DC-CAM Comments on
the ECCC Draft Internal Rules
MEMORANDUM
To: Secretariat of the Rules and
Procedures Committee
From: Professor
Jaya Ramji-Nogales, Legal Advisor to the Documentation Center of Cambodia[1][1]
Date: November
17, 2006
Re: Comments
on ECCC Draft Internal Rules
This memorandum responds to the Secretariat’s request for
comments on the ECCC Draft
Internal Rules, laying out several
procedural fairness concerns with the rules as drafted.[2][2] These comments
recommend that clear, detailed and enforceable codes of conduct be drafted for
all court employees and staff, as well as attorneys appearing before the
court. A related concern about
confidentiality and security of documents and court records argues for
similarly transparent, thorough, and enforceable rules in this area. These comments also touch on the rights of
the accused, civil parties, and witnesses, and conclude with several shorter
comments on other specific concerns in the rules. Thank you for the opportunity to comment on
the rules, and I welcome further dialogue as your office continues to craft
these rules.
Creation and Enforcement of Codes of Conduct
It is of great concern that the
draft rules do not require specific codes of conduct for judges, lawyers and
court administrators, and do not lay out clear disciplinary measures to enforce
these codes of conduct. In order to ensure
that justice is administered independently and impartially, it is crucial that
all judges, lawyers, and court staff be bound by transparent and enforceable
rules of conduct. Court officials and
attorneys appearing before the court must be bound by detailed and
comprehensive ethical rules that cover actions beyond the egregious misconduct
covered by the current rules.
Transparent guidelines of this sort will protect both court officials
and attorneys, as they will be aware of the rules governing their conduct in
advance, and the public, who deserves protection from and a means of complaint
against unethical behavior by any officials or lawyers taking part in the ECCC.
Rule 7, which provides for recusal
and disqualification of judges, should require that a judge recuse herself when
there might be an appearance of bias. In
addition, the list of reasons for disqualification in Rule 7(2) should not be
exclusive but instead should be worded to prevent any form of bias, conflict of
interest, or corruption in the judicial offices. At a bare minimum, the rules must forbid
judges from hearing a case if their financial interests may be linked with or
impacted by one of the parties. Rule 17,
governing the Office of the Co-Investigating judges should require that the
office draft standards of judicial conduct, including confidential,
transparent, and effective complaint mechanisms and enforcement methods. This is a task that might be performed by the
Rules and Procedures Committee.
Rule 11, governing operation of
the Office of Administration, should again require that the Office draft
standards of conduct for its employees, and these rules should be approved by
the court. These standards should
include provisions requiring confidentiality and security of documents as well
as training for staff members about these provisions. Moreover, each staff member should be
required to take an oath of office confirming their commitment to be bound by
these rules of conduct. The International
Criminal Court has a similar requirement in Rule 6 of its Rules of Procedure
and Evidence.
Rule 15, which discusses operation
of the Office of the Co-Prosecutors, should also require that either that the
court create a code of conduct for counsel.
These rules should also apply to Defence Counsel. Again, the International Criminal Court
requires such a Code of Professional Conduct in Rule 8 of its Rules of
Procedure and Evidence. Rule 42 is a
start on this project, but is too vague.
Lawyers should have more detailed and clearer guidelines on their
ethical obligations, and other forms of misconduct should also be subject to
sanctions. Given that attorneys from
different jurisdictions will be practicing before the ECCC, it is particularly
important to have uniform rules of professional responsibility for these
lawyers.
Rule 19, governing the Judicial
Police, should require that the court draft standards of conduct for the
police, and provide training in ethical and acceptable methods of
investigation. Either these standards or
the rules themselves should include a clear requirement concerning the
statement of rights that is provided to individuals taken into police custody
under Rule 55.
Rule 35, which governs
interpreters, should again require that the court draft standards of conduct, including
confidentiality requirements and sanctions for violations of the code. Interpreters should be provided specific
training on these confidentiality requirements.
