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Kaing Guek Eav alias Duch Sentenced to Life Imprisonment by the Supreme Court Chamber

The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) today sentenced KAING Guek Eav alias Duch to life imprisonment, the maximum sentence available under the law, for crimes against humanity and grave breaches of the 1949 Geneva Conventions.
 
Granting an appeal from the Co-Prosecutors, the Supreme Court Chamber quashed the 35 years sentence imposed by the Trial Chamber on 26 July 2010, and by supermajority also quashed the Trial Chamber's decision to grant a remedy for the violation of KAING Guek Eavs's rights occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007.  The Supreme Court Chamber dismissed an appeal from KAING Guek Eav in which he alleged that he did not fall within the personal jurisdiction of the Court, holding that, whether an accused is a senior leader or one of those most responsible are exclusively policy decisions for which the Co-Investigating Judges and Co-Prosecutors are accountable.

The Supreme Court Chamber held that in determining sentence the Trial Chamber attached undue weight to mitigating circumstances and insufficient weight to the gravity of crimes and aggravating circumstances. As to aggravating factors, the Supreme Court Chamber noted that KAING Guek Eav held a central leadership role at the Security Center S-21, which he abused by training, ordering, and supervising staff in the systematic torture and execution of prisoners deemed to be enemies of the Democratic Kampuchea regime, and he showed "dedication to refining the operations of S-21", which was "the factory of death".

The Chamber noted that the high number of deaths for which KAING Guek Eav is responsible (minimum 12,272 lives), along with the extended period of time over which the crimes were committed (more than three years), undoubtedly place this case among the gravest before international criminal tribunals.  The Chamber also held that the fact that the Accused was not on the top of the command chain in the regime does not by itself justify a lighter sentence, and that there is no rule that dictates reserving the highest penalty for perpetrators at the top of the chain of command.

A supermajority (Judge Klonowiecka-Milart and Judge Jayasinghe dissenting) further held that the Trial Chamber misinterpreted the relevant international jurisprudence to mean that violations of KAING Guek Eav's rights should be redressed by it even in the absence of violations attributable to the ECCC and in the absence of abuse of process. In the absence of both of these circumstances, the Trial Chamber should have rejected KAING Guek Eav's request for remedy.

Judges Klonowiecka-Milart and Jayasinghe consider that granting a remedy is ECCC's responsibility and that granting KAING Guek Eav a remedy by commuting the life sentence to a fixed term of 30 years' imprisonment would be appropriate.

The Supreme Court Chamber also granted in part the appeal by the Co-Prosecutors requesting cumulative convictions of crimes against humanity. In its findings, the Supreme Court Chamber held that the Trial Chamber erred in law by subsuming specific crimes against humanity under the crime of persecution instead of convicting KAING Guek Eav for all the crimes against humanity for which he was found responsible. As a result, the Supreme Court Chamber affirmed the conviction for the crime against humanity of persecution, and entered additional convictions for the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture, and other inhumane acts.

The Supreme Court Chamber also granted the appeals from 10 Civil Party Applicants whose applications had been rejected by the Trial Chamber in the Trial Judgement. These Civil Party Appellants have substantiated their applications on appeal, and are therefore admitted as Civil Parties in Case 001.

The Supreme Court Chamber also decided on appeals from Civil Parties related to the Trial Chamber's ruling on their requests for collective and moral reparations. The Supreme Court Chamber affirmed the Trial Chamber's decision to compile and post on the ECCC's official website all statements of apology and acknowledgements of responsibility made by KAING Guek Eav during the course of the trial, including the appeal stage. All other Civil Party claims for reparation were rejected by the Supreme Court Chamber either because they would be unenforceable, or in order to be implemented they would necessitate financial means of KAING Guek Eav, who is indigent, or an order against the Cambodian State.

The summary of the Appeal Judgement read out in today's public hearing is available on the official website of the Court (www.eccc.gov.kh). The full Appeal Judgement will be published in due course.
Click here to read the summary of the Judgment

 
Who is Who in the Courtroom

who-is-who
In order to assist both representatives of the media and viewers of our live video stream around the world, we have created a Who is Who in the Courtroom page which is available at  http://www.eccc.gov.kh/en/who-is-who  On this page you will find photos and biographies of the judges and the different parties appearing in the courtroom.

 
The Court Report Special Edition: Case 001 Final Judgement

The special edition of the "The Court Report" covers the final judgement in Case 001, concerning the convicted person Kaing Guek Eav alias Duch.

Read the latest issue:
http://www.eccc.gov.kh/sites/default/files/articles/Case%20001%20Final%20Judgement%20Court%20Report_0.pdf

 
PRESS STATEMENT BY THE NATIONAL CO-INVESTIGATING JUDGE

Yesterday the International Reserve Co-Investigating Judge Laurent Kasper Ansermet hastily issued a public statement at the very end of the ECCC's working hours, and hence brought to the understanding of the National Co-Investigation Judge as follows:

1. The successive releases of such statements without the knowledge of the National Co-Investigating Judge reflect Mr. Laurent Kasper Ansermet's ill intentions.

