Khmernews

Key Issues and Unanswered Questions Relating to the Operation of The Pre-Trial Chamber of the Cambodian Extraorginary Chambers

Posted by khmernews on November 18, 2006

By S colt Wordell1

February 28, 2005

The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (the “EC Law”) and the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (the “UN Agreement”) create a Pre-Trial Chamber (the “PTC”) to resolve differences or disagreements between international and Cambodian Co-prosecutors or Co-investigating judges.

Such a chamber is unique to the EC. It does not appear in the regular Cambodian Courts or any of the international courts that have been established to prosecute international crimes/ because none of those courts include co-equal officials that must agree for prosecutions to proceed. In the event of a disagreement between the co-officials, the PTC has authority to issue final rulings determining whether an investigation or prosecution will proceed – a considerable power, especially in a court that will likely be addressing politically charged prosecution issues in a legal environment that is highly ambiguous. Yet neither the EC Law nor the UN agreement lay out explicit rules regarding the creation or operation of the PTC.

This memorandum describes the structure and scope of the Pre Trial Chamber insofar as they are set forth in the relevant statutes, identifies gaps and ambiguities in the current laws affecting the PTC, presents key questions that must be answered in order to define the PTC’s role and duties, and recommends legal provisions to address potential problems with the PTC’s operations. In particular, the lack of detailed rules governing the PTC’s operation raises several concerns about the (i) composition, (ii) selection, (iii) operation, (iv) jurisdiction; and (v) authority of the FTC. Each of these topics is discussed below, followed by a recommended approach or rule to address the problem. Finally, a case study hypothesizes how the PTC might, if the matter is disputed by co-officials, address a sensitive issue like pre-trial detention of an accused to illustrate where legal or operational problems associated with the PTC may arise.

The purpose of this memo is to identify early issues and problems that might arise in the operation of the PTC and to spur creative thinking and discussion among government and international legal experts over possible mechanisms and solutions. Many ambiguities exist, and there are several possible interpretations or policies that may be made to give effect to the EC statutes’ broad direction. It is clear from examining the relevant laws and procedures, however; that additional legal mechanisms are necessary to support the creation of the PTC. If these problems are not addressed soon, they mar become increasingly costly and difficult to resolve.

The operation and functioning of the PTC requires additional clarification before investigations by the EC begin. This would ideally be done in separate rules of procedure applying to the Extraordinary Chambers or an amendment to existing legislation. Otherwise, internal regulations should describe the features of the PTC. There are five principal areas of ambiguity that should be addressed, and the following questions should be answered by lawyers and policymakers as quickly as possible.

I. Composition: Which judges will serve on the PTC – those that are already appointed as judges in the Trial and Supreme Court Chambers, the appointed reserve judges, or different judges entirely?

II. Selection: Will the PTC judges be appointed at the same time as the other Judges and Prosecutors, and will they be ready to here disputes that may arise at the beginning of the Prosecutors’ investigations?

III. Operation: What procedures and regulations will govern the functioning of the PTC and how will such procedures be adopted?

IV. Jurisdiction: What is the scope of the PTC’s jurisdiction? In addition to decisions about charges and indictments, may the PTC hear disputes over tactical decisions such as whom to question or investigate, or about whether to file an appeal?

V. Authority: What, if any, a1Jthority will the PTC have to compel the parties to a dispute to take specific actions like signing requests or issuing orders that will give effect to a PTC decision or default ruling? What are the consequences if a ruling by the PTC is not obeyed?

As these questions indicate, there are many significant issues that will need to be resolved for the PTC to operate with a clear mandate. Based on the analysis below, this memorandum recommends the following:

– Different judges should serve on the PTC from those appointed to the Trial Chamber or Supreme Court Chamber. This would prevent from arising the possibility of disqualifying conflicts of interest or prejudicial rulings.

– The most efficient way to minimize disqualifying conflicts of interest would be to staff the PTC with reserve judges (or prosecutors) already selected by the Supreme Council of the Magistracy to serve on the other EC Chambers, who would serve the PTC on an as-needed basis.

– The Supreme Council of the Magistracy should appoint judges to the PTC at the same time that they appoint judges to the Trial Chamber and Supreme Chamber. This would ensure that PTC judges are available to serve, if necessary, as soon as a disagreement arises between co-prosecutors or co-investigating judges during the initial investigation stage.

– An appropriate budget should be reserved for the operation of the PTC.

– The PTC should have detailed operational guidelines to ensure that disputes are resolved quickly and according to standardized procedures. These guidelines should be adopted either by a 2/3 majority of the full panel of EC judges sitting in plenary, or by the Cambodian legislature.

– Among other things, specific rules should address confidentiality of PTC proceedings, define conflicts of interest, and apply a code of conduct and disciplinary proceedings.

– The PTC should be assigned a role as the decision-maker of last resort for any disagreement between co-prosecutors or co-investigating judges over a material aspect of the prosecution or investigation, from a case’s inception to its final judgment, which cannot otherwise be resolved. Such authority might include deciding disputes about whether to question a particular witness, arrest a suspect, seek particular relief, or me an appeal.

