Standby-Counsel for Nuon Chea to be Appointed

Today – November 17 2015 -marked the beginning of the second part of the Appeal hearings in Case 002/01. After Nuon Chea addressed the Supreme Court Chamber in a 20-minute speech, National Defense Counsel Son Arun announced that he would not participate in the hearing upon instruction of his client. He was ordered by the Chamber to attend the proceedings, but did not return to the court room after the first break. This left Nuon Chea, who had been granted leave to follow the proceedings from the holding cell, without any representation, since his International Defense Counsel Victor Koppe had not attended the hearing. The Chamber conferred at length and instructed the Defense Support Section to appoint standby counsel for Nuon Chea. It was not clear, however, whether one or two standby counsels will be appointed. The next appeal hearing is not scheduled yet.

 

Nuon Chea Addresses the Court

At the beginning of the session, the Supreme Court Chamber greffier read out the internal regulations that applied to the Supreme Court Chamber hearings, including an order to the audience to wear appropriate clothing, to stand up when this is announced and the prohibition of drinking and eating and clapping or cheering in the audience. He then announced that all parties were present, except the International Defense Counsel for Nuon Chea Victor Koppe.

This gave rise to a discussion whether Mr. Koppe was absent with the consent of Nuon Chea, during which National Nuon Chea Defense Counsel Son Arun requested leave for his client to address the Chamber for twenty minutes.

The Supreme Court Chamber President Kong Srim announced schedule for the Appeal hearings. They were divided into six thematic sessions to address the appeals against the Trial Chamber Judgment of 7 August 2014.[1]  He then informed the accused of their rights, including the right to be presumed innocent until proven guilty. The President then granted ten minutes for Nuon Chea to address the chamber. When Mr. Arun requested more time for his client to address the Court, the President clarified that the statement read by Nuon Chea was only part of the introduction of the Appeal Hearing and that the statement should therefore be kept brief, since there was time allotted to the accused later during the proceedings.

Accused Nuon-Chea then delivered his speech in which he condemned the judgment and the trial as such, as well as the Supreme Court Chamber.

He first expressed his remorse for the suffering of the Cambodian population under Democratic Kampuchea and said he accepted responsibility.

My respect to my beloved fellow Cambodians, and to all those genuinely committed to truth and justice: I am Nuon Chea, and I was the former Deputy Secretary of the Communist Party of Kampuchea. Eight years and two months ago, I was arrested and brought before this tribunal. I have been engaged in proceedings here ever since. I thought that this process, if done right, could allow Cambodia as an innocent justice-loving nation to come together and meaningfully discuss what happened during the Democratic Kampuchea period. It could be our chance – our only chance – to learn the truth from me, and from all those who lived through the period, before we die and take our memories and experiences to the grave forever. I have long recognized that some of my fellow Cambodians suffered during the Democratic Kampuchea period. As I have said repeatedly, I am remorseful for that suffering and I accept moral responsibility for it.

He then proceeded to criticize the tribunal and claimed that it did not fulfill the rationality that he thought the Cambodian population saw behind the tribunal:

I have engaged with this tribunal because I believe that I have a responsibility to the Cambodian people to help them learn the truth about what really happened in Democratic Kampuchea. To explain to them, as the surviving leader of the Communist Party of Kampuchea, the reasons our party undertook certain actions, and what the results were. And I believe that this is what most Cambodians want from this trial as well. However, from day one, it was my strong impression that this tribunal was not at all interested in exploring the truth. Instead, it seems to operate as though its mission was simply to endorse the instructions of a handful of officials in power, and tell a tale approved by the government before the tribunal was established.

He moved on and claimed that

The judgment was a shameful failure. It didn’t simply fail to deliver truth and justice. It actually managed to take us even further away from the truth and to make a mockery out of justice altogether, just in order to prosecute me. […][T]he trial judgment was extremely oversimplifying and inaccurate.

