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Documents in ‘open’ cases 003, 004 still hard to come by

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Visitors look at a stupa memorial containing thousands of skulls and human bones of victims killed on the summit of Wat Phnom Sampeau in Battambang province. About 10,000 people are believed to have been sent to their deaths in the hilltop caves. Photograph taken in 2009. Photograph: Reuters

More than a year after Case 003 investigations at the Khmer Rouge tribunal were reopened by the international co-investigating judge, no defence attorneys and only a single civil party representative have been given access to the case file, lawyers confirmed yesterday.

A defence team in Case 004, meanwhile, slammed the tribunal in a public statement issued yesterday, saying they’ve been stonewalled by the Defence Support Section’s refusal to cover travel expenses to meet with the suspect.

They too have not been given access to the case file.

Though public complaints concerning the contentious, government-opposed cases 003 and 004 have waned in recent months, the latest revelations suggest little has been done to move the cases forward.

The crimes of which the five mid-level cadres are accused include purges, genocide and forced labour; many believe they will never be addressed in trials.

Case 003 investigations were controversially shut down by co-investigating judges Siegfried Blunk and You Bunleng in April 2011; four months later, those same judges announced there were “serious doubts” as to the merits of Case 004.

While those moves were undone, in part, by Blunk’s successors (the embattled Judge Laurent Kasper-Ansermet reopened Case 003 investigations and filed charges against all five suspects, while his replacement, Judge Mark Harmon, has been investigating Case 004 crime sites), there has been virtually no case file access and near silence regarding judicial appointments.

A year on, even the status of the cases and whether the suspects have in fact been charged remains unknown.

Pre-trial split

Eighteen months ago, lawyers appealed the rejection of a civil party applicant whose case was deemed groundless by the co-investigating judges because, among other things, the psychological trauma she claimed to have sustained “cannot be considered as ‘more likely than true’”.

The civil party appeared an ideal applicant for Case 003. Already, judges had accepted her in Case 001 and then again in Case 002, saying she suffered undue mental harm when her husband was forcibly remanded to a worksite listed in the Case 003 indictment.

And so, when her application was rejected in July 2011 by judges Blunk and Bunleng, it was widely held up as proof of the judges’ intention to bury the case.

That conclusion was echoed by international judges at the Pre-Trial Chamber last week, when they departed from their national counterparts in a decision issued on the appeal. Because opinion was split, three to two, the case effectively stalls without the right to appeal and the original decision stands.

But taking the opportunity to append an opinion, international judges tacked an unsparing 23-page critique on to the decision.

The work of the co-investigating judges was riddled with procedural irregularities, aspects of their decision were illegal and the judges operated far beyond their powers, argue Judges Chang-Ho Chung and Rowan Downing.

But despite the range of serious violations, the harshest critiques are levied against the lack of public information and case file access, part of a “pattern of conduct that has been adopted by the co-investigating judges in Case 003.”

Applications have been placed in the case file “only a few days or minutes prior to being rejected.” Documents submitted by prosecutors are filed only with “considerab[le] delay.” All of which has colluded, write Judges Chung and Downing, to cast “doubts about [the co-investigating judges’] willingness to conduct the proceedings in a transparent, fair and adversarial manner that would ensure respect of the rights of the parties and the participants to the proceedings.”

Case File

Powerless though the international judges may be on this point, they bring to light an issue that has stymied lawyers in cases 003 and 004 – access to the case file.

Only two of the five suspects in cases 003 and 004 have been appointed legal representation; none, however, have received access.

“It is our understanding that at least one of the co-investigative judges is of the opinion that the suspects are not entitled to legal representation and/or access to any portions of the case file at this stage of the investigative process,” Michael Karnavas, a defence lawyer for a Case 003 suspect, wrote in an email.

“Suffice it to say, we strongly disagree with the notion that is shared by some at the ECCC that suspects at this point in time are not entitled to be represented and cannot or should not have access to some if not all portions of the case file,” he added.

Civil parties have been similarly blocked. In cases 001 and 002, lawyers were given access as soon as civil party applications were filed. That practice all but disappeared in the subsequent cases. More than 850 victims have applied for civil party status in both cases, but only a single representative has been granted access to the Case 003 file, while none have access to case file 004.  

“I have access to the case file 003, granted by Judge Kasper-Ansermet around April/May 2012, after [my client] Rob [Hamill] had been admitted by Judge Kasper-Ansermet acting alone. This point in time was about a year after I had first submitted Rob Hamill’s application and only after numerous requests,” Hamill’s lawyer, Lyma Nguyen, said yesterday.

“My national co-lawyer submitted his application forms a little later, and was refused access. He still does not have access to the case file. I am, as far as I know, the only lawyer at ECCC out of all defence and civil party lawyers with access to Case 003.”

Shortly before resigning in January as a civil party lawyer, Silke Studzinsky confirmed that she had never received access.

“We requested the access in May 2011 and despite several reminders NO decision has been taken,” she wrote in an email.

“Our requests are simply ignored.”

To contact the reporter on this story: Abby Seiff at abby.seiff@phnompenhpost.com

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