A disregard for victims’ rights, procedural discrepancies and a failure to provide sufficient information to parties by investigating judges in the Khmer Rouge tribunal’s controversial third case were described in court documents released yesterday.
A redacted version of considerations of the court’s Pre-Trial Chamber of prominent New Zealander Rob Hamill’s civil party application rejection were among documents released.
The two international judges, Rowan Downing and Katinka Lahuis, who constitute the minority of the Pre-Trial Chamber, recognised that co-investigating judges Siegfried Blunk and You Bunleng had refused to acknowledge civil party lawyers in Case 003 and ignored their requests to access the case file.
“We are of the view that, by their course of action, the Co-Investigating Judges have deprived some civil party applicants, including the Appellant [Rob Hamill], of the fundamental right to legal representation,” the opinion of the international judges read.
The international judges said that the investigating judges had failed to notify suspects in Case 003 of the charges and that there was insufficient information provided to civil party applicants about the investigation. They also noted that the co-investigating judges had backdated and altered documents put on the case file in Case 003.
Judge Blunk resigned from the court earlier this month, citing statements by officials regarding cases 003 and 004 which could be “perceived as attempted interference”. Judge Bunleng could not be reached for comment.
“The judicial recognition of their colleagues’ denial of fundamental rights to the very people in whose name it is seeking justice, is a big statement,” Clair Duffy, trial monitor for Open Society Justice Initiative, said via email.
Duffy said that revelations the investigating judges had altered documents were “shocking”.
“It is prima facie evidence of serious misconduct,” she said.
After judges Blunk and Bunleng closed their investigation into Case 003 in April, international co-prosecutor Andrew Cayley stated that alleged crimes in the case had “not been fully investigated”, leading observers to speculate that the investigation had been scuttled in the face of political pressure.
In the documents released, a majority decision was not reached by the Chamber, therefore the order by judges Blunk and Bunleng to reject Hamill’s application for civil party status in cases 003 and 004 stood.
Hamill’s brother Kerry was captured by the Khmer Rouge in 1978 and later interrogated, tortured and executed at S-21 prison. Earlier this year, Hamill’s application for civil party status was rejected by the co-investigating judges, who ruled that he had failed to show that his psychological suffering was a “direct consequence” of the death of his brother.
The three national judges of the Pre-Trial Chamber stated that the co-investigating judges had not charged any suspects in Case 003 and therefore the rejection of civil party applications “at this stage” did not infringe upon victims’ rights.
“If you read the definitions in the rules, [it] says ‘charged persons’ means from time they are named in prosecutorial submissions,” Anne Heindel, a legal advisor at the Documentation Centre of Cambodia, said via email.
Lawyers for Rob Hamill said the documents showed that his case was a “litmus test” for future civil party participation in Case 003, in a statement released late yesterday.
ADDITIONAL REPORTING BY VONG SOKHENG