Trial Management Meeting Footage Details Points of Contention
The Trial Chamber has made public the video recording of its October 28, 2014, trial management meeting. Pursuant to both the rules governing such discussions and pressure from parties to the proceedings, the President of the Trial Chamber released sections of the meeting discussing the adequacy of resources provided to the Khieu Samphan and Nuon Chea defence teams, the canvassing of defence counsel to determine under what circumstances they would participate again in the hearings on Case 002/02, and the Co-Prosecutors’ application to have appointed amici curiae counsel to ensure both the fairness and progress of the trial.
The morning began with the Mr. Nil Nonn, president of the Trial Chamber, appointing Reserve Justice Thou Mony to replace the absent Justice Yu Ottara.
The attendance report to the Chamber was notable in that Nuon Chea was not present, although Khieu Samphan was.
Defence Tells Trial Chamber “No Compromise”
President Nil Nonn then recapped the prior trial management meeting of October 21, 2014. He briefly reviewed that that proceeding was called to discuss sufficiency of court resources provided to the defence in response to Khieu Samphan defence team submissions regarding those resources, and to discuss the legal ramifications of new disclosures made by a Co-Prosecutor. The president noted that both defence teams and their clients failed to attend as “invited.” Their further failure to provide “any valid justification” for their absence provoked the Trial Chamber to issue their October 24, 2014, official warning pursuant to Internal Rule 38 of impending sanctions against both defence teams for their behavior. The parties were ordered to appear at the present trial management meeting “in order [for the court] to form a complete view of the issue of insufficient resources raised by Khieu Samphan.” Mr. Nil Nonn précised the Trial Chamber memorandum of October 22, 2014, then emphasized that this meeting of October 28, 2014, would be the last opportunity for the Khieu Samphan defence team to discuss the issue they had raised of sufficiency of resources. He went on to say that there also would be an opportunity for them to reply to the Co-Prosecutors’ application to have amici curiae appointed “to advance the proceedings,” and (as per the Chambers’ notification of October 27, 2014) “an opportunity to discuss the International Co-Prosecutors proposed procedure for the use of confidential material filed on October 22, 2014.” (Note: This latter discussion was not part of the video released from the strictures of the in camera hearing).
Judge Lavergne opened the inquiries by asking the Khieu Samphan defence teams to address two issues starting, firstly, with their application of October 7, 2014, for “a redeployment of funds and a temporary increase of remuneration …” to cover both an increase in the number of working hours for the defense counsel as well an increase in amount they would be paid “… for the period October 1 to December, 2014.” Secondly, the judge asked the defence to clarify the instructions given by Khieu Samphan to his counsel regarding attendance at proceedings of the Trial Chamber. To further define this question, Judge Lavergne quoted from the October 17, 2014, opening statement of Khieu Samphan in which the accused claims that, since his counsel have told him that they cannot do both Case 002/02 and the appeal of the August 7, 2014, judgment to the best of their ability in a parallel manner, he has instructed them to concentrate on the appeal and not to attend further proceedings of the Trial Chamber until after the appeal brief is filed.
Judge Lavergne also had a direct question for Mr. Khieu Samphan from whom he wanted to know if he was “aware of [his counsels’] applications for remuneration and whether [he was] informed those requests for financial increases were meant to assist lawyers in … drafting the appeal brief and … preparing for Case 002/02?”
Mr. Khieu Samphan rose to make a statement that he knew his team was “doing its best to work on the appeal per [his] instructions…working day and night,” and that he is in almost “daily communication” with them. Judge Lavergne noted Khieu Samphan failed to reply directly to his question. The justice then called on the Khieu Samphan defence team to take the floor to clarify the “incoherence between saying that one cannot participate in Case 002/02 proceedings and to prepare the appeal and also make an application for an increase in financial assistance to enable counsel to prepare for these proceedings and for the appeal.”
