Leaks at the Khmer Rouge Court: co-Investigating judges call to order

Ka-set

By Stéphanie Gée
04-03-2009

Co-investigating judges at the Khmer Rouge court have issued on Tuesday March 3rd an Order on Breach of Confidentiality of the Judicial Investigation following the publication by a Defence team of official documents on their website. The accused are the Defence lawyers for top Khmer Rouge diplomat Ieng Sary: Michael Karnavas, registered with the American Alaska State Bar, and his Cambodian colleague Ang Udom, who did not respect a decision of the judges and violated the court’s Internal Rules “by failing to act in accordance with the standards and ethics of the legal profession”. This judicial decision occurs after other leaks were revealed concerning confidential requests made by the co-lawyers for Nuon Chea.

Investigation “not to be conducted in public”
In a press release, the co-Investigating judges explain they ordered that the Defence Lawyers immediately cease to publish any document relating to the judicial investigation, other than those already published on the [ECCC web site http://www.eccc.gov.kh/ Extraordinary Chambers in the Courts of Cambodia (KR/EN/FR)], and remove any such documents from the Defence web site within 48 hours, or face sanctions for a new offence. At the same time the co-Investigating judges transmitted a copy of the order to the relevant professional associations and the ECCC Defence Support Section (DSS) for their consideration of appropriate action.

Magistrates remind that the decision was taken in accordance with Rule 56(1) of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC), which stipulates that“[i]n order to preserve the rights and interests of the parties, judicial investigations shall not be conducted in public. All persons participating in the judicial investigations shall maintain confidentiality”. The Internal Rules, they add, further stipulate that only the co-Investigating judges may “decide whether to disseminate information relating to a case under investigation or to authorise limited access to investigative acts to the media or third parties”.

Factual history
In their Order , judges You Bunleng and Marcel Lemonde report that on December 3rd 2008, they reminded Defence teams of their obligations regarding confidentiality, after the publication of a newspaper article stating confidential information about the Nuon Chea case. Some ten days later, Ieng Sary’s lawyers mentioned to the co-Investigating judges their intention to “establish a website to provide access to all public (sic) filings submitted by the Ieng Sary Defence team”.

They continue, without mincing their words: “The current practice by the Judicial Chambers and co-Investigating judges at the ECCC, of suppressing Defence filings which may be embarrassing or which call into question the legitimacy and judiciousness of acts and decisions of the judges, all under the fig leaf that these are necessary measures to protect the supposed confidentiality and integrity of the investigation or judicial decision-making process, must be discontinued without exception. Submissions which are solely the work of the Defence team and which do not relate to the substance of the ongoing judicial investigation but relate solely to legal issues, must be debated under the watchful eye of the public.” otherwise, they concluded, this would deprive their client “of a fair and public trial” and Cambodia of “a demonstration of how complex trials for the most serious crimes can be conducted openly and transparently”.

The co-Investigating judges then notified Defence teams again that the confidentiality of the case file concerned all filings, including those drafted by the parties. But despite this rejection by the co-Investigating judges, the Defence team continued asserting that they were free to distribute case file material “at will”, thus justifying what they see as their right, with practices at the International Criminal Tribunals for Former Yugoslavia and Rwanda, when websites were used by the Defence Counsel to publicise their own filings. The co-Investigating judges detailed that on January 26th, the Defence proceeded to “post nine documents on their website, the publication of which had at no time been authorised by the judges”, consisting, among other documents, of a psychiatric examination of Ieng Sary. In their Order, the magistrates gave a pounding to the arguments of the Defence and stressed that the latter may not raise a lack of knowledge of the civil law system applicable before the ECCC, nor state its disagreement with the principle of confidentiality of the judicial investigation, in order to contest the force of perfectly clear provisions of the Internal Rules [...] or to be relieved of their professional obligations”. All the more so, they say, as the Defence could have requested that the co-Investigating judges publish a document, but they did not do so.

A promise to communicate more about activities
In their press release, the co-Investigating judges explain the “confidential” nature of the preparatory investigation stage, indispensable to the quality of the judicial process, particularly to guarantee the protection of privacy of those persons mentioned in the case file and the presumption of innocence, as well as to promote efficiency in investigations”. Noting that, in the Duch case, the investigation took less than a year - which, in view of the complexity of the case, cannot be seen as an excessive period” - they claim to be aware that confidential judicial investigations do not allow observers outside the tribunal “to be completely informed of the progress of the proceedings” and assure they will make every effort “to communicate more systematically about their activities in future, and will publish an increased number of documents with regard to the judicial investigation”.

A crackdown to stop leaks?

By way of this Order, it seems that the Investigating judges want to issue a public warning to those guilty of leaking information. At the beginning of the week, the two English-language daily newspapers, the Cambodia Daily and the Phnom Penh Post revealed confidential material from the court, which was leaked to them via an unsigned e-mail... A way of doing that has rarely, if not never, been observed in other international criminal courts.

Those filings, both newspapers say, concern requests sent to the tribunal by the Defence team for Nuon Chea, alias “Brother Number Two”, that prime Minister Hun Sen, Senate president Chea Sim, National Assembly president Heng Samrin and the King Father Norodom Sihanouk be heard before the court, in order to help investigators document the structure of the Khmer Rouge hierarchy. The disclosure, some say, comes in a timely way to distract attention from other issues, as the court is struggling with allegations of corruption among the Cambodian staff at the ECCC, which led the UNDP (United Nations Development Programme) to freeze the payment of funds to the Cambodian side of the tribunal in the middle of last year.

The corruption accusations are allegedly said to have been confirmed by Knut Rosandhaug, Coordinator of the United Nations Assistance to the Khmer Rouge trials (UNAKRT) and deputy director of the ECCC Office of Administration, who was appointed to this position on June 1st 2008. The Human Rights and Humanitarian Aid Committee of the German Parliament’s also said that it agreed with the serious concern shown by the UN representative, in a report posted on its Internet website in November 2008 and quoting him quite a lot. That document was presented as a report of the meeting, a month earlier, between the German parliamentary delegation and Knut Rosandhaug. After the disclosure of the existence of the publicly accessible online report, by the Cambodian Daily in its edition dated February 26th, the Bundestag withdrew it from the website without a word… This blunder, what ever the veracity of the words – which, according to the report, Knut Rosandhaug allegedly pronounced – may be, put the latter in a much uncomfortable situation.

What sanctions do lawyers risk?

Rule 38 of the ECCC Internal Rules, regarding the “misconduct of a lawyer”, specifies that “the co-Investigating judges or the Chambers may, after a warning, impose sanctions against or refuse audience to a lawyer if, in their opinion, his or her conduct is considered offensive or abusive, obstructs the proceedings, amounts to abuse of process, or is otherwise contrary to Article 21(3) of the Agreement” and also that : the co-Investigating judges or the Chambers may also refer such misconduct to the appropriate professional body”, i.e. the Bars to which lawyers are registered, as well as the ECCC Defence Support Section (DSS).