He then gave a few examples how the judgment did not justice to the actual events, ranging from a misrepresentation of the Party’s hierarchy to evidence related to the role of Vietnam that “organized and instructed” a coup to overthrow the party.

He continued to point out the bias he felt stemmed from the judges:

They ignored evidence that all of these events related to Vietnam’s longstanding ambition to invade, expand, swallow up Cambodia, and eliminate the Khmer people and integrate Cambodia into an Indochinese Federation with Vietnam at the head. My lawyers’ attempts to present this evidence were met with skepticism, hostility and anger. Their microphones were cut off. The judges demonstrated extreme bias against me in the courtroom and in their judgment, ignoring key submissions and evidence put forward by my lawyers. Hiding from the truth as the Trial Chamber judges did in their judgment serves no one but the Vietnamese. It does nothing to deliver justice and improve understanding. It simply threatens to reduce this whole tribunal to one useless waste of time and effort.

Having criticized the general partiality, he moved on to the Trial Chamber Judgment.

As disappointing as the trial judges and investigating-judges had been, my lawyers and I still thought that there could be a chance, however small, that things might be different before you, Supreme Court Chamber judges. Accordingly, […] my lawyers submitted to you a 270 page brief in English. It reflected the very poor quality of the trial judgment by appealing it on no less than 223 grounds. Some of those grounds relate to gross violations of my right to a fair trial by both the trial and investigating-judges. I want to take this opportunity to highlight the most serious violation of them all: the Trial Chamber’s refusal to call Heng Samrin as my witness. Heng Samrin was by far the most important witness for the first trial.

He then explained the importance of this witness, especially in his role as a possible character witness, and claimed that the failure to call Heng Samrin as a witness demonstrated that

the tribunal is powerless. It is disrespected, and it is simply acting under the pressure of the government.

Since the international judges did not act differently to their national counterparts, Nuon Chea asked

Why are the international judges even here then? … My lawyers argued that it was clear that the judges were biased and could not bring an open mind to the second trial against me. Of course, this motion was dismissed […]. We were forced to press ahead in the second trial with the same judges and the same unfair procedures in place.

He explained that his lawyers walked out of the proceedings three months ago, because they could not stand their frustration anymore.

[M]y lawyers could no longer take what was happening in this courtroom. The injustice that day was one of many, and too much for them to bear, especially knowing that there would be more and more injustices coming in the future.

As for the Supreme Court Chamber, he stated that they had rejected crucial evidence that

provides insight into the head and tail of the crocodile, and not just the crocodile’s body. The evidence confirms that Vietnam attempted a coup d’état during the Democratic Kampuchea period.

This evidence included evidence given by filmmakers Thet Sambath and Robert Lemkin that showed a plan of Sao Phim, Ruos Nhim and some zone leaders to overthrow the government of Democratic Kampuchea.

Many people were starving because of their plans. […] The new evidence now clearly tells us that if this rebellion would not succeed, Vietnam would invade Cambodia directly. And as we all know, that is what they finally did, using over a hundred thousand soldiers and some tanks.

As for the Supreme Court Chamber, Nuon Chea stated that

In the beginning, my lawyers and I were encouraged by the Supreme Court Chamber’s response to the evidence requests. It seemed as if it was the first time at this tribunal that judges – including Cambodian judges – were willing to come to this case with an open mind. To engage in a real discussion about the issues. My lawyers were particularly encouraged by the Chamber’s agreement to open an investigation into evidence that was collected by the filmmakers Thet Sambath and Rob Lemkin. They were also further encouraged when the Chamber scheduled testimony of three witnesses we had asked to testify on appeal. In light of all of these developments, my lawyers had been preparing for and carefully and patiently awaiting these appeal hearings. Their disappointment was immense, therefore, when the Chamber announced that not one of the witnesses we requested would be called to testify on appeal. None. Not Heng Samrin, not Rob Lemkin, not Thet Sambath.  […] In the end, you decided in the same way as all the judges before you. How disappointing. That Supreme Court Chamber decision also dismissed all our new evidence and offered no reasons at all, making it impossible to understand.

