In its appeal against the decision, the Defence argued that the recordings were necessary for effective accused’s communication with counsel and trial preparation.
In this regard, the Defence referred to Article 14.3(b) of the ICCPR and the relevant provisions of the ECCC law guaranteeing the right to have adequate time and facilities for the preparation of the defence.
The Pre-Trial Chamber granted the appeal. The Chamber noted that a measure that facilitates the preparation of the defence may not be unduly restricted because an accused resides in the detention facility.
The Chamber took into account such factors as (i) the scale and complexity of the case, (ii) the particular translation and interpretive needs of the Defence team and difficulties in maintaining verbatim or even detailed records of meetings between the accused and his Defence team, and (iii) the fact that the counsel is providing instruction to his international co-lawyer residing abroad.
Consequently, the Chamber found that the use of audio/video recording equipment for the purpose of preparing the pre-trial defence constitutes a facility for the preparation of the defence. Likewise, the use of audio/video recording equipment is a facility for communication between the accused and counsel.
Nuon et al., Decision on Ieng Sary's Appeal against Co-Investigating Judges' Order Denying Request to Allow Audio/Video Recording of Meetings with Ieng Sary at the Detention Facility, Case No. 002-ECCC, PTC, 28 June 2010.
