The Open Society Justice Initiative is urging the Extraordinary Chambers in the Courts of Cambodia (ECCC) to ensure the proper protection of the rights of suspects who are the focus of two court investigations that have not yet come to trial.
The investigations into the cases, known as 003 and 004, are being led by Mark Harmon, the tribunal’s international co-investigating judge. The Cambodian co-investigating judge that Harmon is supposed to work with has refused to cooperate with the effort, while the Cambodian government has said it does not want the cases to proceed.
The two cases were first transferred to the co-investigating judges in September 2009, after an initial investigation by the tribunal’s co-prosecutors. Media reports have said the investigations may be completed by the middle of this year, which would generally be followed shortly by a recommendation for the cases to be either dropped, or taken to trial.
Despite this continued activity, the Justice Initiative notes that lawyers for the suspects have not yet been allowed access to the case files detailing the evidence of the alleged crimes, nor the right to request additional investigations on their clients’ behalf.
Counsel appointed to represent a suspect in Case 004 has repeatedly sought and been denied access to the case file. They have filed an appeal to the Pre-Trial Chamber requesting that the judge’s denial of access be overruled. This appeal has apparently been denied—with no public explanation.
In contrast, the tribunal has granted access to the files to lawyers representing the victims and families of victims of the alleged crimes.
The principle of granting defense access to case files serves two purposes: It protects basic fair trial rights, and enhances the efficiency and effectiveness of the investigative and trial process.
Defense counsel are not generally permitted to do independent investigations on behalf of their clients, and must make requests to the investigating judges for investigatory actions they believe important to the defense.
Defense counsel cannot adequately fulfill these functions if they are not allowed access to the file or to participate until an investigation is nearly over.
Under these circumstances, additional transparency and an explanation from the co-investigating judges—or at least the international co-investigating judge—are required to assure the public that the rights of the suspects are being respected.
The ECCC was established in 2004 by a joint agreement between the United Nations and the government of Cambodia, and uses a mix of international and local judges and staff. It began proceedings in 2007.
The tribunal has successfully completed one case, handing out a life prison sentence in February 2012 to the former head of the Tuol Sleng torture center.
The Open Society Justice Initiative has been monitoring the work of the tribunal since 2007, as part of its work to ensure accountability for war crimes, crimes against humanity and genocide.