Summary of the Pre-Trial Chamber Hearing and Decision on the Appeal of Duch

Documentation Center of Cambodia

Phnom Penh, Cambodia

­­­­­­­­­­­­­­­­­­­­­­Summary of the Pre-Trial Chamber Hearing and Decision on the Appeal of Duch Against the Co-Investigating Judges’ Provisional Detention Order of August 31^st, 2007

Sarah Thomas

1. Background Information

On July 31st, 2007, the Co-Investigating Judges charged Kaing Guek Eav (“Duch”) with crimes against humanity (Article 5, ECCC Law). They indicated that he is implicated by several documents and many witnesses. On October 2^nd, 2007, they charged him with grave breaches of the Geneva Conventions of 1949 (war crimes) (Article 6, ECCC Law). On the issue of provisional detention, his defense team submitted that he should be released prior to trial because inter alia he had been detained by the Military Court of Phnom Penh for 8 years, 2 months and 20 days prior to his transfer to the ECCC detention facility. The Co-Investigating Judges concluded, however, that they did not have the power to determine the legality of Duch’s prior detention in the custody of the Military Court of Phnom Penh. As such, the Judges ruled only on the current need for provisional detention. The Judges ordered that Duch be placed in provisional detention and transferred from the custody of the Military Court of Phnom Penh to the ECCC detention facility. The Judges held Duch’s provisional detention to be necessary because:

1. The public order in Cambodia may be disrupted if he is released;
2. He may choose to flee following his release;
3. His personal security may be placed in jeopardy.

On August 23rd, 2007, Duch’s defense team lodged an appeal against the Co-Investigating Judges’ order that he be placed in provisional detention. His defense team argued that he should not be detained due to his prior detention by the Military Court for over 8 years. The Defense requested that the Court release Duch from detention and impose a bail order. On September 4^th, the Pre-Trial Chamber invited submissions by amicus curiae. On October 4^th, Anne Heindel submitted an amicus curiae brief arguing that the Chamber has the jurisdiction and a duty to review the legality of Duch’s detention by the Military Court . On November 6^th, the Pre-Chamber notified the public that Pre-Trial Chamber Judge Ney Thol had recused himself from the case and that he would be replaced by Reserve Judge Pen Pichsaly. Although the Chamber did not give a reason for the recusal, Ney Thol likely recused himself because he was formerly a judge of the Military Court of Phnom Penh. On November 20^th-21^st, the Pre-Chamber held its first public hearing on this appeal.

2. Observations

1. Day 1 of Hearing: November 20^th

Summary of the Pre-Trial Report of Examination

The hearing began with the Pre-Trial Chamber detailing the charges against Duch, namely violations of Article 5 (crimes against humanity) and Article 6 (grave breaches of the Geneva Conventions). The Chamber provided a timeline of the relevant events, summarized here:

• May 10^th, 1999: The authorities arrested Duch and brought him before the Military Court , where the Investigating Judge charged him with crimes against national security.
• September 6^th, 1999: The Co-Investigating Judge of the Military Court charged Duch with the crime of genocide pursuant to Decree Law No. 1.

Subsequently, throughout his period of detention, the Co- Investigating Judge charged Duch with a variety of other crimes to enable his continued detention.

• February 22^nd, 2002: The Co-Investigating Judge charged Duch with crimes against humanity pursuant to the ECCC Law.
• February 28^th, 2005: The Co-Investigating Judge charged Duch with war crimes and crimes against internationally protected persons pursuant to the ECCC Law.
• July 31^st, 2007: Following a request by the Co-Prosecutors, the ECCC Co- Investigating Judges charged Duch with crimes against humanity and ordered his provisional detention and transfer to the ECCC detention facility.

