Arguments Made By Nuon Chea’s Co-Lawyer Against the Order of Provisional Detention

Posted by khmernews on February 7, 2008

Through his lawyer, Former Brother Number Two of the Khmer Rouge regime Nuon Chea has appealed to the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) against the provisional detention order of the Co-Investigating Judges. Nuon Chea’s appeal brief was submitted to the Pre-Trial Chamber on November 8, 2007. Below are some extracted points of the 36-page pleadings in Khmer (28 pages in English).
A.    The Detention Hearing Was Held in Violation of Mr. Nuon’s Rights
1.    There was no Effective Waiver of Mr. Nuon’s Right to Counsel
Given (i) Mr. Nuon’s personal situation, (ii) the context in which the Detention Hearing was held, and (iii) the serious and potentially far-reaching consequences of the issue of provisional detention, no reasonable judge under the circumstances would have accepted Mr. Nuon’s waiver of his right to the assistance of counsel. Rather, any reasonable judge would have recognized the lack of urgency and briefly postponed the hearing in order to allow Mr. Nuon to rest, hear appropriate advice from his designated lawyer, and meaningfully consider how best to proceed.

As noted above, in order for a waiver to be considered legally valid it must be voluntary, informed, and unequivocal. However, under the circumstances, the waiver taken from Mr. Nuon late in the afternoon on 19 September 2007 was effectively coercive, decidedly uninformed, and rather ambiguous.

a.    The Waiver Was Not Voluntary
While this sequence of events may not merit comment with respect to a middle-aged adult in good health, Mr. Nuon is 82 years old, walks with the assistance of a cane, and suffers from persistent high blood pressure and other cardio-vascular ailments.

b.    The Waiver Was Not Informed
At no time during the Detention Hearing was Mr. Nuon informed of the consequences of proceeding without the assistance of counsel. He was not explained that the hearing could be postponed until the arrival of Mr. Son or that, in the meantime, Mr. Nuon may wish to seek the assistance of the Defence Support Section officials.

c.    The Waiver Was Ambiguous
2.    The Detention Hearing Was Consequently Unfair
The denial of Mr. Nuon’s right to the assistance of counsel—i.e. the acceptance of the defective waiver—was further compounded by the denial of three additional and fundamental rights guaranteed by the Rules, namely Mr. Nuon’s rights to an adversarial hearing; to a reasonable period of time to prepare his denfence; to remain silent; and to the equality of arms. Mr. Nuon was transported by helicopter from his simple wooden house in Pailin to the modern urban premises of the ECCC where, upon arrival, he was immediately expected to participate in unfamiliar international criminal proceedings. Exhausted from the days travails and unassisted by his designated lawyer or any representative of the DSS, he was effectively coerced into undergoing a crucial and complex hearing without the benefit of even a cursory legal or factual briefing and without being clearly notified of his right to remain silent.

His adversaries at the Detention Hearing were the two Co-Prosecutors and additional members of their staff—all experienced attorneys well-versed in the applicable law and facts of the case. While Mr. Nuon made an admirable attempt to counter the submissions of the Office of Co-Prosecutor, it is clear from the record that he was unable to participate in any meaningful way. He was, quite literally, defenceless.

In law of concept of an adversarial hearing denotes a minimal amount of parity between the parties, as reflected in the principle of equality of arms. However, to describe the proceedings which transpired on 19 November 2007 as “adversarial” is to stretch the meaning of that term to the point of meaninglessness.

B.    The Conditions for the Provisional Detention Are Not Satisfied
1.    There is Insufficient Evidence to Connect Mr. Nuon to the Crimes Charged
Rule 63(3)(a) requires a “well founded reason to believe that the person may have committed the crime or crimes specified in the Introductory or Supplementary Submission”. The OCIJ found that this first prong of the test was satisfied by “the many documents and witness statements implicating Nuon Chea” attached to the OCP’s Introductory Submission.

For his part, Mr. Nuon maintains his innocence of the charges and has publicly denied participation in any criminal activity. The Defence submits that, despite the volume of materials filed by the OCP, those which actually implicate Mr. Nuon are scant and consist mostly of unsubstantiated personal innuendo and inaccurate scholarly citation. While the Defence does not dispute that Mr. Nuon’s name is contained in many of the documents, little if any forensic value can be attached to these references. Indeed, it is not at all clear from the record of the Detention Hearing or the Detention Order itself that the OCIJ has engaged in anything more that a very cursory review of the case file.

In any event, assuming but not conceding the reasonableness of the OCIJ’s finding in this regard, the existence of a well-founded reason to believe that Mr. Nuon has committed crimes is, standing alone, insufficient to support an order of provisional detention.

