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Duch appeal to begin today

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Former S-21 prison chief Kaing Guek Eav, better known as Duch, sits in the courtroom at the Khmer Rouge tribunal on the outskirts of Phnom Penh in July 2010. Appeals in Duch’s case will be heard at the tribunal starting today.

The Khmer Rouge tribunal will convene today to hear appeals in the case of former S-21 prison chief Kaing Guek Eav, better known as Duch, who in July became the first defendant convicted by the court.

The prosecution, defence and a number of civil parties have all appealed the original judgment, in which Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions, and sentenced to 30 years in prison. With credit for time already served, the 68-year-old now stands to spend roughly 18 more years in prison.

Duch’s trial began in 2009, with hearings stretching over roughly six months and dozens of witnesses and civil parties appearing. No new testimony will be heard this week, as the three planned days of hearings will instead focus on issues from the previous ruling including sentencing, reparations for civil parties and the jurisdiction of the court.

“These hearings will be very different from the Trial Chamber hearings, in the sense that it’s basically legal issues that are argued here,” United Nations court spokesman Lars Olsen said. “It’s not about factual findings at S-21.”

The defence has been granted the right to introduce new evidence during this week’s hearings, though this evidence will be limited to supporting their argument that Duch falls outside the court’s mandate to try “senior leaders” and those “most responsible” for Khmer Rouge atrocities and should therefore be released.

The defence first made this assertion during closing arguments in 2009, a stunning turnabout that followed months of hearings in which Duch had accepted responsibility and essentially pleaded guilty.

Observers say the Duch team’s arguments on this issue are weak and unlikely to be successful before the tribunal’s Supreme Court Chamber; at one point in their appeal brief, the defence lawyers reference a compendium of Cambodian folk tales to support a claim about criminal responsibility.

“I don’t think there’s a leg to stand on on this argument. It’s extremely weak,” said Anne Heindel, a legal adviser at the Documentation Centre of Cambodia. “They haven’t made any arguments that the sentence should be shorter – all their arguments are that the case should be dropped.”

The prosecutors, meanwhile, have called Duch’s original sentence “manifestly inadequate”, requesting in their appeal that the Khmer Rouge jailer instead receive a 45-year term, commuted from life in prison because of his excessive pre-trial detention following his arrest in 1999.

They also requested that “a further reduction be made as appropriate for the very limited mitigating circumstances” in the case, a reduction that co-prosecutor Andrew Cayley has said should be five years “at an absolute maximum”.

Civil party lawyers have also appealed, with some challenging the judges’ decision that their clients’ claims were inadmissible and others demanding more expansive reparations.

Today’s hearings will be devoted to the defence appeal and the issue of jurisdiction, while hearings on Tuesday will focus on sentencing and the prosecution appeal. Civil party issues will be discussed on Wednesday, with hearings extending into Thursday if necessary.

Court officials have said the Supreme Court will hand down a final judgment in the case by the end of June.

In the aftermath of the original verdict last year, a number of victims cried foul at the perceived brevity of Duch’s sentence, saying it was unacceptable for the head of a facility in which nearly all of the perhaps 14,000 inmates who entered were eventually killed.

S-21 survivor Vann Nath said yesterday that he was curious to see how many years Duch would ultimately receive, but that the most important thing was that the former warden had been found guilty.

“History will show that he has been found guilty,” Vann Nath said. “1,000 years later, his name will still be guilty.”

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