Decision on Appeal against Closing Order Indicting Kaing Guek Eav alias "Duch"

In their appeal against the Closing Order, the Co-Prosecutors requested the Pre-Trial Chamber to amend the indictment in the Closing Order to also include charges of Homicide and Torture as defined by the 1956 Cambodian Penal Code, as well as to include Joint Criminal Enterprise  as a mode of liability in the indictment.

The Pre-Trial Chamber found that the act of torture as defined in Article 500 of the 1956 Cambodian Penal Code contains two alternative mental elements not included in the definition of torture under international law; namely for  the purposes of "inflict[ing] acts of torture to obtain, under pain, information for the commission of a felony or misdemeanour" or "inflict[ing] acts of torture  out of barbarity". Acts of torture in Article 500 of th 1956 Cambodian Penal Code was therefore not subsumed by torture as defined under crimes against humanity.

After analyzing "homicide" as defined by articles 501, 503 and 506 in the 1956 Cambodian Penal Code, the Pre-Trial Chamber found that "homicide" as defined in Article 503 was subsumed by the the crimes against humanity of murder  and wilful killing as a Grave Breach of the 1949 Geneva Conventions. The Chamber  found that premeditated muder as defined in Article 506 requires the specific element of premeditation, which is not required by for the international crimes of murder and wilful killing. Premeditated murder under Article 506 also requires an intent to kill, which is a more stricter mental element than the threshold "likely to result in death" under international law.

As charges on premeditated murder and torture under the 1956 Cambodian Penal Code would be based on same facts as the international crimes included in the indictment in the Closing Order, the Pre-Trial Camber examined whether it is permissible under the ECCC framework to include in the indictment different legal offenses in relation to the same acts (cumulative charges).  After having found that neither the Internal Rules of the ECCC nor Cambodian law contained provisions related to cumulative charges, the Chamber sought guidance in the procedural rules established an the international  level, and found that cumulative charges are permissible in international criminal tribunals. 

After having analyzed the factual allegations included in the indictment, the Pre-Trial Chamber found that there was factual basis to amend the indictment to include torture and premeditated murder as described in the 1956 Cambodian Penal Code.

In relation to Joint Criminal Enterprise, the Pre-Trial Chamber found that the Charged Person was not informed about the allegation of his alleged participation in a Joint Criminal Enterprise during the investigation, and Joint Criminal Enterprise did not form part of the factual basis for the investigation. The Chamber therefore rejected the request to include Joint Criminal Enterprise as a mode of liability in the indictment.

The Pre-Trial Chamber found that it was still necessary to keep the charged provisional detention until he was brought before the Trial Chamber in order to ensure the presence of the Charged Persons during the proceedings, to protect the security of the Charged person and to preserve public order.