STATEMENT BY THE INTERNATIONAL CO-PROSECUTOR ON CASE 004/2
In accordance with Internal Rule 54 of the ECCC, Brenda J. Hollis issues this public statement setting forth her position regarding the effect of the Pre-Trial Chamber’s recent disposition of appeals in case 004/2.
On 19 December 2019, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) delivered its Considerations on Appeal Against Closing Orders in the case against AO An, Case 004/2, (“Considerations”).
Contrary to some media reports, the Pre-Trial Chamber’s Considerations do not acquit AO An or conclude the case.
These Considerations dispose of the appeals against the differing legal conclusions reached by the two Co-Investigating Judges in 2018 upon the completion of their investigation into crimes alleged against AO An. One Investigating Judge indicted AO An for international crimes and violations of the Cambodian Criminal Code and sent him to trial. The other Investigating Judge dismissed the case against him because he did not consider that AO An falls within the ECCC’s personal jurisdiction.
The Pre-Trial Chamber uses the term “Considerations” rather than “Decision” because under the ECCC’s governing law a “decision” requires agreement of at least four of the five judges of the Pre-Trial Chamber, known as a “supermajority”, and this supermajority was not reached. Instead, the judges were split: three judges upheld the Dismissal Order and annulled the Indictment, whereas the other two judges annulled the Dismissal Order and upheld the Indictment, with some amendments.
The Internal Rules of the ECCC set out what happens when, like here, the Pre-Trial Chamber cannot reach the required supermajority on an appeal of an indictment. The Internal Rules of the ECCC consolidate Cambodian procedure and the laws which created the ECCC and provide direction for the ECCC judges and parties in carrying out the Court’s mandate. Rule 77(13)(b) provides that in this case the default decision of the Pre-Trial Chamber is that the Trial Chamber must be “seised” of the indictment of the Co-Investigating Judges. Rule 1(2) defines Co-Investigating Judges to mean both of them acting jointly and each of them acting individually. Consequently, when read together, these Rules provide that where, as here, an indictment issued by one Co-Investigating Judge is not overturned by four of the five judges of the Pre-Trial Chamber, the case is sent to trial.
Following these Internal Rules, the two judges who upheld the Indictment (as amended) against AO An approved that he be sent to trial and ordered that the Trial Chamber be “seised” of the amended Indictment. To implement this ruling, they instructed that the amended Indictment, the Pre-Trial Chamber’s “Considerations” document, and the Case 004/2 case file be forwarded to the Trial Chamber so that a trial against AO An can commence.
The International Co-Prosecutor will therefore act in accordance with the ECCC’s Internal Rules and prepare for trial.
National Co-Prosecutor’s Press Statement on the Charged Person AO An of Case 004/2
Pursuant to Rule 54 of the Internal Rule of the ECCC, Mrs. CHEA Leang hereby issues a public statement regarding the Charged Person AO An of Case 004/2, as the following:
On 19 December 2019, the Pre-Trial Chamber issued its decision on Appeals of which the National Co-Prosecutor appealed against the Closing Order (Indictment) whereas the International Co-Prosecutor appealed against the Closing Order (Dimissal).
In this Decision, the Pre-Trial Chamber unanimously: (cited relevant parts)
Declares that the Co-Investigating Judges’ issuance of the Two Conflicting Closing Orders was illegal, violating the legal framework of the ECCC.
In accordance with Rule 77(13) of the Internal Rules, the present Decision is not subject to appeal.
In accordance with Internal Rule 77(14), this Decision shall be notified to the Co-Investigating Judges, the Co-Prosecutors and the parties by the Greffier of the Pre-Trial Chamber.
The National Judges of the Pre-Trial Chamber, with 3/5 votes, decided to uphold the Closing Order (Dismissal) dismissing the case against AO An as valid. They held to annul the Closing Order (Indictment) to send AO An for trial since they are of the views that the two Co-Investigating Judges who issued two conflicting Closing Orders are in the violations of the ECCC’s legal frameworks in its entirety and that the two Co-Investigating Judges have departed from settling their disagreements in conformity with Rule 72 of the Internal Rules, which created a solid obstacle beyond the capacity to be solved in accordance with the laws; whereas the Rule 77(13) of the Internal Rules do not anticipate or unable to bring up any measure for settlement of this deadlock due to the two Closing Orders had two different substances as for the Case 004/2.
The International Judges of the Pre-Trial Chamber, with 2/5 votes, held that AO An is indicted and committed to trial in accordance with Rule 77(13)(b) and that because of the Pre-Trial Chamber’s failure in attaining the required supermajority and the exceptional circumstance of the Appeals against the conflicting Closing Orders.
The National Co-Prosecutor is of the view that the International Co-Investigating Judges’ Closing Order (Indictment) is illegal based on the effect of the Pre-Trial Chamber’s decision, declaring that “the Co-Investigating Judges’ issuance of the Two Conflicting Closing Orders was illegal, violating the legal framework of the ECCC”.
In the above Pre-Trial Chamber’s decision which is unanimusly declared on the Charged Person AO An, the National Co-Prosecutor noted that the Pre-Trial Chamber did not order that the Greffier of the PTC forwards the decision or this casefile, whereas in the previous PTC’s decisions it ordered that the decision or the casefile be forwared by the Greffier.