Phnom Penh (Cambodia), 08/01/2009. Michiel Pestman, Defence Lawyer at the ECCC. © Vandy Rattana cambodia.ka-set.info
By Stéphanie Gée
08-01-2009
The Defence Team for Nuon Chea, considered to be the ideologist of the Khmer Rouge regime and charged by the Extraordinary Chambers in the Courts of Cambodia (ECCC), tried to submit a criminal complaint on Thursday January 8th to the Phnom Penh Municipal Court. Its goal? Having the legal body examine the allegations of corruption which appeared within the Khmer Rouge Tribunal but have not been concretely followed up yet. This approach is a never before seen and stands out among other examples of international criminal courts which, unlike the ECCC, are placed entirely under the responsibility of the United Nations.
Nuon Chea's Defence Team explained they were “victims of violations of the 1992 UNTAC Criminal Code and/or analogous provisions contained in any other applicable Cambodian penal code”. More precisely, the complainants, who claim to be acting on their own behalf and not on behalf of their client, “alleged that institutional corruption at the ECCC could undermine the fundamental right to a fair trial”. “The allegations are very serious... We are seriously worried about the legitimacy of the Court.”
A legitimate complaint?
After two unsuccessful attempts made on Thursday, Nuon Chea's lawyers were eventually granted an appointment the next morning with Ouk Savuth, Royal Prosecutor at the Municipal Court. Their complaint, said to be “special”, required to be “submitted to a superior first” and is now under the responsibility of the Court but as a consequence could not be formally registered.
Is the complaint admissible? Michiel Pestman, the Dutch co-lawyer for Nuon Chea, is certain about it. “The Prosecutor is obliged to register a complaint, as the law prescribes! It must be accepted by the ECCC which refer to the Cambodian penal code. Then, the Prosecutor has two months to decide what he wants to do with the complaint.” Even if the United Nations open an internal investigation, he adds, the ECCC do not have jurisdiction over the investigation of corruption allegations. Besides, Michiel Pestman observes, “the Cambodian government has received a copy of the UN report – which put forward strong suspicion regarding a few people – and must act. But up until now, nothing has happened... There is an apparent refusal on the part of the government to take this seriously! [...] The Cambodian government failed to investigate those cases, now it is up to the judiciary. People who are paying kickbacks cannot be independent and if there are many people doing that within the ECCC [on the national side of staff], this affects the functioning of the court.” The lawyer nonetheless acknowledged that these are just speculations, since he was not able to obtain a copy of the UN investigation report, despite repeatedly requesting for it.
Facts in brief
In February 2007, the organisation Open Society Justice Initiative (OSJI) made waves when it publicised allegations according to which "Cambodian court personnel, including judges, must kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the court". Four months later, as detailed in the complaint, "the United Nations Development Programme (UNDP) released a similarly damning report".
As a result, the European Commission called for an independent review of the ECCC in October 2007, and the UNDP set up a team of foreign consultants to review the court's hiring practices.
In June 2008, the allegations of corruption involving “payroll embezzlement” resurfaced and were denounced in complaints forwarded to the United Nations Office of Internal Oversight Services (UNOIOS), a measure which resulted in the freezing of funding to the tribunal's Cambodian side.
Stuck in a standoff, deputy Prime Minister Sok An, who also chairs the Task Force for the Khmer Rouge trials appointed by the Cambodian government, requested that the Cambodian authorities be the only ones to deal with that particular case. After the sudden departure of Cambodian E CCC Chief of Personnel Keo Thyvuth, Sok An announced the establishment of a new anti-corruption committee to investigate any graft allegations raised by staff. The results of the UN investigation were turned over to Cambodian authorities in September 2008 and since then, nothing...
In a communiqué released on September 19th, the office of the Cambodian Council of Ministers tried to be reassuring and pointed out that Sok An had on many occasions pledged that for any complaint submitted to a competent Cambodian authority, “appropriate action [would] be taken”. On August 29th, the deputy Prime Minister released an administrative Circular formalising a mechanism to address any complaints received.
The Defence team's procedure
Before lodging their complaint at the Office of the Royal Prosecutor of the Municipal Court in Phnom Penh, Nuon Chea's lawyers knocked on several doors in order to gather information about these allegations of corruption and the results of the UN investigation. They sent requests to the ECCC Office of Administration and to the UNAKRT (United Nations Assistance to the Khmer Rouge Trials) on September 19th, and explained that their aim was to “reassure their client on the fact that the ECCC is capable of delivering the kind of justice which accords with international standards of fairness”.
