Trial Chamber Concedes to Defence Boycott and Adjourns to January 8, 2015

ECCC President Nil Nonn did not appear pleased that the Khieu Samphan defence team again failed to appear in court for today’s hearing, the Trial Chamber’s third attempt since October 17, 2014, to start the evidentiary hearings in Case 002/02. As a result the hearing was brief and the missing defence team got the adjournment for which they have long been pleading.

Madame Greffier began the ten-minute long session by reading the official attendance report quoting the absence of the Khieu Samphan defence team. The President then carefully put into the record that the missing lawyers had written him a letter dated November 23, 2014, saying that “despite the fact that they have been appointed by the Chamber,” they were not in court because of the “same arguments” that they have raised on many occasions.

President Nil Nonn quickly rejected the defence team’s reasoning.  He said that the Khieu Samphan defence team “has had adequate time to prepare for the trial” for which they “were fully compensated.” Likewise, the Chamber considered that the team has had adequate time to prepare for the hearings. He pointed out that the Nuon Chea defence “has the same issues and workload” but has been ready for trial since March, 2014. Nil Nonn was most emphatic in his opinion that “the real problem is the Khieu Samphan defences’ lack of diligence,” giving as an example that the international lawyers were now in Paris when, the court opined, they should be in full time attendance in Phnom Penh for discussions.

The court felt that its concession of reducing the scheduled hearing days from 3 days to 2 days per week “was ignored,” and that none of the various accommodations that the Chamber has made have worked. The Chamber officially concluded that “it is clear” that the Khieu Samphan defence would not attend the hearings until after their appeal brief had been filed at the end of the year.

Reiterating prior advice to Khieu Samphan that his right to counsel of his own choosing is not absolute but recognizing that, as there are no alternative counsel who are up to speed on the “voluminous case file”, the Chamber, lacking a viable alternative, made the only choice that it could without causing a substantial delay in commencing the trial: It cancelled all six hearing dates left in 2014.

Nil Nonn expressed skepticism about whether Khieu Samphan and his defence team’s assertion that their “purpose is not to delay the trial beyond January, 2015” stating: “We will all have an opportunity to see if that is a true statement.”  The court, though, advised that it would be pursuing other options (presumably to prevent further delays), including appointing other counsel. To emphasize the displeasure of the Trial Chamber, the President said that they were considering “referring the misconduct of counsel to the appropriate professional body as per Internal Rule 38.”

Perhaps keeping in mind that the Khieu Samphan defence team’s original request back in 2013 was to have the proceedings in Case 002/02 delayed until all appeals in Case 001/01 were adjudicated, the court laid some groundwork in case the delays continue in the new year: the Trial Chamber’s final ruling was to “instruct and invite all parties to Case 002/02 to participate in the proceedings on January 8, 2015.”