Lengthy pretrial detention at KRT sets bad precedent: experts

Written by Georgia Wilkins

Thursday, 02 October 2008 Courtesy of Phnom Penh Post

Lawyers for defendant Nuon Chea are preparing to appeal an extension of his pretrial detention, as legal experts express concern over what example this will set in the long run AFP Nuon Chea appears at the Extraordinary Chambers in the Courts of Cambodia (ECCC) for his bail hearing earlier this year. AS the lawyers for former "Brother No 2" Nuon Chea prepare to appeal an extension of his pretrial detention, legal experts have expressed concern that pretrial detention is becoming a norm rather than an exception at Cambodia's Extraordinary Chambers. This week Nuon Chea's defence lawyers will file an appeal against their client's extended detention, claiming that there is insufficient evidence to renew the octogenarian defendant's imprisonment. "So far there is no evidence [to justify] Nuon Chea's detention," said Son Arun, his co-lawyer. "They cannot find anything." The former leader's detention was extended by a year earlier this month when his original one-year sentence came to an end. Lawyers are concerned there is less of an imperative to follow the procedures of international law, which stipulates that detention before trial must be supported with evidence. "When it comes to pretrial detention, the position in international human rights law is clear: Liberty is the rule and detention is the exception," Richard Rogers, head of defence at the ECCC, said in an email to the Post Wednesday. SO FAR THERE IS NO EVIDENCE TO JUSTIFY NUON CHEA’S DETENTION. "That means that the burden is on the prosecution to show that an accused person, who is presumed innocent, should be kept in detention pending trial." The co-investigating judges claimed that Nuon Chea's extended sentence was necessary as there were "well founded" reasons to believe that he had committed crimes against humanity. His defence team will refute this, arguing that a factual basis for his detention has not been laid out. Meet the conditions According to the internal rules of the court, the provisional detention laws must set out the legal grounds and factual basis for a charged person's detention. They must also prove that detention is necessary to stop the accused interfering with witnesses or evidence or escaping persecution. "Pretrial detention may be ordered only where [these] two conditions are met.... If the prosecution fails to satisfy these two conditions, the accused must be released pending trial," said Richard Rogers. "Human rights bodies generally require that the factors justifying detention be discussed in a 'clear and specific' and not ‘stereotyped' manner. International and hybrid criminal courts have tended to accept more generalised justifications for detention,"Anne Heindel, a legal adviser for the Documentation Centre of Cambodia (DC-Cam) wrote in a recent article on Nuon Chea for the Cambodia Tribunal Monitor website. Observers are concerned that the ECCC is following a worrying trend by international criminal courts to stray from human rights law. "Human rights bodies ... disfavour[s] pretrial detention and place[s] the burden on states to justified continued detention," Heindel wrote. "In contrast, international and hybrid criminal courts have treated pretrial release as the exception and in practice have placed the burden on the defence to show that release is warranted." Ou Virak, president of the Cambodian Centre of Human Rights, told the Post Tuesday that he was concerned the extension defied a fair trial. "The court needs to stick to the principles of fair trial for anyone, regardless of the crimes they commit," he said. "The issue of burden of proof [at the ECCC] is a big issue for us," he added. "We believe the court is responsible to uphold the presumption of innocence, and if you put the burden of proof on the defendants, there is no longer this presumption." Lawyers for Duch, whose real name is Kaing Guek Eav, have argued continuously that their client has been held illegally since 1999 and that this was a human rights abuse. Co-counsel Francois Roux claimed after Duch's hearing in November last year that his pretrial detention contradicted Cambodian law as well as international standards for civil and political rights. "There were never any reasons given [for Duch's detention renewals], they just kept extending it," Heindell said. But the greatest concern for observers was the precedent it was setting for the already troubled Cambodian legal system. "What role model does it set for future governments? Will they do the same to activists? They will be able to make anyone a suspect," Ou Virak said. Anne Heindell was also concerned about the legacy it left. "There is a long history in Cambodia of pretrial detention. If [the ECCC] wants to be transparent it needs to explain why [it makes its decisions]," she said. "It's an important right, the presumption of innocence, and it's important for the court to take it seriously."