Anta Guissé responded for the Khieu Samphan defence team but first addressed topics tangential to the targeted questions. These included such “housekeeping matters” as describing that the defence received an additional seven percent in resources during the first trial but then claiming that the “memorandum for October 21 was not aimed at requesting additional resources to enable us to participate in the second trail in Case 002.” Although she then stated “We are not asking for additional resources,” she defended them on the basis of the additional workload of parallel actions. From this discourse (during which Ms. Guissé challenged the judge for “shaking [his] head” during her remarks), Ms. Guissé repeatedly argued that the defence team cannot be expected to do work to the best of their ability on two parallel actions, that this is why the defence has chosen to work on the appeal brief as they feel it is more important than attending the proceedings of the Trial Chamber. In fact, in referring to her perceived shortage of time, she upbraided the Chamber stating she “was expecting a bit more understanding from the Chamber regarding this issue.” In support of her position, she quoted Judge Lavergne’s comments from 2013 (in transcript E1/2382 at 14:00 hours):
“From a personal perspective, I note that during hearings, it is very difficult to concentrate
on hearings…and, at the same time, concentrate on a judgment which is something that is
very common. You cannot work both ways. It is not only a question of having additional
staff, it is a question for the judges to be able to concentrate in an in depth manner on
very thorny issues that require time.”
Ms. Guissé then submitted that Mr. Khieu Samphan also needed time “to concentrate on very thorny issues” as he was actively participating in his case and that Khieu Samphan has told his counsel that he cannot do both the appeal and the trial “at the same time”. She then took pains to ensure the court understood that there was no common defence with the Nuon Chea team, that they were “free to choose their means of defence as they deem necessary, and we are also free to defend and make plans as we wish.”
In referring again to the workload issue, Ms. Guissé was emphatic that “the matter is not one of asking whether we can just defend our client as if it’s window dressing. It’s a matter of defending our client to best of our means.” She stated, defensively that “we are not being capricious here. We are not being tasked with foot dragging.” She went on to object to “insinuations that we wanted to stall the proceedings or that we had wasted the court’s time,” and to challenges about the defence team’s “professionalism”. She reiterated, once again, that Khieu Samphan’s instructions to counsel to concentrate on the appeal are “reasonable,” that the defence is not “stalling the proceedings” and “cannot even stall the proceedings” because the court has the power to compel Mr. Khieu Samphan to appear before the Chamber, by force if necessary.
Judge Lavergne called Ms. Guissé on not answering his “restrictive and limited” question concerning “the information that was provided to Mr. Khieu Samphan based on which he made his instructions.” He rebuked the defence counsel stating: “In the future, I would be most appreciative if you were to directly answer the question I am posing.”
The judge next asked the Khieu Samphan defence team what work had been accomplished in the nine to ten months since the team was given additional resources equivalent to the appointment of a full-time lawyer.
In response, Ms. Guissé mentioned preparation of witness lists and evidence lists, and that their team was the only one to respect the deadlines for submission of same. She then added “garner(ing) information useful for the appeal as well as information on 002/02” to the body of work accomplished. Without clarity as to relevance to the question at hand, she then digressed into an elaborate demarcation of the Khieu Samphan defence from that of Nuon Chea stating: “We are two distinct defence teams, with two distinct strategies, with two distinct lines of defence.”
Regarding their existing request for more resources presently being considered by the Office of the Administration, Judge Lavergne then asked the Khieu Samphan defence team what the impact of a favourable decision granting more resources would be on the defence team…”would you likely to become more available? Do you have any other professional obligations underway?”
Notwithstanding even an increase of some sixteen percent, Ms. Guissé maintained that “arithmetically speaking, that it is just not possible” for the team to change its position that they cannot do two parallel actions at once.
Judge Lavergne calculated that the Trial Chamber had already reduced the hearings from 24 sitting days falling before the appeal briefs were due on December 29th to only 18 days.
Given this development, the judge asked Ms. Guissé “do you have any suggestions to make to the Trial Chamber with respect to those proposed numbers of days of sitting?”
Ms. Guissé replied that “every single of hour of every single day is indispensible to the team,”and quoted Judge Cartwright that time spent in the courtroom is “only the tip of the iceberg in terms of workload required.”
The court was not impressed and demanded: “Counsel Guissé, could you please answer the question that I asked you: If you would be more available or if you had any other professional obligations? Can you just answer that question?” She then stated she had no other professional engagements other than Case 002/02 trial and the appeal in Case 002/01.