– The PTC should consider issuing binding orders necessary to give effect to its decisions, including writs requiring appropriate personnel to take specific actions, like signing orders or making arrests, which would enable a decision to be implemented.

– If the PTC fails to reach the 4/5 supermajority required to stop an investigation or prosecution, a rule should make clear what action is required by all parties to comply with the default provision that in the absence of a supermajority, the investigation or prosecution “shall proceed.”

– The sheer number of options and iterations of decisions presented by each case among the various offices and chambers of the Extraordinary Chambers highlights the need for strict time limits and clear processes for reaching decisions that enable the court may get to the merits of each case before its money and its mandate expires.

PTC BACKGROUND AND APPLICABLE LAW

The PTC is a five member panel designed to break a deadlock between the Co- Prosecutors or Co-Investigating Judges of the EC in the event that they disagree over the conduct of an investigation or prosecution before the court. It consists of three Cambodian and two international judges, with a Cambodian serving as President. According to the EC statutes,3 a prosecution or investigation in the EC shall proceed unless one or both of the Co-Prosecutors or the Co-Investigating Judges requests “within thirty days” that a disagreement between within the office of the prosecution or the office of the investigating judge be settled by the PTC. A four of five “supermajority” vote is required to issue a decision, which cannot be appealed. If a supermajority is not attained, then the investigation or prosecution shall proceed.

The appearance of co-equal international and domestic prosecutors and investigating judges in the Extraordinary Chambers- positions that are unprecedented in international tribunals-is the result of a political compromise over effecter’s control of EC prosecutions. By placing international and Cambodian judges on the PTC panel, with a ‘supermajority’ voting mechanism that ensures at least one judge from each background agrees with a decision, drafters intended to enhance the application of international standards and to guard against the potential for domestic political bias in judicial decisions (as with the mixed panels of judges in the trial and appeals chambers). The default rule that an investigation or prosecution “shall proceed” unless a supermajority of the mixed five judge panel agrees to stop them ensures that borderline cases shall receive additional judicial attention that will increase the likelihood of establishing the truth about alleged crimes. As such, the PTC is an innovative and useful dispute resolution mechanism. Without more detailed rules, however, the PTC may create more problems than it solves.

PTC Judicial Appointments.

The PTC judges will be appointed by the Cambodian Supreme Council of the Magistracy (the “SCM”). The three Cambodians will be nominated and appointed by the SCM, while the two international PTC judges will be nominated by the UN Secretary General and appointed by the SCM.4 Article 20 of the EC Law states that the judges of the PTC shall be selected according to the same standards for other EC judges, namely “from among the currently practicing judges or from judges who are additionally appointed in accordance with the existing procedures for appointment of judges. . . .”5 In addition,

The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.6

Nothing more is said in either the UN Agreement or the EC Law about the selection of the members of the PTC. The PTC is notably absent from Article 9 of the EC Law and Article 3.2 of the UN Agreement, which describe the organs of the court as being only the Trial Chamber and the Supreme Court Chamber. Therefore it is unclear what the status of the PTC (and its judges) is relative to the other Chambers of the EC. There is also no mention of the PTC in Article 11 of the EC Law or Article 3.5 of the UN Agreement, which describe the process for nominating and appointing judges to the Cambers of the EC. This makes it unclear whether judges serving on the PTC will be the same judges as those appointed to the other EC Chambers and if not, whether they will be appointed at the same time as the other judges. These omissions from the EC statutes raise significant ambiguities relevant to the formation of the court.

Decision Making

Decisions in the PTC are made by a “supermajority” voting formula requiring four of five judges to agree to any decision. Thus at least one of the two international and two of the three Cambodian judges must agree to any decision of the PTC, thereby ensuring it has diverse support. If a supermajority cannot be attained, then the default rule is that the prosecution (“indictment” in the Khmer text)7 or investigation “shall proceed.” The EC Law and UN Agreement spell out the following circumstances and procedures by which the PTC shall consider a disagreement among Co-Prosecutors or Co-Investigating Judges (the same rules apply to disputes in each office).

Co-officials should endeavor to reach a consensus in their actions. However, in the event of a dispute that cannot otherwise be resolved, the statutes state that:

“Within 30 days,”8 the prosecutor(s) or investigating judge(s) “shall submit written statements of facts and the reasons for their different positions to the Director of the Office of Administration.” (The Director of the PTC is to be Cambodian. The statutes do not state whether the Director has any special administrative powers over other PTC members.) (UN Agreement Article 7; EC Law, Articles 20,23.)

