Hearing Debates Delay, Scope, of Case 002/02

On Tuesday November 11, 2014, the Extraordinary Chambers in the Courts of Cambodia held an adversarial hearing in advance of upcoming evidentiary hearings in Case 002/02. All parties were present with the exception of Nuon Chea, who chose not to participate in the hearing.

President Nil Nonn opened the proceedings by welcoming the parties and observers and outlining the agenda for the day, which would start with responses to the Khieu Samphan defense team’s submissions on the commencement of the trial 002/02 and then proceed with oral arguments on the scope of that trial.

President Nonn briefly addressed a letter submitted by the Nuon Chea defense team requesting that the trial chamber grant a right of audience to a new legal consultant, a procedural matter handled quickly with recognition of the consultant by the court.

President Nonn next turned to the first item on the agenda, concerning commencement of the trial in Case 002/02. The Khieu Samphan defense has argued that Case 002/01 should be completed entirely, including judgment, sentencing, and appeal phases, before Case 002/02 begins. Written submissions on this issue were filed by the Khieu Samphan defense on February 5, 2014. The Khieu Samphan defense argues that under the principles of res judicata and legal certainty, Case 002/01 must be settled before any further proceedings are held. Oral arguments by all parties concerning this point proceeded before the Trial Chamber in the following order: Co-Prosecutors, Civil Parties, Nuon Chea defense team, Khieu Samphan defense team reply to the other parties.

Deputy Co-Prosecutor Sen Bunkheang began his statement by greeting the court before outlining the prosecution’s position on the Khieu Samphan filings. While the Khieu Samphan defense has argued that the two phases of Case 002 are different legal proceedings, Mr. Bunkheang stated that this is a mistaken position. Similarly, the Khieu Samphan defense is incorrect in its claim that facts introduced in the evidentiary hearings of Case 002/01 cannot be introduced in Case 002/02 until a final judgment in the first case is rendered, the prosecutor said. The court is not bound by this narrow view of the requirements of res judicata and has found such a restrictive view incorrect in the past, Mr. Bunkheang said. Additionally, it has been repeatedly confirmed that the two phases of Case 002 are part of the same trial and are under the same closing order, he stated. Therefore, there is no need to be concerned with the issue of res judicata while a single trial is underway concerning the same parties, the prosecution concluded.

Prior evidence from 002/01 has been examined thoroughly and is available for the second phase, as was intended by the court in its prior rulings, the Co-Prosecutor stated. This is consistent with the practices of other international tribunals, he said, quoting from rulings in the Charles Taylor Case in the Special Courts for Sierra Leone to support his point. A delay is therefore not necessary and not in the interest of the court or the victims and is a waste of resources, Mr. Bunkheang concluded, before ceding the remainder of his time to Deputy Co-Prosecutor William Smith.

Mr. Smith began, after greeting the court and attendees, by stating that he sought to expand on the statements of his colleague and further rebut the arguments of the Khieu Samphan defense. He flatly asked the court to deny the request to stay the commencement of trial 002/02, stating that this would substantially delay the judicial process against both defendants for no legitimate reason. The second trial would not be any more fair or faster if this petition were granted, Mr. Smith argued; rather it would only serve to delay the case and reduce the chances of accountability. Mr. Smith pointed out that when relevant factors are taken into account, including the larger amount of evidence likely to be submitted in Case 002/02 and the length of time the appeals process took in Case 001, it is apparent that waiting to start the second phase would mean a wait until January 2016 at the earliest. The savings in time would therefore approach two years if the Khieu Samphan defense petition were denied, Mr. Smith estimated.

Secondly, Mr. Smith posited, the Khieu Samphan defense’s argument that Case 002/02 will be sped up significantly if the principles of res judicata or judicial notice of adjudicated facts can be applied to the evidence from the first phase does not reflect the reality of the application of these principles. Referring again to the Charles Taylor appeal decision mentioned by Mr. Bunkheang, Mr. Smith pointed out that applying these principles was not seen by that court as saving time and in fact may lead to longer proceedings.

