Bringing Domestic Cases into Compliance with International Standards

1.    INTRODUCTION

 The ECCC is an extraordinary chamber within the existing Cambodian court structure. It was established with the cooperation of the United Nations (“UN”) to try senior leaders of Democratic Kampuchea and those who were alleged to be most responsible for both international and national crimes committed in Cambodia during the period 17 April 1975 to 6 January 1979. A number of features governing the ECCC’s establishment and its function within the Cambodian domestic system support the conclusion that its jurisprudence is part and parcel of Cambodian law and, therefore, applicable in domestic courts. These features include: a. the status of the ECCC as a domestic court; b. the role of the Constitution,[2] which specifically requires courts to consider international legal principles when applying domestic law; c. the interplay between domestic and international law in Cambodia; d. the impact of other instruments that govern the operation and procedure of the ECCC,[3] which are grounded in domestic procedure and supplemented by international principles; and e. the aspiration of the ECCC to serve as a “model” court for Cambodia in enhancing judicial capacity and fostering the rule of law.

With these unique features, the ECCC provides an exquisite opportunity for Cambodians to witness the functioning of a Cambodian court that aims to achieve both substantive and procedural justice through the application of international standards and principles. Though fairly endeavoring to respect the rights and dignity of all parties, the ECCC has not lived up to its promise, let alone potential, to consistently apply these standards and procedures. Many of its decisions—both substantive and procedural—are open to unwelcome challenge and criticism.[4] Of greater concern, however, are the allegations of corruption,[5] political interference,[6] revelations of significant deficiencies in its investigative processes in Case 002[7]; and implications of misconduct, incompetence, and lack of independence in the judicial investigations of Cases 003 and 004.[8] The Trial Chamber’s claim that the ECCC is “a model court”[9] is more aspirational than actual. Certain decisions made by the Office of Co-Prosecutors (“OCP”), the Office of the Co-Investigating Judges (“OCIJ”) and the Chambers (Pre-Trial, Trial and Supreme Court) are seemingly politically driven, fostering (or perpetuating, as it were, in the currently existing prosecutorial and judicial context) a culture of circumvention and/or concealment.

Considering, however, that courts throughout Cambodia are at best haphazardly applying the international human rights principles incorporated in the Constitution, the ECCC,[10] imperfect as it may be, is best poised to guide the Cambodian judicial system. It is no exaggeration to say that for the first time in modern Cambodian history (or at any time for that matter), through the ECCC Cambodians are seeing how a court of law ought to function: parties are afforded the right to be heard; defense lawyers are openly and aggressively challenging the prosecution while also demanding to be heard by the judges; and rulings and decisions are for the most part transparently reasoned and subject to actual review.

Any action by the Cambodian judiciary to ensure greater application of Constitutional fair trial rights will depend almost exclusively on the Cambodian Government (“Government”), which effectively controls the judiciary.[11] This article offers some thoughts on how Cambodia can seize this extraordinary opportunity to harvest the positive fruits of the ECCC’s jurisprudence and procedural mechanisms to strengthen domestic judicial capacity.

 

2.    FEATURES SUPPORTING THE CONCLUSION THAT ECCC JURISPRUDENCE IS APPLICABLE IN DOMESTIC CAMBODIAN COURTS

 2.1. The Role of the ECCC As a Domestic Court

  The ECCC was established as a Cambodian domestic court.[12] The Cambodian Government explicitly rejected creating the ECCC as an international tribunal, as was suggested by the international community during negotiations between the Government and the UN concerning the ECCC’s establishment.[13] The clear intention of the Government was to establish a domestic court with international elements. Though often characterized as “internationalized” (a label of dubious substance), the ECCC is a court embedded in the domestic court system. This intention is reflected in the documents that establish and define the jurisdiction of the ECCC: the Agreement between Cambodia and the United Nations and the Cambodian Establishment Law, each of which refer to the creation of “Extraordinary Chambers”ithin the existing court structure.