2. Upon receipt of the written statements “the Director of the Office of Administration shall immediately convene the Pre-Trial Chamber and communicate the statements to its members.” (BC Law Art. 10; UN Art. 7)

3. “The difference shall be settled forthwith by a Pre-Trial Chamber…” (BC Law Art. 20, See also Art. 23, UN An. 7.2)

4. “A decision of the Pre-Trial Chamber, against which there is no appeal, requires the affirmative vote of at least four judges.” (BC Law Art. 20; UN Art. 7.4)

5. The decision shall be communicated to the Director of the Office of Administration, who shall publish it and communicate it to the co-investigating edges or the co-prosecutors.” (EC Law Art. 20; UN Agreement Art. 7.4)

6. The co-prosecutors or co-investigating judges “shall immediately proceed in accordance with the decision of the Chamber.” (BC Law Art. 20; UN 7.4)

7. “If there is no majority, as required for a decision, the investigation or prosecution [indictment] shall proceed.” (BC Law Art. 20; UN Art. 7.4)

Thus, one can extrapolate the following PTC decision-making flow chart:

7- Note that there is a significant discrepancy in translation between the English version of the EC Statutes, which use the word “prosecution,” and the Khmer texts, which translate more accurately as “indictment.” The same clause appears in the Extraordinary Chambers Law and the UN Agreement. The controlling language of the EC Law is Khmer, thus making “indictment” the enforceable term. But the controlling language in the UN Agreement is English, making “prosecution” controlling term. Both agreements are laws of Cambodia, creating a complicated connect of laws. There is a significant difference in meaning between the narrower term “indictment” and the broader implications of the term “prosecution.” I have relied on the English texts throughout, and therefore use the term “prosecution” in my analysis. However, resolving this dispute in language should be a high priority of the UN and the Cambodian government. The outcome could significantly affect the decisions of the PTC.

8- Note that the statutes do not specify “within 30days” of what? After an action is taken? After an official acknowledgement of a dispute?

In addition to the above guidelines, several salient features of the PTC dispute resolution mechanism should be noted:

First, the PTC only deals with disputes between co-officials and should not be confused with the pre-trial mechanisms of other courts that either act as a judicial check on the merits of an investigation by the office of the prosecutor, as in the ICC, or those that issue pre-trial rulings based on argument from suspects or defendants. The Extraordinary Chambers’ PTC will only hear arguments between co-officials as to disagreements that are to be made within their respective offices and not between them and any parties to a case. Thus the PTC will potentially hear internal deliberations and receive information that would otherwise be confidential within the prosecutor’s or investigating judge’s offices and not be heard by a court. This highlights the need for strict confidentiality rules to govern the operation of the PTC as well as the potential for unique conflicts of interest to arise if judges sitting on the PTC are asked later to rule on the merits of a case. One might imagine, for example, that a judge who knows from presiding over a PTC dispute that half of the prosecution office does not believe in a charge may be more skeptical than normal to vote to convict on that charge if he is presiding over the case at a later date.

Second, under Cambodian law, all decisions of the investigating judge may be appealed to the appeals court by any party to a case.’> Therefore, even though the PTC may issue a final ruling that resolves a disagreement among Co-Investigating Judges about whether an investigation (or an indictment) should “proceed,” the ruling would presumably be binding only with respect to the decision of the investigating judge’s office and could still, under Cambodian law, be appealed. Upon a decision by the office of the investigating judge that affects an indictment, then, dissenting co-prosecutors could still appeal to the Supreme Court Chamber of the EC to reverse the investigating judge’s decision. Such an appeal neither would nor be of the PTC’s decision, which is final, but of the decision made public by the office of the investigating judge. If policy-makers deem such an appeal to be inappropriate in the context of the EC, then a rule would have to be passed that supersedes the existing right of appeal granted by Cambodian law.

Third, decisions made by the Prosecutor may not be appealed under Cambodian law. Therefore, PTC decisions on whether or not a prosecution (as opposed to an investigation or indictment) may “proceed” will potentially determine the entire scope and direction of an EC case. With this significant power in the hands of the PTC should come the responsibility to establish rules and procedures for PTC decision making that accord with the highest international due process standards? Although it is a requirement in the EC
Law and the UN Agreement that the EC follow international standards, the PTC is

9- According to Article 90 of the sac La\v, a decision to prosecute or not prosecute may be appealed to the appellate court, 9and according to Article 94, “In all cases, the public prosecutor may appeal the decision of the investigating judge that he/she is not satisfied with.” There should be no conflict between this rule and the EC statutes because the PTC’s final decision is limited to achieving a unified decision from the office of the investigating judge, not on deciding the merits of the case itself. As a consequence, however, the PTC may resolve a dispute between co investigating judge that overrules a charge, only to have the prosecutors appeal to the Supreme Court Chamber of the EC (or, strictly speaking, the regular Cambodian Appellate Court) appealing the arbitrated decision of the co-investigating judges.

without precedent and the court will not be able to apply any existing Cambodian law, as it docs with other aspects of the case. Nor will the court have many examples in international law about how to resolve disputes within a prosecutor’s office or a judge’s chambers. Therefore, it will be important for the EC to establish standardized PTC rules in advance of trials to reduce the risk of arbitrary and/ or unfair decisions.