The Chamber then presented the findings in its Report of Examination. The Pre-Trial Chamber recognized the Co-Investigating Judges’ finding that the Military Court ’s continued detention of Duch was “problematic.” The Chamber described the conclusion of the Report of Examination as being that the Co-Investigating Judges found that: (1) they lacked jurisdiction to determine the legality of the Military Court’s detention; and (2) the abuse of process doctrine, requiring proceedings to be stayed where the rights of the accused have been seriously affected, did not apply as Duch did not suffer incidents of torture or serious mistreatment prior to his transfer. Furthermore, the Chamber indicated that “[a]n eventual remedy for the prejudice caused by the prior detention is not an issue during the investigative phase of the case.”

The Chamber reported the Co-Investigating Judges had ordered Duch’s provisional detention because they found that his release may disrupt public order, allow him to flee, or jeopardize his personal safety.

Grounds for Defense Appeal

The Defense presented its grounds for appeal as follows:

• The lengthy detention of the Military Court constituted a violation of both Cambodian and international human rights law;
• The Pre-Trial Chamber does have jurisdiction to determine the legality of Duch’s prior detention because: (a) the Extraordinary Chambers is a court within the Cambodian judicial system; (b) the Co-Investigating Judges’ order of transfer from the Military Court to the ECCC constituted a validation of prior detention; and (c) the ECCC worked in concert with the Military Court because the latter’s documents feature in the ECCC Case File;
• In the alternative, although the Pre-Trial Chamber does not have jurisdiction to determine the legality of Duch’s prior detention, it has a duty to take this detention into consideration in ordering provisional detention;
• This violation of Duch’s rights requires: (a) his immediate release on bail; and/or (b) in the event of an acquittal, the payment of financial compensation for time spent in detention and for the harm suffered due to the violation of his entitlement to a trial within a reasonable time or release or, in the event a conviction, a sentence reduction of 8 years for time spent in detention and a further sentence reduction for the harm suffered due to the violation of his entitlement to a trial within a reasonable time or release.
• At present, provisional detention of Duch proves unnecessary as:

(a) He will not pressure witnesses because the ECCC has already interviewed them and he does not have the power or financial means to do so;

(b) He will not seek to destroy evidence because he did not attempt to destroy the evidence at Tuol Sleng during his chairmanship and any present-day attempt would prove futile as evidence is held by both DC-Cam and the ECCC;

(c) He will not seek to flee because he does not have a passport, neither he nor his family has the necessary financial means, he has always cooperated with the quest for justice, and he did not flee when he knew that he would be arrested;

(d) He will not be at risk because he lived free from 1979 to 1999 and did not receive threats or suffer injury;

(e) He will not jeopardize the public order because he lived free from 1979 to 1999 and did not disrupt public order.

In support of the Defense’s position, François Roux invoked international precedent established in the ICTR Case of Prosecutor v. Barayagwiza. He argued that this case stood for the proposition that, in the event of a violation of a defendant’s rights by another entity, the court trying the defendant must apply its own rules on violation of rights, including on provision of compensation.

The Defense urged the Pre-Trial Chamber to recognize the violation of Duch’s rights, to release him, and, in the event of an acquittal, to order payment of compensation or, in the event of a conviction, to order a sentence reduction of 8 years. Notably, François Roux emphasized that he was not requesting an end of the proceedings against Duch. Roux urged the Chamber to consider release and imposition of a bail order, a recently-adopted mechanism provided for in the Code of Criminal Procedure adopted in August 2007. He suggested that the ECCC would prove a model example for Cambodian courts.

François Roux sought to rebut the Co-Prosecutors’ claim in an earlier Response that the release of persons accused of serious crimes is uncommon. In support of this, he highlighted that the ICTR had released one accused person and the ICTY had released thirteen accused persons prior to trial. He argued that release prior to trial would be appropriate in Cambodia because the ECCC could rely on the assistance of the Cambodian police.

In addition, the Defense invoked the amicus curiae briefs in support of its position, arguing that “three and a half” were in their favor. Although Kar Savuth incorrectly characterized Anne Heindel’s brief as supporting the Defense’s position that Duch should be released, François Roux later clarified that her brief supported only the position that the Chamber should review the legality of the Military Court ’s detention.