During the protracted negotiations leading up to the Agreement, the UN had expressed “concern with continued problems related to the rule of law and the functioning of the judiciary [in Cambodia] resulting from, inter alia, corruption and interference by the executive with the independence of the judiciary.”[14] The UN proposed changes to the draft Agreement, including provisions for the majority of the judges on the Trial and Supreme Court Chambers to be international, for decisions of the Chambers to be resolved by simple majority vote rather than a “supermajority,” and for only one prosecutor and one investigating judge, each of whom would be international (rather than two co-prosecutors and two co-investigating judges, national and international, as had been envisioned in the original draft).[15] The proposals to bolster the international elements of the court were intended to remedy perceived weaknesses in the Cambodian system, with the UN Secretary-General stating that these adjustments were necessary to “ensure that the impartiality and independence of the Extraordinary Chambers and the integrity and accessibility of the proceedings were fully protected.”[16] The Government rejected these proposed amendments, making it clear that it wanted a domestic, as opposed to an international or internationally controlled, court.[17] Despite the involvement of the UN, and the ECCC’s jurisdiction to try international crimes,[18] it is clear that the ECCC was established as a sui generis court within the domestic court system bound by the Constitution and other Cambodian law.[19] Put differently, there is a strong institutional link between the ECCC and the courts of Cambodia justifying an expectation that the jurisprudence of the ECCC will be heeded by the domestic courts, despite the fact that the decisions of the ECCC do not explicitly create law for the domestic courts.

 2.2. The Cambodian Constitution

The Constitution, as the “supreme law” of Cambodia,[20] governs the operation of both the ECCC and domestic courts. The Constitution explicitly incorporates international human rights standards into the domestic framework, providing that “the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights.”[21]

Cambodia has ratified the major international human rights conventions,[22] including the International Covenant on Civil and Political Rights (“ICCPR”).[23] The ICCPR is the primary international instrument recognizing the obligation of States under the UN Charter to promote “universal respect for, and observance of, human rights and freedoms.”[24] The ICCPR sets out the “equal and inalienable rights”[25] and minimum guarantees which apply to all individuals’ civil and political participation, including fair trial rights. Since Cambodia has ratified these instruments and chosen to unambiguously incorporate them into its Constitution,[26] it is beyond cavil that meaningful adherence to the rule of law in Cambodia requires that all domestic courts apply and uphold these overarching human rights provisions.[27] Because the ECCC is a domestic court, it follows that the laws and instruments adopted to establish and govern the ECCC are also subject to the Constitution and the human rights protections enumerated within it.[28] ECCC jurisprudence interpreting constitutionally required human rights protections can therefore provide an authoritative example for domestic courts.

2.3.Interplay of Domestic and International Law in Cambodia

 The interplay between international law incorporated into the Constitution and domestic law in Cambodia supports the conclusion that the ECCC’s jurisprudence is applicable in domestic courts because international law incorporated through the Constitution is also domestic law. Cambodia appears to adhere to a dualist (as opposed to a monist) system in its approach to implementing international law in its domestic legal order.[29] As distinct from a monist system, where international law exists alongside the domestic law as equally applicable by courts, a dualist system considers international law to be separate from domestic law and only applies international law if it is directly incorporated into domestic law through a State’s constitution or through implementing legislation.[30] In Cambodia, international human rights principles have been explicitly incorporated into the domestic framework by the Constitution and are thus, at least in theory, applicable in domestic courts.[31]

 The Constitutional Council has recognized that, although a law may not violate the Constitution, a court must consider whether its application in a particular case would be incompatible with either provisions in the Constitution, other Cambodian law or international conventions recognized by Cambodia. In finding that a proposed amendment to the Law on the Aggravating Circumstances of Felonies[32] was consistent with the Constitution, the Constitutional Council noted that the trial judge should rely not only on the proposed amended Article for a conviction, but also on “the laws.”[33] The term “laws” refers to “the national laws, including the Constitution which is the supreme law, all the laws that remain in force, and the international laws already recognized by the Kingdom of Cambodia….”[34] Thus, despite the fact that international law does not appear to be directly enforceable in domestic courts, local judges, like ECCC judges, are constitutionally obliged to consider international human rights conventions and fair trial rights in applying and interpreting domestic law.[35]