Fourth, what is the definition of a PTC “decision”? In the event of a decision of the PTC, the statutes clearly require that officials “shall immediately proceed in accordance with the decision of the Chamber.”10 But if there is no “decision” – as in a 3 to 2 vote -then one could imagine a situation in which a recalcitrant dissenting official decides not to act unless he is compelled to do so by an order. Would the instruction in the statute for the prosecution or investigation to “proceed” be sufficient to compel a reluctant co prosecutor to sign an order for investigation, for example? Would such a signature be required? Existing Cambodian procedures require the prosecutor’s or investigating judge’s signature on a variety of forms to forward aspects of a .criminal case toward trial. Thus one would assume that both the international and Cambodian co-officials would have to sign an official document coming from their offices. To avoid ambiguity and delay, the rules of the PTC and of the EC should be written in a way that ensures a decision of the PTC, whether by supermajority in the case of stopping action, or by default in the case of continuing, is clear and binding on all necessary parties.

A final consideration is that in certain cases the default rule that allows a prosecution to proceed when three of five PTC judges think it should cease, may work counter to traditional burdens of proof that favor decisions that avoid infringing upon a suspect’s liberty. This reflects the corollary to the 4/5 supermajority voting requirement in the PTC, which is that any two of the five PTC judges have an ability to block any ‘affirmative’ decision by the PTC. Under the default rule in Article 7.4 of the UN Agreement and Article 20 of the EC Law, these two dissenting judges would cause a prosecution or investigation to continue. For example, a decision over whether to arrest a suspect or to issue an indictment usually requires a preponderance of evidence, i.e. a majority, to proceed. In case of a dispute between co-officials on these matters, however, it is the two-of-five minority that may effectively make a decision to deny a suspect’s liberty or to press a particular charge (by allowing the “prosecution” to proceed). To minimize such conflicts, the rules of procedure should make clear the boundaries of the PTC’s authority so that it extends only to the decisions by co-officials.

ISSUESAND RECOMMENDATIONS

1- Which judges will serve on the PTC – those that are already appointed a Judges in the Trial and Supreme Court Chambers; the appointed; or different judges entirely?

Article 7.2 of the UN Agreement and Articles 20 and 23 of the EC Law state that the PTC will be composed of “five judges, three Cambodian judges appointed by the Supreme Council of the Magistracy, one of whom shall be President, and two foreign judges appointed by the Supreme Council of the Magistracy upon nomination by the Secretary-General of the United Nations.,,11 However, the EC statutes fail to identify

10. EC Law, Art. 20; UN Agreement, Art 7.4.

11. EC Law Art 20, See also Arr. 23, UN Art. 7.2.

whether the ‘judges of the PTC may be the same judges that are also sitting on the Trial and the Supreme Court Chambers, or judges selected from a different pool of candidates. A list of judicial candidates that was leaked in 2004 to the media contained no candidates for the PTC, indicating that the judges may be expected to serve on both the PTC and the Trial Chamber. Also, it appears from reports about the EC budget that no extra money has been reserved for separate PTC judges. But international standards may require that under certain circumstances judges who review a case in the PTC may not judge the same case at trial.

The general rule in international courts is that judges should be disqualified from ruling on a case if they have formed a prior opinion on a case that could affect their impartiality toward an accused.12 This general rule is threatened by the operation of the PTC in the Extraordinary Chambers because PTC judges will likely hear arguments from opposing co-prosecutors or co-investigating judges that either involve (i) confidential information as to the internal substance of their investigations so far, or (ii) exposure to a significant portion of the case dossier that could create strong opinions as to the overall guilt or innocence of the accused.13 This situation might also threaten the “spirit of impartiality” described Article 10 of the EC law. Given that only 12 judges will be
appointed to form the EC (five Trial Chamber judges and seven Supreme Court Chamber judges), there is a high likelihood that the same judges may hear PTC disputes and be called on to make rulings on the same issues at trial.

Two alternatives would mitigate the risk of conflict of interest with the minimal additional administrative burden or cost. One would be to mandate that only judges of the Supreme Court Chamber be selected to serve, on a rotating basis, on the PTC. This would reduce the chance that the same judge would hear the same issue twice because not all cases will necessarily be appealed (although Cambodia’s liberal laws allow an appeal on almost any factual or legal ground).

The second alternative would be to use the appointed reserve judges to sit on the PTC. They would be even less likely to hear the same issue twice in a potentially conflicting situation, because the reserve judges would not even necessarily be called on to preside. In addition, the reserve judges would already have been vetted to meet the qualifications for nomination to the EC. Article 11 of the EC Law states that two international reserve judges and one reserve investigating judge must be appointed to serve in case one of the international judges is unable. The EC Law also states that Cambodian reserve judges and investigating judges should be appointed “as needed.” One might assume that at least the same number of reserve Cambodian judges would be appointed as international, especially give that there are more Cambodian judges serving on the court. Therefore, there would be a pool of at least 6 reserve judges- three international and three Cambodian – to choose from to form the PTc.14

12- See Rule 34 of the ICC, although it applies to circumstances before a judge’s appointment.

13- In the civil law system followed by Cambodia, the dossier, or official record, plays a crucial role for the prosecution, the investigation and the trial. Every piece of information related to the case and the individuals involved enters the dossier; nothing relevant is excluded. The focus of disputes during the investigating phase is likely to be on evidence against the suspect or accused. Therefore, the PTC can be expected to hear arguments from each Co-Prosecutor or Co- investigating Judge as that expose details of the not-yet completed dossier, which raises an additional question of prejudice.