Questions by Pre-Trial Chamber Judges

• A judge asked the defense whether Duch had exhausted his remedies in the Military Court by appealing his provisional detention. Kar Savuth confirmed that Duch had not appealed the Provisional Detention Order of the Investigating Judge of the Military Court . He presented a weak argument excusing this, namely, that the Investigating Judge based these charges on the ECCC Law and, therefore, he could not appeal because the ECCC had not been established. Subsequently, François Roux presented a stronger argument explaining Duch’s failure to appeal, namely, that such an appeal would have proved futile due to his importance to the Cambodian government as a “bargaining chip” for the international community. Roux argued that the Co-Prosecutors must show that such an appeal would have been successful.
• Rowan Downing asked the Defense whether they alleged that Duch suffered torture or serious mistreatment in the Military Court . Kar Savuth responded that Duch was tortured and beaten up.

Note: I experienced difficulties in hearing Downing’s question and Kar Savuth’s response.

• Rowan Downing asked the Defense why Duch failed to appeal the provisional detention and charges against him before the Military Court . Kar Savuth answered poorly, stating that he did not know where to file. Downing asked why Duch failed to file an appeal pursuant to Article 39 of the 1993 Cambodian Constitution, which provides Khmer citizens with “the right to denounce, make complaints or file claims against any breach of the law by the State…” Kar Savuth responded poorly again, emphasizing the importance of filing appeals properly and stating that Duch did not know where to file. Kar Savuth later indicated that some form of appeal was made to the Military Court on March 5^th, 2007.
• In response to Kar Savuth’s statement that Duch’s personal safety will not be jeopardized because he lived freely from 1979 to 1999 without receiving threats or suffering injury, Rowan Downing asked whether the reason for Duch’s continued safety throughout that period was his adoption of a new identity (i.e. Hang Pin).

Prosecution Rebuttal

The Co-Prosecutors rebutted by addressing the grounds for appeal raised by the Defense. In particular, they emphasized that:

• As a “special, internationalized court,” the ECCC is a judicial entity separate from other Cambodian courts;
• The Co-Investigating Judges’ Order was not a validation of Duch’s prior detention by the Military Tribunal;
• The ECCC has never worked in concert with the Military Court and, in particular, the ECCC did not ask the Military Court to arrest Duch;
• Even though the Military Court charged Duch pursuant to the ECCC Law in 2002 and 2005, there is no continuity between the proceedings of the Military Court and the ECCC and the documents of the Military Court do not feature in the ECCC Case File.

The Co-Prosecutors submitted that the Pre-Trial Chamber should not review the legality of Duch’s detention by the Military Court because he had failed to exhaust his remedies by taking an appeal before that court. The Co-Prosecutors submitted that, in any event, the abuse of process doctrine (see Order of Provisional Detention) requiring release of a detainee does not apply in this case as there had been no suggestion that Duch suffered torture or serious mistreatment (as required by the doctrine) during his detention.

The Co-Prosecutors argued that Duch’s continued provisional detention proves necessary because the requirements for ordering provisional detention, as provided in Rule 63(3) of the Internal Rules, have been fulfilled:

• There is a well-founded reason to believe that Duch may have committed the crimes, because Duch confirmed in interviews with journalists that he was the Deputy Chairman and, later, the Chairman of Tuol Sleng Prison.
• It is necessary to take measures to prevent Duch from destroying evidence because he has met with other senior leaders and they are angry that he failed to do so;
• It is necessary to take measures to prevent Duch from fleeing. The Co-Prosecutors submitted that an attempt to flee is likely because Duch may face life imprisonment if convicted and has used aliases in the past (i.e. he used “Hang Pin” throughout the 1990s).
• It is necessary to take measures to protect Duch, because he has now become well-known in Cambodia due to publicity. Furthermore, he remained safe from 1979 to 1999 only because he was not well known and hid his identity.