Notwithstanding the Constitutional requirement to consider international legal instruments and human rights protections, these international legal principles have rarely, if ever, been applied in practice by the domestic courts in Cambodia. A recent report from the UN Special Rapporteur on the situation of human rights in Cambodia raised concerns about the independence and competence of the judiciary, observing that “in spite of the Constitutional guarantees and the existence of various institutions to enhance and safeguard its independence, the Special Rapporteur is of the view that the judiciary has not been working as effectively, independently and impartially as possible.”[36] Areas of major concern in domestic criminal proceedings include limited legal argument in the courtroom;[37] the absence of any rigorous analysis of law or publication of reasoned decisions;[38] corruption and political interference within the judiciary;[39] excessive reliance on confessions extracted in police custody, often under duress;[40] lengthy detention without charge;[41] and a lack of trust by the public that the courts will deliver impartial justice.[42]

 Many of these deficiencies have been exposed in the recent controversy surrounding the 20-year jail term handed down by the Phnom Penh Municipal Court to independent radio station owner Mam Sonando for allegedly inciting insurrection activities in Kratie’s Broma village.[43] The sentence was imposed after a three-and-a-half day trial, which was held two months after Mam Sonando’s arrest on 15 July 2012, and during which the prosecution presented little evidence of his involvement in the alleged insurrection activities in Broma village.[44] The case has been described as “one of the most blatantly politically motivated trials in recent years,”[45] with human rights groups claiming that the Government fabricated the alleged plot to silence the owner of one of the few independent radio stations in Cambodia and to cover up its eviction of 600 Broma villagers who were involved in a land dispute with a rubber plantation.[46] United States State Department spokeswoman Victoria Nuland has called on the Government to “release Mam Sonando immediately to ensure that its court system is free from political influence, and to reaffirm its commitment to guaranteeing its citizens’ basic rights.”[47] ECCC fair trial rights jurisprudence can provide judges a tool for fulfilling their constitutional obligation to address these systematic concerns.

2.4. Instruments Governing the Practice and Operation of the ECCC

The instruments governing the practice and operation of the ECCC provide that the ECCC must apply Cambodian fair trial principles and rules of procedure, but may look to procedural rules established at the international level where there is a lacuna in the Cambodian rules. This interplay between Cambodian and international law mirrors the requirement that domestic laws must be consistent with the principles enshrined in the Constitution, which include the provisions of the ICCPR and international human rights instruments.

            2.4.1. The Agreement.

The Agreement signed on 6 June 2003 between the Cambodian Government and the UN was intended to formalize the cooperation between them for the establishment of the ECCC and to provide, inter alia, the legal basis, principles and modalities for that cooperation. According to Article 12 of the Agreement, the procedure applicable at the ECCC shall be “in accordance with Cambodian law.” However, the Agreement provides that “guidance may also be sought in procedural rules established at the international level” where there is a deficiency or uncertainty or where Cambodian law is inconsistent with international standards.[48]

Article 12(2) explicitly provides that the ECCC shall exercise its jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the ICCPR. Article 14 of the ICCPR sets out the fundamental fair trial rights that attach to all persons charged with criminal offenses including: the right to a fair and public hearing by a competent, independent and impartial tribunal; the right to be presumed innocent until proven guilty; the right to be informed of the nature of the charges; the right to adequate time and resources for preparation of a defense and to communicate with legal counsel; the right to be tried without undue delay; and the right to be tried in one’s presence. Article 15 embodies the principle of legality, requiring that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

            2.4.2. The Establishment Law.

The Cambodian Establishment Law was created “to bring to trial senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law,[49] international humanitarian law and custom, and international conventions recognized by Cambodia.”[50] The original version of the Establishment Law was passed in 2001 (prior to the signing of the Agreement in 2003), and later amended in 2004. While the purpose of the Agreement was to establish cooperation between the UN and the Government, the role of the Establishment Law was to put into practice exactly how this would be done, while also specifying the ECCC’s subject matter, temporal and personal jurisdiction. Simply, the Agreement must be implemented “through” the Establishment Law.[51] Mirroring Article 12(2) of the Agreement, Article 33 new of the Establishment Law also provides that the ECCC shall exercise its jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the ICCPR.