14,\lthough a reserve investigating judge should probably be prohibited from taking over the duties of an investigating judge on a case that she has heard in the PTC.

Recommendation 1:

a. Judges sitting on the PTC should be prohibited from sitting on a case in the Trial Chamber or Supreme Court Chamber when that judge has heard sufficient arguments or evidence as to form an opinion of the case.

b. The PTC should be composed of a combination of reserve international and Cambodian judges appointed by the Supreme Council of the Magistracy to either the Trial and Supreme Court Chambers.

c. Any PTC Judges not already sitting in the Extraordinary Chambers should be available to serve on short notice, and should suspend all professional activities that may present a political, professional, or personal conflict of interest while they are sitting on the PTC..

d. An appropriate budget should be reserved for the operation of the PTC.

2. Will the PTC judges be appointed at the same time as the other Judges and Prosecutors, and will they be ready to here disputes that may arise at the beginning of the Prosecutors’ investigations

It is presently unclear from the EC statutes when a list of candidates of the judges for the PTC will be identified and when those selected (from whatever source) will be appointed. t is clear, however, that upon receipt of such a request, the Director of the Office of Administration shall “immediately” convene the PTC and communicate the statements to its members, whereupon a decision will be made “forthwith.” This implies that judges would have already been selected or appointed to the PTC, even before the PTC is called into session. If not, then one can imagine a scenario in which investigations or prosecutions are significantly delayed while PTC appointments and logistical arrangements are made, particularly if reserve or other non-active EC judges are to serve.

Recommendation 2:

a. Judges in the PTC should be appointed at the same time as selections are made for the other judges of the Extraordinary Chambers.

b. Rules and procedures should establish clear mechanisms for convening the PTC as quickly as possible, as outlined in Articles 20 and 23 of the EC Law.

3. What procedures and regulations will govern the functioning of the PTC and how will such propellers be adopted?

The default rule relating to procedures of the EC is that current Cambodian procedures will apply, but that where there are gaps, inconsistencies, or deviations from international standards, judges may look to procedural rules established at the international leve1.15There is, however, no PTC in the Cambodian courts, nor is there any chamber at the international level that has the same function as the EC PTC. Moreover, the role of the PTC, which is essentially to mediate disputes between court officials, is significantly different from that of the other court Chambers, which will hear public argument and

15- See Article 33 of the EC Law and Article 12 of the UN Agreement.
evidence from all parties to a legal case. Therefore, other models of court rules may be inappropriate for the PTC and it is imperative that specific new rules be written to guide the PTC’s operation. Ad hoc procedures will lead to confusion, at the least, and complaints of due process violations at the worst.

Recommendation 3:

a. The PTC should be given detailed operational guidelines to ensure that disputes are resolved quickly and according to standardized procedures.

b. These PTC rules or guidelines should either
 i. be adopted by the Cambodian legislature, or
ii. Be adopted by a 2/3 majorityl6 of the judges of the BC sitting in plenary session.

c. The PTC rules should specifically include its methods of operation, oral argument (if applicable), deliberation, and decision of the PTC, as Appropriate, in accordance with the same practices as those of the Trial or Supreme Court Chambers. 17

d. Any rules of conduct and disciplinary sanctions in effect in the regular Chambers of the EC should also be made to apply to the PTC.

4. What is the scope of the PTC’s jurisdiction? In addition to additions about charges and indictments may , may the PTC hear disputes over tactical decision  such as whom to question or investigate, or about , whether  to file an appeal?

Article 20 of the EC Law refers to the “prosecution”18 proceeding and Article 23 to an “investigation” proceeding upon a decision of the PTC, but does not define either term. In the current Cambodian system the investigative and prosecutorial duties of an investigating judge and prosecutor overlap. Therefore, the definition of an “investigation” and a “prosecution” will be crucial to the responsibilities of each office within the EC and to the issues that may be raised before the PTC.

Based on the sparse language of the EC statutes, there may be a tendency to assume that the PTC will only vote on whether to forward a charge or confirm an indictment. Yet disagreements may arise between co-officials on other important aspects of the investigation that could affect whether grounds are established in the first place to pursue a suspect. For example, prosecutors may disagree whether or not they should question a particular suspect that has not been indicted, or to conduct inquiries in areas that may be politically sensitive, like the former Eastern Zone. In addition, it is important to consider that the potential for disagreement between prosecutors does not end with the indictment. They may disagree over litigation strategies, detention issues, sentencing recommendations, or, crucially, appeals. It is to be hoped that the co-prosecutors will develop a way to reach consensus among themselves without resorting to the PTC for

16- This ensures that at least some international judges and Cambodian judges assent to the rules.

17- Articles 57 and 58 of the Rome Statute may indicate the type of detail that is necessary to have a sound PTC process – although the ICC’s Pre Trial Chamber has different functions than the PTC in the EC, as described above.

