“Do I infer that the accused is seeking an acquittal?” asked Judge Cartwright.
“I did say that. Release means an acquittal,” responded Cambodian defence counsel Kar Savuth. These were the final words in the trial of Kaing Guek Eav, a.k.a. Duch, the former head of the Khmer Rouge detention and torture centre S-21. They signalled the implosion of Duch’s defence team after an eight month trial during which it had appeared to be the most well-prepared and cohesive party by far.
By Thierry Cruvellier
At the last possible moment, during closing arguments last month, the Cambodian co-counsel asked for his client to be released, arguing that the Extraordinary Chambers in the Courts of Cambodia (ECCC) lacked jurisdiction to try Duch since he had never been a senior leader of the Khmer Rouge regime.
This was a complete reversal from what had been the defence line for more than two years under French co-counsel François Roux. Under Roux’s guidance, Duch had pleaded guilty, apologized to his victims and said that he would accept the harshest sentence for his crimes.
But he is now asking to be acquitted, openly siding with his Cambodian lawyer against his French one. In a final twist, the defence team effectively destroyed itself, without any help from the prosecution.
“We were as surprised as everyone,” said acting Chief Prosecutor William Smith at a press conference after the hearing.
“Throughout the case we have said that the accused’s remorse and cooperation were limited. The fact that it ended [this way] reinforces my position that his remorse is limited.”
Civil parties, who had consistently expressed their doubts about the sincerity of Duch’s remorse and full cooperation, also felt vindicated by the accused’s u-turn.
“This was a slap in the face of the victims of the regime,” said one of their lawyers, Silke Studzinsky. “The door is now closed,” she added, while one of her colleagues said he still preferred that it “remained ajar.”
Despite the actions of his Cambodian co-counsel, Roux has nevertheless remained on board - at least for the time being.
In an interview with online newspaper Ka-Set, Roux noted that his co-counsel’s position echoed the Cambodian government’s desire not to prosecute any suspects other than the four members of the Khmer Rouge leadership awaiting trial before the ECCC in 2011.
“The message [being sent] to the three Cambodian judges is far from neutral,” he said.
“I may be wrong in my interpretation but I am not off the subject when I hear [Cambodian Prime Minister] Hun Sen say: ‘I don’t want more’, when I know that [Cambodian prosecutor] Chea Leang does not want more and when Kar Savuth says ‘There mustn’t be more’…If this is what is meant to be acknowledged, then Duch is not involved,” Roux said.
“To witness such collapse at the end of the Duch trial is to send a very strong message: ‘Your tribunal is not ours’,” Roux concluded.
Following the hearing, Smith told reporters that “the collaboration between Cambodians and non-Cambodians is one of the greatest successes of this court.”
Roux, however, disagrees and says that it is precisely this peculiar feature of the ECCC - where at every level a Cambodian national shares responsibilities with an international counterpart - that led to such an undesirable situation.
“A detainee is always in his lawyers’ hands. It is an impossible situation for him when he has two lawyers who say two different things.”
For two months the international co-investigating judge has also been dealing with an uncomfortable conflict with his Cambodian colleague. Last week was the turn of the defence. Tomorrow, it may well be the turn of the trial judges.
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When the defense can't make a good case then the prosecution doesn't have to work hard to win the case. This case is definitely an interesting twist, it should probably be brought to the law school as a study case where students can analyze it. I wonder how would Jonathan Dickstein have proceeded here.
Why did Duch’s co-lawyers end up in different conclusions?
At the end of trial at Extraordinary Chambers in the Court of Cambodia the Duch’s international lawyer asked the judges to consider the possibility of reducing penalty of Duch because Duch had cooperated with the ECCC authorities and admitted his commission of crimes. In contract Duch’s national lawyer asked the Judges to acquit Duch.
The judges did not accept different conclusions presented by the co-lawyers. Judges had turned to the accused and asked him to give his conclusion to the judges. Duch told the judges that he did not have qualification to give them his conclusion. It could be said that the international co-lawyer did not cooperated with national co-lawyer and there could not be proper consultations and discussions with their clients or could not be a reflection of willingness of Duch.
Further reson why there is no cooperation between co-lawyers and their clients is that ECCC Defence Support Section could have been committing bad practices, unprofessional, and misconduct as follows:
1. Selection of the staff is made without allowing other people to compete;
2. Selection of staff could be based on payment of kickback and not payment of payment agreed to give to the decision-makers ( there is work performance evaluation) ;
3. Defence team has been dominated by international members of the teams(legal consultant ( there is no cooperated behavior);
4. There is no plan and case theory have not been discussed among team members( no clear instruct what to do next);
5. No effective and proper team meeting have been held and conducted ( no clear instruction given to team’s members, no warnings);
6. Most of motions submitted to and filed have not been discussed and not consulted with his clients properly. For example, a request submitted to the investigation judges to invite the current Cambodian Prime Minister, head of National Assembly to be witnesses for case # 2( a legal consultant could have done things just to serve his interests or his political interest that they might be against his client’s willingness. It can be said that ethic’s lawyer has been seriously violated);
7. Most of motions drafted by a legal consultant finished too late that led to inadequate time for translators to translate and for national co-lawyer to review and to share his ideas with( he is always right because he is a dominant, not work as a team);
8. ECCC Defence Support Section did not provide the defence team with professional, adequate trial skills and techniques and legal assistance that stipulated in program of Defence Support Section. It could be said that DSS told a lie to the world (it did not do what it has said).
9. Some key and potential defences are not chosen by the co-lawyers to defense their clients
The above issues seem to be ignored and not addressed by UN authority. The reasonable person wonders whether UNAKT and DSS come to educate Cambodian people the rule of law or lawlessness or impunity and it seems that right to enjoy an active council and effective legal services and legal representatives of the charged person or the accused has been seriously violated by UNART/DSS.
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