After a short discussion of requested extensions to date on the filing of pleadings, Judge Lavergne asked Ms. Guissé if she would be able to participate again in Case 002/02 after she filed her appeal brief on December 29th or would possible responses to the appeal once again put her in a position of asking for a trial postponement? She hedged stating “in theory…I would say no.” She pointed out that the amount of work in a “mere reply” is much less than that of an appeal brief.
The court then went on to other matters, confirming with the Khieu Samphan defence that, although they had had issues with translation in the past due to a bottleneck in the Interpretation and Translation Unit (ITU), “everything is now under control” in that regard and there is a recruitment drive underway in the ITU.
Ms. Guissé agreed with Justice Lavergne’s summary of the situation that the defence counsel was not willing to compromise in order to participate in the court proceedings before December 29th: “There’s no compromise possible with the defence of our clients.”
Judge Fenz picked up the questioning by asking Khieu Samphan how often in the last two weeks he had met with his counsel. The accused said that the detention centre log books would show the exact number of visits he had from his legal representatives along with the number of telephone conferences they had held, but his recollection was that he talked to them or saw a member of the team almost every day.
Judge Fenz emphasized that it was not only the Trial Chamber that wanted progress as soon as possible on Case 002/02 but that the Supreme Court had ruled that “the case had to start with one Chamber or the other.” She stated that the “gist of the last thirty minutes” was that this was not an issue of resources but that it “is an issue of counsel being unable to do both things at the same time, the appeal and Case 002.” She wondered ‘why?’ noting “the obvious question is: Why can the Nuon Chea team do it?” She did not accept Ms. Guissé hereinbefore quoted remarks that the Nuon Chea team had a “different strategy” as being sufficient explanation of why the Khieu Samphan defence exhibited “the personal inability or unwillingness to do both things at the same time, both on behalf of self and client with the diligence we consider necessary.”
Kong Sam Onn parroted the team’s argument that not being able to do things in parallel goes to “the effectiveness of the defence,” that they were intent on doing a good job as a “legacy for Cambodia and the world.” He admitted that he did not work full time on the case, but worked the number of hours for which he gets paid.
Judge Fenz was having none of it and challenged the Khieu Samphan defence that “capable and diligent counsel should be able to do both at the same time,” that the “burden [of the judgment] on both defence teams…is pretty equal,” and that she did not understand the claim of a different strategy to that of Nuon Chea’s team as an excuse stating that “the issue is organizing your work.” Forthrightly, she asked them to “point out any substantive difference between the two teams,” that would account for the Khieu Samphan team having these problems whilst the Nuon Chea team does not.
Ms. Guissé refused to be drawn into such a debate merely stating that the Nuon Chea team “are free as lawyers to organize themselves as they wish. They are free to split their team in half and dedicate one to the appeal and one to case 002/02. That is their choice, that is their prerogative. However, our choice is to commit all of our forces on what is the most significant and important issue for us which is the appeal.” She refused to “comment…on the methodology of Mr. Nuon Chea’s team.”
After Mr. Rosandhaug (Deputy Director of the Office of Administration), reported that he had determined that nothing he could action had come out of the day’s meeting, and the Co-Prosecutors and the Civil Parties Lead Co-Lawyers had been canvassed and stated they had no nothing to add to the proceedings, Mr. Koppe, International Co-Counsel for Nuon Chea addressed the meeting.
Mr. Koppe confirmed for the Trial Chamber that the Nuon Chea team had been “very ready” to start the second trial in March. He then reviewed the history of requests for auxiliary resources that had been made by the defence teams. He stated that he knew right from “the beginning” (from when parallel cases were slated by the circumstances of the mini trial set up), that additional resources would be needed. He said he had informally approached the Chief of the Defence Support Section on several occasions but was always rebuffed with the excuse that such an application would not be successful until a scheduling order was issued by the Trial Chamber. Mr. Endeley, Chief of the DSS, then explained that the rationale for this timeline was that (because of the finite budget), the scheduling order was first necessary in order to put parameters around the extra resources. Mr. Endeley said that immediately on receipt of the scheduling order of September 19, 2014, that he had approached the defence teams to advise them that it was then an appropriate time to make their request for additional resources. Hence, the defence memorandum of October 7, 2013, in application for further funding in order to handle the two cases simultaneously.
