In claiming to have charged suspects in cases 003 and 004 nearly 18 months ago, Swiss judge Laurent Kasper-Ansermet violated the Khmer Rouge tribunal’s internal rules and abused “judicial discretion”, his successor has ruled.

The confidential decision, issued late last month and obtained by the Post yesterday, overturns steps taken by the former international co-investigating judge and effectively closes the door to long-standing requests by defence teams that they be given access to the case file – unless the status of the suspects significantly changes.

Suspects in government-opposed cases 003 and 004 have for years sought case-file access, arguing at various times that their inability to do so constituted a violation of fair-trial rights.

But access can’t be granted unless the charges are formally laid, ruled international co-investigating judge Mark Harmon in a July 31 decision, in response to participation requests by one suspect. And in acting as if charges had been made, Kasper-Ansermet violated the court’s internal rules.

“By granting the suspect access to the case file, the [reserve co-investigating judge] granted the suspect a right to which the suspect was not entitled pursuant to the Internal Rules. Further, the [reserve co-investigating judge] did so without providing any reasoning in support of the decision. This constitutes an abuse of judicial discretion,” Harmon writes, before voiding the decision.

In February 2012, Kasper-Ansermet informed the five mid-ranking Khmer Rouge cadres who are suspects in cases 003 and 004 of their rights, issuing written and oral notifications to the group.

Those decisions remain confidential but are quoted in Harmon’s ruling as stating that he informed the suspects that “these charges [were] based on both the facts alleged by the co-prosecutors and those uncovered thus far during the course of the investigation”.

In the notification, Kasper-Ansermet then said they would “have access to the case file”.

Since the notification was issued, however, defence teams have repeatedly sought and failed to gain access to the case files. No fewer than five submissions were made during that time by a single defence team, the Harmon decision notes.

None of the defence teams have since been granted access.

Göran Sluiter, an attorney for a Case 004 suspect, said he was unable to comment on a confidential decision, but noted that: “Even if a judge ruled now [that] we don’t have access, we should have had access from April until now. For over a year, the order of a judge has been ignored. It’s very serious.… It’s a threat to the justice system.”

Without access to the case file, Sluiter said, lawyers are unable to defend clients whose names have long been widely known in spite of never having been made public by the court.

“We cannot do a proper defence without access.… We can’t do our own investigation.… It is impossible for us to safeguard the rights of our client,” he noted. “It’s a serious violation of the rights of the client.”

Sluiter called it incongruous that civil parties and prosecutors would be granted access when suspects remained blocked – a concern echoed by tribunal monitors.

“The international judge also recognised a number of civil parties and number of lawyers of civil parties [and granted them access]. So this is another double standard,” Cambodia Justice Initiative tribunal monitor Long Panhavuth said.

Chief among his concerns, Panhavuth said, was that the argument against granting them access appeared to be contradictory.

“If you agree with him that [the suspect] is not a charged person, there’s no reason he should have a lawyer.… If [he] has no access to the case file, why have a lawyer? And if he’s not charged, what happens to the civil parties that have been recognised and the lawyers that have been recognised?”

In an article published last week by Open Society Justice Initiative, Khmer Rouge tribunal monitor Heather Ryan addressed the Harmon ruling, writing that the inherent uncertainty highlighted a troubling lack of transparency at the court.

“While there may be a perfectly legitimate reason for the co-investigating judges not to formally charge the persons under investigation, delaying a decision on charging and refusing access to the investigation by suspects for such an extended period of time raises suspicion that the delay is the result of ongoing political problems surrounding the investigation,” Ryan wrote.

Cases 003 and 004 have been widely opposed by the government, and court officials have repeatedly attempted to bury them. Investigations into 003 were quietly shut down by co-investigating judges Siegfried Blunk and You Bunleng in April 2011, while Case 004 was deemed to be all but meritless by the pair.

Decisions issued by Kasper-Ansermet effectively reversed those orders, while those made by Harmon opened cases for civil party applications. But all rulings were made by the international judges acting alone, without approval of their national counterpart, raising questions over the long-term prospects of the cases.

“After so many years in limbo, the [continued] confidentiality casts doubt on the integrity of the investigation and how the cases are moving forward,” CJI’s Panhavuth said.

For the more than 1,200 victims of the Khmer Rouge who have applied for civil party status, meanwhile, the desire for the cases to move forward remains strong.

Civil party lawyer Hong Kim Suon said his team was continuing to process and submit victim applications on a daily basis, but sought to temper expectations.

“They really want to access [the case], and they want the court to be working for them. But I always tell them not to hope that Case 003 or 004 will be done, because Case 002/01 just finished and it still continues for 002/02 and 002/03, so we don’t hope for 003 or 004.… It’s not hopeless,” he said, “but I tell them … don’t hope, only wait.”