He furthermore directly addressed the Judges by stating that

Your Honors, because of your decision, the outcome of the appeal is now irrelevant to me. It has become clear to me that the Supreme Court Chamber is just as biased, unwilling and as afraid as those that have come before you to really explore what the truth was. You refuse to give me even just the chance to tell the Cambodian people my side of the story. Your decision has confirmed that my assessment of this tribunal has always been right as the Court would serve only those who it belongs to. It is nothing but a meaningless effort designed just to convict me. Accordingly, following a discussion with me, my international lawyer Victor Koppe is not participating in these hearings. I will also leave these proceedings once I have finished making my comments and I would also like to instruct my national lawyer Mr. Son Arun not to participate in these proceedings any further and not to respond to any kind of questions by the judges or the other parties. We choose instead to rest on the arguments made in my appeal brief. However, I have stopped short of withdrawing my appeal altogether, in honor of the responsibility I continue to feel to help the Cambodian understand the truth of what really happened in the Democratic Kampuchea Period. I urge you, judges, to have courage, and to consider your commitment to truth and justice when writing your judgment. The Cambodian nation, which has clear and delight knowledge, is waiting for you to deliver truth and justice in your judgment. Cambodia will never have this opportunity again. Thank you.

 

Attendance and Participation of Defense Counsel for Nuon Chea

After Nuon Chea delivered his speech, the President asked the National Defense Counsel whether he would be staying in the court room despite not participating. Mr. Arun stated that his client had instructed him not to participate in the appeal hearing after the break. This gave rise to a discussion. Mr. Arun stated that the Cambodian Bar Association Statute instructed lawyers to rely on conscience. Defense lawyers needed to listen to instructions given by their clients. This prompted Judge Agnieszka Klonowiecka-Milart to state that if Mr. Arun withdrew from the proceedings, he “will be in contempt of court and we will be drawing consequences of it. This chamber does not allow you to leave.” She said further that it appeared to her “crystal-clear” that this was a strategy to obstruct the proceedings, as it had been used before other courts already.

Mr. Son Arun replied that “I must comply with the Statute of the Bar Association of the Kingdom of Cambodia, Art. 58.” He argued that he had to comply with the instructions of the clients and would need time to consult with his client. He “humbly [requested]” the Chamber to be given this opportunity.

International Co-Prosecutor Nicholas Koumjian stood up and said that this proceeding was “not something like cocktail parties” that someone could choose to attend. “They’re not here to obstruct the proceedings”. The accused could be absent only for medical reasons and did otherwise not have a choice. These were criminal proceedings with severe crimes being tried.

National Khieu Samphan Defense Counsel Kong Sam Onn stated that the Defense Counsel had been instructed by his client not to respond to any comment. It was clear and sufficient that the lawyer could take decision to walk out. He furthermore stated that lawyers enjoy their freedom of profession. He argued that Article 301 of the Cambodian Criminal Procedural Code was not an absolute article and that other lawyers could be found to represent the client.

International Civil Party Co-Lawyer Marie Guiraud made a short observation and said that Nuon Chea has been summoned. Rule 81 of the Internal Rules obliges the accused to be present. She argued that two things followed from this: either Nuon Chea filed a submission to leave for medical reasons, or he did not file such a request and therefore his presence was required.

Mr. Arun requested leave for Nuon Chea to leave the proceedings, since he was feeling unwell due to his poor health condition. The President granted this request, based on a medical report that had been filed today. He allowed the accused to follow the proceedings from downstairs.