2. Day 2 of Hearing: November 21st

Continuation of Prosecution Rebuttal

Robert Petit began by supporting François Roux’s earlier statement that the Chamber may only order provisional detention in exceptional circumstances. He emphasized, however, the facts are exceptional as Duch bears “some measure of direct responsibility” for the deaths of 14,000 people. He described the ECCC’s purpose as being the provision of justice emphasized the high attendance on November 20^th as evidence of the importance of the proceedings to the Cambodian people.

Petit told the Chamber that the Defense and many of the amici curiae were asking it to go beyond the law and its jurisdiction to determine the legality of a decision by the Military Court . He quoted Judge Parker in the ICTY Case of Prosecutor v. Boškoski as saying that it is the responsibility of the Chamber to rule on guilt and not matters beyond its jurisdiction. While recognizing that the Military Court ’s lengthy detention of Duch was “problematic,” Petit argued that the question of prior detention should be resolved at final disposition and not during a Pre-Trial Hearing. At the time of final disposition all factors, including prior detention, should be taken into consideration.

Petit stated that there is no precedent for the release of an accused person at the pre-trial stage. He argued that domestic examples providing pre-trial release can be distinguished as in this case there is “no question of his responsibility.” He invoked a statement of a judge of the Special Court of Sierra Leone in Prosecutor v. Sesay as standing for the proposition that, in cases before internationalized tribunals involving the most serious crimes, the approach taken to bail may be different to that of domestic tribunals.

Petit emphasized that the release of Duch may affect the willingness of witnesses to testify and victims to participate in the proceedings.

Departing from the Co-Prosecutors’ earlier position (apparently correcting a “mistake” on Chea Leang’s part), Robert Petit clarified that the Co-Prosecutors were “not saying that the Court does not have the right to exercise its jurisdiction…” over the legality of Duch’s earlier detention. Rather, they urged the Pre-Trial Chamber to respect the determination of the Co-Investigating Judges in his respect “for reasons of expeditiousness.” Later, however, Petit stated that the Cambodian National Assembly would have to pass an enabling law to grant the ECCC the power to review the decisions of Cambodian courts. The Co-Prosecutors appeared to be divided and undecided on this point.

Petit refuted François Roux’s earlier claim that the Co-Prosecutors must show that Duch’s appeal against his provisional detention would have proved successful before the Military Court , stating there is no legal basis for such a claim.

Petit sought to distinguish this case from that of Prosecutor v. Barayagwiza, explaining that:

• Unlike in Barayagwiza, the ECCC did not ask the Military Court to do anything (other than transfer him to its custody);
• Unlike the ICTR, the ECCC does not have primacy over the national courts of Cambodia (see ICTR Rules of Procedure and Evidence Rule 40 and 40 bis);
• Unlike in Barayagwiza (where the accused person was held pursuant to a lawful process of the ICTR), the Military Court did not hold Duch pursuant to a lawful process of the ECCC;
• Unlike in Barayagwiza, the Co-Prosecutors properly pushed for speedy transfer of the accused person to the ECCC’s detention facility and requested and early hearing.

Petit correctly refuted François Roux’s statement that pre-trial release of persons accused of serious crimes is common. He pointed out that these released accused persons constituted only a minority of the large number of accused persons. At the ICTR, only one of eighty accused persons was released pending trial. At the ICTY, only thirteen of 161 accused persons were released pending trial and that these were primarily lower-level perpetrators backed by government guarantees. He highlighted that the SCSL, a hybrid court similar to the ECCC, had not released any accused persons prior to trial despite having the Sierra Leonean police at its disposal.

Defense Rebuttal

In considering whether there is a well founded reason to believe that Duch committed the crimes, François Roux urged the Chamber not to rely solely upon the journalists’ interviews submitted by the Co-Prosecutors as they were made under dubious circumstances.

