On 4 March 2014 the ECCC Co-Prosecutors proposed amendments to ECCC Internal Rules 55 and 89ter to enable crime sites and criminal incidents to be excluded from the scope of investigation or trial upon their proposal. The proposed amendments, if recommended by the Rules and Procedure Committee and adopted by the Plenary, would introduce a procedure that is that is not founded in the Cambodian civil law system and which would not respect the principle of legalism that is unquestionably applicable before the courts of Cambodia, including the ECCC. Bluntly, the Co-Prosecutors are urging the Rules and Procedure Committee and the Plenary to engage in “situational ethics” to disregard the applicable law and legal system because it does not accommodate them. The Co-Prosecutors are urging the Judges to act ultra vires. Accordingly, I have submitted observations urging the Judges to reject the Co-Prosecutors’ proposed amendments in their entirety.
Essentially, under the principle of legalism, also called prosecutorial legalism, the prosecutor must prosecute when it is clear that a crime has been committed. The prosecution has no discretion as to whether to investigate crimes known to have been committed or to drop charges once an indictment has been secured. Judges have no discretion to abandon charges: whatever is in the indictment must be tried.
This is a significant attribute of the civil law system. This prevents frivolous charges being indicted (a usual practice in some common law systems; hence the expression that even a ham-sandwich can be indicted). It also protects against political interference by preventing the non-prosecution of charges once all procedural safeguards have been respected during the confirmation process of the charges.
The principle of legalism constrains the trial judges: they cannot – for whatever reason – ignore, discharge, and discontinue charges in the indictment. The entire indictment must be tried leading to an acquittal or conviction on all or some of the charges depending on the evidence. For the suspects and accused before the ECCC it is also about legal certainty. If the judicial system in Cambodia, of which the ECCC is a part, does not allow for confirmed charges to be summarily dismissed by judges, then any charges not tried remain active, albeit in abeyance.
Were the principle of legalism to be abandoned by the ECCC, then what is to prevent the other Cambodian courts from following suit? Just imagine the ramifications: judges would – for all sorts of reasons, including nefarious ones – have the authority to abandon charges in the middle of the trial. Such practices could result in uncertainty in prosecutions, since in theory the discontinued / abandoned charges could be revived in future trials, and, of course, accused of means would be poised to influence the discontinuation of charges even when the evidence rightly points towards conviction. The Co-Prosecutors are unwittingly proposing license for mischief before the courts of Cambodia.
The Co-Prosecutors are attempting to get around the principle of legalism in order to shorten the remainder of the trial in Case 002 and to limit the investigations in Cases 003 and 004. Ever since the severance in Case 002, the Co-Prosecutors have relentlessly tried to introduce Anglo-Saxon modalities as a means of dispensing with pesky legal principles that are part and parcel of the Cambodian legal system, which, unquestionably is modeled after the French civil law system. And how better for the Co-Prosecutors, especially the international ones, to achieve this goal than by invoking procedures adopted at other ad hoc tribunals while exhorting – abusively, might I add – their usual mantra, that it is reflective of international standards. A catchphrase bandied about by the Co-Prosecutors as legal authority to mean anything and everything, especially when asking the ECCC judges to thwart Cambodian / ECCC (civil law) procedures and adopt / cherry-pick procedures from other jurisdictions and legal traditions that are less inhibiting to the prosecution.
But why the sudden urge for these rule changes? Have the Co-Prosecutors suffered a moment of clarity?
The Co-Prosecutors were the ones who drafted the introductory submissions and selected the scope and contours of the investigations to be carried out by the Co-Investigating Judges. If the Co-Prosecutors were unable or unwilling to go forward with the results of the investigation, then why give such broad and over-reaching investigative instructions to the Co-Investigating Judges? Why mislead the Civil Parties? Why have the Co-Investigating Judges embark on a lengthy investigation of myriad incidents, consuming enormous amounts of time, effort and financial resources, only to claim as Smith does “We certainly want the investigation and trials to continue, but we want to make sure they don’t go on endlessly because of the cost involved and the age of the accused.” Cambodia Daily, March 28, 2014. Smith appears lost in his own spin: he says that he wants the investigations to go on, but not really, as the suspects will probably die and the ECCC needs an exit strategy without the prosecution losing face. Now that’s jolly good reason to jettison the time honored principle of legalism applicable before the courts of Cambodia.
When did Smith figure this out – after all, he, unlike his international bosses (Robert Petit, Andrew Cayley and Nicholas Koumjian), has been around as the Deputy Co-Prosecutor from the very beginning, was the driving force behind the investigations in Case 002, and is responsible for drawing up the contours of the investigations in Cases 003 and 004? When did it dawn on Smith and others that the suspects and accused were septuagenarians and octogenarians?