Due to the fact that the court has already said that evidence from the first phase will be admitted into the second, the question of saving time is already settled, as this practice should save as much as a year, Mr. Smith stated. This practice is also fair, he argued, because the defense has already had the opportunity to challenge these documents and cross-examine the witnesses and because the right to challenge the evidence further in the second trial by calling additional witnesses has been preserved.

Further, Mr. Smith argued that the defense complaint on the issue of res judicata, namely that the trial court must wait for the Supreme Court Chamber to reach a final decision on first phase factual findings before it can proceed with the second phase, is not supported in law. Examining both the formal definition of res judicata and the way the concept is applied in Cambodian courts, Mr. Smith argues that ECCC law and the Cambodian procedural code do not speak on the manner in which the principle would apply in this instance and that there are scarce examples in international law of a similar situation, where the same accused are tried in two related proceedings for different crimes. The related principle of taking judicial notice of prior adjudicated facts has been considered by international courts, as it applies regularly to cases where different defendants are tried in cases sharing facts. In these examples, stated Mr. Smith, the practice of other international and internationalized courts is to use judicial notice as a discretionary trial management strategy. In this case, the court has already advanced a strategy that will advance this goal, Mr. Smith pointed out, and it is not obliged to incorporate redundant mechanisms.

With regard to the defense complaint that it is disadvantaged by not knowing how the Supreme Court Chamber will find on outstanding issues before arguing Case 002/02, Mr. Smith pointed out that all parties are similarly disadvantaged. The defense will have a second opportunity to challenge any real issues in the appeal to Case 002/02. In fact, there is no significant difference on this issue from a case where all crimes were charged at once, he said.

The defense request for a stay of proceedings is not supported by concrete examples or authorities because there are none, Mr. Smith argued. In fact, he said, in domestic systems where criminal cases are routinely severed it is common for co-defendants and additional charges to be tried separately and simultaneously. Any other practice would result in unnecessary and unjustifiable delays. The issues that the Khieu Samphan defense bring up are simply not supported and do not apply, stated the Deputy Co-Prosecutor. Mr. Smith went on to say that the Supreme Court Chamber order is specific and clear and that the submission of the Khieu Samphan defense lacks sufficient merit to justify ignoring the order. In conclusion, Mr. Smith said:

 It’s in everybody’s interest, the accused who are in custody, the donors who continue to pay more for the court each month if completion is delayed, and most of all the civil parties and victims who’ve been waiting for thirty years for justice, for the trial in Case 002/02 to begin as soon as possible. The Khieu Samphan motion to delay the start until the appeal judgment in Case 002/01 has no support in law and effectively would frustrate the very purpose for which this court was created, to deal with the most serious criminal charges known.

President Nil Nonn then called on the Counsel for the Civil Parties to present their arguments on the issue. Mr. Pich Ang, National Civil Party Lead Co-Lawyer began his statement by relating that his statement would be brief as he would allow his colleagues to use most of the time. The Civil Parties, Mr. Ang stated, do not feel that the submission by the Khieu Samphan defense is substantive enough to warrant a delay. Additionally, a delay would not be more efficient or faster and would not serve to additionally safeguard the rights of the defendants, in his view. A delay would, however, have an adverse impact on the interests of the Civil Parties who have been waiting for justice for a long time. Mr. Pich Ang then turned the floor over to Mr. Ven Pov, Civil Party Co-Lawyer.

On behalf of the Civil Parties, Mr. Pov objected to the submission of the Kheiu Samphan defense, stating that their arguments have no legal basis and are not provided for in the ECCC’s Internal Rules. Nowhere does it say in the Internal Rules that the separate phases must be tried subsequently, he argued.

These two phases are interrelated, they are part-and-parcel of Case 002, he said, and the defense team’s evocation of the principle of res judicata is mistaken, as this principle does not apply here. Delay inthe start of the evidentiary hearings will lead to a delay in rendering a verdict and this is against the interest of the civil parties who are interested in justice as soon as possible, argued Mr. Pov.

Mr. Pov went on to point out that the civil parties have been waiting as long as 35 years and that many of them, along with the defendants, are quite old now. It is necessary to commence 002/02 as soon as possible to allow justice to be seen by the civil parties. The accused are at an advanced age so starting the case as early as possible is very important.