2.    No Additional Grounds Exist to Justify Provisional Detention
As required by the Rules and established principles of international criminal procedure, the OCIJ further justified its Detention Order by reference to the following putative dangers: the risk of Mr. Nuon’s flight from legal process; his likely interference with potential witnesses, especially those alleged to have been under his previous control; and possible threats to the public order and to Mr. Nuon’s personal safety. However, each of these justifications is premised on abstract notions rather than grounded in actual fact as required.

a.    There is no Actual Risk of Mr. Nuon Fleeing the Jurisdiction
The OCP’s single factual submission on this point was that Mr. Nuon holds a passport and resides near the Thai border. For his part, Mr. Nuon indicated that, despite having had many chances to do so already, he has no intention of fleeing and wishes to participate in the proceedings. The OCIJ held that, “because Nuon Chea faces a maximum sentence of life imprisonment if convicted, it is feared that, regardless of his protestation to the contrary, he may be tempted to flee legal process.”

As a matter of fact, the notion of Mr. Nuon fleeing the jurisdiction of the ECCC is fanciful. First of all, Mr. Nuon has stated many times—most recently at the Detention Hearing—that he is eager to participate in his trial. He is a proud Cambodian citizen with many family and civic ties to the country and has no intention of leaving them behind. Mr. Nuon was well-informed about his ongoing investigation and impending arrest and made no attempts to flee from his home in Pailin. Indeed, accompanied by a journalist, he was patiently waiting for the arrival of ECCC authorities on the morning of19 September 2007. Had it not been for the rather unnecessary, not to say overwhelming, show of force in executing the arrest warrant, Mr. Nuon would have voluntarily surrendered immediately and without hesitation upon request. Even assuming, arguendo, that Mr. Nuon intended to abscond, his age, fragile state of health, and lack of financial resources would make it virtually impossible for him to do so. The Cambodian and ECCC authorities clearly have the will and material ability to ensure that Mr. Nuon’s movement within the country is sufficiently monitored and restricted.

No attempt was made at the Detention Hearing to obtain appearance guarantees from sureties or from Mr. Nuon himself (although he freely gave one), and no reference was made in the Detention Order, as required, to the specific factors which either confirm or refute the risk of flight. As noted in the previous paragraph, the balance weighs heavily in favor of the latter. Simply put, there is no such danger. It is clear from the text of the Detention Order, that the OCIJ has based its assessment purely on the gravity of the charges against Mr. Nuon. However, as noted above, this is legally impermissible.

b.    There is no Actual Risk of Mr. Nun Interfering with Witnesses
By way of support for this point, the OCP suggested that Mr. Nuon had previously criticized his alleged subordinates for not destroying evidence. In response, Mr. Nuon stated that it was “not possible” that he would destroy evidence. The OCJI held that, “given Nuon Chea’s specific hierarchical position (“Number 2″ in the regime), it may be feared that, if he were to remain at liberty, he might attempt and would be in a position to pressure witnesses and victims, especially those who were under his authority.”

As with the risk of flight, the danger of interference with witnesses and/or destruction of evidence must be supported by specific facts related to the charged person. However, the OCP’s allegation of Mr. Nuon’s previous criticisms is buttressed by nothing more than Ms. Chea’s unsubstantiated assertion. The Detention Order itself is equally lacking in factual support and instead amounts to a statement of pure conjecture: “it may be feared […] he might attempt […] and would be in a position to pressure witnesses and victims […]”. On the current record, this is an unreasonable and legally impermissible assumption and, as such, must be rejected. As noted above, the fact that Mr. Nuon may continue to possess some measure of influence does not mean that will necessarily exercise it unlawfully. There is simply no evidence on the record that Mr. Nuon has had inappropriate contact with a single witness, victim, or “third person” or that he has in any way encouraged the destruction of materials relevant to the case against him.

c.    There is no Actual Threat to Public Order or to Mr. Nuon’s Personal Safely
The OCP made no factual submissions in the support of these grounds, and Mr. Nuon countered with the assertions that (i) he has been peacefully re-integrated into Cambodian society for some time and (ii) if anyone had wanted to harm him they would have done so already. Nevertheless, the OCJI held that, because of their gravity, the crimes with which Mr. Nuon has been charged require the imposition of provisional detention. Such position is both legally impermissible and factually spurious.

Be relying solely on the gravity of the alleged crimes to justify this particular ground, the OCIJ has run afoul of the established prohibition of this practice discussed above. In this regard, the Detention Order seems to have been issued in anticipation of a long custodial sentence and suggests that the OCIJ may have pre-judged the issue of Mr. Nuon’s culpability. Pursuant to recognized international principles, provisional detention based on a threat to public order is only justified upon the demonstration by precise facts of a particular disturbance and where detention is the only reasonable means of quelling it. This is clearly not the case here, as demonstrated by the OCP’s lack of factual submissions on this point.