Questions by Pre-Trial Chamber Judges

• A judge asked the Defense to clarify whether Duch was injured or tortured in the Military Prison. Kar Savuth appeared embarrassed and retreated from his earlier position, saying that he had not said that Duch had been tortured. Rather, he stated that he considered Duch’s lengthy detention to be an injury. This clarified that Duch did not suffer torture or serious mistreatment in the Military Prison.
• A judge asked the Co-Prosecutors when the trial would begin. Robert Petit responded that they expected the investigation to conclude during the first half of next year and the trial to begin during the middle of next year.
• A judge asked the Co-Prosecutors whether there was evidence of threats against Duch. Petit responded that he could not respond because materials in the Case File were confidential. He urged, however, the Chamber to consider the risk to Duch’s personal safety if released to be “logical.” It appeared that the Co-Prosecutors did not have convincing evidence of a risk to his personal security.
• Rowan Downing appeared very interested in bail and asked François Roux about the proposed terms. He proposed terms along the lines of those granted in the recent ICTR Case of Prosecutor v. Baglishema. Namely, he proposed that: (a) two respectable persons would vouch for Duch; (b) Duch would report to the police on a regular basis; (c) Duch would not leave the country; and (d) Duch would relinquish any travel documents. Roux explained that, if Duch violated any of these bail conditions, the Chamber could revoke bail. Robert Petit interjected, stating that the accused person in Baglishema was released on bail following acquittal and pending an appeal. He stated that this distinguished the present case. He urged the Chamber not to release Duch on bail as there exist only “a handful of S-21 survivors” and any intervention would greatly prejudice the proceedings.

Closing by Pre-Trial Chamber

The Chamber indicated that its decision would be pronounced at a later date with two working days notice to be given.

3. Pronouncement of Decision: December 3rd

Admissibility and Nature of the Appeal

The Pre-Trial Chamber began the pronouncement of its decision by considering the admissibility of the appeal. The Chamber refused to clarify, at the request of the Co-Prosecutors, whether the thirty-day time limit for filing appeals applies to the filing of notices of appeal or substantive appeals, as there existed no ambiguity because the Chamber had accepted the notice of appeal. The Chamber found the appeal to have been timely filed and, thus, admissible.

The Pre-Trial Chamber then considered the appropriate scope of its review of provisional detention pursuant to Internal Rule 63(4), as the Internal Rules do not provide such guidance. In determining the appropriate scope, the Chamber looked to Articles 261 and 262 of the recently adopted Cambodian Code of Criminal Procedure. The Chamber concluded that they had broad discretion to review orders of provisional detention, including making an examination of inter alia “the procedures of the Co-Investigating Judges…”, “the exercise of the discretion by the Co-Investigating Judges” and “the sufficiency of the facts” leading to an order of provisional detention. In addition, the Chamber found that it may examine “any additional issues not otherwise dealt with which are the subject of specific grounds of appeal.”

Examination of the Co-Investigating Judges’ Exercise of Discretion

The Pre-Trial Chamber considered the Defense’s argument that Duch’s prior detention, imputable to the ECCC, acted as a bar to the Co-Investigating Judges’ discretion to order provisional detention. The Chamber recalled the provisions of Article 9 of the ICCPR, which states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge o other officer… and shall be entitled to trial within a reason time or to release.” The Chamber concluded that it only had the power to take the violation into account if: (a) “the organ responsible for the violation was connected to an organ of the ECCC; OR (b) the organ “had been acting on behalf of any organ of the ECCC or in concert with organs of the ECCC.” Therefore, the Chamber found it relevant to consider the relationship between the ECCC and the Military Court .

The Chamber noted that no relevant source of law gave either the Co-Investigating Judges or the Pre-Trial Chamber the jurisdiction to rule upon the decisions of the Military Court or any other Cambodian courts. It found that their jurisdiction is limited to the subject matter of the ECCC Law only. Furthermore, no law provides for interaction between the ECCC and other Cambodian courts.

