Legal Commentary: Supreme Court Chamber Rejects Defense Application for Immediate Release but Lays Groundwork for Future Challenges

The Supreme Court Chamber has rejected accused Khieu Samphan’s request for immediate release on bail in advance of Case 002/01 closing arguments, but emphasized that if his next trial is not promptly commenced, he has a valid argument for release prior to the issuance of the first Case 002 judgment by the Extraordinary Chambers in the Courts of Cambodia.

As of November 2013, Khieu Samphan will have been in detention for six years—four of which were pre-trial. After the Trial Chamber’s decision to sever the Case 002 indictment for the purpose of holding a series of shorter trials was overturned and the scope of the first trial became uncertain, Khieu Samphan requested immediate release, arguing that the slow pace of proceedings thus far, combined with uncertainty about if and when all charges in the indictment would be tried, made the prospect of a timely final judgment uncertain. The defense emphasized that Khieu Samphan had never attempted to flee despite knowing that he was a suspect, and had no intention of trying to flee now due to his advanced age, lack of a passport, lack of assets, and strong attachment to his family. In conformity with the presumption of innocence “and the fundamental principle that freedom is the rule and detention the exception,” it requested that he be released on bail to live with his family until judgment, subject to concrete judicial supervision measures. [1]

After issuing its second severance decision reinstating the limited scope of charges in Case 002/01, the Trial Chamber denied Khieu Samphan’s request, saying that its “primary consideration” was the risk that he might flee prior to judgment. It noted that evidentiary hearings in the first trial were entering their final stages and “nonappearance of the Accused (whether intentionally or otherwise) risks delay to the expeditious completion of Case 002/01 and further trials[,]” especially as his desire to abscond may increase as the prospect of conviction and a lengthy prison sentence become imminent. [2]

On appeal, the Supreme Court Chamber (SCC) found legal error in the Trial Chamber’s assessment of the necessity for continued detention. It recalled that, “consistent with international standards, the law controlling detention before the ECCC is based on the presumption in favour of liberty, the requirement of legality, and the prohibition of arbitrariness.” For this reason, although the Court’s rules establish a rebuttable presumption that the conditions justifying detention continue to apply once a case goes to trial, the Trial Chamber was required to examine and set forth “all facts” justifying a departure from the presumption of release after a “critical assessment” of the need for detention. Instead of providing sufficient reasoning grounded “upon the specific circumstances of the case at hand,” the Trial Chamber erred by focusing on Khieu Samphan’s “general risk of flight” due to the potential for a lengthy prison sentence. [3]

Nevertheless, the SCC agreed that Khieu Samphan may have a greater incentive to abscond at this stage, because after numerous delays and uncertainties the proceedings are finally drawing to a close, whereas he may have previously assumed they would not conclude within his lifetime. Moreover, the accused’s assurances of respect for the proceedings had been undercut by his recent challenges to their legitimacy and refusal to take the stand or answer questions. “[T]his clear rejection of the ECCC does not elicit confidence that KHIEU Samphan would willingly comply with a summons to return to court if he were to be released.” Combined, these factors justified his continued detention based on the risk that he may become unavailable. [4]

Significantly, the SCC said this conclusion would remain valid only so long as “the need to guarantee KHIEU Samphan’s presence at trial persists in order to ensure the expeditious conduct of proceedings”—that is, only while closing submissions are being prepared for Case 002/01. The need to ensure his presence may “diminish, if not extinguish” during the drafting of the Case 002/01 judgment. Such a period of Court inactivity, combined with any “unjustified delay” in the commencement of the next Case 002 trial, “could constitute grounds for replacing detention with less stringent measures such as judicial separation.” [5]

The SCC also rejected the defense contention that the length of Khieu Samphan’s detention thus far had been unjustified, agreeing with the Trial Chamber that there had been no lack of diligence in pursuing the case and that the determination of acceptable detention length was appropriately made by comparison to similarly complex multi-accused cases before international courts. [6]

Looking ahead, however, the SCC agreed there was a lack of “judicial predictability and certainty about the duration of the trial in Case 002 as a whole” because of the Trial Chamber’s failure to develop “a tangible plan” for adjudicating the remaining charges in the indictment. As a consequence, there has been “a de facto stay of proceedings in relation to all charges placed outside the scope of Case 002/01, and … such a stay does not carry a sufficiently tangible promise of resumption as to permit arriving at a judgment on the merits.” The “persistence” of this situation makes the accused’s detention on the basis of the remaining charges “increasingly unjustified.” [7]

The SCC noted jurisprudence of the European Court of Human Rights finding that the complexity of a case justifies continued detention only if the authorities have demonstrated “special diligence” in the conduct of proceedings, including if required resources have been provided for this purpose. To ensure that hearings in Case 002/02 can begin as soon as possible after closing submissions in Case 002/01:

Khieu Samphan’s provisional detention therefore remains justified, but only for the moment. The SCC ruling provides both a roadmap for the accused to challenge his detention after Case 002/01 closing arguments [9] and also a strong motivation for the Court to swiftly resolve the open question of how to proceed with the remaining Case 002 charges.