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March
13, 2003
Minimum
Standards for Fair Trials of Leaders of Democratic Kampuchea
Most
potential defendants in a possible KR trial are now very old, so it will
be too late to bring them to justice if the tribunal is delayed again We
do not need show trials but fair trials. If this tribunal is well set up
with minimum standards for fair trial, Cambodia will gain the following:
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Some
measure of justice for the victims of the DK regime,
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The
trials can provide a model for the future Cambodian Court system,
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The
trials will act as a deterrent to Cambodian leaders, who shall know
that they cannot escape justice and responsibility for their
misconduct,
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The
people and the world will know the truth about why the KR leaders
killed their own people like this, and
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The
Cambodian people who suffered in Pol Pot’s time will be relieved
from KR trauma.
In
order to achieve the above goals, the Cambodian Defenders Project would
like to recommend the following:
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All
judges, whether foreign or Cambodian, should be approved by the United
Nations: As Cambodia has never possessed independent mechanisms or
demonstrated the will for neutral selection of judges, the United
Nations should have final approval authority over all judicial
appointments, whether foreign or Cambodian.
Criteria for selection should focus on a reputation of respect
for judicial independence as well as skill.
To protect independence of decisions of the judicial panel,
impartiality, even in the face of intimidation, must be an
non-negotiable qualification for all the judges. The U.N. can train
all appointed judges in judicial procedure and the laws applicable to
the trials in order to enhance their skill.
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Court
Decision: In the current KR law, the decision of the court is by
supermajority. Thus, for example, a decision of the first instance
court can only be made by four out of five judges. It is very
difficult to achieve this decision. We recommend to have only a simple
majority but it shall be a mixed decision so that it will be easier to
reach a decision.
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Each
Prosecutor shall have power to charge: In
accordance with the current law, the decision of charging shall be
made by consensus of both co-prosecutors, Cambodian and foreign. The
procedure in case of disagreement may tend towards delay or deadlock,
so we recommend that each prosecutor, Cambodian or foreign, shall have
power to charge the suspect.
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Participation
of non-Cambodian investigators: The
current law has no provisions about police investigators. Even where
the judges and prosecutors are strong, if the investigators are weak
or incompetent, the prosecutors will have no case for charging and
there will no case for trial. So, we would like to recommend that
provision be made for international police or foreign investigators to
assist the prosecutor to collect evidence.
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Adequate
security for all court officials: Fear
about physical security would be most likely to impact on the
decisions of judges on the bench. An adequate protection program, managed by both U.N. and
Cambodian personnel, must be provided for all judges, prosecutors,
investigators and other court officials, especially the Cambodians and
their families residing in Cambodia.
Long-term security should be provided as needed.
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A
foreign chief administrator appointed by the United Nations: In order to help ensure that management of the budget and
administrative tasks can be handled in a professional and independent
manner, the top administrator for the trials should be foreign and
selected by the United Nations.
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Autonomous
budget: In order to avoid the
potential for the exertion of financial pressure over the court's
actors, an autonomous budget managed by the chief administrator should
be established to pay all costs of the trials, including salaries,
materials, investigations, witness protection, etc.
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Internationally
recognized legislation: New
legislation, including composition and applicability of substantive
law to such trials, must be enacted and adhere to the Constitution and
international human rights law. As the existing criminal procedure
laws do not meet international standards, rules of procedure and
evidence must be encoded in new legislation. Only those substantive
laws, including customary law, in force at the time of the crime
should apply in the trials. The
law-making process must be an open one, regardless of who authors the
legislation. Drafts of
all statutes concerning the trials must be publicly accessible and
opened to public commentary. Because Cambodia has ratified the Rome
Statute, it is better for the KR tribunal to use the court procedure
of the ICC.
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Individual
jurisdiction: Trials should hold
accountable those most responsible for the atrocities committed during
the Democratic Kampuchea regime between 1975 and 1979.
While all those responsible should be brought to justice,
practical difficulties in doing so necessitate this more limited scope
for the trials discussed here. The present law, art 1, currently
provides for this.
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Arrest
of indictees: The Cambodian government
should cooperate with the prosecutor by arresting all those indicted
by the court.
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Right
to counsel: This tribunal is a mixed
one. It has mixed judges, both foreign and Cambodian, and mixed
prosecutors, but in accordance with the law on the Bar of Cambodia,
only Cambodian lawyers can represent their clients in court. In
accordance with principles of fair trial, defendants must have a
competent lawyer of their choice.
Those who cannot afford a lawyer should be provided with a list
of lawyers, both foreign and Cambodian, by the United Nations and the
Cambodian government, from which they may select free defense counsel.
All elements of right to counsel, including the right of foreign
lawyers to represent defendants in these proceedings, must be encoded
in legislation and protected by the U.N. and the Cambodian government
in accordance with fair trial standards.
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Right
to appeal: In keeping with the
International Covenant on Civil and Political Rights, the defendants
must have a right to appeal. The court of appeal must adhere to the
same standards, including judicial independence, as identified in this
statement, and the decision of the appellate court must be final. A
two-tiered appeal structure is provided by the current law.
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Amnesty:
The law governing the tribunal should
make it clear that no prior amnesties will be respected.
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Royal
pardon: The King must be prevented by
legislation from granting a pardon to anyone convicted in these
trials.
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Death
penalty: In accordance with the
Cambodian Constitution, the death penalty must not be an option in
these trials. The current law omits this penalty.
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Protection
of trial participants: Witnesses,
victims, lawyers, defendants and others whose participation in such
trials can put their personal security at risk should be protected by
a protection program managed by both Cambodian and U.N. personnel
A protection program should make long-term protection available
as needed.
Contact
person:
-Sok
Sam Oeun, Executive Director, Tel: 012 901199
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