As already noted, Mr. Nuon has been living openly and peacefully in Pailin for many years, during which time there have been no acts of violence in protest of his liberty or attempted acts of revenge against him. The fact that several other well-known ECCC targets are at large in Cambodia does not seem to have caused any disturbance to the public order either. To suggest, as the OCIJ has, that Cambodian society is too “fragile” to comprehend and respond appropriately to the idea of Mr. Nuon’s provisional release is inaccurate at best and ignores more than ten years of Cambodian history. As stated by Mr. Nuon as the Detention Hearing, “I left the jungle […] because I understood the political line of the government of Prime Minister Samdech Hun Sen, in particular the policy of reintegration”. This comment, of course, refers to the well-known government policy—begun as early as 1994—of reintegrating former members of the Khmer Rouge into Cambodian society. Mr. Nuon began his official integration with a formal request to Hun Sen in December 1998 and was, along with Khieu Samphan, warmly welcomed back to “society” by the Prime Minister.

The further suggestion that keeping Mr. Nuon in provisional detention will in some way curb any “protests of indignation” is also troubling. Public expressions of indignation in response to official acts—provided they fall short of violent manifestation—are to be encouraged in open societies. To the extent the ECCC is concerned about sending a message to the public, it should be one of respect for established legal principles rather than inaccurate assessments of the security situation which depict the population as an unruly mob prone to acts of hysteria.

3.    The Detention Order Was Not Factually Motivated
As demonstrated above, none of the grounds contained in the Detention Order were factually substantiated as required by Rule 63(2)(a). Neither the OCP nor the OCIJ went beyond mere recitation of Rule 63(3)’s legal requirements. Not only has this made it difficult for the Defence to lodge a proper appeal, it leaves one with the very distinct impression that Mr. Nuon’s pre-trial detention was a fait accompli—and with the very fear that public confidence in these proceedings may be adversely affected.
Provisional Release is Appropriate Under the Circumstances
In issuing the Detention Order, the OCIJ concluded that “no bail order would be rigorous enough to ensure that [Rule 63(3)(b)’s] needs would be sufficiently satisfied and therefore detention remains the only means to achieve these ends”. However, given the actual state of affairs as outlined above, this assessment appears both capricious and excessive.

At the Detention Hearing, the OCIJ failed to explore or consider the imposition of any less restrictive measures in keeping with principle of proportionality, such as provisional release subject to appropriate conditions. In particular, the OCIJ failed to take account of Mr. Nuon’s age and health; the circumstances of Mr. Nuon’s arrest/surrender; the guarantees offered by Mr. Nuon himself; the possibility of any further guarantees by potential third-party sureties; the proximity of the start of trial; and the availability and effectiveness of monitoring by the authorities.

Each of these factors militates in favor of provisional release. As already noted in detail, Mr. Nuon’s age and health prevent him from lengthy or strenuous movement outside his home. The circumstances of his arrest confirm that he is eager to participate in the proceedings and would have voluntarily surrendered if requested. Indeed, he has made a personal attendance guarantee and would willingly seek additional guaranties if required. Further, the OCIJ has made it quite clear that it intends to proceed with the case of Kaing Guek Eav in as expedited manner, indicating that the trial of Mr. Nuon may not take place for some time. Finally, and perhaps the most convincing, is the demonstrated willingness and ability on the part of the Cambodian authorities to locate and arrest those suspected of criminal activity. There is every reason to believe that these very authorities are up to the task of monitoring, and re-arresting if necessary, a man in so frail a condition as Mr. Nuon.

Accordingly, subject to the proposed conditions set forth at Annex A, none of the abstract concerns raised by the OCP would be able to materialize into actual fact. The application of these less restrictive measures would have the added benefit of isolating Mr. Nuon from other charged persons with whom he may have very real conflicts of interest.

For all the reasons stated above, the Defence respectfully requests this Chamber to vacate the Detention Order and either release Mr. Nuon immediately subject to the proposed conditions and/or rehear the matter in accordance with Mr. Nuon’s fundamental rights and established legal principles as soon as possible. Alternatively, so as not to impede the expeditious progress of the investigation, Mr. Nuon is willing to reside at the ECCC Detention Center on a voluntary basis, subject to any order ensuring his liberty consistent with the arguments advanced in these pleadings.

-Extracted from Somne Thmey, #140, Monday-Sunday, December 17-23, 2007.


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