Closing Order of Case 002 against Senior KR Leaders Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith -- THE END !

Without much fanfare and the millions of the ECCC, we have disseminated to you within the last year, the complete CLOSING ORDER or INDICTMENT of Case 002, via KI-Media blogsite, which averages 100,000 hits per week worldwide.

We are looking to do this with the Khmer version of this INDICTMENT or CLOSING ORDER of Case 002 as well, but the PDF format is messy in Khmer to transfer into a word document.  In addition, as acknowledged by some Khmer legal staff, the translation of it from English and French to Khmer was extremely difficult.  As Ms. Theary C. Seng would probably say, "incomprehensible without the proper, consistent, adequate use of punctuations, in particular the commas." 

 

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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 SIX: MAINTENANCE IN DETENTI0N

Noting Internal Rules 63, 64, 66, 68 and 82;

Noting the Application for Provisional Release filed by the defence for Nuon Chea on 8 September

2010 (C65 - the "Application for Provisional Release");

Noting the Co-Prosecutors' Response to Nuon Chea's Application for Provisional Release dated 13

September 2010 (C65/2);

I. APPLICATION FOR PROVISIONAL RELEASE OF NUON CHEA

A. PROCEDURAL HIST0RY

1614.        On 8 September, the defence for Nuon Chea filed an Application for Provisional Release of their client, arguing that:

-        "provisional detention specifically refers to the time spent in custody 'pending a final judgement' and the only possible endpoints of such a period are conviction, acquittal, final appellate determination or provisional release";⁵⁴⁰⁵

-        "the maximum period allowable under Cambodian law in which to provisionally detain Nuon Chea is three years";⁵⁴⁰⁶

-        "any extension of provisional detention by the OCIJ - including the four-months enlargement allowed under the CCP and the Rules - must be subsumed within the global three-year period" ⁵⁴⁰¹

1615.        In light of these considerations, the defence requests the Co-Investigating Judges to terminate Nuon Chea's provisional detention after the expiry of the three (3) year period, being 19 September 2010.

1616.        The Co-Prosecutors state that Nuon Chea's Application should be rejected because: "The operative law governing the provisional detention of the Charged Person is contained in the Rules"; "the Rules do not establish a three-year maximum period of provisional detention that applies to both the judicial investigation and trial proceedings"; and "the provisional detention of the Charged Person for longer than three years would not violate international standards of justice, given the complexity of the case, the seriousness of the charges and the diligence of the Court to date".⁵⁴⁰⁸ Accordingly, they "submit that the Charged Person's Application for Provisional Release should be denied and that, pursuant to Rule 68, the Co- Investigating Judges should continue the detention of the Charged Person and those others who may be indicted in the Closing Order until such time as they can be brought before the Trial Chamber".⁵⁴⁰⁹

B. REAS0NS F0R THE DECISI0N

1617.       The Internal Rules contain clear provisions regarding provisional detention;⁵⁴¹⁰ as noted by the defence, these provisions are identical to those of the Cambodian Code of Criminal Procedure,⁵⁴¹¹ which has primacy over the previous statutory provisions dealing with provisional detention⁵⁴¹² referred to by the defence.⁵⁴¹³

1618.        Contrary to the defence arguments, however, in no way do the Internal Rules establish that the maximum duration of provisional detention, as they interpret this term, is limited to three (3) years.

1619.       Although Internal Rule 63(6) provides that detention during the judicial investigation may only be ordered for one year terms, renewable twice, this Rule only covers the period between opening and closure of the judicial investigation. Once the investigation has been brought to an end by the Closing Order, provisional detention comes to an end unless the accused is maintained in detention pursuant to Internal Rule 68, subject to being brought before the Trial Chamber within four months, after which Internal Rule 82 applies.

1620.       Finally, and in addition, it should be noted, as recognised by the defence,⁵⁴¹⁴ that international standards relating to the maximum duration of pre-trial detention allow periods superior to those set out in the Internal Rules, taking into consideration the particular circumstances of the case, especially the complexity of the facts.⁵⁴¹⁵.Thus, far from violating minimum international standards, this period sufficiently protects the right of the Charged Persons to be tried within a reasonable time.

1621.       In light of all the considerations set out above, it is clear that the Internal Rules permit the maintenance in detention of the Charged Persons, Nuon Chea. Therefore, the Application for Provisional Release must be dismissed (to the extent that it has not become moot as a result of the Closing Order being issued before 19 September 2010).

II. MAINTENANCE OF THE ACCUSED IN DETENTION

1622.        Considering that, in light of the evidence set out in this Closing Order in support of sending Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan for trial, the conditions laid out in Internal Rule 63(3)(a) are satisfied;

1623.        Considering further, having regard to the conditions laid down in Internal Rule 63(3)(b), that the reasons set out in our last Order on the extension of Nuon Chea's provisional detention (which was not appealed),⁵⁴¹⁶ on the one hand, and the reasoning adopted by the Pre-Trial Chamber in its latest decisions on the appeals against renewal of provisional detention by Ieng Sary,⁵⁴¹⁷ Ieng Thirith⁵⁴¹⁸ and Khieu Samphan,⁵⁴¹⁹ on the other hand, retain their full force, the only new element being the indictment of the abovementioned persons, which only reinforces the reasons for the aforementioned decisions and renders continued detention all the more necessary;

1624.        Considering, accordingly, that it is necessary to maintain the Accused in Provisional Detention until they appear before the Trial Chamber, pursuant to Internal Rule 68:

-         Regarding Nuon Chea: in order to ensure the presence of the Accused at trial, protect the security of the Accused, preserve public order and avert the risk of the Accused exerting pressure on witnesses or victims or destroying evidence if released;

-         Regarding Ieng Sary: in order to ensure the presence of the Accused at trial, protect the security of the Accused and preserve public order;

-         Regarding Ieng Thirith: in order to ensure the presence of the Accused at trial, preserve public order and avert the risk of the Accused exerting pressure on witnesses or victims or destroying evidence if released; and

-         Regarding Khieu Sampham: in order to ensure the presence of the Accused at trial, protect the security of the Accused, preserve public order and avert the risk of the Accused exerting pressure on witnesses or victims or destroying evidence if released.

FOR THESE REASONS,

Noting Internal Rules 64, 67 and 68 of the Internal Rules;

WE HEREBY INDICT:

Nuon Chea

Ieng Sary

Ieng Thirith

Khieu Samphan

Order them to be sent for trial before the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia in accordance with the Law,

Dismiss the Application for Provisional Release filed by Nuon Chea and

Co-InvestigatingJudges  co-juges d'instruction

Order that the Accused remain in Provisional Detention until they are brought before the Trial Chamber.

Done at Phnom Penh, on 15 September 2010