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 THREE: LEGAL FINDINGS
III. CRIMES PUNISHABLE UNDER THE CAMBODIAN PENAL CODE 1956
1564. In the Closing Order of 8 August 2008, which they issued in the Duch case, the Co- Investigating Judges noted that some of the facts established by the investigation (namely acts of homicide and torture) could be subject to several legal classifications, as they constituted both crimes punishable under the Cambodian Penal Code 1956 and international crimes.5304 They also noted that legal proceedings exercised on the basis of national Cambodian criminal legislation raised serious legal problems, as was confirmed in the continuation of the procedure. Given the multiple legal problems arising from the charges brought based on national criminal legislation, the Co-Investigating Judges deemed it preferable to accord such acts the highest legal classification, namely crimes against humanity or grave breaches of the Geneva Conventions of 12 August 1949.
1565. The Co-Prosecutors appealed this decision, on the grounds that:
- "There is no hierarchy between any of the crimes in the jurisdiction of the ECCC and it cannot be said that the homicide and torture contrary to the 1956 Penal Code are 'lesser' crimes than crimes against humanity or grave breaches".5305
- "The national crimes thus cannot be subsumed by the international crimes in this Indictment because each national crime requires a material element that is not present in the international crimes and vice versa ".5306
- "In failing to charge national crimes, the Co-Investigating Judges have potentially
created an unnecessary risk that Duch may be completely acquitted at trial5307
1566. In disposing of the appeal on 3 December 2007, the Pre-Trial Chamber decided that the crimes of torture and murder, as defined under Cambodian national law "are not subsumed by the international crimes "5308 As the notion of multiple criminal qualifications is not defined in Cambodian law and the issue is not addressed in the Internal Rules, the Pre-Trial Chamber turned to the procedure established at the international level (whereas the Co-Investigating Judges had the tendency to draw on French jurisprudence, as Cambodian law shares the same root as French law) and the Chamber referred to the jurisprudence of the ad hoc international tribunals: "The jurisprudence of the ad hoc international tribunals holds that it is permissible in international criminal proceedings to include in indictments different legal offences in relation to the same acts".5309 The Pre-Trial Chamber thus added to the Closing Order the crimes of torture and murder, as defined in the Penal Code 195 6.5310
1567. Early in the trial, the Trial Chamber was seized of a preliminary objection, in which the Defence raised the lapse of the statute for national crimes, arguing that Article 109 of the Penal Code 1956 established a limitation period of 10 years in relation to such crimes and that the prescriptive period had expired on 6 January 1989, as this period was not interrupted or suspended.5311
1568. The Trial Chamber decided that there was no legal or judicial system in Cambodia between 1975 and 1979, and therefore that no criminal investigations or prosecutions were possible during that period. Therefore, the limitation period applicable to the relevant crimes under national law had not started to run during that period.5312 On the other hand, the judges of the Chamber failed to reach an agreement on whether or not the applicable limitation period was interrupted or suspended between 1979 and 1993, and thus issued separate opinions.
1569. The Cambodian judges considered that while some domestic trials were conducted during this period ("increasing from 1982 onwards"), national judicial capacity was severely lacking in this period due to the destruction of the judicial system by the Democratic Kampuchea regime. They thus found that "from 1979 until 1982, the judicial system of the People's Republic of Kampuchea did not function at all and operated only to a very limited extent during the years that followed".5313 They therefore agreed that limitation period applicable to the relevant national crimes, at the earliest started to run on 24 September 1993 when the Kingdom of Cambodia was created, and thus did not run before that date. Further, the Cambodian judges noted that the 2001 Constitutional Council decision in substance declared the extension of the limitation period as provided for in Article 3 (new) of the ECCC Law to be compatible with the 1993 Constitution of the Kingdom of Cambodia 5314 and they noted further that they "[had] no competence to review the correctness of decisions of the Constitutional Council".5315
1570. As for the international judges, they acknowledged that the Cambodian judicial system was "severely weakened and compromised" between 1979 and 1993 but not to such a point that "no prosecution or investigation would have been possible".5316 They added that "it [was] not apparent that the promulgation of the Constitution restored to the Cambodian justice system the objective capacity to investigate or prosecute, or eradicated the various systemic weaknesses observed previously, many of which have proved enduring and continued well beyond 1993".5317 Moreover, the international judges opined that the Constitutional Council "did not unambiguously state that the ECCC Law intended to impose either a retroactive suspension of the applicable limitation period, or the reinstatement of the right to prosecute after its expiry", and that it "merely noted that Article 3 (new) of the ECCC Law affects the "fundamental" principle of non-retroactivity of criminal law, but made no further ruling on the impact of this principle".5318 Accordingly, the international judges did not deem themselves in a position to conclude that the limitation period applicable to domestic crimes had been suspended between 1979 and 1993 and they found that prosecution was no longer possible after the promulgation of Articles 3 and 3 (new) of the ECCC Law, i.e. in 2001 and 2004 respectively.
1571. In the absence of an affirmative majority, the Chamber was unable to consider the guilt or innocence of the Accused with respect to national crimes proscribed in the Penal Code 1956.5319
1572. The judges concluded "due to the substantial overlap between the elements of these domestic crimes and their international corollaries, this finding has had no impact on the Chamber's evaluation of the totality of the Accused's criminal culpability, or on the sentence ultimately".5320
1573. Accordingly, in their Final Submission, the Co-Prosecutors requested the Co-Investigating Judges to send the Accused before the Trial Chamber to be tried for violations of the Penal Code 1956, "precisely homicide (Articles 501, 503 and 506) and torture (Article 500)".5321
1574. The Co-Investigating Judges note that, in view of all the foregoing elements, they find themselves in procedural stalemate, which is partly due to the hybrid structure of the ECCC. They have endeavoured to issue a common text on the questions of being tried twice for the same facts, the limitation period for the relevant national crimes, and on the effect of the Constitutional Council decision of 12 February 2001, but have not been able to. In this context, in order to resolve the stalemate, without having recourse to the procedure contained in the rules regarding disagreements, which would put into peril the entire legal process, the Co-Investigating Judges, taking into account their obligation to make a ruling within a reasonable time under the terms of the Rule 21.4 and the waiting of the victims who wish that there be an end to the investigation as soon as possible they have decided by mutual agreement to grant the Co-Prosecutors' requests, leaving it to the Trial Chamber to decide what procedural action to take regarding crimes in the Penal Code 1956.
1575. The Co-Investigating Judges also note that, even if the two language versions of the final submission are analysed, in the part devoted to applicable law5322 regarding the three offences of religious persecution, murder and torture, the English version (expressly designated as the original version) does not retain religious persecution in the dispositive, contrary to the Khmer version. The Co-Investigating Judges note that it is not necessary to distinguish between these three offences.
1576. In view of all of these elements, the Co-Investigating Judges will order the sending of the Charged Persons before the Trial Chamber for charges of murder, torture and religious persecution, crimes defined and punishable by the Penal Code 1956.
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