Confidentiality and Security of Records
The provisions of the law
concerning confidentiality and security of records are inadequate, and must
include appropriate sanctions for violations of these requirements. In order to protect the rights of victims and
of the accused, affirmative measures must be taken to ensure the security and confidentiality
of records, including specific requirements for storage, viewing and copying of
these records, and confidentiality mandates, including training, for any court
staff who may come in contact with these records. The vague confidentiality requirements of
Rule 59 are insufficient, failing to lay out specific actions that individuals
who come into contact with files must follow, and failing to enumerate
sanctions for violations of confidentiality requirements.
Rule 11(5) requires the Office of
Administration to keep case files, and should include confidentiality and
security requirements, as well as the drafting and enforcement of standard
protocols for treatment of documents.
Rule 17(2) governs the maintenance of files by the Co-Investigating Judges,
and similarly should include explicit confidentiality and security requirements
and a requirement that the office draft standard protocols for the treatment of
documents. The same is true of Rule
20(2), which governs the maintenance of files by Chambers.
Complaint Registration and Case File Management Unit
It seems preferable to incorporate
Rule 14, creating a centralized office for complaint and file management, to
ensure efficient and uniform processing and storage of files. This proposed rule should also include either
specific provisions requiring measures to ensure confidentiality and security
of files, or a requirement that the office draft such provisions and that the
provisions be approved by the court.
Rights of the Accused
Rule 34(4) should include, as an
initial step, the possibility of a protective order rather than the elimination
of the identity of a witness from a file.
All confidentiality measures relating to witnesses must be applied with
full respect to the rights of the defense, in particular the right to examine
the witnesses against him laid out in Article 14(3)(e) of the International
Covenant on Civil and Political Rights.
The strict time limit in Rule
34(4)(c) also threatens the right to a fair defense. The time for appeal should be extended where
the defence can show good cause for requesting knowledge of the person’s
identity, and that their argument could not have been raised within 15 days of
notice of the order.
The defence should also have an
opportunity to review any summaries of the Co-Prosecutor’s submissions that are
released to the public under Rule 57(6), to ensure that the rights of the
accused are not compromised by such releases.
In accordance with international
standards, the court should be required to review its detention rulings at
least every 120 days, as required by Rule of Procedure 118 of the International
Criminal Court. Specifically, the court
should ensure that delays on the part of the prosecutor are not
inexcusable. Rule 66 should be revised
to incorporate these comments.
Rule 73(3) seems unfairly tilted
in favor of the prosecution; while the Co-Prosecutors may appeal all orders,
the accused is limited in the orders he can appeal. A criminal defendant should at a minimum have
rights of appeal equal to the prosecution.
It bears reiterating that Rule
79(1) is absolutely crucial;[3][3] there should be no in
absentia trials. Note that Article
63 of the Rome Statute of the International Criminal Court forbids in absentia trials, as does Article
14(3)(d) of the International Covenant on Civil and Political Rights. This is a fundamental principle of
international law protecting the rights of the defence and must not be
abrogated in these rules.
Civil Party Actions
Rule 27(3) fails to lay out clear
requirements for admissibility of Civil Party petitions. These criteria could be as simple as ensuring
that the individuals fit within the definition of a victim and that there is no
unfair prejudice to the accused, but at least these minimal standards should be
enumerated to ensure that the process is predictable and transparent and that
decisions are not arbitrary. It is also
odd that Rule 27(12)(a) requires that injuries eligible for reparation must continue
to exist at the time of the proceedings.
While this provision may be sensible in current Cambodian civil
procedure, given the time lapse between the crimes alleged and the trial, this
provision will unnecessarily complicate and even exclude many worthwhile claims
before the ECCC.
Rule 27(8), providing that the
Chambers or the judges may require joint representation for a group of civil
parties seems a problematic infringement on the right to be represented by
counsel of one’s choosing. If the civil
parties wish to have the assistance of the court in finding such counsel and
pooling resources, such actions are acceptable.
But if the civil parties prefer individual representation, they should
have the right to make that choice, and are likely to be better placed than the
Chambers or the judges in determining whether they have interests common with
the other civil parties or whether any conflict of interest might arise.
