Opaque Filing Procedures and The Disregard of Legacy at The ECCC: CCHR

Cambodian Center for Human Rights

Press Release
Phnom Penh – 15 October 2009

PRE-TRIAL CHAMBER REJECTION OF AMICUS CURIAE BRIEF – OPAQUE FILING PROCEDURES AND THE DISREGARD OF LEGACY AT THE ECCC

The Cambodian Center for Human Rights (“CCHR”) today slams the rejection by the Pre Trial Chamber (“PTC”) at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) of its amicus curiae brief dated 7 September 2009 (the “CCHR Brief”) that was submitted to assist the PTC in determining whether or not to uphold the Office of the Co Investigating Judges (the “OCIJ”) Order on use of statements which were or may have been obtained by torture dated 28th July 2009 (the “OCIJ Order”). The rejection - which was made with no explanation - reflects the complete lack of transparency that has bedeviled the ECCC from the outset, and the continuing and abject failure of the ECCC to afford any consideration to its legacy for Cambodia.

The CCHR Brief described as irresponsible and injudicious the OCIJ Order, which amounts to a blanket acceptance of torture-tainted evidence that puts the ECCC and Cambodia in breach of the Convention Against Torture. Moreover, the OCIJ Order was described as a dangerous precedent that could be exploited by the Cambodian judiciary to permit the admission of torture-tainted evidence and serve to legitimize endemic torture practices in Cambodia. The CCHR Brief raised the concern that the OCIJ Order operates to inform members of the infamously partial and nonindependent Cambodia judiciary that the law can be set aside – in this case a blanket international ban on the use of torture tainted evidence – in order to achieve a predetermined or desirable result.

The CCHR Brief was sent in conjunction with a complaint letter to the United Nations (“UN”) Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and the Special Rapporteur on the situation of human rights in Cambodia respectively; and was expressly supported by a letter from the Law Society of England and Wales to the PTC. The CCHR has received an email from an unnamed ‘Case File Officer’ to the effect that the PTC had rejected the CCHR Brief.

The CCHR opines that the OCIJ Order is all the more concerning in light of the recent sworn testimony by Wayne Bastin, former head of the OCIJ Intelligence and Analysis Unit, which alleges bias by Co-Investigating Judge Marcel Lemonde. If true, such bias would undermine the fairness of all investigations, suggest a presumption of guilt and cause untold damage to the ECCC.

Although it is at the discretion of the Judges of the ECCC to accept or reject Amici Curiae, the CCHR is dismayed at the absence of guidance provided to prospective Amici. Internal Rule 33 and the Practice Directions that are intended to provide guidance to those filing documents at the ECCC are unclear, unhelpful and inconclusive. Furthermore, a veil of secrecy seems to envelop previous decisions of the Chambers of the ECCC accepting or rejecting Amicus Curiae briefs (“ACBs”). The few documents that are available to the public through the ECCC website create procedural obligations on prospective Amici - such as the provision of separate applications and submissions in two languages – which, in light of the time constraints that are necessarily involved, are onerous and unnecessary for applicants – especially those which lack the same resources as the organs of the Court. It is clear that this Kafkaesque regime that surrounds the filing of Amici applications serves to usurp the function of Rule 33 of the Internal Rules and places an effective bar on organizations seeking to be heard in relation to a legal question under consideration at the ECCC. To compound the difficulties faced by the CCHR in submitting an application under Internal Rule 33, the CCHR has received no explanation as to why the CCHR Brief has been rejected. It seems that there is now a blanket ban on ACBs.. In light of the enthusiasm of the Court to solicit ACBs in relation to an issue as straightforward as provisional detention, the disregard of applications on a matter of such jurisprudential significance as the current debate is disconcerting in the extreme. The CCHR has requested an explanation but has received no reply.

Further, the rejection of the CCHR Brief provides another signal that the ECCC is ignoring its promises to bestow a positive legacy of development of the judiciary and rule of law in Cambodia. CCHR President Ou Virak – who himself has recently been threatened with arrest and imprisonment for speaking out for an indigenous minority and human rights defenders in Ratanakkiri Province, and is therefore experiencing at first hand the workings of the flawed Cambodian judiciary - today stated: “We have tried to assist the PTC in bringing to its attention a number of very serious concerns arising from the OCIJ Order and we are very disappointed – but not surprised – that our efforts have been rejected. I remind the ECCC that its work does not happen in a vacuum, that it has promised a legacy of development for the judiciary and rule of law for Cambodia, and that an order that has the potential to be used as a weapon in the hands of a flawed judiciary and law enforcement agencies and which puts Cambodia in breach of the Convention Against Torture runs counter to these promises. We urge the ECCC to listen to Cambodian voices.”

Accordingly, the CCHR requests that:

• The PTC reconsider its decision to reject the CCHR Brief and overturn the OCIJ Order as a matter of priority;
• Given the problems of transparency outlined above, the PTC issues publicly available guidelines on submitting ACBs and provides training on dealing with ACBs to all Court personnel; and
• The Deputy Director and Acting Director at the ECCC set out their aims for and the mechanism and activities to be implemented to bestow a legacy of development of the judiciary and rule of law in Cambodia.

For more information, please contact:

Mr. Ou Virak, President, CCHR
Tel: +855 12 40 40 51
Email: ouvirak@cchrcambodia.org

Cambodia Tribunal Must Not Use Torture "Confessions" as a Legitimate Source of Information

AMNESTY INTERNATIONAL REDRESS TRUST
INTERNATIONAL COMMISSION OF JURISTS

12 October 2009

JOINT PUBLIC STATEMENT

CAMBODIA TRIBUNAL MUST NOT USE TORTURE "CONFESSIONS" AS A LEGITIMATE SOURCE OF INFORMATION

What prisoners say or "confess" to under torture should never be admissible in any court proceedings, said Amnesty International, The International Commission of Jurists and the Redress Trust, after submitting a brief to the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC).

