Discussion on Admission of Documents

Today, September 5, 2016, was a short day for the public in front of the Chamber. Parties gave their responses to submissions to admit documents, after which 2-TCW-1002 was heard in closed session. Pich Ang was absent. Presiding Judge Ya Sokhan announced that oral responses regarding three requests would be heard. The Co-Prosecution had sought admission of a study by expert 1-TCE-82 regarding gender violence during Democratic Kampuchea and another document regarding pregnancy under the regime.[1] The Khieu Samphan Defense Team had requested to admit the biography of 2-TCE-82 and five separate documents. The Nuon Chea Defense Team wanted several reports admitted that related to the expert’s testimony.

The floor was granted to International Deputy Co-Prosecutor William Smith. He said that the Co-Prosecution had no objection relating to the Khieu Samphan request. As for the Nuon Chea Defense Team’s request, he stated that they did not object to the CV and the article with regards to forced marriage in Sierra Leone to be admitted. As for the Rule 93 request by the Nuon Chea Defense Team, he said that they objected in general. First, this request was not timely (the Co-Prosecution had put the report to be admitted into evidence five years ago; the Co-Prosecution and Civil Party Lawyers had requested this expert in 2014; on June 3, 2016, the Trial Chamber indicated that this expert would be called.). Second, it was not possible to fulfil the request in time. The Defense Team had requested to make the documents available within a specific time span. Third, he said that the documents underlying the research were not required to be produced as a general legal principle. He said that in total the documents requested by the Nuon Chea Defense Team numbered 2,200 underlying documents (100 interviews by the expert; 1,500 initial interviews by other people; 600 interviews conducted by university students related to gender-based violence and forced marriage.). The elaborated on the untimeliness of this request, because he said that each of the 2,200 people needed to be spoken to in order to determine whether this information could be used. This implied issues of confidentiality. Further, it would require the redaction of documents, which would be an impossible task given the time frame. The time deadline set in the request was tomorrow, so, he argued, the request almost became moot.

There was no legal requirement that every source was to be used, he argued, if they were not underlying a document that was produced for the court. There were some exceptions to the objection by the Co-Prosecution: he said that they did not object to the interviews from which the excerpts were extracted and which were included in another report.[2]

International Civil Party Lead Co-Lawyer Marie Guiraud said that they would defer to the wisdom of the Chamber. She pointed out that they hoped that this would not delay the expert’s testimony.

The floor was then given to Nuon Chea Defense Counsel Doreen Chen who responded to the remarks and submissions. She said that only those aspects that related directly to the charges should be admitted (these being pages 45-50; Chapters 2-3 in Motherhood at War; Chapters 1,2, 5, 8 (page 73) and 12).  She suggested to split the expert’s testimony: one day next week and then half a day at a later point.

As for their own request, she highlighted that they did not have access to any sources or underlying information of the two reports that formed the core of the work and expertise of the expert. The report included quotes form anonymous individuals which could therefore not be checked. Thus “Nuon Chea is effectively prevented from exercising his right to cross-examine and challenge evidence”.  She pointed out that questions of methodology needed to be raised. For example, 200 students had conducted these 600 interviews. The data evidence control needed to be checked.

 

Anta Guissé then laid out the position of the Khieu Samphan Defense Team. She said she fully endorsed the remarks made by the Nuon Chea Defense Team regarding the Co-Prosecution’s request. Hence, only those aspects related directly to regulation of marriage should be admitted into evidence. As for the expert, she said that they would not ask the expert to violate the confidentiality obligation. The expert should be examined with regards to methodology.

 

Judge Lavernge sought clarification about the relevance of the article talking about forced marriage in Sierra Leone. Ms. Chen answered that the Special Court for Sierra Leone was the only international criminal jurisdiction that had considered charges of forced marriage and was therefore relevant. Moreover, the expert compared the situation in Democratic Kampuchea to the one in Sierra Leone, which would mean that it was helpful to understand the expert’s position.

The International Civil Party Lead Co-Lawyer responded to the Nuon Chea Defense Counsel’s statement about the scope of the regarding rape. She informed the parties and the Trial Chamber that they wre formulating an appeal before the Supreme Court Chamber about the decision not to include rape, since they were “unable to understand it”. They had sought clarification from the Trial Chamber, but the Chamber rejected a “request for reclassification”. This meant that the decision was not final and the Trial Chamber remained seized with charged of rape. The Civil Party lawyers therefore reserved their right to put questions to the expert related to rape in those security centers. Ms. Guissé answered to this by saying that they had taken note of the decision to appeal the decision by the Lead Co-Lawyers. She said until a decision on their appeal was taken, they had to maintain the chamber’s decision. She said that the expert could be recalled if some issues needed to be revisited.

Mr. Smith said that the basis of expertise of the expert was not only the reports she produced in 2006. She had produced other reports about the issue. Moreover, the Nuon Chea Defense Team would have the opportunity to cross-examine the expert to challenge the evidence of the expert. He suggested not to split up the expert’s testimony.

 

The President thanked the parties and announced that 2-TCW-1002 would be heard in closed session, since the witness had been interviewed in ongoing case 003 and 004. This witness had been classified as Category C witness by the Office of the Co-Investigating Judges.

 

[1] E331/1.

[2] E3/3416.

Featured Image: Public gallery at the Extraordinary Chambers in the Courts of Cambodia (ECCC: Flickr).