KR Tribunal Quashes ‘Mini-Trials’

(Cartoon by Sacrava)

February 13, 2013
By Lauren Crothers
The Cambodia Daily

The Khmer Rouge tribunal’s Supreme Court Chamber has reversed a 2011 decision to split Case 002 into “mini-trials,” effectively reinstating the full scope of charges against the three elderly accused, the court announced on Monday.

Trial Chamber judges “severed” the charges against the accused two months before hearings in the case began in November 2011, focusing the first of several “mini-trials”—Case 002/01—on the history and structure the regime, the roles and responsibilities of the accused at that time, and the forced evacuation of Phnom Penh.

In a ruling sent out on Monday, and dated Friday, the Supreme Court Chamber overturned the 2011 decision.

“The Supreme Court Chamber annulled the Trial Chamber’s decision, finding that the original severance of Case 002 in September 2011 and related subsequent decisions lacked clarity and reasoning, and that the Trial Chamber had severed Case 002 and defined the scope of Case 002/01 without having given the parties sufficient opportunity to be heard,” the ruling reads.

According to the ruling, the Supreme Court Chamber found that the Trial Chamber had erred by severing the case without hearing from relevant parties.

That error, it said, “has resulted in a violation of the parties’ right to a reasoned opinion on their right to be heard, as well as errors in the exercise of its discretion, which have caused prejudice.”

An October 8 decision by the Trial Chamber that excluded two of three additional crime sites proposed by prosecutors was also found to be “too tenuous for it to be upheld.”

The chamber agreed to include Toul Po Chrey as the execution site of former Lon Nol soldiers and officials. But it refused to accept executions that took place in Kompong Chhnang province’s Kompong Tralach district or at S-21 in Phnom Penh and Choeung Ek on the city’s outskirts on the grounds that they fell outside the scope of the first mini-trial.

“In this way, the cumulative effect of the Trial Chamber’s errors in shaping the severance of Case 002, and therefore the scope of Case 002/01, occasions the in­validity of the Severance of Case 002,” the Supreme Court Chamber said.

The ruling does not preclude the Trial Chamber from severing the case again, however. But it would first have to hear from all parties, “and only after all parties’ respective interests are balanced against all relevant factors may a severance of Case 002 be soundly undertaken.”

Turning the case into mini-trials had been seen as a way to deliver early verdicts in an extremely complex trial—with aging defendants—expected to last many years.

Khmer Rouge Foreign Minister Ieng Sary’s defense lawyer, Michael Karnavas, called Friday’s ruling “disquieting” and “a bombshell in more ways than one.”

“It highlights some of the systemic weaknesses in the proceedings that continue to persist,” Mr. Karnavas said in an email.

“It would appear that we may have to go back and revisit the wisdom, or lack thereof, in severing the case into little trials, supposedly because it serves the interests of justice.”

He said the time already lost on the Trial Chamber’s “meandering” with the mini-trial could have been avoided had the parties been properly consulted and included in the decision.

“Had we only been consulted to start with I am confident we would not find ourselves in this predicament,” Mr. Karnavas said.

Co-Prosecutor Andrew Cayley said he could not comment on the decision.

Anne Heindel, a legal adviser for the Documentation Center of Cambodia, said the decision could lead to a delay in proceedings if all parties need to be heard, but that such a pause need not be substantial.

“But obviously, it’s a fundamental re-evaluation, and it will take some time from process. But I think the Supreme Court Chamber is saying: ‘This is necessary to have a fair trial, and the results in the long run will be more legitimate,’” Ms. Heindel said.

Hearings were scheduled to resume on Monday, but the latest ruling puts that in question. According to the court’s Legal Communications Officer Lars Olsen, the Trial Chamber will issue directions in due course as to when hearings will resume.