Although the Establishment Law was adopted to apply specifically to the ECCC and its provisions cannot be directly applied by other courts, it is nevertheless grounded within Cambodian law supplemented by international fair trial standards, including the ICCPR. Given that Cambodian courts are obliged to consider the same international standards as imported by the Constitution in their application of domestic law, the jurisprudence of the ECCC applying the Establishment Law can be instructive to domestic courts interpreting similar provisions. For example, the recently enacted Cambodian Criminal Code, which criminalizes the same international offenses of genocide, crimes against humanity and grave breaches of the Geneva Conventions[52] punishable by the ECCC under the Establishment Law,[53] already illustrates both a jurisprudential and legislative impact by the ECCC, providing an opportunity for domestic courts to apply ECCC jurisprudence.

            2.4.3. The Internal Rules.

The Internal Rules of the ECCC were adopted in June 2007[54] by the Plenary Session of national and international judges. As observed by the Pre-Trial Chamber, the Internal Rules “form a self-contained regime of procedural law related to the unique circumstances of the ECCC.”[55] Although the Internal Rules do not stand in opposition to the Cambodian Criminal Procedure Code (“Criminal Procedure Code”), the Pre-Trial Chamber has held that reference should be made to the Internal Rules as the “primary instrument”[56] where there is a difference between the Internal Rules and the Criminal Procedure Code. The provisions of the Criminal Procedure Code should only be applied where a question arises which is not addressed by the Internal Rules.[57]

The legal authority to adopt the Internal Rules is given to the ECCC through the National Assembly by means of Article 33 new of the Establishment Law, but only to the extent that the existing procedures in force “do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards.”[58] This practice of creating procedural rules specific to the ECCC is consistent with the procedure employed at the International Criminal Court (“ICC”) and some of the ad hoc tribunals, whose governing statutes allow for the adoption of specific rules of procedure, although without the limitation which exists at the ECCC that such rules can be established only when there is a lacuna in the domestic law.[59]

Notwithstanding Article 33 new of the Establishment Law, an argument can be made that the legal framework of the ECCC does not provide the Judges any power to legislate on procedural issues, particularly where judge-adopted rules could conflict with or deviate from procedural legislation adopted by the National Assembly. Perhaps the better practice would have been for the Plenary to have adopted an interpretative declaration of Article 12(1) of the Agreement, as one legal scholar noted, by identifying which elements of Cambodian criminal procedure were certain and consistent with international standards and which were uncertain or inconsistent with international standards.[60] This practice would have clearly articulated how the ECCC would determine which rules of international criminal procedure should act as “gap-filling” or serve the “corrective function” envisaged by Article 12(1) of the Agreement.[61] However, despite the availability of this prudent and more transparent approach in reconciling any lacunae or ambiguities, the Trial Chamber has held that the Judges of the Plenary acted within their discretionary parameters in drafting and adopting the Internal Rules,[62] which to this day continue to evolve.[63] Of course, allowing the judges of the ECCC or the other international tribunals the unfettered ability to create procedural rules, then declare the creation of those rules to be within their own broad discretion, presents the danger that procedural rules founded in expediency and economy will impinge upon substantive rights.

While the Internal Rules specifically apply to the ECCC, for the most part they are based on and grounded within Cambodian procedure. he Internal Rules complement principles of domestic procedure, incorporating the international fair trial rights, standards and principles set out in the Constitution, which, indubitably, all Cambodian courts should be applying. Thus, ECCC decisions made pursuant to the Internal Rules should e considered and, when appropriate, applied by domestic courts. The Internal Rules cannot, and in fact should not, supplant applicable Cambodian procedures insofar as those procedures are consistent with international standards. Such an approach would be inconsistent with the ECCC’s power to adopt the Internal Rules and would undermine its ability to leave a jurisprudential fair trial legacy that is relevant and applicable to domestic courts.

            2.4.4. International and Internationalized Tribunal Precedent.

There is nothing in the Establishment Law, the Agreement or the Internal Rules that requires ECCC judges to follow the jurisprudence or rules of procedure of international or internationalized tribunals.[64] This precedent is not binding on the ECCC, nor is it binding in other Cambodian domestic courts. However, given that the Constitution, the Establishment Law and the Internal Rules explicitly incorporate the protections of international human rights instruments, including the ICCPR, the jurisprudence and rules of procedure of international and internationalized tribunals can be used for guidance in interpreting relevant provisions of international law and procedure, both at the ECCC and in domestic courts.