As the international lawyer to the civil party had no additional statement to make, the Nuon Chea defense team saw their turn to debate the proposed delay.

Mr. Victor Koppe first pointed out that the court had stated previously that severance was a trial management tool only and was not intended to create two separate trials. Mr. Koppe disagrees with this view. Although both cases are under the same closing order, he acknowledged, they are two different trials – they have different bodies of evidence, different witnesses, are each limited in their scope, and have separate verdicts and sentencing, as well as appeals. Although this is the perspective of the Nuon Chea defense and they do appreciate that the Khieu Samphan defense wishes to delay the start of the second trial by advancing this argument, the Nuon Chea defense acts in the interest of its client in requesting that Case 02/002 begin as quickly as possible. Nuon Chea is anxious to tell his side of the story without constraints on the scope of the evidence. Therefore, the Nuon Chea defense asked that Case 002/02 begin as soon as is practical.

With Mr. Koppe finishing his statements, Mr. Son Arun took over speaking on behalf of his client. Stating first that he joins in the arguments of his co-counsel, Mr. Arun continued that, although they have consistently been against the decision to sever Case 002, and feel that doing so has slowed down the trial, they have to work within the existing format in the interest of their client. The health condition and age of the accused are an issue and in order for them to participate fully, the trials must continue forward as rapidly as possible. For these reasons, the Nuon Chea defense team does not agree with the perspective of the Khieu Samphan defense and is not in favor of any delay.

Immediately after Sun Arun stopped speaking, Mr. Arthur Vercken stood and greeted the court, ready to argue on behalf of Khieu Samphan in favor of a delay in the start of Case 002/02. He had barely commenced speaking when he met a delay himself as a technical issue cut off his speech. After five minutes and a second false start, the issue was  resolved.

Mr. Vercken first stated that, since he had received no written responses to his request to delay the start of Case 002/02, he was hearing the perspectives and arguments of the other parties on the issue for the first time. This, he said, may provide an explanation if his response is found to be somewhat disjointed.

He first addressed the desire of the Nuon Chea team to begin the second phase of Case 002 as soon as possible. Mr. Vercken stated that, although he understands Nuon Chea’s medical reasons for wanting to proceed, Khieu Samphan has has no such issues and is currently in good health. These considerations of Nuon Chea’s defense team simply do not apply to Khieu Samphan, he reiterated, and this has been stated previously at the time of the severance order and at other points in the proceedings. Khieu Samphan’s interest is primarily in preserving his rights and he wishes to be tried in accordance with the proper principles of law, however long this takes, stated Mr. Vercken.

Mr. Vercken then recalled that the prosecution started by arguing that the two trials in Case 002 were part of the same proceeding. In response to this perspective, he demanded to know just what kind of severance is being discussed? “Does the severance not result in separate trials?” he asked. Referring to the Supreme Court Chamber’s decision of 25 Nov. 2013, Mr. Vercken read an excerpt that he claimed illustrates that the severance created a separate trial limiting the facts of the closing order which would be included and requiring a separate finding of guilt and separate sentence for each trial. These are duly conducted trials and must then be treated as separate trials under principles of the law, he argued. The importance of this issue has been forgotten by the Co-Prosecutors and the Civil Parties, Mr. Vercken claimed as he referred to prior statements and arguments of the Co-Prosecutors and Civil Parties in attempting to illustrate inconsistency on this point. He argued that previously the prosecution seemed to be in favor of completing the first phase before beginning the second.

Mr. Vercken went on to say that he expected that the prosecution would have made an attempt to explain these inconsistencies in their arguments today but they did not. This is hard for Mr. Vercken to understand but, he says, he does understand that the real issue faced in this trial is the prior assertion by the Trial Chamber that the first trial should serve as a foundation for any subsequent trial. The question Mr. Vercken wants answered is how the first trial can be used as a foundation when there is no finality. There is nothing settled, nothing that can be considered as res judicata, stated Mr. Vercken. This creates all kinds of risks, he argued, and biases. Mr. Vercken reiterated his point by saying that, regardless of time management and financial considerations, the prior rulings expressed that Case 002/01 should provide a foundation and must be seen through to finality if it is to provide this.

