Breath of life for stalled cases

People visit the site of the Wat Thoamayutt Security Centre in Mong Russey district in Battambang province, in the late 1990s. If Case 004 proceeds, crimes committed by the Khmer Rouge at Wat Thoamayutt as well as at numerous other crime sites will be addressed. Photo by DC-CAM

22 April 2013
By Abby Seiff
The Phnom Penh Post

Twenty lawyers representing hundreds of victims have been given access to the files of cases 003 and 004, following years of inaction and stonewalling by the Khmer Rouge tribunal’s Office of the Co-Investigating Judges.

The orders do not, however, change the status of the defence teams, who remain blocked from the file.

In a pair of decisions dated February 26 and April 1, respectively, and released to the public on Saturday, international Co-Investigating Judge Mark Harmon ordered the accreditation of the civil party lawyers, citing their right to participate in the judicial investigation.

The decisions are not signed by Harmon’s national counterpart, Judge You Bunleng, and both bear a notice that the pair “signed a Written Record of Disagreement concerning this Recognition Decision”.

Heather Ryan, a tribunal monitor with Open Society Justice Initiative, called the decisions an “encouraging development” that suggested Harmon, at least, had been pushing the cases forward.

“Increasing transparency about the progress of the investigations is critical to their credibility,” she added.

Access to the files of the government-opposed cases 003 and 004 have proved a near intractable issue in recent years for both civil party and defence lawyers. While hundreds of civil party applications have been made in both cases, access was completely blocked after a series of highly critcised decisions issued by Bunleng and then-international judge Siegfried Blunk in 2011 to quietly shut down Case 003 and reject applications in 004.

Blunk’s replacement, Swiss judge Laurent Kasper-Ansermet, reopened investigations a year later. During a narrow window before the judge’s fiery departure, a single civil party lawyer was able to successfully apply for Case 003 file access on behalf of a single client. Of more than 800 civil party applicants, no other had since been given access.

Civil party lawyer Lyma Nguyen lauded the decision but called the lack of forward motion with regards to the suspects concerning.

“Judge Harmon’s decision to recognise lawyers for civil party applicants in Case 004 is an extremely significant step in progressing these cases, and in particular, in acknowledging the rights of victims of crime who have applied to become civil parties in these proceedings.”

Nguyen pointed out that while the identity of the five mid-ranking cadres who are suspects in Cases 003 and 004 has been widely known for years, the court has never officially released their names. It is unclear, even, if the charges levied against the five by Kasper-Ansermet stand.

Two of the five suspects have been appointed lawyers, but counsel for both suspects said yesterday that they have never been given access to the files.

“It is our understanding that the National Co-Investigative Judge does not recognise that suspects at this stage of the proceedings are even allowed to have court-appointed representation. As for the international judge, it would seem that he is of the view that defence lawyers are not entitled to access the case file, but may be entitled to some limited information”, added Michael Karnavas, a defence lawyer for a suspect in Case 003. “The process is not exactly transparent.”