Legal Commentary: Case 004 Suspect Denied Case File Access
The international Co-Investigating Judge (ICIJ), acting alone, has rejected the right of suspects in Cases 003 and 004 to access the case files and take part in the last judicial investigations at the Extraordinary Chambers in the Courts of Cambodia (ECCC). Cases 003 and 004 have been under judicial investigation since September 2009 through the tenure of four different ICIJs and successive revelations of judicial and administrative obstruction of their progress. Although no one has been formally named or charged in either case, the names of the five elderly suspects (one of whom died in June) and the general nature of the allegations have been publicly known since mid-2011 and the suspects have been repeatedly sought out and interviewed by national and international media.
Beginning in 2010, the ECCC’s Defense Support Section (DSS) made several attempts to provide the suspects with legal representation, including access to the case file, arguing in part that “[c]ontinuation of these proceedings without the participation of the Defence would breach various aspects of the right to a fair trial, including the right to equality of arms, effective representation and the adversarial nature of proceedings enshrined[.]” [1] Both the CIJs and the Pre-Trial Chamber rejected these requests, ruling that enumerated defense rights are available only once a suspect is brought before a judge or is charged. Nevertheless, incumbent ICIJ Mark Harmon recently determined that, because his predecessor—reserve international CIJ (RICIJ) Kasper-Ansermet—informed a Case 004 suspect of his “suspect” status and told him that he had a right to a lawyer, he was entitled to the defense rights embodied in ECCC Internal Rule 21(1)(d), [2] including to Court-funded counsel. Judge Harmon therefore formally recognized the suspect’s international and national co-defense counsel; however, he did not grant them access to the case file.
Noting that ICIJ Harmon previously granted recognized Case 004 civil party lawyers access to the case file, the suspect’s lawyers assert that they require access to preserve equality of arms between the parties. Moreover, they note that despite the continuing confidentiality of the investigation, the name of the suspect and the Co-Prosecutors’ charges against him have been discussed in the press, and they need to know the specific allegations so they can defend his rights. They further request the right “to be confronted with all witnesses interviewed by the CIJs and to be allowed to submit questions to them, through the CIJs.” [3]
In a July decision publicly released last week, Judge Harmon responded that, unlike recognized civil parties, “[t]he Internal Rules clearly distinguish between a Suspect and a Charged Person and grant the latter a broader set of rights.” He found that the Internal Rules reserve access to the case file for parties to the proceedings, a category that does not include suspects. Likewise, under the Rules, only parties may take part in the judicial investigation. He found this to be supported by international jurisprudence, which “confirms that the fundamental nature of the right to access the case file is recognized with regard to individuals against whom charges exist[.]” [4]
Under the ECCC Internal Rules, “the CIJs have a discretionary power to charge any suspect named in the [Co-Prosecutors’] Introductory Submission, or other persons against whom there is ‘clear and consistent evidence.’” According to the ICIJ, the charging process includes both this assessment of criminal responsibility and also the act of notifying the suspect of the facts and legal characterization of the criminal acts under investigation. For this reason, the mere fact that the RICIJ informed the suspect of the Co-Prosecutors’ allegations does not make him a “charged person” or give him a right to access the case file. Although the RICIJ specifically granted him case file access, “this was in violation of the Internal Rules” since the suspect had not yet been formally charged, and “constitute[ed] an abuse of judicial discretion” because it was made without supporting reasoning. One year into his own investigation, Judge Harmon “has not yet determined that this [clear and consistent evidence] threshold has been met.” He therefore vacated the RICIJ’s order insofar as it granted the suspect case-file access. [5]
Judge Harmon then considered whether any other factors exist that warrant access to the case file, including whether the suspect has been “substantially affected” by the investigation. He noted European Court of Human Rights and Special Tribunal for Lebanon jurisprudence indicating that when someone has been detained “even in the absence of formal charges” he or she should be granted case file access in order to challenge the lawfulness of detention, and determined that merely receiving notification that one is under investigation for mass crimes is not of comparable quality. [6]
Addressing for the first time the affect of the media attention directed toward the suspect and the charges against him before he was informed of his right to counsel or to silence, Judge Harmon found that “media attention is not a determinative factor” and does not “carr[y] the same weight or require[] the same remedy” as when someone has been detained. He ruled that the Case 004 suspect’s current representation by counsel, awareness of the charges against him, and awareness of his right to silence, are “a sufficient guarantee of his rights and fully respects international standards of fairness.” [7] He therefore found no justification to depart from the requirements of the Internal Rules.