Returning to the prior positions of the prosecution and the civil parties, Mr. Vercken then argued that another serious conflict exists that supports a Case 002/02 delay. The defense teams still do not know what issues were decided in the first trial and therefore cannot provide an adequate defense, he said. The question as to whether the prosecution’s joint criminal enterprise theory holds, or its argument that there was a systematic and wide-spread attack is accepted, has not been answered and puts the defense at an egregious disadvantage, with no certainty to the scope of the second trial, in his view. This goes back to the issue of the first trial providing a foundation and the lack of definition there, argued Mr. Vercken. Proceeding with the second trial would therefore be a violation of basic principles of a fair trial. The prosecution’s shifting positions and arguments on peripheral issues such as timely justice, financial issues, etc., are allowed to override the fundamental rights of the defendants, Mr. Vercken lamented. Lack of certainty in the scope of the second or third trial leads to going in circles and stumbling over the same errors, he said. Delaying Case 002/02 is not a perfect solution but it is the only sincere solution, Mr. Vercken exclaimed.

For a foundation to be established, the issues must be settled, Mr. Vercken stated. The solution provided by the co-prosecutors and recently accepted by the court, namely to allow evidence from Case 002/01, is an objectionable way to avoid the difficulties that expediting Case 002/02 produces, he argued. This is a convenient solution but avoids the necessary attention to the principle of res judicata. While this purports to move the trial ahead, it in fact is a step backward Mr. Vercken offered. He stated that the only reasonable solution, although not perfect, is to wait.

The defense is at a disadvantage, Mr. Vercken stated, if it is forced to proceed without knowing whether the court has accepted the prosecution’s augment that, based merely on two instances of population movement and one execution site, joint criminal enterprise and a widespread and systematic attack both were present under the Khmer Rouge.

As Mr. Vercken wrapped up his advocacy, Judge Jean-Mark Lavergne had a question for the Khieu Samphan defense. He asked how the defense managed to reconcile the Supreme Court Chamber language it presented to bolster its arguments for delay against clear indications that the Supreme Court Chamber has encouraged the Trial Chamber to begin the next phase as soon as possible?

Mr. Vercken wasted no time in replying. He stated that looking at earlier sections of the Supreme Court Chamber decision that considered contextual issues, the Supreme Court Chamber seems to indicate that it believes there are issues that must be settled before certain charges that were not included in Case 002/01 can be considered. While the second trial must begin as soon as possible, it cannot start so soon as to violate the basic principles of the law, Mr. Vercken interprets the Supreme Court Chamber to mean.

President Nonn then called for a brief adjournment.

After the break, the court took up the issue of the scope of Case 002/02, referring to submissions of all parties on 31 Jan. 2014. President Nonn briefly summarized the submissions as follows.

The Prosecutors asked that the scope of Case 02/002 include:

• The S-21 Security Center;
• The treatment of the Vietnamese;
• The treatment of the Cham;
• The Tram Kok Cooperatives and Kraing Ta Chan Security Center;
• Treatment of Buddhists and forced marriage;
• The 1st January Dam Work Site;
• The Kampong Chhnang Airport Construction Site;
• Au Kanseng Security Center;
• The Phnom Kraol Security Center.

The Lead Co-Lawyers agreed with these inclusions but also asked to include:

• The Trapeang Thrna Dam Work Site;
• North Zone Security Center;
• The Koh Kyang Security Center;
• Forced Transfer Phase 3;
• Charges of forced marriage;
• Factual allegations about the treatment of Buddhists on a nationwide basis.

Nuon Chea’s defense team stated that its client’s interest is to have a full opportunity to produce exculpatory evidence in support of his defense. They propose inclusion of:

• The Trapeang Thrna Dam Work Site;
• Either the Wat Kirirum Security Center or Wat Tlork Security Center;
• Alleged policy of internal purges;
• Alleged third phase population movement.

The Khieu Samphan defense team requests that Case 002/02 cover all of the charges in the Closing Order that were not included in Case 002/01.

