Logo of Phnom Penh Post newspaper Phnom Penh Post - Prosecution again mounts legal challenge on first day of Duch trial

Prosecution again mounts legal challenge on first day of Duch trial

Prosecution again mounts legal challenge on first day of Duch trial

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Co-Prosecutor Robert Petit urges court to consider application of joint criminal enterprise, as defence calls client's 9-year pretrial detention a rights violation.

Photo by:
Vinh Dao/ Melon Rouge

A tribunal security official guides one of the civil parties past the throng of journalists gathered Tuesday for the opening of Duch's trial. Vinh dao/melon rouge

THE trial of  Tuol Sleng prison chief Kaing Guek  Eav opened Tuesday with legal challenges from both the prosecution and defence, including a bid to employ a controversial legal doctrine that could  widen the scope of the proceedings.

Lawyers for Kaing Guek Eav, who is better known by his revolutionary name Duch, said they intended to appeal  their client's detention, saying that his imprisonment since 1999 - Duch was first held in military prison before being transferred to the tribunal's custody in July 2007 - is a violation of his basic human rights.

"The accused has been in pretrial detention for nine years, nine months and seven days until today [Tuesday]," said Duch's international lawyer, Francois Roux.

"This is unacceptable ... a person cannot be kept in pretrial detention for more than three years under Cambodian law."  

International Co-Prosecutor Robert Petit told court judges that his team would again push for the legal concept of  joint criminal enterprise to be applied to Duch's case, a move with potentially far-reaching implications on other cases before the tribunal.

Joint criminal enterprise, which was rejected by tribunal  judges in December, opens the possibility of several defendants who had acted as a group facing a single charge.

The move has sent a shudder of alarm through the defence teams of the four other Khmer Rouge leaders in detention, who say that their clients could be unfairly prosecuted for crimes committed by Duch.

THE FACTS ... SUPPORT THE USE OF JCE BECAUSE OF THE WAY THESE CRIMES WERE COMMITTED.

But Petit said the doctrine, known as JCE, was the only way to bring the atrocities of the Khmer Rouge fully into account.
JCE is "the best way to evaluate these kinds of crimes" committed on a mass scale by a regime, Petit told reporters after Tuesday's hearing.

"I believe the facts in this case support the use of JCE because of the way these crimes were committed," he added.

Legal experts have heralded the first day of trials as a promising beginning for proceedings that are likely to confront some of the darkest chapters in Cambodia's history - expressing hope that prosecutorial challenges may impel the court to reveal even more about the regime.

"JCE could show why Tuol Sleng was important - Duch was just one prison head amongst many other prison heads, so I think they want to use JCE to explain the role of Tuol Sleng as it connected to the centre and the hierarchy. They want to show what role Duch played [in the regime]," Anne Heindell, of the Documentation Centre of Cambodia, said.

"I think they want to use JCE because they feel they can only tell the full story of Duch if they show how he was connected [to the regime itself]," she added.

The legal doctrine was dismissed by the pretrial chamber after judges deemed the prosecutors' evidence "too vague".

But experts believe it could still be considered applicable by the trial chamber.

Michelle Staggs Kelsall, a court monitor for the East-West Centre, also said that using joint criminal enterprise would not further stall the trials, which have been plagued by delays as the UN-backed court battles budget woes and corruption allegations.

"Judges would likely consider the issue concurrently to the testimonies of witnesses, which would mean it would not necessarily cause delays," she said.

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