Procedural Decision Opens a Can of Worms

by Laura MacDonald, Member of the New York Bar and Consultant to the Center for International Human Rights, Northwestern University School of Law
— 20 May, 2009

The Trial Chamber for Kaing Guek Eav (Duch) convened later than usual this morning only to announce that a decision had not yet been reached regarding co-prosecutor Alex Bates’ request for guidance on the implementation of Internal Rule 87.3, which in relevant part reads, “Evidence from the case file is considered put before the Chamber if its contents has been summarised or read out in court.” Given that Bates wished to put before the Chamber 148 documents cited in Dr. Craig Etcheson’s expert report on Democratic Kampuchea, Bates requested permission yesterday to list the documents individually in index form and to summarize the documents by type in the interest of time. Citing the complexity of the issue and the need for serious discussion, the Chamber adjourned.

Hours later, President Nonn effectively denied Bates’ request. He explained that Internal Rule 87 is fundamental to a fair trial and as such only documents read in full or summarized would be considered “put before the Chamber.” Further, only portions of documents or books specifically summarized would be considered. In light of this ruling, Judge Cartwright asked Dr. Etcheson to summarize all portions of his expert report that had not yet been covered.

The President then turned over the floor to Bates to question Dr. Etcheson. Before Bates could speak a word, defense counsel Francois Roux was on his feet pleading that Bates be instructed to focus his questions on disputed areas given that Duch had accepted most facts. Roux suggested that the co-prosecutors cover three or four documents related to disputed facts in the interest of time. Judge Cartwright asserted that the expert could illuminate even those facts already agreed upon. Roux responded that Dr. Etcheson, given his work in the ECCC Office of Co-Prosecutors, was a voice of the prosecution and not really an expert in the traditional sense. Judge Cartwright insisted it is not the judges’ role to tell any party which documents to put before the Chamber and reminded Roux he could object to individual documents for appropriate reasons…

Read more: ctm_blog_5-20-2009

Cambodia Tribunal Monitor’s Trial Observer posts are written according to the personal observations and opinions of the writer and do not constitute a transcript of ECCC proceedings or the views of Cambodia Tribunal Monitor and/or its partners. Official court transcripts for the ECCC’s hearings may be accessed at the ECCC website.