Oral arguments from each of the parties then followed. President Nonn indicated that arguments should focus on responses to other parties’ written submissions rather than reiterating written submissions.

The defense team for Nuon Chea was first to respond. Victor Koppe stated that their team has no substantive position on the scope of Case 002/02 but wishes to ensure their client is able to defend himself against the charges he does face. This involves the ability to put forward exculpatory evidence in support of the Nuon Chea defense. A focus on “the body of the crocodile” rather than its “head and tail” will not allow for such a defense, Mr. Koppe explained. For Nuon Chea, a defense must tell a story that goes beyond formal crime sites and, Mr. Koppe explains, illustrate the larger forces at play and who was responsible for them. Mr. Koppe relates that it is imperative that Nuon Chea be allowed time to establish two important facts: First, that there was a legitimate, serious, and ongoing security threat to the CPK during the entire period in question. Second, that the CPK was not a unified entity but an association of competing factions.

These facts are related, Mr. Koppe explained, but don’t apply simply to any one-crime site. The Nuon Chea defense therefore wants to introduce a wide range of evidence that establishes these facts in a broader scope, an opportunity that has not previously been honored, they argue. Mr. Koppe states that if the permissible evidence is narrowed, the Nuon Chea defense must then insist that the crime sites most closely linked to this defense are included in the scope of Case 002/02. These are primarily crime sites in the Eastern and Northwest zones, as included in the submission of the team.

Concerning S-21, the Nuon Chea defense has serious doubts that the court can impartially judge issues concerning this crime site considering its prior judgments in Case 001 and upcoming decision in Case 002/01, stated Koppe. There are numerous findings in Case 001 that the Nuon Chea defense intends to argue are not true, Mr. Koppe related, before providing examples regarding facts about the number of detainees and executions at S-21, the illegality of all detentions at S-21, and similar issues of criminality the Nuon Chea defense will attempt to challenge. These are questions, Mr. Koppe stated, that deserve much more analysis that they were given in Case 001. The decision in that case is what causes concerns about the impartiality of the Trial Chamber on the issue of S-21 among other matters. When considering the adjudication of Case 002-01, the Nuon Chea defense is concerned that findings by the Trial Chamber in that case will eliminate the possibility of any defense for many proposed subjects in the scope of Case 002-01.

Mr. Kong Sam Onn, Co-Lawyer for Khieu Samphan was next to respond. He began by stating that, to date, there has not been an agreement among the parties as to scope, Kong Sam Onn stated that ongoing differences in opinion on this issue will cause delays, particularly because there has been no finality in the questions raised in Case 002/01. The complications that the severance has caused in this way disadvantages the defendants, Kong Sam Onn argued. The defense attorney then went on to lament the influence of funding shortage on the decisions of the court. Returning to substantive issues, the Khieu Samphan defense asked that all remaining charges and facts be included in Case 002/02, allowing for the complete introduction and exploration of issues and facts that are necessary for the Khieu Samphan defense.

Mr. Vercken returned to his feet to expound on the arguments of his colleague regarding the attempt of the prosecution to address the issue of representativeness. The inclination of the court to this approach is problematic, the Khieu Samphan defense argued. It is unnecessary and all remaining charges should be included in Case 002/02. Mr. Vercken then returned to the issue of his client’s health in this regard, stating that he was well enough to endure a complete adjudication of all charges. Mr. Vercken concluded that trying the charges that remain in the indictment is preferable to further severance in the case and in the interest of a timely conclusion of the trials of the accused.

President Nonn then called for the lunch adjournment.

After lunch the Civil Party Co-Lawyers had their opportunity to discuss the scope of Case 002/02. Ms. Beini Ye began the response of the civil parties. First addressing the submission of the Khieu Samphan defense, she stated that the civil parties could not support the request to include all remaining charges in Case 002/02, the equivalent of disallowing any further severance of the case, as this would lessen the ability of the Trial Chamber to balance legitimate interests of the parties. The major interests of the civil parties, Mr. Ye related, are the adjudication of all crimes included in the Closing Order but also the timely rendering of judgments on charged crimes. In balance, severance would allow for all crimes to eventually be adjudicated while providing a relatively prompt decision on a representative selection of these charges.

