Monday, May 07, 2012

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.

2 comments:

Anonymous said...

If they cannot be hung,set them free! Sick and tired to hear this long drag trial, those Khmer Rouge leaders should have been executed long time ago and that would have saved the money for the good use rather than waste time with this shitty trial, which doesn't go anywhere, witness my ass! when Khmer rouges killed and tortured the people, have they ever asked for witness! stop this bullshit and if the world cannot do any shit with these bloody hands then set them free.

Anonymous said...

សូមប្រុងប្រយ័ត្ន….សូមប្រុងប្រយ័ត្ន…. សម្បុកសម្ងាត់របស់ពួកវា
សាខាបក្សប្រជាជនកុម្មុយនិស្តកម្ពុជាមានមូលដ្ឋានតាំងនៅ ៖

Ah HEM HENG....Ambassador CPP (USA)
Ah SEA KOSAL...Ambassador CPP (UN)
ស្ថានកុងស៊ុល នៅឡូវែល ម៉ាស្ស
ស្ថានកុងស៊ុល នៅហ្វ៊ីឡា
ស្ថានកុងស៊ុល នៅវ៉ាស៊ីងតោនឌីស៊ី ស.រ.អ.
ភោជនីយដ្ឋាន ប៉ៃលិន នឹង
ផ្សារ ប៉ៃលិន នៅឡូវែល ម៉ាស្ស .

ជ្រៀតចូលក្នុងសមាគមខ្មែរ នឹងតាមវត្ដខ្មែរនានា នៅ រដ្ឋវ៉ាស៊ីងតោន
រដ្ឋកាលីហ្វ័រញ៉ា
រដ្ឋអូរីហ្កកាន់
កាណាដា
វត្ដខ្មែរកាណាដា
គឺជាប្រព័ន្ធគ្រប់គ្រង នឹងជាខ្សែរយៈប្រមូលផ្តុំ
នៃសាខាបក្សប្រជាជនកុម្មុយនិស្តកម្ពុជា
នៅក្នុងសហរដ្ឋអាមេរិក នឹង កាណាដា!!