The fact that the investigations and trial have dragged on – for reasons which were almost entirely avoidable, and indisputably foreseeable – is not a legal justification to introduce impermissible modalities into the Cambodian/ECCC legal system.
The Co-Prosecutors claim that these amendments are legitimate by looking at other tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY). But the ICTY does not follow the French civil law system; it is primarily an adversarial system that is sui generis. The Co-Prosecutors’ reliance on procedural rules at the ICTY and other tribunals is illogical. Procedural rules and jurisprudence from these tribunals cannot – by analogy or otherwise – be imported into the ECCC, because the ECCC operates in an entirely different legal system from these tribunals. The fact that the ECCC is often referred to as an “internationalized” court does not mean that it is bound by procedures followed by the ICTY or other international tribunals to the exclusion of Cambodian procedure, particularly where no lacunae exist.
The Establishment Law (which established the ECCC) is domestic Cambodian legislation. It confirms that the Extraordinary Chambers are established within the existing court structure. As a domestic Cambodian court, the ECCC differs substantially from the ICTY and other international tribunals. The procedural rules at these other tribunals cannot be imposed upon the ECCC simply because the existing applicable procedural rules are inconvenient to the Co-Prosecutors.
The Co-Prosecutors claim that withdrawing charges in whole or in part after an indictment has been issued can also be seen in national systems operating within civil law criminal codes. This claim is misleading. The Cambodian legal system is modeled on the French system, which, as the Supreme Court Chamber explained, follows the principle of legalism / mandatory prosecution, in which charges, crime sites, and criminal action cannot be withdrawn. The Co-Prosecutors claim that the practice of withdrawing charges is allowed in certain national jurisdictions that follow the civil law system, but they refer only to German procedure. Other civil law systems that follow the principle of legalism / mandatory prosecution were not analyzed by the Co-Prosecutors.
German procedure differs from Cambodian procedure in that investigations are conducted by the prosecutor. This is unlike the Cambodian and French system, in which an investigative judge conducts a judicial investigation objectively for all parties concerned.
Furthermore, the German Code of Criminal Procedure, which permits the prosecutor to withdraw certain charges or parts of an offense, is a piece of legislation that has been duly enacted by the legislature. It is not a judge-made rule created to accommodate the prosecution in a particular case. German legislation cannot therefore serve as a model for any proposed amendment to the Internal Rules.
Amendments of this nature, which affect legal principles on which the Court is based, should be made to the Establishment Law by the Cambodian government and not by the Plenary. Internal Rules cannot be enacted which contradict Article 2 new of the Establishment Law (which states that the ECCC shall be established in the existing court structure) and Article 7 of the Cambodian Code of Criminal Procedure (which sets out when criminal action may be extinguished).
The legal authority to adopt Internal Rules is given to the ECCC through the National Assembly by means of Article 33 new of the Establishment Law, but only to the extent that the existing procedures in force do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards. Notwithstanding Article 33 new of the Establishment Law, the legal framework of the ECCC does not provide the Judges with legislative authority over procedural issues, where judge-adopted rules conflict with or deviate from procedural legislation adopted by the National Assembly.
Judges are not legislators and the Plenary is no substitute for the National Assembly. Simply, the judicial authority at the ECCC – as elsewhere – cannot appropriate unto itself a power that is expressly conferred elsewhere.
Finally, the Co-Prosecutors claim that the withdrawal of crime sites or criminal incidents that support the crimes charged does not affect the rights of Civil Parties. This is disingenuous. The fact is that any Civil Parties associated with any portions of the investigation or segments of the Closing Order which would not be pursued would face effective decertification, in that the events related to their Civil Party status will never be adjudicated. For the Co-Prosecutors to be suggesting that any Civil Party affected by eliminating portions of the investigation or Closing Order could nonetheless provide evidence or be heard is nonsensical; not only because witnesses or Civil Parties cannot be heard on events not before the Trial Chamber, but also because it would defeat the purpose of the proposed amendments, which is to expedite the proceedings. Effectively, the Co-Prosecutors are throwing the Civil Parties under the proverbial bus.
Having made their own bed with an overbroad scope of investigation and total disregard of the wages of age and time, the Co-Prosecutors cannot cure their lack of foresight by upending an entire legal system. They must now lie in that bed, however fitful and long the night may seem.
360 years ago Oliver Cromwell said:
Feigned necessities, imagined necessities … are the greatest cozenage that men can put upon the Providence of God, and make pretenses to break known rules by.[1]
The Plenary must not be coopted into this prosecutorial cozenage. The rule of law, the separation of powers, and the integrity of the entire Cambodian judicial system rest in the balance.
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