Suggested Revisions to the Law on the Establishment of the Extraordinary Chambers.
Posted by khmernews on November 20, 2006
The Cambodian Defenders Project
13 September 2004
The Cambodian Defenders Project (COP) commends the Royal Government’s efforts to improve 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”) with the proposed Draft Law on Amendments to Articles of the EC Law (the “Draft Law”)
Establishing fair and efficient proceedings to achieve justice for victims of Khmer Rouge atrocities will be an historic step in the process of peace and reconciliation in Cambodia. To support this common goal, we wish to bring attention to some significant legal problems still present in the Draft Law, which are identified and explained in the attached “Revised Text”The Revised Text recommends insertions (underlined) and deletions (noted in the margin) to the text of the Draft Law that are important to ensure that the EC operates in a smooth and fair manner. The Revised Text would:
1- Save the EC time and money by reducing unnecessary legal debates in court over ambiguous legal language that could lead to errors in interpretation;and
2. Bring the EC Law into compliance with international agreements to which Cambodia is a party, including the UN Agreement on the EC
The most important changes in the Revised Text are described below:
• Revised Article 33 authorizes the judges of the EC to adopt rules of procedure, as recommended by the Cambodia Human Rights Action Committee (CHRAC). The EC Law states that judges, prosecutors, and investigating judges may look to rules established at the international level, but does not state a system for their adoption. Comprehensive rules of procedure are absolutely essential for the functioning of any court, international or other wise. Article33 in the Revised Text gives the EC authority to promulgate rules of procedure in the same manner as other international tribunals by a two-thirds vote.
• Revised Article 362reduces the grounds for appeal to the most serious legal errors, which is in accord with international standards. The current EC Law does not limit the grounds for an appeal to the Supreme Court Chamber3in any way. Under Cambodian law appeals may be made to the Court of Appeal and the Supreme Court by any party for any reason. If the same can be done in the EC, every defendant convicted in the Trial Chamber can appeal to the Supreme Court Chamber for a complete re-trial of the same issues tried in the Trial Chamber The Revised Article 36 places the same limits on appeals as the other international courts and is appropriate for the extraordinary nature of the EC. Other wise, every defendant will have the benefit of two complete trials, which would cost much more money. It would also make the Trial Chamber’s judgment essentially irrelevant and cause it to lose time and credibility.
• Revised Article 4 defines the. crime of “genocide” to match the definition of “genocide” in the UN Agreement (4) and the Genocide Convention S to which Cambodia is a party. The EC law lists which act ssh all be punishable as “genocide” in a way that differs from the 1948 Convention This difference is not justified in law and if it is applied could cause convictions for genocide to be overturned on appeal. Article 4 of the Revised Text resolves this difference and brings the EC Law into compliance with the UN Agreement. An alternative solution is simply to delete the definition of the crime of “genocide” and retain only the reference to the Genocide Convention.
• Revised Article 5 defines “crimes against humanity” so that it is consistent with the definition required by the UN Agreement. Article 9 of the UN Agreement states that the International Criminal Court definition of “crimes against humanity” shall apply. However, the EC Law’s definition of “crime against humanity” in Article 5 is substantially narrower than that set forth in the ICC statute. The Revised Text expands the definition in Article 5 to match the relevant provisions of the International Criminal Court, Special Court for Sierra Leone, and the International Criminal Tribunal for the Former Yugoslavia. If the proper definition of the crime is not applied, convictions could be overturned on appeal.
• Revised Article. 14 requires courts of the Extraordinary Chambers to issue reasoned, written opinions in accord with international standards. Article 14 of the current EC Law requires that the Extraordinary Chambers issue an opinion only when there is no unanimity. This requirement is inconsistent with all other international courts. Without a written opinion, the public may never learn full extent of what the defendants did, and why, Accordingly, written opinions should accompany all decisions of the EC, whether unanimous or non-unanimous, which contain the reasoning of the court. Article 14 of the Revised Text reflects this important principle by using language from the Special Court for Sierra Leone Statute and the International Criminal Court Statute.
• Revised Article 35 corrects omissions that were inconsistent with defendants’ rights under Article 14 of the ICCPR. Article 13 of the UN Agreement specifies that Article 14 of the International Covenant on Civil and Political Rights shall apply, However, the EC Law’s detail of those rights departs from the language of the ICCPR in three significant instances. The Revised Text eliminates this discrepancy.
• Significant translation errors in the official Khmer version of the EC Law that affect legal meaning have been noted in Articles 4, 18,29, and 33.
• Important textual revision shave also been made to Articles 2, 7, 8, 9,10, 11,13, 14,17, 20, 23, 25, 28, 33, 35, 36, 37, 39, and 45 to clarify ambiguities in legally significant language.
Please see the comments in the margin of the attached Revised Text for a more detailed explanation of the changes summarized above.
1-The Draft Law on Amendments to Articles 2, 3, 9, to, 11, 14, 17, 18, 20, 21, 22, 23, 24, 27, 31,33 ,34 , 35 ,36 , 37, 40, 41, 43, 44, 45 ,46, and 47 of 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.
2-Article 36 is a new article in the Revised Text. All subsequent Articles are renumbered accordingly.
3-The EC Law uses different terms for the trial court and the Supreme Court in various places. The Revised Text repairs this inconsistency by referring to the court of first instance as the “Trial Chamber” and the court of second and final instance as the “Supreme Court Chamber.”
4-“UN Agreement” refers to 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 Kampuche a signed on June: 6, 2003.
5-1948 Convention on the Prevention and Punishment of the Crime of Genocide.