Defence weighs in on controversial doctrine

(Posted by CAAI News Media)

Monday, 19 October 2009 15:04 Robbie Corey Boulet

Duch’s lawyers say prosecution request to apply joint criminal enterprise ought to be rejected.

THE defence team for Tuol Sleng prison chief Kaing Guek Eav, alias Duch, has called for the Khmer Rouge tribunal’s Trial Chamber to deem inadmissible a request by the prosecution to apply joint criminal enterprise (JCE), a controversial doctrine of liability under which a person can be charged with having committed crimes through participation in a common criminal plan.

In a filing dated September 17 and posted on the tribunal’s Web site Friday, lawyers Francois Roux and Kar Savuth note that the Pre-Trial Chamber already decided against applying JCE in the Duch case. In that December 2008 ruling, judges found that “the factual basis [was] not sufficient” to justify the application of JCE.

In June, the prosecution filed a similar request pushing for the application of JCE, this time to the Trial Chamber, which said it would rule on the request when it issued a verdict.

Duch’s lawyers argue that, should the Trial Chamber judges find the request to be admissible, they should dismiss it because the JCE “in which Duch is alleged to have participated has never been clearly defined” by the prosecution.

They add: “In the unlikely event that the Chamber were to consider recharacterising the facts, it must invite the Accused to make his submissions in a practical and effective manner on the new characterisation contemplated.”

Civil party support

Also Friday, the tribunal made public a brief filed by Civil Parties Group 3 in support of the prosecution’s JCE request, arguing that the internal rules empowered the Trial Chamber “to change the legal characterisation of crimes” from those outlined in the indictment or ruled on by the Pre-Trial Chamber.

The civil party lawyers also said in the filing that Duch had been given “adequate time and facilities” to prepare a defence under the JCE mode of liability.

“It therefore cannot be argued that if the Chamber were to accept the application of JCE, the Accused would be denied the opportunity to present his defence in respect of the new characterisation,” the lawyers said, adding that the chamber “should apply JCE as a mode of commission in order to fully cover the Accused’s liability”.