The brief was submitted on 25 September 2009, as part of an application to intervene as "friends of the court" (amicus curiae) in the case of Ieng Thirith, where a dispute has arisen in respect of the potential admissibility of certain statements. In it, the organizations explain that the prohibition on the use of the content of statements obtained by torture by courts is absolute. It both reflects and supports the absolute prohibition on torture and is essential for preserving the integrity of the judicial process and the right to a fair trial. It is also impelled by the moral repugnance at the prospect of using the torturer's creation -- the "confession" -- to seek justice.

Admitting the content of a torture "confession" as evidence, bearing in mind that it was extracted out of a helpless detainee through the intentional infliction of pain and suffering, would irreparably taint any court proceedings.

Article 15 of the UN Convention against Torture, which binds the ECCC, excludes all statements obtained by torture from any court proceedings, with one exception only: torture statements may be used against the suspected torturers themselves, but then only "as evidence that the statement was made." In other words, such statements may be used as part of the proof that the act of torture took place, and not in any way for the truth of its contents or any other purpose. This limitation is clear from the language of the article, which uses the word "only" to prevent any misinterpretations. It is also clear from the history of its drafting in the UN, which the brief describes. During the drafting, proposals to allow the wider use of statements obtained by torture were considered but rejected.

The brief also explains that under international law, the use of statements obtained by torture to prove that they were made, is not limited to proceedings against the actual torturer, but also against commanders and political superiors accused of bearing responsibility for the torture.

The prohibition on the use of "confessions" does not extend automatically to all related material. For instance, other documents in the same file, including registration forms, need not be excluded automatically. However, the admissibility of any such material can nevertheless be challenged, on grounds that it did form part of the statement obtained by torture, that it was obtained by torture independently of the statement, or on other grounds set out in international and Cambodian law.

The organizations urge the ECCC to ensure that its proceedings adhere to international law and standards, which would contribute to the Court's credibility and ability to leave behind a positive and long-lasting legacy. A failure to do so would run counter to the international community's fundamental rejection of torture and refusal to provide it any legitimacy, and potentially undermine the integrity of the ECCC itself.

Regrettably, procedures in the Pre-Trial Chamber involving this brief have been rendered confidential.

The text of the brief is available here: http://www.amnesty.org/en/library/info/ASA23/020/2009/en

Torture still endemic in Cambodian legal system, US ambassador says

Thu, 20 Mar 2008
DPA

Phnom Penh - More than a quarter of Cambodian court defendants surveyed reported being tortured or coerced into confession and ordinary people lacked faith in the justice system, US ambassador to Cambodia Joseph Mussomeli said Thursday. Speaking at the launch of an annual judicial review by local anti- corruption organization the Centre for Social Development (CSD), the ambassador said that although the figures showed some improvement, the country's notoriously fraught system was still poor.

"The CSD annual report makes clear what goes on inside Cambodia's courtrooms still falls short of what can be considered procedural justice," he said.

"CSD reported that over 25 per cent of defendants appearing in court claimed to have been tortured or coerced into giving confessions. I note that this ... is the same as reported last year, indicating there has been no significant change."

The Court Watch Project by CSD has come to be viewed as the definitive annual survey of developments in the fledgling Cambodian judicial system since it was launched in 2003.

CSD, which receives funding from a number of donors including Germany and the US, interviewed a wide range of judicial officials, witnesses, lawyers and defendants between October 2006 and September 2007.

Judicial reform of the notoriously corrupt Cambodian system has been earmarked by donors to the aid-dependant nation as a key factor in the country's development after 30 years of civil war.

The report outlined a number of concerns, including poor training of the judiciary, bribery, torture, underfunding, a lack of independence and frequent pre-trial detention of prisoners for terms exceeding the legal limit of six months.

"Not all the news is bad," Mussomeli said, but "on balance ... there remains a good deal to be done before the people of the judicial system will earn the trust of the people of Cambodia."

Group Notes Continued Concern for Courts

By Chiep Mony, VOA Khmer
Original report from Phnom Penh
20 March 2008

A worrying number of people report coerced confessions ahead of trial, and many are kept beyond reasonable limits awaiting trial, the Center for Social Development said Thursday.

In an annual report, the group found a high number of cases where defendants were allegedly beaten in order to extract confessions.

In six courts monitored by the group, including the Appeals and Supreme courts, 25 percent of defendants claimed they were coerced into confessions by judicial or police officials.

Phnom Penh Municipal Court had the most allegations against it, followed by Kandal provincial court, according to the report.

Courts continued to be under-funded, said Pen Reny, head of the CSD legal unit, noting the budget for the court remained 0.28 percent of the national budget in 2007.

"The lack of court officials impacts the hearings and leads to insufficient justice for defendants, and it also can delay hearings and leave defendants in detention beyond a reasonable time," she said.

US Ambassador Jospeh Mussomeli, who attended a discussion coinciding with the report's release, noted that the percentage of coerced confessions was the same as last year, indicating no change in the way defendants are treated in the initial case process.

He said adults were frequently detained beyond reasonable limits while awaiting trial, and even more so with juveniles. This was something the courts could do something about, he said.

Keu Khem Lim, deputy director-general for the Ministry of Justice, said the ministry was trying its best to carry out the government policy.

In 2007, the ministry drafted new criminal and civil codes, which would provide a basis for proper court conduct, he said.