2011-01-12, Phnom Penh. The Chamber found the Accused application for stay of proceedings for abuse of process inadmissible.
Grounds in the Application:
(1) problems related to the translation of documents:
- no translation of some documents – footnotes of the Closing Order, some of the evidentiary material, the Final Submission, 232 decisions and 3,850 documents by the parties;
- poor translation of other documents – no quality control system, translations contain errors, no glossary of Cambodian legal terminology, no studies on the vocabulary used during the period of Democratic Kampuchea, no translation and interpretation school in Cambodia; the impartiality of the translators is questionable since they are connected to the Office of the Co-Investigating Judges or the Documentation Centre of Cambodia
(2) the rights of the defence have been violated by the court’s failure to provide physical access to the case file – providing him less space than the size of the file;
(3) violation of the principle of legality – application of the international substantive and procedural law instead of Cambodian law led to the violation of the nullum crimen sine lege principle to the detriment of the foreseeability of charges and potential penalty.
(4) unreasonable and unjustified delays
(5) public presumption of guilt
None of the other parties responded to the Application.
The Chamber – Statement of Law
The Chamber, relying on its earlier decision, stated that for the abuse of process doctrine to apply:
(1) there must be a clear egregious violation of the rights of the Accused;
(2) these violations must be of such an egregious nature as to impede the exercise of jurisdiction;
(3) these violations either cannot be rectified or they contravene the court’s sense of justice.
The Chamber appears to rely on a proportionality test that balances the nature of the abuse with the nature of the remedy. It also held that before consideration of the merits, it has to consider whether, even if proven, the allegations would warrant a stay of proceedings – if not, it does have to consider the merits of the allegations.
The Chamber – Application
The Chamber denied the application on the grounds that:
(1) in respect of lack of translation - the Accused did not meet the threshold test (see above) because
- the Chamber could not identify any documents that could impair the Accused right to a fair trial;
- the right to French translations of all party submissions is limited to the submissions directly relevant to the particular Accused; The Chamber suggested the Accused either to find his own translators in order to deal with “the temporary absence of translations” or to request translation of essential documents “on a priority basis.”
(2) in respect of the quality of translation – the Accused “argument is general in nature and that it fails to identify any particular translation errors which may have resulted in serious or egregious violation of his rights”. The Chamber held that the burden of dealing with translation errors falls on the accused: it is his responsibility to raise translation issue on the case-to-case basis and request validation of translation by making a request to the Translation Unit.
(3) in respect of the access to file – the Accused did not appeal the decision in respect of the access to the file, and since the time for appeal has lapsed he no longer has a remedy;
(4) in respect of the principle of legality:
- the Accused did not explain why using international law instead of domestic law constitutes a violation of the principle of legality;
- the Chamber will address this issue in the upcoming decision on appeals of three other accused;
- the Internal Rules form a self-contained regime of procedural law related to the unique circumstances of the ECCC;
- the Internal Rules were foreseeable because they were adopted prior to the commencement of the proceedings;
- the Accused did not substantiate his contention that he was prejudiced by the application of the Internal Rule, or that their application will deprive him of a fair trial.
(5) in respect of the unreasonable delay – “it has not been established how the alleged delays would be unreasonable, and that, at any rate, taking three years altogether to complete the judicial investigation in such an extensive case is not excessive.”
(6) in respect of the public presumption of guilt – the listing of the accused on the website of the ECCC as a leader within Office 870 has “no bearing on the judicial proceedings” and does “not in any way constitute such serious and egregious violations of the rights of the defence as to warrant a stay of the proceedings.”
The text of the application is not provided on the ECCC’s website.