The ECCC has cited jurisprudence from the ICC, the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone (“SCSL”) and the Special Panels for Serious Crimes in Timor Leste (“Special Panels”) as well as international human rights bodies including the European Court of Human Rights (“ECtHR”), Human Rights Committee (“HRC”) and Inter-American Court of Human Rights (“IACtHR”), particularly in situations where there is no pertinent Cambodian law or practice. In relation to fair trial rights, the ECCC cited jurisprudence from these bodies when considering, for example, the principle of legality under Article 15 of the ICCPR and customary international law,[65] the interpretation of Article 14(7) of the ICCPR and the ne bis in idem principle[66] and the impact of public statements condemning an accused on the right to be presumed innocent under Article 14(2) of the ICCPR.[67]

Predictably, there will be reluctance if not outright resistance to apply any ECCC jurisprudence or procedural practices that make reference to jurisprudence or practices from the ad hoc international tribunals, the ICC or human rights courts. The refrain from the judges and prosecutors (and perhaps even defense lawyers) no doubt will be that Cambodian law cannot be based on non-domestic jurisprudence and, therefore, ECCC jurisprudence should be disregarded. In other words, they will seek to maintain the status quo in the domestic courts; business as usual. It is worth re-emphasizing, however, that since domestic courts are mandated to consider and apply the same international legal instruments incorporated by the Constitution, an ECCC decision or procedural practice predicated on the ICCPR fair trial rights incorporated in the Constitution is, at a minimum, persuasive authority in domestic courts. Any claim to the contrary, especially if based on the excuse that a decision cites jurisprudence from one of these international bodies, is meritless.[68]

2.5. The ECCC As a “Model” Court

With the realization that the Cambodian judicial system as it currently exists has certain weaknesses, the ECCC was intended to serve as a model for the domestic courts and to have a long-term impact on enhancing and building the domestic judiciary’s capacity. Arguably, the ECCC would establish and demonstrate best practices to be subsequently emulated by domestic courts, and would allow for the transfer of knowledge and expertise of the international community. As the UN Secretary-General stated during the establishment of the ECCC:

It is hoped that the establishment of a transparent process that complies with international standards will have an educational effect on existing formal institutions and create better awareness amongst the general population of the facts about Cambodia’s tragic past and further demand for a well functioning judicial system.[69]

The UN Special Rapporteur on the situation of human rights in Cambodia has repeatedly acknowledged the importance of the ECCC as a model court in remedying deficiencies in the domestic court system, observing that “[t]he Court’s activities in this regard continue to set an important example for the national sector of the administration of justice in accordance with international fair trial standards.”[70] In December 2010, the Special Rapporteur wrote to the Cambodian Prime Minister about the importance of the ECCC for “setting an example to the international community of the country’s commitment to ensuring accountability for past atrocities, to protecting human rights, and to upholding the independence of the judiciary and the rule of law.”[71] The Trial Chamber has also acknowledged the significance of the ECCC in this regard, observing that “[i]t may, as a model court, … serve to encourage and underscore the significance of institutional safeguards of judicial independence and integrity.”[72] Likewise, Government officials have repeatedly identified the ECCC a model court.[73] The ECCC is therefore intended to have the ability to improve the domestic judiciary’s understanding of international standards and the conduct of trials according to these principles.

 

3.     RECOGNIZING THE ECCC’S DEFICIENCIES

Despite the seemingly good intentions of judges, prosecutors and administrative staff at the ECCC, all is not well. Decisions and practices, even those that have passed judicial scrutiny by the Supreme Court Chamber, are not necessarily beyond criticism or challenge, nor should they be applied with reckless abandon by domestic courts. Circumspection is required to ensure that contrived legal decisions or unfair procedural practices from the ECCC are identified and rejected. Consider, for example, the Supreme Court Chamber’s majority decision on appeal in Case 001, finding that the ECCC had no authority to order a reduction in Duch’s sentence for his eight years of unlawful detention by the Military Tribunal.[74] Given that the problem of lengthy detention without trial in Cambodia has been expressly acknowledged by the President of the Trial Chamber,[75] the Supreme Court Chamber’s holding on this point sets a worrying precedent, sending “a message to the Cambodian justice system, and the Cambodian citizens who are subject to inappropriate and excessive pre-trial detention by the national court system, that due process and human rights standards can be ignored.”[76]