The Chamber continued to explain why the ECCC is distinguishable from other Cambodian courts. First, the ECCC has, in addition to national judges, foreign judges not qualified for appointment in domestic courts. Second, the ECCC is “self-contained” and carries out its operations independently with no right of appeal to the domestic courts and no ability to review the decisions of such domestic courts. The Chamber concluded that “[f]or all practical and legal purposes, the ECCC is, and operates as, an independent entity… and therefore has no jurisdiction to judge the activities of other bodies.” It invoked the SCSL Case of Prosecutor v. Taylor in support of its assertion that the ECCC is an international court, “an expression of the will of the international community.”

Having established that the Military Court was not connected to the ECCC, the Chamber explained the reasons for its finding that the Military Court had not acted on behalf of or in concert with the ECCC. First, it reported that “[t]here is… no evidence that the Military Court acted on behalf of the ECCC in detaining the Charged Person.” Second, it rejected the Defense’s allegation of concerted action between the Military Court and the ECCC, refusing to accept that the Military Court document allegedly found in the ECCC Case file proved the existence of “a link between the ECCC and the Military Court or demonstrat[ed] that the Military Court and the ECCC acted in concert…” Third, it invoked as evidence of the impossibility of concerted action the fact that the ECCC had only come into existence on July 3^rd, 2006.

After having explained its reasons for concluding that the Military Court was not connected to the ECCC and that the Military Court had not acted on behalf of or in concert with the ECCC, the Pre-Trial Chamber found that the Co-Investigating Judges had acted properly in applying their discretion in ordering provisional detention. The Chamber supported the Co-Prosecutors’ assertion that it was appropriate for prior detention (legal or otherwise) to be taken into account later in the proceedings and not at the investigative and pre-trial stages.

Examination of the Conditions for Provisional Detention

The Pre-Trial Chamber quoted Internal Rule 63(3). It provides that the Co-Investigating Judges may order provisional detention if:

(a) “[T]here is a well founded reason to believe that the person may have committed the crime or crimes…”; AND

(b) They consider provisional detention necessary to:

i. “prevent the Charged Person from exerting pressure on any witnesses or Victims, or prevent any collusion between the Charged Person and accomplices…”;

ii. “preserve evidence or prevent the destruction of evidence”;

iii. “ensure the presence of the Charged Person during the proceedings;”

iv. “protect the security of the Charged Person”; OR

v. “preserve public order.”

The Pre-Trial Chamber found that there are well-founded reasons to believe that Duch committed crimes against humanity and war crimes. In support of this conclusion, the Chamber invoked Duch’s failure to contest the allegations that he was Deputy and, later, Chairman of S-21, where countless atrocities were perpetrated, and cited Kar Savuth’s introduction of himself as the lawyer of “Duch, who was also the Chief of S-21” (much to the amusement of the audience).

The Pre-Trial Chamber found his provisional detention to be necessary to prevent the exertion of pressure on witnesses and the destruction of evidence (considering the statements of S-21 witnesses to constitute “evidence”). First, the Chamber based this conclusion on the argument that Duch’s mere presence in society could work to exert pressure, particularly as so few S-21 witnesses survive. The Chamber indicated that many potential witnesses fear acts of revenge from charged persons or their relatives, citing Geerteke Jansen’s Voices of Takeo Report. It concluded that “witnesses’ willingness to testify is already fragile, and the balance could be easily upset by the release of the Charged Person.” Second, the Chamber supported the necessity of protective measures by reporting of an alleged incident in which Duch threatened a former cadre, Chek Sim, by telling him that he would report him to Ieng Sary to have him killed if Chek Sim spoke to anyone of Duch’s association with S-21. Third, the Chamber indicated provisional detention proved necessary because Duch had the names of potential witnesses in the Case File. Furthermore, the testimonies of the small number of S-21 witnesses prove crucial and “[i]t is essential that they are not in any fear or suffering from any pressure preventing them from testifying.”