As this was the conclusion of the discussion on resources, Mr. Nil Nonn, president of the Trail Chamber called for a break in the proceedings.
Heated Debate on Amici Curiae Ensues
When the meeting resumed, the topic on the agenda was the Co-Prosecutor’s formal request to have the Trial Chamber appoint amici curiae.
Mr. Nicholas Koumjian presented his argument in support of his motion briefly.
He noted that the information from the morning’s events showed that even though the hearing schedule had been reduced from 24 sittings to 18, “the defence has simply decided that they disagree with the rulings of the court and they will not obey according to their clients’ informed instructions of the orders of the court.” He recapped Mr. Nuon Chea’s position that he will not participate in the trial until his disqualification motion is heard even though (under Internal Rule 34), the court is entitled to sit pending the disqualification being adjudged. He cited that this was inconsistent with the Nuon Chea team’s prior disqualification action of February, 2008. The Nuon Chea team on that occasion noted that the judge named was not required to step down while awaiting disposition of the complaint (filing C1124). In a second earlier example, Nuon Chea went on to make his opening statement in 2011, while he had a disqualification action awaiting ruling. Mr. Koumjian pointed out to the Chamber that the Nuon Chea defence “had not even tried to establish any prejudice from Nuon Chea participating while this application is pending.”
The Co-Prosecutor, thus, concluded that, “there is no basis for Nuon Chea to decide to instruct his counsel not to come to court…It’s simply a defiance of a court order.” Raising the spectre that, if this defiant behavior is rewarded, it might be repeated in the future, Mr. Koumjian “urged” the Chamber “to recognize what this amount to is a waiver by Nuon Chea of his right to have his counsel present in court.”
The Co-Prosecutor moved on to Mr. Khieu Samphan team’s position, summarizing that their boycott is not about lack of resources, that they admit to having sufficient resources but that they are “choosing not to use them.” He states the effect of this behavior has been “to delay justice that has been too long delayed,” and prolonging not only the life of the court but the cost of the institution. He asked the court to enquire of the administration how much it would cost to extend the trial by just one month.
Mr. Koumjian made short shift of the Khieu Samphan team’s claim they cannot work on two cases at one time pointing out that “it is a very rare case when lawyers are only working on one case at one time.” He outlined how he, himself, was “quadrupled-tracked” in this tribunal, working on Case 002/02, on the appeal on Case 002/01, on the trial and working on Cases 3 and 4 also. The Co-Prosecutor argued that Mr. Khieu Samphan’s decision for his counsel not to work on the trial was tantamount “to a waiver of his right to have counsel,” and, that, therefore, the court was within its rights to simply proceed with the trial with the accused present without counsel if they chose to not have their counsel attend.
Notwithstanding this argument that the court was in a legal position to proceed at will, Mr. Koumjian put forward the thesis that it would be “even better to appoint an amicus lawyer to be a friend of the court, to make sure the defendants’ rights are preserved.” He referred to the precedent of amici curiae being used in other international tribunals, citing the Milosovic trial in particular. The Co-Prosecutor recognized that an amicus would be an additional cost to the process but that it would be less than the cost of delays in the trial (especially since the boycott might be repeated). With that, Mr. Koumjian rested his case for the appointment of an amicus counsel to “ensure the integrity of these proceedings as [the trial] goes forward.”
Marie Guiraud, Civil Party Lead Co-Lawyer, followed. She voiced her office’s approval of the idea of amici curiae stating she had filed an application in support of the motion on the prior day, October 27, 2014. She based her action on the belief that such an appointment “would harmonize the respect for the accused’ rights to participate in their defence and the rights of…the civil part to have a trial without undue delay.” She reviewed that it is in the direct interests of the 3,877 victims that she represents for an expeditious trial as her clients are aging, they have health problems and they are being frustrated by the delay in the proceedings.
