Logo of Phnom Penh Post newspaper Phnom Penh Post - Defence weighs in on controversial doctrine

Defence weighs in on controversial doctrine

Defence weighs in on controversial doctrine

Duch’s lawyers say prosecution request to apply joint criminal enterprise ought to be rejected.

THE defence team for Tuol Sleng prison chief Kaing Guek Eav, alias Duch, has called for the Khmer Rouge tribunal’s Trial Chamber to deem inadmissible a request by the prosecution to apply joint criminal enterprise (JCE), a controversial doctrine of liability under which a person can be charged with having committed crimes through participation in a common criminal plan.

In a filing dated September 17 and posted on the tribunal’s Web site Friday, lawyers Francois Roux and Kar Savuth note that the Pre-Trial Chamber already decided against applying JCE in the Duch case. In that December 2008 ruling, judges found that “the factual basis [was] not sufficient” to justify the application of JCE.

In June, the prosecution filed a similar request pushing for the application of JCE, this time to the Trial Chamber, which said it would rule on the request when it issued a verdict.

Duch’s lawyers argue that, should the Trial Chamber judges find the request to be admissible, they should dismiss it because the JCE “in which Duch is alleged to have participated has never been clearly defined” by the prosecution.

They add: “In the unlikely event that the Chamber were to consider recharacterising the facts, it must invite the Accused to make his submissions in a practical and effective manner on the new characterisation contemplated.”

Civil party support
Also Friday, the tribunal made public a brief filed by Civil Parties Group 3 in support of the prosecution’s JCE request, arguing that the internal rules empowered the Trial Chamber “to change the legal characterisation of crimes” from those outlined in the indictment or ruled on by the Pre-Trial Chamber.

The civil party lawyers also said in the filing that Duch had been given “adequate time and facilities” to prepare a defence under the JCE mode of liability.

“It therefore cannot be argued that if the Chamber were to accept the application of JCE, the Accused would be denied the opportunity to present his defence in respect of the new characterisation,” the lawyers said, adding that the chamber “should apply JCE as a mode of commission in order to fully cover the Accused’s liability”.


  • Hun Sen to ‘step down’ if he loses Sam Rainsy bet over Kem Sokha

    Hun Sen has promised to step down as prime minister while opposition figure Sam Rainsy pledges to turn himself in as forfeits if the long-term political rivals lose a “bet” over the future of former opposition leader Kem Sokha, who is on bail awaiting trial

  • UAE prince seeks to invest in Cambodia

    The UAE has expressed interest in Cambodian oil and gas exploration. Minister of Mines and Energy Suy Sem said this was the result of his discussions with Sheikh Ahmed bin Dalmook bin Juma al-Maktoum, a member of the royal family who visited him on Wednesday.

  • Smith calls for ‘release’ of Sokha as visit ends

    At a press conference to conclude her 11-day visit to Cambodia, UN Special Rapporteur for Human Rights in Cambodia Rhona Smith on Thursday called for treason charges against former opposition leader Kem Sokha to be dropped and for him to be released from “restricted detention”.

  • PM denies ‘nepotism’ claims

    Prime minister Hun Sen denied on Thursday that nepotism was involved in the recent promotions of the children of senior government officials. He said they had been “trained” and were entirely capable of carrying out their duties while being open to “punishment” like anyone else.