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Stay a ‘denial of due process’

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Judge Martin Karopkin (centre left) poses for a photograph with Norwegian Deputy Minister of Foreign Affairs Morten Hoglun (centre right) during a visit in 2015. ECCC

Stay a ‘denial of due process’

A trial judge at the Khmer Rouge tribunal spoke out against the co-investigating judges’ office yesterday, calling the decision to keep a proposed stay of proceedings in the three cases confidential a “denial of due process”.

On Friday, the Office of the Co-Investigating Judges issued a confidential document on cases 003, 004 and 004/2. According to an excerpt obtained by The Post, the judges are considering a permanent stay of proceedings in the trials of Meas Muth, Ao An and Yim Tith on June 30 due to budget constraints. Such a decision would mean the cases would never be reopened, and that after nearly a decade of investigation the case files would remain sealed.

Following The Post’s revelations, the court issued a statement on Monday, acknowledging funding concerns and defending the confidentiality of the document due to the “highly sensitive nature of the issue” and the fact that the cases are still in the investigative stage.

Reached for comment, reserve trial chamber Judge Martin Karopkin said the document should never have been confidential, explaining that any discussion on the funding of the court is “purely administrative” and should be a matter of public record. “In my opinion it is a misuse of judicial power to declare such matters confidential,” he said.

While Karopkin was not the leaker, he did defend the act, pointing out that otherwise, the public would only have found out about the termination of the cases after the fact.

“Only the ‘regrettable’ disclosure of this information made it possible for interested parties and the public to know what was going on before that happened,” he said in reference to the court press release.

Karopkin also criticised the motion as being “not a negotiation but a judicial ultimatum”, something he said was a “denial of due process”.

“This document … does not allow for any discussion of the key issue – whether the dismissal of cases is a measured and reasonable response to the alleged financial crisis.

It states by fiat that the dismissal will occur and merely asks for suggestions as to how to make it happen,” he said. “I don’t think the actions of the co-investigating judges advance those goals of an open and free society.”

Multiple sources have expressed doubt that the court’s financial situation is dire enough to warrant terminating the cases entirely.

John Ciorciari, an American legal expert who has studied the ECCC, said the budget crisis itself might have resulted from the government’s opposition to seeing the cases through. Prime Minister Hun Sen has said on multiple occasions that pursuing prosecutions beyond Case 002 could cause civil war.

“One can understand why donors may be reluctant to invest more in Cases 003 and 004 given the government’s sustained public opposition. A permanent stay of proceedings would be a kind of judicial euthanasia – a quiet ending but certainly not a satisfying one,” he said via email.

“There are legitimate legal debates to be had over Cases 003 and 004. Sadly, it is increasingly likely that considerations of law and evidence will not determine the outcomes,” he added.

On Monday, long-time court observers Long Panhavuth and Youk Chhang criticised the court’s transparency, with Panhavuth saying that funding would always be available if the court operated fairly and independently.

“[I question] whether or not donors like to put money in when the court is operating in the vacuum … without giving notice to the public,” Panhavuth said.

“The court must have the principle of justice,” Chhang said, adding it would leave a “horrible legacy” if the cases were dismissed without proper explanation.

An ECCC spokesperson declined to comment and said International Investigating Judge Michael Bohlander, whose office issued the document, would not respond to requests for comment.

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