Mr. Victor Koppe raised two preliminary issues after which he said he would deal with the merits of the amicus curiae application. Firstly, he read from an article in the prior day’s Cambodia Daily quoting a civil party victim as “fully support[ing] the defendants’ boycott and from another story dated October 25th, quoting similar support by a lawyer claiming to present 1,217 civil parties. Mr. Koppe then asked who it is that the Civil Parties Lead Co-Lawyer represents, “Is she acting for all civil parties or just a few?”
Secondly, Mr. Koppe asked why the day’s proceedings were being held in camera, that doing so was in violation of the Cambodian Criminal Code of Procedure which dictates that the hearings should be public except if there is “danger to the public order or morality.” And, further, as there is no provision for amicus curiae in the Internal Rules, why is the discussion even being held?”
Anta Guissé spoke in support of having the hearings made public due to the importance of the issues. Kong Sam Onn weighed in that the assignment of amici curiae would violate his client’s right to choose his own counsel, and that any such appointment made against the will of the clients is “contradicting the Code of Ethics” of the bar of Cambodia. Mr. Kong also disagreed with the use of the term “boycott” stating “it’s not actually a boycott but a time constraint that we had to choose that we cannot work on two main tasks in parallel.”
Ms. Guissé had further objections to the Co-Prosecutor’s application. She took issue with Mr. Koumjian’s claim that the defence is “defying the orders of the Chamber” (reiterating her argument that they “have no choice” but to do so), and Mr. Koumjian’s understanding of the “status of defence counsel before the Chamber.” She clarified that there are no officers of the court in a civil law system, and went on to state that forcing Khieu Samphan to attend proceedings by force is “not in line with his rights.” She accused the Co-Prosecutor of asking “for window dressing the appearance of a defence.” The defence counsel then listed some impractical aspects of appointing an amicus: that it would take months for such a counsel to become knowledgeable about the file, and that an amici curiae would not have the approval of Khieu Samphan and, therefore, could not provide an effective defence as he would not be able to consult with the accused. She claimed defence counsel were only adhering to the Code of Ethics of Cambodia by acting in the best interests of their client even though that might not be in their own best interests.
Khieu Samphan joined the fray stating he considers that the request to have an amicus appointed is a request to dismiss his counsel. He feels that new counsel would “come to be in the show trial,” and that he “absolutely [will not] accept any new lawyers, new counsel.”
Judge Fenz tried to “streamline” the hearing informing the meeting that the president of the Trial Chamber had asked her to assure the participants that the results of the day’s hearing would be made public. She then gave Mr. Koppe an opportunity to comment on the substance of the Co-Prosecutor’s application for amici curiae.
Mr. Koppe remarked that as the appointment of amici curiae is “a very fundamental, adversarial issue [it] it does not belong in a trail management meeting… as it goes directly to the fairness of the proceedings,” that the parties should be robed for such discussions, and that “publishing a video of a hearing later is not the way it is supposed to be done.” He then made a request of the Trail Chamber “to stop here, to reconvene at an appropriate time with our robes on to publicly debate this issue.”
Pointing out that he had asked in the previous trial management meeting for the discussion of the defence counsel boycott to be public, Mr. Koumjian supported Mr. Koppe’s motion saying that they should “come back at 1:30 P.M. with doors open.”
Ms. Guiraud then rose to reply to Mr. Koppe’s question about whom she represents. The Civil Party Lead Co-Lawyer explained that she represented “the consolidated group of civil parties” and that she and her colleague, Pich Ang, did so by taking a public position in the courtroom drawn from “a synthesis on all matters.” She stated this representation of the civil parties was validated in the judgment of August 7, 2014, and that “nowhere in the notification of appeal was there any challenge to how the civil parties are represented in Case 002/01 or Case 002/02.” Because of repeated and systemic challenges by the defence to their “legitimacy to speak on behalf of the consolidated group,” she invited the Chamber to reaffirm “the role of this consolidated group and the rights of the civil group as a full-fledged party in the proceedings in the courtroom.”
