Special Panel Decides Against Disqualification of Trial Chamber Judges

by Laura Fearn
— 17 Nov, 2014

Long demanded by the defence teams of both Khieu Samphan and Nuon Chea, the Special Panel issued its November 14th decision on multiple applications for disqualification of Trial Chamber judges in Case 002/02.

Khieu Sampham, in an application of August 25, 2014, backed up by another of October 10, 2014 (in which he had asked to adopt “the argument advanced in Nuon Chea’s application in support of the first application”), and Nuon Chea (in an application made September 29, 2014), between them had sought to disqualify President Nil Nonn and judges Silvia Cartwright, Ya Sokhan, Jean-Marc Lavergne, You Ottara and Claudia Fenz from adjudicating Case 002/02.

Referring to the lack of accompanying reasons to their decision, the Special Panel noted that there was some urgency for their ruling. They said that on October 22, 2014, the Co-Prosecutors had made a “Request for an Expedited Decision,” asking that the matter be considered “as soon as possible with reasons to follow.” The judges also drew attention to Nuon Chea’s October 17, 2014, opening statement in Case 002/02, in which he declared that “he had instructed his counsel not to participate in further proceedings against him pending the Special Panel’s decision” herein. Not stated but understood was that the evidentiary hearings are due to begin only three days hence, on November 17, 2014

The decision also clarified that Nuon Chea had declined the opportunity to file a reply to the Co-Prosecutors’ response and that none of the judges subject to the disqualification application had filed any submissions.

As Judge Silvia Cartwright ceased to be a judge at the ECCC effective September 1, 2014, ultimately the challenge against her was dismissed.

The Special Panel ruled unanimously to admit all of the defence teams’ applications, but also unanimously decided to dismiss Khieu Samphan’s applications regarding disqualifying Judge Claudia Fenz. A majority of four judges (Judge Rowan Downing dissenting) dismissed the applications of both Khieu Samphan and Nuon Chea to have President Nil Nonn and Judges Ya Sokhan, Jean-Marc Lavergne and You Ottara disqualified.

It was implied by referencing the Co-Prosecutors’ request for a quick ruling that written reasons will follow but such was not actually stated in the decision.

Internal Rule 34(8) holds that the ruling is not subject to appeal.

The outstanding question is what effect this decision will have on whether or not defence counsel will attend the start of the evidentiary hearings in Case 002/02 on Monday, November 17, 2014, as they have been ordered by the Trial Chamber to do.

Cambodia Tribunal Monitor’s Trial Observer posts are written according to the personal observations and opinions of the writer and do not constitute a transcript of ECCC proceedings or the views of Cambodia Tribunal Monitor and/or its partners. Official court transcripts for the ECCC’s hearings may be accessed at the ECCC website.