2. The contents of Mr. Ansermet's latest public statement clearly reveal his intention to confuse public opinion, particularly on the point that reads "the National Co-Investigating Judge had stated ... his opposition to the proposed investigative acts". The National Co-Investigating Judge would like to reiterate that he has never discussed any procedural act with Mr. Laurent Kasper Ansermet, and has never disagreed with him over any procedural act. The National Co-Investigating Judge has always respected the independence of the International Co-Investigating Judge. More importantly, the Agreement, ECCC Law and Internal Rules expressly stipulate the procedures applicable to the settlement of disagreements between both judges to ensure a resolution in compliance with the principles of fair trial, and such procedures were indeed followed on several occasions to resolve disagreements with the previous International Co-Investigating Judges, Marcel LEMONDE and Siegfried BLUNK, in the context of Investigating Cases of the ECCC.

3. The references to articles in the Agreement and in the ECCC Law were purely an exaggeration made by Mr. Laurent Kasper Ansermet since not a single one amongst those authorizes Mr. Ansermet, in the capacity as an International Reserve Co-Investigating Judge, to undertake any procedural actions while the seat of the International Co-Investigating Judge is still vacant. On the contrary, Article 5.6 of the Agreement requires that a reserve judge be first appointed as a legally accredited judge. And this certainly complies with previous practice with regard to international co-investigating judges.

4. Mr. Laurent Kasper Ansermet's actions reflect his lack of knowledge of and  respect for the Internal Rules and the legal principles governing procedures applied so far at the ECCC, and hence leads the National Co-Investigating Judge to doubt the real motives for his obstinacy and disrespect of the Law and the Internal Rules of the ECCC. Without considering his lack of legal authority, his issuance of a public statement concerning procedural actions based on Rule 21.1 (c) is not legally correct, as this Rule shall not be used to issue statements relating to the investigating case file.

5. The issuance of such a public statement by Mr. Ansermet furthers the doubt of the National Co-Investigating Judge regarding Mr. Ansermet's professionalism --  is he a judge or a press officer?

(Unofficial
Translation)

 
Statement by the International Reserve Co-Investigating Judge

This public statement is made pursuant to ECCC Internal Rule 21(1)(c) to ensure that the public, and particularly the victims of the crimes under investigation, are duly informed of ongoing ECCC proceedings.

The International Reserve Co-Investigating Judge took oath as reserve judge before the Plenary Session of the ECCC on 21 February 2011. Pursuant to the Agreement signed by the Royal Government of Cambodia and the United Nations, and the law governing the procedure before the ECCC, he is under the legal obligation to investigate the cases submitted by the Office of the Co-Prosecutors [Articles 5(6) of the ECCC Agreement and 12, 23, 26, 27 et al of the ECCC Law]. The International Reserve Co-Investigating Judge therefore enjoys full legal authority to undertake his functions regardless of the Supreme Council of the Magistracy's rejection of his appointment as standing co-investigating judge. Since joining the ECCC on 1 December 2011 he has taken steps to ensure the effective functioning of the international side of the Office, including reiterating a request to the UN for the additional staff necessary to enable effective investigations into cases No. 003 and 004.

On 15 December 2011 and 2 February 2012, the International Reserve Co-Investigating Judge submitted two Records of Disagreement concerning the conduct of the investigations in cases 003 and 004 to the Pre-Trial Chamber (Internal Rule 72). In both instances the National Co-Investigating Judge had stated, at first expressly and then implicitly, his opposition to the proposed investigative acts. The basis of the objection was that the Supreme Council of the Magistracy had not yet appointed the International Reserve Co-Investigating Judge as standing judge and hence had no authority to act.

Having been timely and duly seized of the disagreements, the President of the Pre-Trial Chamber, by Memorandum dated 3 February 2012, returned the two Records of Disagreement without giving notification of the Pre-Trial Chamber having taken a reasoned decision. The Memorandum stated that "PTC judges" had met on 27 January 2012 and that they had not "reached their consent to take into their consideration of the substance of those documents", based on the fact that "Mr Laurent Kasper-Ansermet does not have enough qualification to undertake his duty according to legal procedure in force". 

According to the law applicable to the settlement of disagreements [Article 23 new of the ECCC Law and Internal Rule 72(4)(d)], if the required majority is not achieved the order or investigative act done (or proposed) shall stand (or be executed). This principle fully applies to the disagreement over the investigative acts proposed by the International Co-Investigating Judge. Therefore, both decisions are executable.

On this basis, the International Co-Investigating Judge intends to issue the Order on Resuming the Judicial Investigation on CF003 (classified as public).

The law required the Pre-Trial Chamber to examine the subject of the disagreements and to issue decisions which had to be "reasoned and signed by their authors" [Internal Rule 72(4)(e)]. The President of the Pre-Trial Chamber failed to have the decision notified as mandated by the law governing these procedures. This situation raises serious concerns about the lack of impartiality of Mr. Prak Kimsan, President of the Pre-Trial Chamber. On these grounds, an application for his disqualification was submitted to the Pre-Trial Chamber calling upon Mr Prak Kimsan to step down voluntarily from any proceedings related to CF003 and CF004.

In order to redress the procedural defects leading to the International Co-Investigating Judge not being notified of the decision on the disagreements, the Records of Disagreement were returned to the Pre-Trial Chamber.
Judge_Laurent_Kasper-Anserme

 
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Today: 19 October 2018

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