ECCC Plenary Session Amends Rules to Expedite Trials
With the present illness of Khieu Samphan and the frail condition of Nuon Chea in the background, the 11th Plenary Session of the ECCC moved Friday to expedite the remainder of Case 002.
The court changed its Internal Rules to allow the Co-Investigating Judges “to reduce the scope of the judicial investigation by excluding certain facts…as long as the remaining facts are representative of the scope of the filed submissions.”
Other amendments to the Internal Rules were made to “allow the Trial Chamber to reduce the scope of the trial by excluding certain facts set out in the indictment, as long as the remaining facts…are representative of the scope of the indictment.”
Although the impetus for the rule changes recognized that the large volume of accusations in Case 002 meant that the trial might not be completed before the demise of the accused, Khieu Samphan and Nuon Chea, the permanent amendments will also influence the conduct of Case 003 and Case 004.
Excluding facts and omitting parts of indictments reignites several enduring controversies about the conduct of the trials.
Notwithstanding the ECCC press release’s claims that the rule changes “will not affect the participation of the Civil Parties or the composition of the consolidated group of Civil Parties,” it has long been feared by the Civil Parties that the experiences of some of their number will not be admitted in evidence. The Civil Parties have continuously advocated that all victims’ stories must be heard in order for there to be accountability for the atrocities suffered by them individually during the Khmer Rouge period.
In his January 31, 2014, “Response to the Trial Chambers Request for Submissions Concerning the Scope of Case 002/02,” Nuon Chea was very clear that he objected to any measure that would restrict his ability “to adduce exculpatory evidence in support of his defence.” His counsel argued in the brief, rather than the court taking a narrow view of the evidence it would admit, that “facts beyond the narrow scope of the allegations in the Closing Order are relevant to the ascertainment of the truth.” Further, a large section of Nuon Chea’s Appeal of the judgment of August, 2014, asserts that his conviction was unfair because the Trial Chamber restricted his ability to present his case. (He cited the court’s decision that he could not call Heng Samrin as a character witness as a particular example).
Khieu Samphan’s counsel vehemently objected to any limitations being put on their defence of their client. In their own submission of January 31, 2014, they contended that “the utter lack of transparency in the choice of factual evidence which could be presented,” already had amounted to a violation of their client’s right to a fair trial.
Anta Guissé, Khieu Shamphan’s International Counsel, foresees that the new amendments will cause “many issues because of the non-complete exclusion of the facts.” She opines that ruling out some facts while allowing use of the “same facts during the proceedings…is an open window to judicial uncertainty.” She also has concerns that such facts could be used as inculpatory evidence against the accused but that she won’t be able to defend her client against the facts that are excluded.
Ms. Guissé argues that the amendments will affect the Civil Parties as “at the end of the day, they are only admitted to compensation if the Accused are found guilty on the alleged facts.” When facts are excluded, she says, some Civil Parties’ rights to compensation may be eliminated.
And, overall, Ms. Guissé fears the amendments will lead to political interference and “selective prosecution,” enabling the powerful to exert pressure to have the charges against them dropped while the lesser connected will be prosecuted.
But, the various parties’ objections appear to have been outweighed by other concerns, possibly foremost that a judgment may not be obtained during the lifetimes of the Accused.