18- Note that the Khmer text uses the word “indictment.” See supra, note 7.

every trifling dispute. In every other prosecution system, decisions ultimately are made by a singular person or entity. But because the Extraordinary Chambers Co-Prosecutors have equal decision making power, each facet of the trial presents a potential trial-stopping deadlock unless a definitive dispute resolution mechanism in place.

Recommendation 4:

a. The PTC should be assigned a role as the decision-maker of last resort for any disagreement between co-officials over a material aspect of the prosecution or investigation, from its inception to a final judgment, which cannot otherwise be resolved.

b. Specific issues like whether or not to (i) question a particular witness, (ii) arrest a suspect, (iii) seek particular relief, or (iv) file an appeal should be included within the PTC’s jurisdiction.

c. The term “investigation” should be defined in the Extraordinary Chambers as any action authorized to be taken by the EC Investigating Judge under the procedural rules applicable to the EC that is material to the progress of a case.

d. The term “prosecution” should be defined in the Extraordinary Chambers as any action authorized to be taken by the EC Prosecutor under the procedural rules applicable to the EC that is material to the progress of a case.

5- what if any, authority will the PTC have to compel the parties to a dispute to take specific actions like singing requests or issuing orders that will give effect to a PTC decision or default ruling? What are the consequences if ruling by PTC is not obeyed?

Articles 20 and 23 of the EC Law state that the prosecutors or investigating judges “shall immediately precede in accordance with the decision of the Chamber,” and that in the absence of a supermajority the investigation or prosecution shall proceed. This implies that the PTC has the authority to direct specific actions by the prosecutor or investigating judge through its “decisions.” The question is whether the PTC may issue orders that are binding under Cambodian law and, if not, what will be the consequences if an official other than the Prosecutor or Investigating Judge, such as a jailer, refuses to implement a PTC decision? Another important technical point is that prosecutors and investigating judges are only required by the statute to implement a “decision” of the PTC. The EC statutes do not state what happens when there is no “decision” by the PTC, i.e., when there is not a 4/5 majority vote. 19

In the first instance, the rules of the court should spell out a mechanism by which the PTC may compel investigating judges or prosecutors (or other officials, like jailers or police) to take specific actions as part of the decision. This would include authority to compel the issuance of orders and authority to penalize parties that do not abide by such orders. If no explicit ordering authority is granted to the PTC, one can imagine a scenario in which, for example, a co-prosecutor that does not want to proceed with a case may

19- This may seem like a nit, but one can imagine a strong objection to obeying what is effectively a non-decision that determines a controversial or politically charged issue.

adopt a passive-aggressive approach (as is often the case in the regular Cambodian justice system) and decline to sign a document that is essential for moving forward in a case even though there is no 4/5 majority that prevents the case from proceeding. Given that the PTC is only technically mediating interoffice disputes, the issue it is resolving will often be over whether to issue a request, forward a charge, or sign an order, and the rules of the PTC should take into account the need for technical specificity in this regard. An alternative scenario would be to allow orders (such as an order to forward a charge or an order to submit for questioning) to be issued from the office of the prosecutor or the office of the investigating judge under a signature or seal that could be effected by only one official. Although this would greatly simplify matters, it appears to run contrary to Cambodian practice, where all official paperwork tends to require formal endorsements and the removal of a seal from an office can mean that the work of entire ministries come to a halt. The difficulty of enforcing controversial PTC rulings is compounded when one considers that in the absence of a supermajority, the prosecution or investigation will proceed not by a “decision,” but by operation of the default rule. Thus one can imagine a scenario on which a bitterly divided PTC cannot reach a decision, an investigation proceeds by default, but no-one has issued instructions as to exactly what steps should be taken to continue a particular investigation. The recalcitrant prosecutor envisioned above would then have an even stronger reason to refrain from taking action that it finds politically or otherwise disagreeable. The PTC default rule essentially gives a two judge minority the same authority as a majority on a regular court. Therefore, it may be sensible to provide a mechanism for an order to be issued by the PTC even when a supermajority cannot be reached that makes clear what action is required for the case to “proceed.”

Recommendation 5:

a. The PTC should be able to issue binding orders that require appropriate personnel to take specific actions, like signing documents or making arrests, which give effect to a decision on whether the prosecution or investigation will cease or proceed. This should apply to decisions made by operation of the default rule as well.

b. The Extraordinary Chambers should be authorized. to apply clear punishments for officers who disobey the orders of the PTC and should have the power to compel enforcement of such orders.

CASE STUDY: PRE-TRIAL DETENTION

One of the most contentious issues the Extraordinary Chambers may face is whether to place suspects in detention before trial. Only two among many obvious suspects (Duch and Ta Mok) have been put in jail before anticipated EC trials, and some have claimed that these selective detentions are evidence of decision making based more on politics than evidence of suspects’ involvement in Khmer Rouge crimes. Many of the likely suspects for the Khmer Rouge trials are living freely and openly in Cambodia and, despite their known involvement in Khmer Rouge atrocities, still enjoy a degree of both fear and respect. It may prove politically difficult to place likely suspects behind bars before a final conviction despite compelling evidence that meets the factors warranting pre-trial detention. It is therefore possible that matters of pre-trial detention will be heard by the PTC – triggered either by prosecutors’ disagreement over whether to request detention or by investigating judges’ decision over whether to authorize it.