Turning to the Nuon Chea Defense’s submission, Ms. Ye addressed their request for broad admission of evidence beyond the Closing Order and their argument that S-21 is not representative of Case 002. The question on admission of evidence beyond the Closing Order is not relevant to the question of scope, Ms. Ye argued. Because ECCC’s Internal Rules require a case-by-case examination of the relevance of evidence, she explained, any broad admission of evidence is not an option. On the representativeness of S-21, the civil parties point out that the Supreme Court Chamber had instructed that S-21 be included in the next phase.

The co-prosecutors then proceeded with their view on the issue of scope. Mr. Nicholas Koumjian first pointed out that all parties agree that these cases cannot go on forever and that it is important to have a plan for conclusion. Mr. Koumijan went on to argue that all remaining charges can be addressed in a timely fashion by reducing the number of crime sites that are dealt with in the upcoming trial. Referring to submissions by the prosecution that outline the witnesses it would call over approximately 100 court days, Mr. Koumjian sought to explain how the ECCC could reach this goal in a fairly short trial. The clarification of the Trial Chamber that evidence from 002/01 would be included as a foundation for 002/02 is extremely helpful in moving toward this goal, he stated. Most of the evidence that takes the longest to introduce has already been brought before the court, Mr. Koumijan pointed out. Addressing the issue raised by the Nuon Chea defense, that the existence of some crimes has already been established and has created a biased Court, Mr. Koumijan said that findings based in fact are not bias. The defense has the responsibility to defend their clients on the issues that have not yet been decided and Mr. Koumijan stated his certainty that they will do so vigorously. Mr. Koumijan then pointed to a prior decision by the ECCC that international law does not disqualify judges from hearing subsequent cases involving some of the same facts, citing cases from other tribunals that support this assertion.

Turning to the issue of how to address all of the reaming charges by including a limited number of crime sites, Mr. Koumijan provided a number of examples of how the ECCC has adapted normal civil law procedure to accommodate the vast number of crimes alleged in its cases. The inclusion of civil parties is one example, Mr. Koumijan explained, and so is limitation of the scope of the case in a way that ensures justice is served.

Pointing out a number of potential legal challenges upcoming, Mr. Koumijan argued that the Trial Chamber should start evidentiary hearings as soon as possible in order not to loose momentum in this matter, and argued that momentum has proven to be incredibly important in other international tribunals. Summing up, Mr. Koumijan stated, “We think it’s important to start that ball rolling, as difficult as the job is. It is easier to move an object in motion than an object that’s static.” Finally, he posited that the prosecution believes that Case 002/02 can be finished in 1-1.5 years.

President Nonn closed the day by outlining the upcoming steps that must be completed before the evidentiary hearings in Case 002/02 can commence. He recalled that the Trial Chamber has disposed of the co-prosecutors’ request regarding the use of evidence from Case 002/01 in the next phase as of 7 February 2014.  In considering that request, the Trial Chamber clarified that the upcoming phase is a continuation of the proceedings in Case 002/01 and the evidence from the first phase was subject to scrutiny from all parties during that phase, in keeping with Internal Rule 87. Therefore the case file will remain the same for both phases and the evidence already introduced will serve as a foundation for Case 002/02, explained President Nonn. In instances where a party wishes to re-call witnesses, the civil parties, and experts from the first phase, the court will consider allowing this when the opportunity to examine these witnesses was curtailed by the limited scope of the first phase, he said.

The Trial Chamber, having now received written and oral submissions on the scope of Case 002/02, will issue a decision on scope as soon as possible, said President Nonn. The Chamber will also make a decision on Khieu Samphan’s request to delay the commencement of evidentiary hearings in the new phase until a final judgment in Case 002/01 has been reached. Also, said President Nonn, the Trial Chamber has received written submissions from the parties on the status of the health of the accused and will soon issue a decision as to whether further health assessments are needed.

After addressing these issues, the parties will be invited to submit their witness lists and evidentiary documents, said President Nonn. An initial hearing will then be scheduled, as indicated in the work plan of December 2013. With that, President Nonn brought the day’s proceedings to a close by thanking everyone present.