Trial Management Meeting Hears Facts Challenging Defence Justification of Boycott
Khieu Samphan claims that he has no choice but to boycott the trial proceedings because he has not been provided with sufficient resources to prepare contemporaneously his appeal on the trial judgment in Case 002/01 and his defence in the ongoing trial in Case 002/02. Today, the President of the Trial Chamber, exposed Khieu Samphan’s bluff. Although the trial management meeting was held in camera, Mr. Nil Nonn arranged for the release of the video segment covering the discussion about both the level of resources at the ECCC’s disposal and the level of resources that the ECCC has provided to the defence teams of both Khieu Samphan and Nuon Chea.
The focus of the questioning related to Khieu Samphan, in particular, as Nuon Chea has not raised lack of resources as a justification for his participation in the boycott.
His Excellency Kranh Tony, Acting Director of the Office of Administration, quickly disposed of the President’s questions as to the general level of resources available with the information that there are sufficient resources to respond to the demands of all the various parties. He then called on Mr. Knut Rosandhaug, Deputy Director of the Office of the Administration, to respond to Mr. Nil Nonn’s query concerning why Khieu Samphan has made allegations about shortages in resources and Nuon Nonn has not.
Mr. Rosandhaug stated that there has been no downscaling of resources and, cogently, that there has been “no specific, tangible request from any of the teams to increase resources.” He clarified that an application was made to the Trial Chamber in October, 2014, “to increase resources not to the defence team but for the ITU,” (the Interpretation and Translation Unit). Mr. Rosandhaug said that the Trial Chamber had responded to this entreaty, issuing a memorandum that ensured the necessary resources were given to the ITU. He elaborated that more personnel were being repositioned or taken on, and that the ITU was expanding its capacity.
Mr. Rosandhaug said the only other request for more resources was also made in October, 2014, but was “still pending because of the justification that was made namely to increase not the team’s available human resources but the pay of the individuals already on the team…for each to receive more money because they are working more.” He wants to see if (referring to the appeal and the trial in parallel), double the amount of work is being done before he addresses the request.
In regards to the President’s final question on priority of translations, the Deputy Director explained that the translations for Khieu Samphan’s defence team “were done in a chronological order, ‘first in, first out’, unless they were specifically prioritized ad hoc.”
Mr. Rosandhaug confirmed (and it was further confirmed by the ITU unit) to Judge Fenz that neither Nuon Chea nor his defence team has asked for further resources from the administration.
Judge Lavergne turned the discussion towards composition of personnel. Mr. Isaac Endeley, Chief of the Defence Support Section, described each team’s makeup beginning with one Cambodian co-lawyer and one international co-lawyer. He explained that the lawyer positions could be job shared but the monetary allocation was for a maximum of one position for each classification in total. Each team was also entitled, on a separate budget line, to a case manager and, on another budget line, for $210,000 for support staff, legal consultant, experts, and evidence analysts. Translators are not part of the team but work in a pool. When the work comes in, it is assigned on the basis of language combination to either in-house staff, or, if necessary, out sourced to translation agencies or freelance interpreters or translators. Travel budgets for lawyers are in a separate, single budget which covers all of the lawyers.
Judge Lavergne expressed concern about how quickly in house translating could be done to ensure the defence teams could get on with their work. He wondered what other services were provided to each of the teams, and, specifically to the Khieu Samphan team, aside from the translations.
Mr. Endeley said there is no “particular service” provided to the teams or, on point, to the Khieu Samphan team. He described how it is up to the defence teams to note when they submit a job for translation if there is a priority for it and to designate the order of translations. A rough “courtesy copy” is given to the team as soon as possible so they can work on it, followed by the revised edition, in due course. Mr. Endeley confirmed Judge Lavergne’s understanding that both the Khieu Samphan team and the Nuon Chea team were treated equally with the same budgets and the same use of resources.