This section describes how the PTC might handle such a politically charged request under the present applicable rules. Pre-trial detention is particularly illustrative because it requires action by both the prosecutor, the investigating judge and, potentially, the appellate court. But the process described and issues raised here also apply to more mundane requests that might appear in the PTC, such as authorization to conduct searches, interrogate witnesses, forward charges, issue indictments, or ftle appeals.

Applicable Pre-Trial Detention Law

According to Article 14.1 of the UNTAC Code, “Only the judge, if so petitioned by the prosecutor, may decide to keep an accused in prison, and only if there is a risk of escape or non-appearance manifested by the absence of such factors as a job, a family, a home, or if there is reason to believe that the accused will influence witnesses or the conduct of the investigation. “Likewise, Article 79 of the SOC Law states that” Right after the first appearance of the accused person, the investigating judge has the right to decide whether he accused person shall be put in liberty or in temporary detention.” In all cases, a decision to detain a suspect may be appealed. Thus, to detain a suspect before trial there must be (i) a request from the prosecutor, (ii) based on evidence that there is risk the suspect will flee or compromise the criminal investigation, and (iii) agreement from the investigating judge, (iv) subject to a petition to the appeals court.

PTC Process

Absent any clarifications in the EC statutes and Cambodian law law, a complex (though plausible) iteration of the problem might work as follows:

1) The Co-Prosecutors receive information from an NGO that a suspect, like Ieng Sary for example, committed crimes falling within the EC’s jurisdiction and open a preliminary investigation. The international prosecutor decides there is ample evidence to forward a charge that Ieng Sary committed crimes against humanity for the Co-Investigating Judges to investigate.

2) The Cambodian prosecutor disagrees, and the dispute is put into writing, given to the Office of Administration, and referred to the PTC.

3) After deliberations, only two of five PTC judges think that the charge and request for investigation should be issued. But, under the default rule, the prosecution “proceeds.”

4) [Here one encounters the problem raised in question 5 above, about whether the PTC will be able to issue an order to compel a reluctant prosecutor (or other necessary official) to proceed in the absence of a supermajority decision by the PTC. If no rule provides for issuing binding orders, the reluctant prosecutor may refuse to sign an order for investigation and the process may stall without default provisions that compel adherence to a PTC ruling.]

5) Assuming that the case does proceed, a charge would then be sent by the Co- Prosecutors to be investigated by the Co-Investigating Judges.

6) At this point a new disagreement may arise between the international and Cambodian prosecutors over whether to request that the Investigating Judges place Ieng Sary in pre-trial detention, and that matter is referred to the PTC.

7) First, one of the petitioners might raise the question of whether the issue of pre-trial detention is even within the PTC’s jurisdiction, arguing that pre-trial detention does not affect whether the “prosecution,,211or “investigation” will “proceed” – as the PTC’s mandate is phrased in the EC statutes — just whether Ieng Sary is to be free while it happens. Faced with the prospect of intractable deadlock between the Co-Investigating Judges if it does not rule on the matter, the PTC considers the question.

8) The international prosecutor then presents evidence to the PTC indicating that left free, Ieng Sary will intimidate witnesses and impede the judicial investigation, while the Cambodian prosecutor argues there is no risk.

9) Again, the PTC splits 3 to 2, with the majority (though not a supermajority) voting againstissuing a request for pre-trial detention. The default rule states that the “prosecution” or “investigation” shall proceed in the absence of a supermajority. It is unclear whether a request for pre-trial detention is either? For the sake of argument, however, let us assume that in keeping with the tenor of the default rule the request for pre-trial detention is to proceed. But this would, in effect, result in a decision requesting detention being issued by a two judge minority on the PTC.

10) The Co-Investigating Judges’ ftrst duty is to summon Ieng Sary to read the charges that were forwarded by the Co-Prosecutors on orders from the PTC. When it comes to pre-trial detention, however, the Co-Investigating Judges disagree. The matter is again referred to the PTC, this time raised by the Cambodian Investigating Judge who thinks that Ieng Sary is not a threat or a flight risk.

11) Now the PTC is dealing with the same facts as before, but this time must decide upon the weightier question of whether to in fact deny a fundamental right (to freedom) of the accused and not just a matter of a request by the prosecutors. Each investigating judge presents the merits of the case as it sees them, but the suspect himself is not a party to the dispute.

12) After weighing the evidence, another 3 to 2 vote goes against detention. But this is still not a supermajority, so the. default rule that favors the prosecution “proceeding” is used as authority to i’ssue an order that the Co-Investigating Judges order Ieng Sary to be detained.

13) At this point, international observers raise questions about whether a twojudge minority may, in effect, \’ote to deprive a suspect of his liberty when the international standard tends to require a preponderance of evidence (essentially a majority) to authorize detention. We will assume this does not apply.

