle with the court’s co-investigating judges.
“They assigned me to be a defense lawyer for the suspects for cases 003 and 004, but later on the investigating judges did not accept me and they closed the case,” lawyer Kong Sam Onn said.
“I was hired for around six months, from early October 2010 until late April this year…. I actually did not work very much. I just proposed my official defense work to the court, but both investigating judges rejected it.”
After several other failed attempts by the defense section to get Mr Sam Onn’s contract renewed, he has now taken the job of defending former Khmer Rouge head of state Khieu Samphan in Case 002.
In a split decision released Tuesday, two UN judges in the Pre-Trial Chamber said the rights of Sou Met and Meas Muth had been violated during the course of the Case 003 investigation, marking the first time judges have spoken out on the issue.
“The failure to conduct a complete and impartial investigation would inevitably be detrimental to the rights of the suspects, the victims and the co-prosecutors, especially in the context where they have not thus far been afforded the possibility to effectively participate in the said investigation,” wrote judges Katinka Lahuis and Rowan Downing.
They said the suspects should have been informed of the charges against them and given an opportunity to participate in the investigation as it proceeded.
A report released Monday by the Open Society Justice Initiative (OSJI), a New York-based group that monitors the tribunal, also highlighted growing worries that the disregard of suspects’ rights could sink Case 003 entirely.
“Since neither of the Case 003 suspects’ interests was ever represented during the investigation (other than by the judges themselves), and since neither of them was officially informed he was under investigation, or given an opportunity to respond to allegations, it is almost inconceivable that they could be indicted,” the report said. “It would constitute an egregious violation of their fair trial rights.”
OSJI said the lack of defense representation could have further consequences down the road if the suspects were ever prosecuted domestically.
“If ever convicted by a domestic court, they may be entitled to a reduction in sentence due to the violation of their fundamental rights by the ECCC,” OSJI said.
Nisha Valabhji, the acting head of the Defense Support Section, could not be reached for comment this week. However, she said earlier this year that DSS believed the five suspects were unconditionally entitled to legal representation.
Im Chaem, who was accused by prosecutors in 2009 of coordinating purges and executions in Democratic Kampuchea’s Northwest Zone, said she has still not been informed of the charges against her, despite the fact that investigators have now conducted multiple field interviews with witnesses to her alleged crimes. She also has no lawyer.
“Up until now, nobody [from the tribunal] has come to talk with me,” she said. “I did nothing wrong, so it means that they violate my rights, because I did not commit anything wrong but they accuse me.”
(Additional reporting by Neou Vannarin and Chhorn Chansy)