Mr. Endeley was not able to answer Judge Lavergne’s inquiry as to how many days Khieu Samphan’s lawyers had spent in Phnom Penh since the verdict was issued in August, 2014. He did explain, though, that the lawyers’ contracts do not require them to be permanent residents of Phnom Penh but just to be in attendance at the hearings (which they have been). To the judge’s satisfaction, Mr. Endeley detailed the assessed work programme used for monitoring the lawyers’ work output. All the lawyers on the Khieu Samphan defence team have been working full time since the verdict was rendered.
Judge Fenz had three supplementary questions. Firstly, she wanted to know if the lawyers were paid on a full-time basis when the judgment was being written. Mr. Endeley answered affirmatively. Next Judge Fenz asked for Mr. Endeley’s opinion as to why Khieu Samphan had complaints about lack of resources and Nuon Chea did not. Mr. Endeley answered that Khieu Samphan’s lawyers did not “wilfully boycott the proceedings,” and reiterated Khieu Samphan’s instructions to his lawyers to boycott the meeting under the current circumstances and that Khieu Samphan felt that he had no choice but to order them to do so.
Judge Fenz challenged Mr. Endeley’s recitation and asked him “to put it on record, wouldn’t you agree that the limits of obedience of a lawyer when it comes to what his client asks him to do is the law?” Mr. Endeley countered that “the law differs from one jurisdiction to another. In some of the jurisdictions of the co-lawyers the obligations to follow the instructions of the client might be different.”
Mr. Rosandhaug was asked by Judge Fenz if there was still the possibility of having a translator implanted on a specific team. He outlined how, yes, “the offer still stands,” but the one time it had been tried it had not worked out for a variety of reasons including overwork of the translator, the translator being required to work with multiple languages instead of on the usually source-to-target language basis, and the translator having to do non-translation work such as checking footnotes. Mr. Rosandhaug added that neither the Khieu Samphan team nor the Nuon Chea team had ever asked for a dedicated translator.
Representatives of both the Office of the Co-Prosecutors and the Office of the Head Co-Lawyer for Civil Parties were asked if they had any questions for the administrative branch but they deferred to Judge Lavergne who wanted to know if the detention facilities had impaired the ability of clients and counsel to communicate. Neither the Deputy Director of the Office of Administration or the Director of the Department of Special Services had received any such complaints. Mr. Rosanghaug continued by saying access, even when the accused were in hospital, was possible if a simple procedure was followed. He qualified this saying that the “medical condition of the client overrides whatever the needs of the defence are so, ‘at the end of the day,’ it’s a doctor’s call,’” and that there have been such occasions where access was refused temporarily on this basis.
Judge Fenz returned the discussion to the lawyers and the mechanics of their payment. Mr. Endeley detailed that the support staff (defined as the consultants, evidence analyst and other experts on the defence teams) are paid monthly salaries. The lawyers get paid by the hour, up to a maximum of 150 hours a month. The system is the same for both national and international lawyers although the rates are different. And each lawyer is hired to represent an individual, one of the accused, so cases 002 /01 and 002/02 are treated as one case for administrative purposes.
Forward thinking, Judge Fenz asked two more questions. (a) Were there lists of international counsel available for recruitment?( Mr. Endeley said he was required to maintain such lists of both national and international lawyers, that it took about six months to recruit a lawyer internationally but only about six weeks to fill a national position). And, (b) is there sufficient room in the budget to provide for two sets of lawyers to run the parallel trial and appeal preparation. Mr. Rosandhaug cited that in another case, they had already done so and if so directed “would implement that direction” again.
The final question was left to Judge Lavergne whose inquiry resonates with an ongoing controversy about the very existence of the court: He asked how much was the budget for one defence team per year? Answer: overall budget for 2014 was $600,000 per year per accused.
Broadcasting the video and airing the facts and mechanisms of the trial administration allows the public insight into the veracity of Khieu Samphan’s justification for boycotting the judicial proceedings. Has Khieu Samphan, or has he not, been provided with sufficient resources?
The Trial Chamber has not released the conclusions reached in the trial management meeting.