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Equality of Arms: Prosecutor vs. defendant

Equality of Arms: Prosecutor vs. defendant

One of the issues holding up the Khmer Rouge Trial (KRT) is the question of how to

staff the court. Some describe this issue as being one of ensuring "equality

of arms." In legal terms, it means that the prosecution and defense in a criminal

trial have equal status. In simple terms, "equality of arms" means nothing

more than a fair fight.

So far, there have been differences of opinion between the Defense Support Section

of the Extraordinary Chambers in the Courts of Cambodia ("ECCC") and the

Cambodian Bar Association about how much foreign involvement is necessary. The issue

is presented as if Cambodians must choose between Cambodian "sovereignty"

(or applying national laws) and "international" standards of justice. This

is a false choice. Both Cambodian and international laws recognize the concept of

"equality of arms".

First, it is important to contextualize the phrase "equality of arms".

In any criminal trial the accused is not pitted against another individual, but against

the State. This is different from a civil case, where a defendant is accused by a

non-State plaintiff, and monetary damages are sought. In a criminal case the State

goes after unlawful behavior and seeks punishment, because crimes are considered

to be acts committed not only against an individual, but against society in general.

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Thus, in criminal proceedings, the accused is prosecuted by the State, and the

great disparity between the two parties in terms of power and resources obliges the

State to ensure that the rights of the defendant are protected. Judges must ensure

that everyone is treated equally. This is the key to protecting the individual against

potential abuse by the prosecution.

Ultimately, defense rights benefit everyone: first, by providing a framework of protection

for the individual vis-à-vis the State, and second, by assuring the legitimacy

of court decisions. Thus, the right to a fair trial can be seen as a vital aspect

of any democracy.

The Cambodian Constitution explicitly provides that the State "shall recognize

and respect human rights as stipulated in the ... covenants and conventions related

to human rights..."

The International Convention on Civil and Political Rights ("ICCPR") is

one of the most important international instruments that codifies civil and human

rights, including fair trial rights, and has been adopted by most States in the world.

Cambodia ratified the ICCPR on May 26, 1992. Accordingly, the ICCPR is part of the

law in Cambodia, and the Kingdom is obliged to uphold and apply the protections set

forth in its provisions.

In the ICCPR the right to "equality of arms" is enshrined. This right consists

of four fundamental fair trial principles: (i) all parties, including the defendant,

must have an equal opportunity to present evidence and arguments before the court;

(ii) no party to the proceedings should benefit from a substantial advantage over

the other; (iii) all persons must have access to fair and effective judicial remedies;

(iv) everyone is entitled to a defense counsel of his own choosing (if he can pay),

and even if he cannot pay, the defendant has the right to experienced, competent

and effective defense counsel.

Cambodian law must ensure equality of arms by investing the defense counsel and the

prosecutor with equal status. Both parties must have an equal opportunity to present

evidence and arguments before the court. And neither party should benefit from a

substantial advantage over the other. In Cambodia, the defendant must be present

to defend the charges against him, and is entitled to legal counsel of his choice

to help defend against those charges.

The defendant also has the right to experienced, competent and effective defense

counsel.

In Cambodian courts, judges seldom acknowledge the power of the State over the defendant.

On the contrary, in the majority of cases observed by the CSD Court Watch Project,

the courts simply compound the prejudice to the defendants, e.g., by presuming guilt

rather than innocence.

Additionally, in practice, there is a grave lack of adequately trained defense lawyers.

The prohibition against international lawyers from directly representing defendants

in the upcoming KRT would significantly influence the ability of the ECCC to meet

international standards in two ways.

First, there are currently both Khmer and international prosecutors but only Cambodian

defense counsel. Second, failure to allow full participation by international defense

counsel will put this fair trial element at risk. The accused has the right to choose

competent counsel. It is questionable whether Cambodian counsel can meet these requirements

today in light of their inexperience in trying crimes against humanity.

Thus, the choice is not whether there is a national standard of justice; there isn't.

Cambodia has already joined other nations in adopting "international" standards

of justice. The word "international" is incorrectly used to mean a different

level of standard of justice than that recognized by Cambodia; "international"

if we are to be coherent should only be used in the sense of "universal"

(i.e., that many countries have agreed on basic fair trial rights). It is not a vertical

comparison of standards (Cambodian vs. international) but a horizontal agreement

of Cambodia with other nations on legal principles. In this regard, "international"

standard of justice is also the national Cambodian-recognized standard. Hence, the

right to "equality of arms" is one of the universal fair trial rights that

Cambodia recognizes as applicable here, even if it is not always implemented in practice.

Theary C. Seng,

Executive Director

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