They also wrote to deputy Prime Minister Sok An on October 31st 2008. In that letter, the lawyers implied that the UNAKRT coordinator and the Cambodian director of the ECCC Administration kept passing the buck. As a matter of fact, they were told by the first one that the United Nations would not oppose disclosing the requested information should the government agree to it, when the second one replied that neither he nor any other Cambodian official in the ECCC was in possession of information related to complaints "that were apparently taken to New York for examination by the United Nations". In the meantime, Michiel Pestman adds, “Sok An has not even replied to us [...] which suggests that corruption might be more widespread than we thought...”
Will the Municipal Court assert its competence on that case? Nuon Chea's lawyers' initiative will nevertheless bring a spotlight on an issue which worries the whole tribunal. “If tomorrow [Friday] the Court refuses to register our complaint and start the investigation, we are going to appeal to the Court of Appeal!”, the lawyer announced. Moreover, if the Court of Appeal itself does not pay him much more attention, Michiel Pestman says he will reconsider whether he wants to “continue working in that system”. The Defence Team seem ready to exhaust all legal and administrative possibilities to make the Khmer Rouge tribunal face its responsibilities.
All is not bleak..?
Helen Jarvis, chief of Public Affairs at the ECCC, said on Thursday January 8th that she did not know about the lawyers' complaint, adding that it pertained to judiciary authorities to choose which appropriate decisions should be made. As for the allegations of corruption, she preferred referring to the December 10th “positive” press release, jointly drafted by the United Nations and deputy Prime Minister Sok An, in which both parties explained they agreed on the need to enhance the tribunal's human resources management, including anti-corruption measures. They also agreed on “setting up joint sessions between the national and international related structures to ensure that the entire administration operates in a transparent, fair and efficient way”. Both parties agreed on the need to act expeditiously and announced that the Government Task Force on the Khmer Rouge Trials and the tribunal's Steering Committee would be informed of the results of the joint sessions by the end of January 2009.
Co-investigating judge Marcel Lemonde, who was not aware either of Nuon Chea's lawyers' initiative, stressed that judges were “fully determined to not take part in a trial that would be tainted by corruption” and that for the time being, there was no evidence that it is indeed corrupt. “We remain vigilant. This court must be clean and we closely follow anything that is being said on that matter.”
By Stéphanie Gée
08-01-2009
The Defence Team for Nuon Chea, considered to be the ideologist of the Khmer Rouge regime and charged by the Extraordinary Chambers in the Courts of Cambodia (ECCC), tried to submit a criminal complaint on Thursday January 8th to the Phnom Penh Municipal Court. Its goal? Having the legal body examine the allegations of corruption which appeared within the Khmer Rouge Tribunal but have not been concretely followed up yet. This approach is a never before seen and stands out among other examples of international criminal courts which, unlike the ECCC, are placed entirely under the responsibility of the United Nations.
Nuon Chea's Defence Team explained they were “victims of violations of the 1992 UNTAC Criminal Code and/or analogous provisions contained in any other applicable Cambodian penal code”. More precisely, the complainants, who claim to be acting on their own behalf and not on behalf of their client, “alleged that institutional corruption at the ECCC could undermine the fundamental right to a fair trial”. “The allegations are very serious... We are seriously worried about the legitimacy of the Court.”
A legitimate complaint?
After two unsuccessful attempts made on Thursday, Nuon Chea's lawyers were eventually granted an appointment the next morning with Ouk Savuth, Royal Prosecutor at the Municipal Court. Their complaint, said to be “special”, required to be “submitted to a superior first” and is now under the responsibility of the Court but as a consequence could not be formally registered.
Is the complaint admissible? Michiel Pestman, the Dutch co-lawyer for Nuon Chea, is certain about it. “The Prosecutor is obliged to register a complaint, as the law prescribes! It must be accepted by the ECCC which refer to the Cambodian penal code. Then, the Prosecutor has two months to decide what he wants to do with the complaint.” Even if the United Nations open an internal investigation, he adds, the ECCC do not have jurisdiction over the investigation of corruption allegations. Besides, Michiel Pestman observes, “the Cambodian government has received a copy of the UN report – which put forward strong suspicion regarding a few people – and must act. But up until now, nothing has happened... There is an apparent refusal on the part of the government to take this seriously! [...] The Cambodian government failed to investigate those cases, now it is up to the judiciary. People who are paying kickbacks cannot be independent and if there are many people doing that within the ECCC [on the national side of staff], this affects the functioning of the court.” The lawyer nonetheless acknowledged that these are just speculations, since he was not able to obtain a copy of the UN investigation report, despite repeatedly requesting for it.