Domestic courts should also be circumspect in adopting many of the procedures employed by the OCIJ, the body charged with undertaking “investigative action conducive to ascertaining the truth”[77] and examining both inculpatory and exculpatory evidence. A practice appears to have emerged whereby OCIJ investigators would, in violation of the Internal Rules,[78] conduct unrecorded interviews with witnesses, sometimes showing the witnesses documents, and would afterwards conduct recorded interviews which would be summarized by the OCIJ and signed or thumb printed by the witnesses. The summaries of the recorded interviews make no reference to the prior unrecorded interviews, deceptively suggesting that the summaries faithfully reflect the interviews and the manner in which they were conducted.[79] On at least one occasion, the investigators facilitated what appeared to be a “staged” interview where the OCIJ prepared questions and answers based on a previous unrecorded interview, which were then read by the witness into a recording device.[80] The written summaries are frequently used to “refresh” a witness’s memory in court,[81] with the Trial Chamber seemingly accepting the contents of the summaries as “faithful and accurate” reflections of the actual interviews.[82] More worryingly, the Prosecution has sought to rely exclusively on a number of these summary statements in lieu of witness testimony,[83] despite the lack of transparency in how the summaries were prepared,[84] and the uncertainty of discerning whether the summaries reflect the witnesses’ actual memories as opposed to memories aided or created by the OCIJ investigators during the unrecorded interviews.[85]

Another example of conduct that should not be emulated by domestic courts is the occasional disparate treatment of the parties by the Trial Chamber, giving rise to the perception that it has a less than full commitment to upholding fair trial rights, in particular the rights of the accused.[86] Examples include the Trial Chamber frequently switching off defense counsels’ microphones, preventing them from responding to objections or exercising their right to make the necessary record,[87] allowing witnesses to determine for themselves whether to respond to questions put to them by the Defense[88] and ostensibly ruling on the same grounds of an objection differently depending on whether the objection was raised by the Prosecution or the Defense.[89] These practices undermine the impartiality and integrity of the ECCC, casting doubt on its proclaimed commitment to upholding fair trial rights for all parties.

 

4.    HARNESSING THE POSITIVE FROM THE ECCC

The ECCC has yet to positively impact domestic courts. Indeed, its potential to do so has recently been called into question in response to the controversy surrounding the highly politicized Mam Sonando trial. International human rights organizations have voiced concern that the verdict sets a worrying precedent for the legacy value of the ECCC in improving domestic fair trial protections, with Amnesty International observing that “far from setting a good example, the Khmer Rouge tribunal may have done just the opposite.”[90] Similarly, Clair Duffy from the Open Society Justice Initiative stated, “While the Tribunal has already helped improve the skills of some local judges and lawyers, the court system remains unchanged.”[91] However, notwithstanding its many deficiencies and criticisms, the ECCC remains the best promise for meaningful judicial and court administration reform in Cambodia.

A number of significant ECCC decisions and practices can be applied to enhance the integrity of the domestic criminal justice system and strengthen fair trial rights. The right to a fair trial is a “cardinal requirement” of the rule of law,[92] encompassing the principle that all people are equal before the law and that all are equally subject to, and must abide by, the law.[93] The ECCC’s demonstrated capacity to interpret and apply international fair trial standards, particularly as related to the ICCPR, is perhaps the most important aspect of its legacy value.[94]

At the pre-trial stage, decisions of the ECCC on the issue of bail and the criteria necessary to justify provisional detention in light of the right to liberty under Article 9 of the ICCPR are instructive to domestic courts. For example, in Case 001, the Pre-Trial Chamber confirmed on appeal that provisional detention of the Accused Kaing Guek Eav (“Duch”) was “necessary” having regard to Article 9 of the ICCPR and the Internal Rules, after considering in detail the justifications put forward as the basis for detention.[95] Despite the fact that a presumption of release on bail exists in domestic law,[96] the Cambodian criminal justice system continues to rely on incarceration as the default position for accused who are awaiting trial and applications for release on bail are rarely made or granted.[97] Bail hearings at the ECCC provide useful examples for national courts of a dynamic process where the prosecution must establish concrete justifications for detention, the defense has the ability (and the obligation) to present arguments and rigorously challenge the basis for detention and judges must comprehensively examine those arguments and issue reasoned decisions, taking the presumption of liberty as a starting point.

