Wednesday, 30 March 2011 15:02James O'Toole and Cheang Sokha
Prosecutors at the Khmer Rouge tribunal demanded in appeal hearings yesterday that Kaing Guek Eav receive an increased prison term to properly account for the “massive” and “grave” crimes he committed as head of S-21 prison.
The accused, better known as Duch, received a 30-year jail term last July in the first verdict handed down by the court, reduced from 35 years because of his excessive pre-trial detention following his arrest in 1999.
In explaining the decision not to impose a life sentence, judges said at the time that a number of mitigating factors had been considered, including Duch’s “cooperation with the chamber, admission of responsibility, limited expressions of remorse, the coercive environment in Democratic Kampuchea and the potential for rehabilitation”.
Yesterday, however, prosecutors argued that any such mitigating factors “reach a vanishing point” in view of the gravity of the crimes at S-21 and Duch’s audacious bid for acquittal.
“The accused’s continued request for release underscores, in a case like this, involving massive criminality, the fact that the accused to this day lacks real, sincere remorse for what happened,” International Co-Prosecutor Andrew Cayley said.
Over six months of trial hearings in 2009, Duch accepted qualified responsibility for his crimes and said he would willingly receive punishment, even offering at one point to submit himself to public stoning. During closing arguments in November that year, however, he and defence attorney Kar Savuth shocked the court by breaking from their previous strategy and asking for an acquittal.
The defence has since carried this forward in their appeal, arguing that Duch falls outside the court’s mandate to try “senior leaders” and those “most responsible” for crimes committed under Democratic
“The accused’s assertion that he does not constitute one of those most responsible for serious crimes that occurred during the DK period is inconsistent with the notion that he admits responsibility for the grave crimes for which he is charged,” Cayley said, adding that Duch’s “belated challenge to the legal basis for his prosecution and his request for release highlights … the insincere, selective and opportunistic nature of his cooperation with this court.”
Prosecutors have called on the Supreme Court judges to hand Duch a 45-year sentence, commuted from a life term in recognition of his unlawful pre-trial detention.
“We call for the imposition of a life term, reduced to 45 years simply to take account of that period of illegal detention, but for the purposes of history, a life term must be imposed in this case,” Cayley said.
Defence lawyer Kang Ritheary said his team had not made a written submission on the sentencing issue in response to the prosecutors’ appeal because they maintained that Duch never should have been tried in the first place. Under questioning from judges, however, Kang Ritheary said a 15-year term would be adequate given Duch’s “good gestures” in cooperating with the court as well as the mitigating factors in the case.
“Duch did his best to free himself from involvement with the crimes, but he had no choice other than implementing the orders, otherwise he would have been killed,” Kang Ritheary said. “The accused acted against his will, the accused expressed his remorse and showed signs that he can be changed and reintegrated into the society.”
A point of contention as judges interrogated the respective sides was whether the tribunal is bound in sentencing by provisions of the Kingdom’s 2009 penal code. The penal code stipulates that in crimes against humanity cases in which mitigating factors negate a life sentence, reduced sentences should fall between 15 and 30 years.
While Kang Ritheary said Duch should receive no more than a 15-year term, the prosecutors argued that the United N-backed court “can depart from ordinary Cambodian law on sentencing” and should not be bound by the 30-year limit. They also called for Duch’s single conviction for crimes against humanity to be broken down into specific offences in order to create “a proper historical record of convictions to fully describe what the respondent did”.
Regardless of how long a sentence Duch ultimately receives, he will get credit for the nearly 12 years he has already spent in detention. Under his current, 30-year sentence, he could thus walk free in roughly 18 years time.
Chum Mey, 80, one of the few living survivors of S-21, said outside the hearing yesterday that the tribunal’s credibility will be lost if Duch’s sentence is reduced.
“I want the Supreme Court to sentence him to life imprisonment, but if not that, then 45 years would be acceptable,” Chum Mey said. “If they uphold the previous decision, I will not be happy.”