Facts in brief
In February 2007, the organisation Open Society Justice Initiative (OSJI) made waves when it publicised allegations according to which "Cambodian court personnel, including judges, must kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the court". Four months later, as detailed in the complaint, "the United Nations Development Programme (UNDP) released a similarly damning report".
As a result, the European Commission called for an independent review of the ECCC in October 2007, and the UNDP set up a team of foreign consultants to review the court's hiring practices.
In June 2008, the allegations of corruption involving “payroll embezzlement” resurfaced and were denounced in complaints forwarded to the United Nations Office of Internal Oversight Services (UNOIOS), a measure which resulted in the freezing of funding to the tribunal's Cambodian side.
Stuck in a standoff, deputy Prime Minister Sok An, who also chairs the Task Force for the Khmer Rouge trials appointed by the Cambodian government, requested that the Cambodian authorities be the only ones to deal with that particular case. After the sudden departure of Cambodian E CCC Chief of Personnel Keo Thyvuth, Sok An announced the establishment of a new anti-corruption committee to investigate any graft allegations raised by staff. The results of the UN investigation were turned over to Cambodian authorities in September 2008 and since then, nothing...
In a communiqué released on September 19th, the office of the Cambodian Council of Ministers tried to be reassuring and pointed out that Sok An had on many occasions pledged that for any complaint submitted to a competent Cambodian authority, “appropriate action [would] be taken”. On August 29th, the deputy Prime Minister released an administrative Circular formalising a mechanism to address any complaints received.
The Defence team's procedure
Before lodging their complaint at the Office of the Royal Prosecutor of the Municipal Court in Phnom Penh, Nuon Chea's lawyers knocked on several doors in order to gather information about these allegations of corruption and the results of the UN investigation. They sent requests to the ECCC Office of Administration and to the UNAKRT (United Nations Assistance to the Khmer Rouge Trials) on September 19th, and explained that their aim was to “reassure their client on the fact that the ECCC is capable of delivering the kind of justice which accords with international standards of fairness”.
They also wrote to deputy Prime Minister Sok An on October 31st 2008. In that letter, the lawyers implied that the UNAKRT coordinator and the Cambodian director of the ECCC Administration kept passing the buck. As a matter of fact, they were told by the first one that the United Nations would not oppose disclosing the requested information should the government agree to it, when the second one replied that neither he nor any other Cambodian official in the ECCC was in possession of information related to complaints "that were apparently taken to New York for examination by the United Nations". In the meantime, Michiel Pestman adds, “Sok An has not even replied to us [...] which suggests that corruption might be more widespread than we thought...”
Will the Municipal Court assert its competence on that case? Nuon Chea's lawyers' initiative will nevertheless bring a spotlight on an issue which worries the whole tribunal. “If tomorrow [Friday] the Court refuses to register our complaint and start the investigation, we are going to appeal to the Court of Appeal!”, the lawyer announced. Moreover, if the Court of Appeal itself does not pay him much more attention, Michiel Pestman says he will reconsider whether he wants to “continue working in that system”. The Defence Team seem ready to exhaust all legal and administrative possibilities to make the Khmer Rouge tribunal face its responsibilities.
All is not bleak..?
Helen Jarvis, chief of Public Affairs at the ECCC, said on Thursday January 8th that she did not know about the lawyers' complaint, adding that it pertained to judiciary authorities to choose which appropriate decisions should be made. As for the allegations of corruption, she preferred referring to the December 10th “positive” press release, jointly drafted by the United Nations and deputy Prime Minister Sok An, in which both parties explained they agreed on the need to enhance the tribunal's human resources management, including anti-corruption measures. They also agreed on “setting up joint sessions between the national and international related structures to ensure that the entire administration operates in a transparent, fair and efficient way”. Both parties agreed on the need to act expeditiously and announced that the Government Task Force on the Khmer Rouge Trials and the tribunal's Steering Committee would be informed of the results of the joint sessions by the end of January 2009.
Co-investigating judge Marcel Lemonde, who was not aware either of Nuon Chea's lawyers' initiative, stressed that judges were “fully determined to not take part in a trial that would be tainted by corruption” and that for the time being, there was no evidence that it is indeed corrupt. “We remain vigilant. This court must be clean and we closely follow anything that is being said on that matter.”
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