After a brief meeting of the bench, Judge Fenz responded to the motion for public discourse made by Mr. Koppe and Mr. Koumjian. Stating that, although it had been decided to hold the trial management meeting in closed session because it “had various objectives,” the Chamber agreed that the issue of the amici curiae should be public, that they would publish the contents or tapes of the trial management meeting. The Chamber rejected the idea of returning after lunch for an open session. Judge Fenz noted that “the whole debate could very well be in writing only” but that the Trial Chamber had decided to do it this way for “expeditious sake.” She then announced to the defence that, if they wanted to make substantive arguments on the amicus issue, “the time…is now and only now.”
In response, Mr. Koppe highlighted the legal framework in Cambodian law which he advocated prohibited a judge under threat of disqualification from sitting on the bench. He observed that there was a history of the Trial Chamber giving “primacy” to the Internal Rules over Cambodian law. The defence counsel stated that because “the issue is so fundamental, so principled…that it is incomprehensible that you have decided to go ahead anyway, that you have issued a scheduling order in the full knowledge that we were going to file this request for disqualification.” He explained that it was because the Trial Chamber has shown “as we would like to see it, contempt for the proceedings, contempt for Cambodian law,” that Nuon Chea said “enough was enough,” and made his decision to boycott. Mr. Koppe called the applications by the Co-Prosecutor and the Civil Party Lead Co-Lawyers “opportunistic moves” that “feel like complaining in the school yard that the other children are cheating.” He excoriated such behavior as “not fitting the office of the prosecution.”
Mr. Koppe raised some impractical aspects of an amicus at this stage, that it would take at least four months to find one and another six months to get him up to speed on the last three years of events. He reiterated the other defence counsels’ stance on the matters of the lack of a trial rule allowing appointment of an amicus and the fact that amicus curiae are a common law system phenomenon not found in a civil law codes (and, specifically, not in Cambodian law). He questioned why the decision on the disqualification motion was taking so long, positing that, since the issue goes directly to judicial independence of national judges, it “might very well be possible we will have a split decision of the Special Bench or maybe a dissenting opinion from one of the International Judges.” Mr. Koppe ended by restating his client’s instructions “not to take part in the substantive hearing as long as there is no decision,” and his opinion that appointment of an amicus now “would violate every principle of fairness, fair trial, in this case.”
Judge Fenz put two questions to Mr. Koppe asking if the Nuon Chea team would participate if the disqualification ruling was issued without reasons and what would happen if they did not like the ruling?
Mr. Koppe replied that he acts “solely, exclusively on instructions” from his client, and “only one person could answer [those] questions and he is not in the courtroom.” He argued that civil law rules of ethics prohibited him acting contrary to the wishes of his client.
Mr. Endeley (Chief of the Defence Support Service), contributed that the “DSS fully supports” Ms. Guissé and Victor Koppe in their position, that the accused have the right to be represented by counsel of their own choosing. He quoted from a letter dated the prior day, October 27, 2014, from Nuon Chea:
“Let me be very clear to you. It is my absolute stance that I shall not accept under any circumstances new lawyers. I have absolute faith and confidence in Son Arun and Victor Koppe. If the court decides to appoint new lawyers, I shall not accept them and I shall refuse to come to court. Only by use of force shall I attend any hearing.”
He further explained that it would be difficult for the DSS to support any counsel who were not chosen by the “suspects” (sic) of their own free will.
Mr. Koumjian asked Mr. Endeley how existing defence counsel could protect their clients’ rights if they did not go to court? Mr. Endeley explained that defence counsel also worked outside the courtroom in defence of their clients’ rights.
Mr. Koumjian finished the taped proceedings with pointing out that there had been “a fundamental misunderstanding of all defence counsel and Nuon Chea and Khieu Samphan of what is being proposed by the prosecution.” He clarified that the amicus counsel they were proposing did not represent the accused, that they were not replacing existing counsel, but that they would be there to “further the integrity of the proceedings …making sure the rights of the defendants are respected, to object to prosecution’s questions, to make submissions, to do cross-examination”.
The footage of the hearing ended at this point.
The Trial Chamber has not released any decisions regarding the trial management meeting issues. It is also noted that there was no discussion and none proposed on sanctioning of the defence counsel pursuant to the findings of the Chamber in its memorandum of October 24, 2014, that defence counsel had committed conduct amounting to obstruction of the proceedings by violating Trial Chambers orders.