Closing Order of Case 002 against Senior KR Leaders Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith

In light of the HISTORIC (!) start of MOST COMPLEX (sic!) trial hearings beginning on   27 June 2011 and again ANOTHER HISTORIC (!) START of this same MOST COMPLEX (sic!) on 21 Nov. 2011 of Case 002 against the surviving Khmer Rouge senior leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, KI Media is posting installations of the public document of the Closing Order of Case 002 (or, Indictment). The Closing Order of the Co-Investigating Judges forms the basic document from which all the parties (co-prosecutors, lead co-lawyers for all civil parties, defense lawyers) make their arguments before the Trial Chamber judges (one Cambodian President, 2 Cambodian Judges, 2 UN judges). Up until now, the hearings involving these four surviving senior Khmer Rouge leaders have been in the Pre-Trial Chamber over issues of pre-trial detention and jurisdictional issues. Beginning in June November 2011, the Trial Chamber is hearing the substantive (sic!) arguments over the criminal charges   (genocide against Buddhists, genocide against Vietnamese, genocide against Cham Muslims, crimes against humanity at the 200 prisons, mass crimes in countless killing fields, Eastern Zone purges, penal code of 1956, etc.) of only the Phase I Movement in April 1975.

 
 Available in Khmer, English and French. Contact the ECCC for a free copy.  

 

CLOSING ORDER (or, INDICTMENT)

 

of Co-Investigating Judges You Bunleng and Marcel Lemonde

15 September 2010

 

PART TWO:  APPLICABLE LAW

IV. STANDARD OF EVIDENCE

1320. When deciding on the effect to be given to the judicial investigation, it is necessary to clarify the "standard of proof" required for sending a Charged Person for trial.

1321. Although the ECCC Internal Rules and Cambodian law refer to the concept of "sufficient charges",⁵²²⁴ they do not offer a clear definition of its content. As there is no jurisprudence available from the Cambodian national courts concerning the question of sufficient charges, the Co-Investigating Judges were led to refer to French jurisprudence (since Cambodian law is derived directly from French law), distinguished academic writings⁵²²⁵ and the jurisprudence of the other international criminal courts, in accordance with the Internal Rule 2, Article 23 of the ECCC Law and Article 12 of the ECCC Agreement.

1322. The French Code of Criminal Procedure also refers to the threshold of "sufficient charges" ("charges suffisantes"),⁵²²⁶ but offers no further definition'. This is also the case for French jurisprudence.⁵²²⁷ In practice, the assessment of the existence of "sufficient charges" is left to the "unfettered discretion" of the judges conducting the investigation (who are not required to apply any specific standard in determining whether sufficient charges exist), since the Cour de Cassation abstains from ruling upon such assessments.⁵²²⁸

1323.       Despite the broad discretionary power allowed to these investigating judges under French law, an appraisal standard of proof actually required in order to issue an indictment can nonetheless be inferred from distinguished academic writings and jurisprudence. While it is obviously not required at this stage to ascertain the guilt of the Charged Person (given that only the Trial Chamber has such jurisdiction),⁵²²⁹ it is clear that "probability" of guilt is necessary (i.e. more than a mere possibility). Accordingly, the assessment of the charges at this stage must not be confused with the "beyond a reasonable doubt" standard at the trial stage,⁵²³⁰ yet the evidentiary material in the Case File must be sufficiently serious and corroborative to provide a certain level of probative force.⁵²³¹

1324.       A review of the jurisprudence of the ICC reveals a similar approach concerning the applicable standard of proof for the Pre-Trial Chamber to confirm charges prior to trial. Since its Decision on the Confirmation of Charges in the Lubanga case, the ICC has consistently considered that "for the Prosecution to meet its evidentiary burden, it must offer concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegation" ⁵²³²

1325.       The Statutes and the Rules of the International Criminal Tribunals for the former Yugoslavia and Rwanda require "sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime".⁵²³³ According to the jurisprudence of the ICTY, "a prima facie case ... is understood to be a credible case which would (if not contradicted by the Defence) be a sufficient basis to convict the accused on the charge".⁵²³⁴ According to ICTR jurisprudence, "the term reasonable grounds can be interpreted as facts and circumstances, which could justify a reasonable or ordinary prudent person in believing that a suspect has committed a crime. There must be facts which raise a clear suspicion that the suspect is guilty of committing the offence, for reasonable grounds to exist" .⁵²³⁵

1326.       It is therefore established that there is a common approach to this matter in the jurisprudence of the aforementioned national and international courts, which the Co-Investigating Judges will follow in determining whether sufficient charges exist against the Charged Persons, in light of all the inculpatory and exculpatory evidence and by taking into account the relevance and legality.