14) The order from the PTC, which derives from the minority who favor detention, includes a requirement that the judicial police arrest Ieng Sary and that the jail processes him. The PTC feared that otherwise the Cambodian staff who are responsible for processing the detention order would for political reasons or from fear (intimidation was the argumen~ us’ed to detain Ieng after all) choose not to comply without a binding court order and credible sanctions for disregarding it.

15) So far, it should be noted, all of the debates over Ieng Sary’s detention have taken place in submissions or hearings that have been technically within the offices of the investigating judges and prosecutors, and therefore outside the presence of the accused. Once the decision is announced to effect pre-trial detention, however, Ieng Sary will have the right to contest the matter before the court.

16) Ieng Sar)’ exercises his right under Cambodian law and appeals the decision of the Co-Investigating Judges to detain him to. the Supreme Court Chamber, which is deemed by analogy to be equivalent to the Cambodian Appeals Court, where he would ordinarily direct his appeal.

17) This time, however, Ieng Sary’s burden is to convince five of the seven Supreme Court Chamber judges that he is neither a threat nor a flight risk, by introducing essentially the same arguments that were presented to the PTC by the Co-Investigating Judges.

18) At this point, it becomes relevant whether any of the Supreme Court Chamber judges were also serving on the PTC, whereby they would have already heard arguments in the case raised by the different investigating judges. If so, Ieng Sary (or the Co-Prosecutors, if they think the Supreme Court Chamber may reverse the PTC’s detention decision) might object that duplicate judges should recuse themselves because they cannot form an objective opinion at this stage after already ruling on the facrs in the PTe. (Note also that if the Co- Prosecutors disagree over whether to ftle such an objection, and seek yet another ruling on that from the PTC, the whole process might self destruct.)

19) Assuming that no judges on the Supreme Court Chamber need to be recused, it could still turn out that a 5 to 7 supermajority decides to overrule the Investigating Judges’ decision (which really only had the support of 2/5 of the PTC judges who prevailed under the default rule) and order that Ieng may remain free pending trial.

20) Only now would the pre-trial investigation likely begin.

Questions and Issues

Several problematic questions arise from this not-so-hypothetical pre-trial detention scenario. First, is it fair for a two-person minority of judges (agreeing with one half of the investigating judge’s office) to effectively decide to charge, detain, or indict a suspect (although such a decision would be subject to appeal)? The EC can expect to hear complicated arguments about the effect the supermajority and default rules in the PTC will have on burdens of proof for reaching certain decisions.

Second, are decisions about issues like detention or decisions about whether to file particular motions or appeals within the jurisdiction of the PTC? These matters are in a sense tangential to the overall question of what defines whether an “investigation” or “prosecution” will “proceed.”  Yet the PTC is the only body with the competence to mediate differences between co-officials and therefore should presumably hear every issue between them that would otherwise disrupt the trial process.

Third, should judges who have already ruled on an intramural dispute between prosecutors or investigating judges recuse themselves from ruling on the same issues at the trial or appeals level? The answer has potential budgetary implications if additional judges need to be appointed, or if reserve judges need to be paid full salaries for their work on the PTC.

Finally, just how long will all of this back and forth take? The sheer number of options and iterations of decisions presented by each case among the various offices and chambers of this court highlights the need for strict time limits and clear processes for reaching decisions that enable the court may get to the merits of each case before its money and its mandate expires.

CONCLUSION

The PTC will be a crucial element in determining the course of investigations and prosecutions, and to the perceived fairness and overall success of the Extraordinary Chambers. Yet little attention has been paid to the details of the PTC’s operation. This memorandum makes it clear that fundamental questions must be answered about the role of the PTC before the work of the Extraordinary Chambers begins. Cambodian and international jurists and legal experts should begin as soon as possible to establish a method for determining the PTC’s particular powers and procedures. Clear rules are needed at the outset to avoid confusion or delay. Such rules and procedures may require new law, and therefore should be considered as soon as possible. Also, crucial decisions must be made soon with regard to the selection of PTC judges, which decisions will impact the budget for the tribunal and the speed of its trials. The selection of judges to the PTC must be decided and the PTC’s authority must be delineated. The PTC is a critical and innovative dispute resolution mechanism. But it will itself give rise to critical disputes if it does not employ mechanisms that ensure it operates fairly.
footnotes

1- This memo is based in part on valuable research memos by Panyavuth Long and Dustin Osborn.

2-The International Criminal Court also has a body called the “Pre-Trial Chamber,” but its functions are different. The ICC body is responsible for authorizing a prosecutor to investigate a charge, whereas the EC PTC resolves disputes within the investigating judges and prosecutors offices.

3-Articles 10, 20, and 23 of the EC Law and article 7 of the UN Agreement address the role of the PTC in settling disagreements between the Co-Prosecutors or between the Co Investigating Judges.

4- UN Agreement, Article 7.2.
5-EC Law, Article 10.
6-UN Agreement, Article 7.2.

20- Note that the Khmer text uses the word “indictment.” See supra, note 7.
21- See supra, note 7. If indictment is the proper term, the argument that the PTC may rule on pretrial detention may lose weight.

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