ECCC Trial Chamber rejects Prosecution’s request for reconsideration of the severance Order

Today, the ECCC Trial Chamber has rejected Prosecution’s request for reconsideration of its severance Order (see previous post).

In its Decision, the Trial Chamber noted that in their request, the Co-Prosecutors place considerable reliance on ICTY Rule 73bis, deriving from it a mandatory obligation to seek the views of the Co-Prosecutors before decisions on severance are taken.

Pursuant to ICTY Rule 73bis, after having heard the Prosecutor, the Trial Chamber, may, inter alia invite the Prosecutor to reduce the number of counts charged in the indictment.

In this regard, the Chamber emphasised that the ICTY Rule evolved in the context of adversarial proceedings, where indictments are initiated and amended by the Prosecution.
A similar Rule, according to the Chamber, would be ill-suited to the ECCC, where proceedings are instead inquisitorial and whose indictments are judicially controlled.

Indeed, under Rule 67 of the ECCC Internal Rules, it is the Co-Investigating Judges who, upon conclusion of the investigation, indict a person and send him to trial.

The Chamber reiterated that the severance Order enables it to issue a first verdict limited to certain counts and factual allegations at an earlier stage, without the need to await a conclusion of the whole trial in relation to all portions of the indictment.

The Chamber also noted that, as no allegations or charges in the indictment are discontinued in consequence of the Severance Order, there is no need for the first trial to be reasonably representative of the totality of charges.

See also ECCC Co-Prosecutors seek reconsideration of the Severance Order.

ECCC Co-Prosecutors seek reconsideration of the Severance Order

Last month, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges in the indictment. (see previous post)

About a week ago, the Co-Prosecutors have requested the Chamber to reconsider the Order.

In the Co-Prosecutors’ view, more than one trial against the accused, as foreseen by the Order, is “highly unlikely” having regard, in particular, to the advanced age of the accused (86, 85, 80, and 79 years).

The Co-Prosecutors opine that the Order is not representative of the indictment.
Given the substantial risk that the accused will only stand trial once, the Order has the effect of excluding crimes that represent the core and most serious alleged criminal conduct in the indictment.

Accordingly, the Co-Prosecutors propose an alternative form of severance of the indictment which, in their view, is more representative of the core criminal allegations.

See also - ECCC Trial Chamber rejects Prosecution’s request for reconsideration of the severance Order;- The Chamber of the Cambodian Extraordinary Chambers ordered severance of the proceedings; and

- Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

The Chamber of the Cambodian Extraordinary Chambers ordered severance of the proceedings

In February 2011, the ECCC adopted new Rule 89 ter, which allows the Trial Chamber to severe the proceedings.
In particular, pursuant to the Rule, the Trial Chamber may order the separation of proceedings concerning part or the entirety of the charges contained in an indictment. The cases as separated shall be tried and adjudicated in such order as the Trial Chamber deems appropriate.

Last week, in accordance with this Rule, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges and relevant factual allegations described in the indictment.

The Chamber ordered that the number of witnesses to be called by the Chamber will be limited to those whose proposed testimony is required for the first trial.

It was emphasised that the separation of proceedings would enable the Chamber to issue a verdict following a shortened trial, safeguarding the fundamental interest of victims in achieving meaningful and timely justice, and the right of the accused to an expeditious trial.

Nuon et al., Severance Order pursuant to Internal Rule 89 ter, Case No. 002-ECCC, T. Ch., 22 September 2011.

See also Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

The ECCC is powerless to consider an alleged misconduct of a national judge

In the Nuon et al. case (Extraordinary Chambers in the Courts of Cambodia), the Defence sought the disqualification of the Trial Chamber's President on the basis of alleged misconduct during his tenure as the President of one of the Cambodian provincial courts.
The Defence alleged that prior to joining ECCC, the judge admitted that he had “accepted cash gratuities from grateful litigants.”

The Trial Chamber dismissed the motion and held that, where allegations concern the fitness of an individual to serve as a judge, the relevant mechanisms within the ECCC context are the domestic mechanisms designed to uphold standards of judicial integrity within the Cambodian judiciary.

Nuon et al., Decision on Ieng Sary's Application to Disqualify Judge Nil Nonn and Related Requests, Case No. 002-ECCC, T. Ch., 28 January 2011

ECCC: The Defence allowed recording its meetings with the client in custody

In the Nuon et al. case (ECCC), the Co-Investigating judges did not allow the Defence to conduct audio/video recordings of the meetings with the accused in the detention facility.

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.

Cambodia Tribunal: impartiality of expert

In the Nuon et al. case (ECCC), the Defence questioned the impartiality of an expert in their motion before the Co-Investigating judges.
In particular, the Defence referred to the fact that the expert worked in the same office where two senior members of the Office of the Co-Prosecutors of the ECCC previously worked.

In their decision, the judges had noted that, according to the ECCC Rules, requirements of impartiality do apply to any expert engaged by the investigating judges. However, according to the judges, the above fact does not constitute a sufficient reason to conclude that the expert is not able to be impartial in the proceedings before the ECCC.

Recently, in the Decision of 28 June, the Pre-Trial Chamber denied the Defence appeal and upheld the decision of the Co-Investigating Judges.

Nuon et al., Decision on Ieng Sary's Appeal against the Co-Investigating Judges' Order Denying his Request for Appointment of an Additional Expert to Re-Examine the Subject Matter of the Expert Report Submitted by Ms. Ewa Tabeau and Mr. They Kheam, Case No. 002-ECCC, PTC, 28 June 2010.

ECCC: Defence is prohibited from conducting own investigation

A few weeks ago, in the Nuon et al. case, the Co-Investigating Judges of the ECCC formally warned the Defence counsel that they are prohibited from conducting their own investigations and that any breach of the prohibition may result in the application of sanctions against them.

Indeed, unlike the ad hoc Tribunals, the investigation in the ECCC is conducted by the two independent Co-Investigating Judges and not by the parties. It was emphasized in the Order that “there is no provision which authorizes the parties to accomplish investigative action in place of the Co-Investigating Judges, as may be the case in other procedural systems.”
The Co-Investigating Judges noted that it "is apparent that the Defence seeks to base their investigation communication on their repudiation of the civil law process wherein the judicial investigation is conducted solely by the investigating judge".

Indeed, the format of the preliminary investigation affects the format of the trial. Where the parties do not conduct their own investigations, they have no case to present. There is no case for the Prosecution and no case for the Defence in the ECCC. Under the Internal Rules of the ECCC, it is the Chamber that controls the presentation of evidence. For instance, pursuant to Rule 91, the Chamber shall hear the witnesses and experts in the order it considers useful. The Co-Prosecutors and the Defence “shall be allowed to ask questions with the permission of the President.”