The ECCC has also produced some valuable jurisprudence on the conditions under which an accused may be detained, including the restrictions that a court may impose regarding contact between an accused person and his wife,[98] and the right of a detained accused to access material on the case file in accordance with his right to participate in his defense and to ensure equality of arms with the prosecution.[99] The latter decision is of particular importance given that the Criminal Procedure Code forbids lawyers to provide copies or parts of the case file to their clients,[100] raising serious concerns about the right of accused, particularly those who are unrepresented, to a fair trial and to participate in their defense.[101]

 The requirement at the ECCC for judges to produce reasoned decisions, which has been emphasized by the Supreme Court Chamber as “a corollary of the accused’s fundamental fair trial rights,”[102] is also an important precedent for domestic courts, where judicial reasoning is often deficient or nonexistent. Many of the ECCC’s decisions demonstrate its ability to conduct independent, rigorous and comprehensive analysis of complex international legal principles, rather than simply accepting at face value the way that these provisions have been interpreted in the past by international criminal tribunals. For example, in consideration of the controversial extended form of Joint Criminal Enterprise (“JCE III”) as a mode of liability, the Pre-Trial Chamber conducted an extensive critical analysis of the authorities that had previously been relied upon to support JCE III’s existence in customary international law, rather than simply adopting the entrenched position of the ICTY Appeals Chamber on this issue.[103] It reversed the holding of the OCIJ that this mode of liability could be applied at the ECCC, concluding that JCE III was not reflective of customary international law during the period 1975-1979.[104] The Trial Chamber affirmed the Pre-Trial Chamber’s decision.[105]

Decisions of the ECCC that comprehensively interpret fair trial rights under the ICCPR by reference to international jurisprudence can also be instructive to domestic courts. For example, in considering the right to adequate time and facilities for the preparation of a defense and the right to communicate with counsel of one’s choosing pursuant to Article 14 of the ICCPR, the Pre-Trial Chamber held that an order of the OCIJ refusing a Defense request for audio-visual recording of meetings between an accused and his lawyer at the detention facility violated the accused’s fair trial rights.[106] Referring to jurisprudence from the ECtHR, the Pre-Trial Chamber adopted a broad interpretation of Article 14, finding that the way in which this right was narrowly applied by the OCIJ was “not compatible with the object or purpose of fair trial guarantees.”[107] Similarly, the ECCC has delivered significant decisions on the fitness of an accused to stand trial[108] and the legality of continued detention without trial,[109] which could be applied by domestic courts to strengthen the fair trial rights of the accused.

Many of the practices employed during trial at the ECCC can also be adopted for use by domestic courts to remedy ways in which domestic trials fail to be conducted in accordance with international standards incorporated into the Constitution. These practices include the ability of parties to object to questions,[110] the application of rules of evidence[111] and the adoption of mechanisms that allow for the testing and exclusion of evidence.[112] Given that the domestic Criminal Procedure Code provides merely that domestic courts will consider the evidence submitted for its examination based on the judge’s “intimate conviction,”[113] these practices provide an important example of restricting the use of evidence to safeguard fair trial rights.

 

5.     WHERE TO FROM HERE?

The time has come to think about how domestic courts can harness the positive jurisprudence and procedural mechanisms emerging from the ECCC, and develop the means through which to incorporate these practices. This will require Government engagement as well as commitment to meaningful and sustainable reform of the entire judicial system, with the overriding objective of advancing the rule of law in Cambodia.

Consideration should be given to holding a symposium with input and cooperation from all levels of the judicial system, including representatives of the Council for Legal and Judicial Reform, Ministry of Justice, national judges, prosecutors and lawyers, representatives of non-governmental organizations and international experts, including those from all organs and sections of the ECCC (judges, defense lawyers and prosecutors). The purpose of the symposium would be to identify the problems within the current judicial system;[114] to devise modalities and solutions to address those problems; to identify general, positive aspects of the ECCC for domestic application;[115] and to formulate an action plan for how the positive and transferable jurisprudence and procedural mechanisms from the ECCC could be applied uniformly and consistently throughout domestic courts.

