Trial Chamber Asserts Control As Khieu Samphan Defense Remains Absent

Following the Special Panel’s ruling denying disqualification of the Trial Chamber judges, the wait for which was the Khieu Samphan defence team’s primary excuse for not attending the trial, the Court took action to get ECCC Case 002/02 back on track.

When the attendance report was made at what was to be the start of the evidentiary hearings today, the international lawyers for Khieu Samphan, Anta Guissé and Arthur Vercken, were conspicuous by their absence.

President Nil Nonn was forthright in asking Khieu Samphan where his defence team was and why they were not in court.

After stating that he, himself, was only present because he was “compelled” to be, Khieu Samphan reviewed his oft-stated reasons for his counsels’ absence. To wit:  that they were still busy with drafting his appeal on the judgment in Case 002/01, and that the lawyers were not boycotting the trial but were absent due to his instructions to work on the appellate brief instead.

When asked by the court to state the last time he had spoken “personally and directly” to counsel, Mr. Samphan replied that he had had discussions with his national counsel on Friday and was in “regular communication” with the international lawyers. Under Judge Lavergne’s questioning, it transpired that Khieu Samphan had not spoken in person with either international counsel since before they both had returned to Paris but that he had “regular communication with the team.”

Co-Prosecutor Koumjian then rose to define the parameters of his proposal for amici curiae as he felt that his request had been “misrepresented.”  He recapped that Khieu Samphan had lawyers that he was happy with, lawyers that Khieu Samphan had instructed not to attend the hearings, and that it was not the Co-Prosecutor’s intention to replace these defence counsel that were paid for by the court. But, while emphasizing that Khieu Samphan right to counsel had been respected, Mr. Koumjian made the point that choice of counsel did not mean that a defendant had the right to control the courtroom. Therefore, he was proposing an amici curiae be appointed “in order to safeguard the integrity of the process…and to prevent further delays in the future.”

Civil Party Lead Co-Lawyer Pich Ang lent support to the Co-Prosecutors’ request for an amici curiae citing the concerns of the aging civil parties. His clients are “unhappy” with the lack of advancement in the proceedings and there is a real concern that their rights are being affected by the delay, that many would die “waiting for justice.”

Khieu Samphan sought to rebut these arguments stating that he had “no intention in any way to obstruct proceedings,”  but that it was the lack of resources prohibiting  his team to work simultaneously on both the hearing and the appeal that had led “to the agreement to focus on the appeal,” that this would be the “best safeguard of (his) interests.”

President Nil Nonn then carefully stated for the official record that in order to obey their client’s instructions, the defence counsel were absent in contravention of the court order.

So, at 9:36 the President of the Trial Chamber called for an adjournment until 1:30 in the afternoon.

At the appointed hour, the afternoon session opened with much anticipation as to the Trial Chamber’s next move.

With heavy foreshadowing, Nil Nonn began by noting for the record that the counsel for Nuon Chea were present. (Nuon Chea was not in court due to incapacitation, but was in a resting room wired into the trial proceedings). He repeated for the record that Khieu Samphan’s counsel were “not present in violation of the order of this Chamber.” The President further commented that Khieu Samphan had not seen these counsel since the trial management conference, that the “counsel are in Paris despite directive that they be here today.”

Khieu Samphan further defended his counsels’ absence by reiterating that they were not there due to his instructions.

The court was short with this argument maintaining in no uncertain terms that Khieu Samphan’s right to counsel of choice was not absolute as it was “subject to the interests of justice” and gave warning that if he continued to instruct his counsel not to attend that the Chamber may appoint new counsel “to ensure the interest of justice in an expeditious trial.”

President Nil Nonn laid out four options that the Trial Chamber would consider:

1. that the court could reappoint Khieu Samphan’s counsel as court-appointed counsel that would then be answerable to the court and not to Khieu Samphan;

2. that the court could appoint new counsel not of Khieu Samphan’s choosing;

3. that the court could do both;

4. that the court could take any other action that it felt appropriate in the circumstances.

After lecturing Khieu Samphan that his counsel had no legal basis not to participate, the President asked Mr. Samphan if he understood these options.

Khieu Samphan complained that he felt appointing counsel not of his own choosing would interfere with his rights as such counsel would be not be sufficiently familiar with his case to adequately defend him.  He also reiterated that long distance communication with the absent counsel was “not an issue” as they were in “constant” communication by letters, email, Skype and telephone calls. Again, he stated that neither his counsel nor he, “personally,” could do both expected tasks simultaneously and that this “affects (his) right to a fair trial.” In rebuttal to the issue of impact on the civil parties, he said his rights are being affected, too, that he can’t delay preparation of his appeal brief.

Judge Lavergne repeated to Khieu Samphan that his right to select counsel was not absolute.

Khieu Samphan quickly denied that he had ever claimed that his rights to counsel are absolute but that he was talking about his “right to a fair trial,” that court-appointed counsel not being familiar with his “case or strategy” would affect his right to a fair trial.

President Nil Nonn had heard enough.  In no uncertain terms he leveled an ultimatum on Khieu Samphan. He ordered Khieu Samphan to inform the Trial Chamber by 4:30 P.M., on November 18, 2014, whether or not he had withdrawn his instructions to counsel not to participate in the hearings. The court warned that on hearing Mr. Samphan’s response, the Trial Chamber would then “take steps.” And with a note that the missing counsel would be dealt with by a separate order, the court adjourned to November 24, 2014, at 9 A.M. so that Khieu Samphan “would have time to consider his position.”