The Pre-Trial Chamber found Duch’s provisional detention to be necessary to ensure his presence at trial. In support of its conclusion, the Chamber invoked Duch’s disappearance from public view during the period from 1979 to 1999 and the measures he took to conceal his identity, including using a different name, failing to return to his hometown, giving false information on resumes, and allowing his family to believe that he was dead. The Chamber concluded that, if released, there was a risk that Duch would disappear once again. It rejected the Defense’s arguments that he would not seek to flee because he did not have the financial means or a passport.

The Pre-Trial Chamber found Duch’s provisional detention to be necessary to protect his security. The Chamber indicated that Duch’s personal safety was threatened by other Charged Persons, victims and their relatives, and former cadres. It rejected the Defense’s argument that such individuals did not pose a risk to his safety as they had not threatened him during the 20 years he lived freely in Cambodia . It concluded that his personal safety had been compromised after his discovery by journalists in 1999, citing in support the article, “I Am in Danger,” by Nate Thayer, in which Thayer quoted Duch as stating that he feared for his safety. The Chamber concluded that there was no reason to believe that this threat to Duch’s personal safety had diminished during his 8-year detention; in fact, it opined that he was more at risk than ever.

The Pre-Trial Chamber found Duch’s provisional detention to be necessary to preserve public order. In support of this, the Chamber cited the estimated number of deaths—1.7 million or one-quarter of the population—and emphasized that “[a] large portion of today’s Cambodian population has… lost one or more of their relatives or friends.” It opined that the impact of the period has not diminished with time, with many survivors continuing to suffer from Post-Traumatic Stress Disorder and the possibility that trials “may pose a fresh risk to the Cambodian society.” In addition, the Chamber emphasized the public interest in the Pre-Trial Hearing of November 20^th and 21^st, indicating this interest demonstrated the concern of the Cambodian people. The Chamber rejected the Defense’s argument that public order would not be disrupted now as it had not been disrupted during the 20 years Duch lived freely, finding that the situation had changed considerably with the publicity surrounding the trials and Duch’s public admission that he had been the Chairman of S-21.

As such, the Pre-Trial Chamber found that the conditions for detention had been satisfied.

The Pre-Trial Chamber then considered the Defense’s request that Duch be released on bail as a remedy for the violation of his right to be tried within a reasonable time. The Chamber rejected this request because the conditions for provisional detention had been satisfied and no bail conditions could be sufficient to protect Duch’s personal safety or to ensure his presence at trial.

Consideration of Duch’s Application for Reparations

The Pre-Trial Chamber considered the Defense’s request that it order that, in the event of an acquittal, the ECCC pay Duch financial compensation for time spent in detention and for the harm suffered due to the violation of his entitlement to a trial within a reasonable time or release or, in the event a conviction, the ECCC grant a sentence reduction of 8 years for time spent in detention and a further sentence reduction for the harm suffered due to the violation of his entitlement to a trial within a reasonable time or release. The Chamber refused to engage with this request, stating that “it is inappropriate for the Chamber to make such statements.” This supported the earlier conclusion of the Co-Investigating Judges that “[a]n eventual remedy for the prejudice caused by the prior detention is not an issue during the investigative phase of the case.” Thus, the Chamber did not preclude further consideration of the issue and the Defense may raise Duch’s prior detention later in the proceedings.

Conclusion and Orders

The Pre-Trial Chamber decided that the Co-Investigating Judges had acted properly, dismissed Duch’s appeal, and affirmed the Co-Investigating Judges’ order that Duch be provisionally detained for a period not exceeding one year.

The Chamber’s decision cannot be appealed.

Sarah Thomas is Legal Fellow of the Documentation Center of Cambodia (DC-Cam)