In the meantime, National Co-Prosecutor Chea Leang had raised to her feet and now stated that before the Chamber decided on the absence of the accused, it had to be made clear that the although the defense counsel was prohibited from replying to questions because he had been instructed by his client to refrain from doing so, he had to be present in the court room. Judge Klonowiecka-Milart clarified that the request had already been granted and there was no reason not to do so.

Grounds of Appeal

The Special Rapporteur then started summarizing the grounds of Appeal of the Nuon Chea and Khieu Samphan defense teams. These alleged violations of the right to a fair trial were grouped into four categories. The defense teams submit that:

1. The right to an independent tribunal had been violated, since the Trial Chamber was deeply biased. It was evidenced by the refusal of the chamber to call certain witnesses.
2. Nuon Chea’s and Khieu Samphan’s right to an effective defense had been violated, as not sufficient time for the defense and did not give the opportunity to question certain witnesses. The Chamber had failed to summon Heng Samrin, Ouk Bunchhoeun, and Robert Lemkin.
3. The Trial Chamber’s key decisions were insufficiently reasoned, because it failed to address key arguments; and that
4. The rights of Nuon Chea and Khieu Samphan to be informed had been infringed. It had not been clear which charges were encompassed and the Trial Chamber relied on facts that were outside the scope of the trial. Additionally, the Nuon Chea Defense Team submitted that the ECCC internal rules were unconstitutional and illegal, since it was adopted ultra vires and one could only rely on international law if there is a lacuna in Cambodian law.

The floor was then given to the Nuon Chea defense counsel to make his oral submission. Mr. Arun clarified that his oral submission had already been included in what has been read out by his client and he had nothing else to add. The President reminded him that this first section related to the unconstitutionality of the internal rules, but adjourned the hearing for a break nevertheless.

 

Abesence of Defense Counsel for Nuon Chea

After the break, International and National Co-Counsels for Nuon Chea were absent. Moreover, Nuon Chea was absent, after the Chamber had received a waiver of Nuon Chea to directly participate.

The President requested comments regarding the absence of the National and International Co-Counsels for Nuon Chea. International Co-Prosecutor Nicholas Koumjian stated that counsel had acted against the orders of the Chamber, but that “your honors” could “deal with” something that the Prosecution would classify as misconduct. It was, however, imperative to proceed. It was, as Mr. Koumjian argued “not for Nuon Chea to dictate the schedule of hearings” and to decide when the appeal would take place. The Co-Prosecutors would respond to previously made submissions by both Nuon Chea and Khieu Samphan Defense Teams after having heard the submissions by Khieu Samphan. The hearing should continue, since Nuon Chea had waived his right to be represented by a defense counsel.

Mr. Sam Onn stated that the defense team did not have further comments.

Civil Party Lead Co-Lawyer Marie Guiraud pointed out that the Appeal hearings had to continue. The Supreme Court Chamber then conferred until around 14h10.

After the lunch break, the President ruled on the matters raised in the morning. He summarized the proceedings in the morning and said that it had been held that Mr. Son Arun was required to be present in the court room; if he chose to be absent to the proceedings, he would be held in contempt.

The President stated that Article 301 Cambodian Code of Criminal Procedure provided that the assistance of defense counsels was mandatory. Where the counsel was not present without justification, the chamber could either adjourn the hearings or request the Defense Support Section to assign a counsel to represent the accused if he requested the presence of a defense counsel. Thus, it was mandatory to have a counsel present at any stage during the proceedings and this right could not be waived by the accused. The behavior by the International and National Counsel could be interpreted as misconduct that could give rise to disciplinary sanctions. This would be decided soon. As for the appeal hearings, the Supreme Court Chamber decided to adjourn the hearing and instructed the Defense Support Section to appoint standby counsel for Nuon Chea as soon as possible. A new scheduling order would be issued in due course. The President then adjourned the hearing.

 

[1] The original schedule can be found here: http://eccc.gov.kh/en/document/court/annex-final-timetable-hearing .

 

Featured Image: Nuon Chea (Flickr: ECCC)