Trial Chamber Comes Down Hard on Boycott: Participate or Suffer Consequences

The Trial Chamber has now released its ruling following the trial management meeting of October 28, 2014.

In the memorandum of October 31, 2014, the court notified defence counsel that it will tolerate no additional delays caused by defence counsel refusing to appear at trial proceedings.

After observing that the defence teams for both Nuon Chea and Khieu Samphan had obeyed the order of the Trial Chamber to attend the trial management meeting, the decision recapped the defence counsels’ claimed reasons for their boycotts and the court’s response to them.

The court reviewed the legal reasoning behind the Nuon Chea team’s stance of holding a boycott until a decision on their application for disqualification of four judges (Nil Nonn, Ya Sokhan, Jean-Marc Lavergne and You Ottara), filed on September 29, 2014, is issued. The Chamber called into question defence counsels’ position being based on the “Code of Criminal Procedure of Cambodia” (CPC) that “requires a judge that is the subject of a disqualification motion to immediately” recuse himself. The court cited its prior ruling (E 320, para. 2), countering this argument by use of Internal Rule 34(5) which authorizes a judge to sit pending a disqualification ruling. The memorandum states that the “The Nuon Chea Defence’s reliance on one aspect of the CPC in this context is misplaced.”  The Chamber then drew a contrast (without further elaboration) between the CPC (Article 556), list of “seven specific grounds for disqualification” and the ECCC “broader grounds for disqualification.”

The judges appear to be cautioning the Nuon Chea defence counsel when distinguishing possible ramifications of procedure under the CPC from those under the ECCC. It notes that under CPC (Article 561), defence counsel could be in jeopardy of being fined and have a liability for damages to a “challenged judge” if the Trial Chamber ultimately rejects the outstanding disqualification application.

The memorandum then focused on the Khieu Samphan defence team’s logic behind its refusal to attend substantive hearings. The opinion listed repeated declarations by the Khieu Samphan defence that, since neither Khieu Samphan or his legal counsel claim they are able to “fully participate” in Case 002/02 whilst “simultaneously” preparing the appeal brief for Case 002/01, the Khieu Samphan defence is only following Khieu Samphan’s instructions (“which they agree with”) to not attend trial proceedings until the appeal pleadings are filed (which is anticipated to be on December 29, 2014).

After taking into consideration that the “primary concern” the Khieu Samphan defence has “is the availability of their client for preparation of the appeal brief” and the parallel nature of the trial procedures, the court stated that: “There is no choice to be made between the proceedings because neither is optional, even for a limited period of time.”

The justices further rejected the contention that Khieu Samphan’s “right to participate fully in his defence is violated because he is unable to spend all his time working on the appeal brief.” The court cited international jurisprudence holding that preparation of an appeal brief is “a technical exercise involving the identification of potential errors of law on fact in the trial judgment, tasks recognised as the primary responsibility of assigned counsel.” As an example, it gave this reason for denying applications for delays in the briefing schedule where the subject judgment of the appeal has not yet been translated into the working language of the accused. (It also was pointed out that the Khieu Samphan notice of appeal has already been filed). Therefore, the judges decided that working only on the appeal is “not a valid legal basis” for either Kheiu Samphan or his lawyers not to participate in the Case 002/02 proceedings.

Notwithstanding this determination, the Chamber stated it will balance the Khieu Samphan defence team’s expressed need for more resources with the “rights of the other parties to an expeditious trial.” The court announced it will revise the scheduling list by decreasing sitting days for November and December down to two a week (for a total of four sitting days in November and six in December).

In a conciliatory manner, the Trial Chamber stated that it “looks favourably” on the Khieu Samphan defence’s existing request for further resources from the Office of Administration, and “any other reasonable requests for additional resources,” that would facilitate the team’s participation in the parallel proceedings.

Further, the Chamber emphasized that, if the Khieu Samphan defence team’s attempts to get access to their client through the Detention Facility authorities fail, the court “is willing to support any reasonable request for access that may be raised.”

After stating they were seised with the motion, the Trial Chamber reserved its decision on the Co-Prosecutor’s October 22, 2014, application to assign amici curiae counsel.

The memorandum concluded with an order and a warning. Firstly, pursuant to the new scheduling on sitting days, all parties were ordered to attend substantive hearings in Case 002/02 starting Monday, November 17, 2014. Secondly, the Trial Chamber put both the Khieu Samphan and Nuon Chea defence teams “on notice that it will take firm action should either fail to abide by the order to appear in court.”