From the symposium, working groups should be formed, comprised of a smaller constituent of national and international lawyers, judges and prosecutors. These working groups should carefully sift through the positive and negative aspects emerging from the ECCC and identify those aspects that advance fair trial rights and are appropriate and able to be applied by domestic courts, to remedy known and widely documented weaknesses in the current judicial system. A working session or plenary of the working groups should be convened to identify the legislative and procedural changes that are required to enable domestic courts to consistently apply international standards, with the assistance of ECCC jurisprudence and practice. This task should be approached by reviewing all laws relating to the criminal justice sector as a whole, rather than one piece of legislation at a time, to ensure that any proposed changes fit within the overall legal context and are consistent with, and complementary to, changes made in each law individually.[116] This group should then forward its recommendations to the Government and relevant stakeholders for review and comment, with concrete deadlines set for providing responses and strategies for future action.

The Council for Legal and Judicial Reform, the Ministry of Justice and national stakeholders must assist and be engaged in all stages of the symposium and working groups to instill a sense of ownership in the proposed measures for a self-sustaining reform process. The final stage will require the Government, through the Ministry of Justice, to facilitate implementation of the recommended measures. The ultimate goal of this process is to ensure that the positive aspects of ECCC jurisprudence and procedural mechanisms can be applied uniformly, consistently and predictably throughout domestic courts to strengthen fair trial rights and judicial capacity. These legal principles must also be implemented throughout law schools and judicial and legal training institutions, to train domestic lawyers, judges and prosecutors on the use of ECCC jurisprudence and procedure.

 

6.    CLARION CALL TO DEFENSE LAWYERS

There is no reason for defense lawyers practicing in the domestic courts to wait for the Government to take action. They must act as the vanguard for fair trial rights and lead the way in this reform process by consistently invoking international legal principles and provisions of the ICCPR before domestic courts. Whenever possible, arguments concerning these rights should be anchored by ECCC jurisprudence and procedure. If the ECCC has interpreted a particular right emanating from the Constitution, then reference should be made to it while highlighting that the ECCC is a domestic court, bound by and adhering to the Constitution. If a practice is applied at the ECCC, such as the requirement to provide legal reasoning for a decision, why should defense lawyers shy away from demanding that domestic judges be obliged to do the same? If the prosecutor is privately engaging in conversations with the trial judge about the case, whether it is on the merits or for administrative matters, the defense lawyer should point out that the ECCC Supreme Court Chamber noted that ex parte communications between a sitting judge and the prosecutor should be avoided because they “may create the appearance of asymmetrical access enjoyed by the prosecutor to the trial judge.”[117]

Defense lawyers should begin to sift through the decisions and practices of the ECCC to identify those that can be applied in furtherance of their clients’ fair trial rights. Considering that not all ECCC jurisprudence or procedural mechanisms are readily accessible, the Bar Association of the Kingdom of Cambodia (“BAKC”) can and should commit to assist in this process. The BAKC should select a panel of lawyers to work with the various court monitoring groups and identify the most essential decisions and procedural practices to be advocated by defense lawyers in their cases.

By fearlessly and zealously advocating for domestic courts to conduct trials in accordance with Constitutionally enshrined fair trial principles as applied and interpreted by the ECCC in selected jurisprudence and procedural practices, defense lawyers can play a leading role in “internationalizing” domestic cases throughout the courts of Cambodia, not merely in their Extraordinary Chambers.

About the Author

Michael G. Karnavas is former international co-counsel for Ieng Sary in Case 002 and current international co-counsel for an unnamed suspect in Case 003 at the ECCC. This paper is adapted from a brief presentation at a conference organized by the ECCC and the Cambodian Human Rights Action Committee (CHRAC), 13-14 September 2012, Raffles Hotel Le Royal, Phnom Penh, Cambodia: Hybrid Perspectives on the Legacies of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The author is indebted to Anne Layton Sibree, an intern with the Ieng Sary Defense team, for her generous and invaluable assistance.

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