Moreover, there should be the
possibility of anonymity for civil parties.
Currently, Rule 100(6) requires that the name, place of residence, birth
date, birthplace, and occupation of all civil parties be written in the
judgment. This may discourage the
bringing of meritorious claims by civil parties who fear retribution or risk
retraumatization if their participation in the case becomes public
knowledge. The possibility of anonymity
should be provided for in these rules, in a manner that ensures full protection
of the rights of the defense.
Witnesses
Oaths
Rule 28(1) might benefit from the
inclusion of a statement indicating the witness’s awareness of the penalties
she faces if she testifies falsely.
Rule 28(2) is extremely
problematic; there should be no exceptions to the requirement that witnesses
take an oath before making a statement.
This provision threatens to violate the rights of the accused and to
undermine the fairness of the trial. All
witnesses should be made aware of the solemnity of the process, and the great
importance of testifying truthfully. The
truth-telling requirements of the law should be applied equally and evenly to
all witnesses, and none should be exempt.
Rule 33(7)(b) suffers from
overbroad wording; if this evidence truly shall not be disclosed, there seems
to be no value in gathering the evidence.
The wording should be modified to note that the evidence can be used but
only if specific protections apply.
Waivers
Given that many witnesses will be
illiterate, and many others will have never before come into contact with the
legal system, it is extremely important that fundamental concepts be explained
clearly before obtaining waivers of any witness’s rights. Rule 29(1)(b), which relates to recording
interviews, should require a clear explanation of what it means to waive the
right to be questioned in the presence of a lawyer, and a method of determining
whether the interviewee understands this explanation. Rule 33(2), relating to
the notification of the right to self-incrimination, should include a
requirement of a clear explanation of what this right means and an assurance that
the witness understands this right.
Signed Statements
For similar reasons, it is crucial
to include extra protections to ensure that witnesses understand the importance
of making accurate statements before signing them, and to ensure that witnesses
are able to effectively review such statements.
Rule 29(2) should explicitly require that before a witness signs or
thumb-prints the statement, the interviewer ask her to read the statement or,
if the witness prefers or is illiterate, the statement be read back to her, and
that it is very important that the witness ensure that the statement is correct
and truthful to the best of her knowledge.
Miscellaneous
Experts
The rules should include clear and
transparent standards for qualifying an expert witness. Currently, Rule 36 lacks any such
standards. Moreover, experts should be
bound by regulations relating to their conduct, including confidentiality
requirements.
Admission of Foreign Lawyers
Rule 12(3) discusses admission of
foreign lawyers acting as Defense Counsel before the ECCC. It seems preferable to leave this decision in
the hands of the Defence Unit rather than the Cambodian Bar, as the Defence Unit
will have incentives to admit the most capable and effective attorneys, while
the Bar Association may have competing interests. Provisions 12(4) and 12(5) are crucial in
either case. This reasoning also applies
to Rule 13(3)-(5).
Absence of a Judge During Trial or Appeal
Rule 22(1) seems unwise; a judge
who is not present during some of the presentation of the evidence will be less
informed and effective in rendering a decision.
The approach of Rule 22(2) seems preferable, requiring either the
presence of a judge throughout trial, or if she is unable to attend a portion
of the trial, mandating either an adjournment or the judge’s replacement by a
reserve judge.
Amicus Curiae Briefs
The time limits required for amicus curiae briefs should be
explicitly stated in Rule 38 or elsewhere in the rules of procedure and must be
applied uniformly to all individuals or groups that submit such briefs.
Copyright 2006
[1][1] Please note that the
author did not have a copy of the Cambodian Draft Code of Criminal Procedure
while preparing these comments, and is trained in the common law system of
evidence and procedure. Please excuse
any oversights or misunderstandings resulting from these limitations.
[2][2] This memorandum is not
intended to be a comprehensive critique of the rules but instead lays out in
detail several concerns about procedural fairness arising from the rules. Moreover, it is complementary to a memorandum
submitted by Sarah Thomas, a Legal Associate of the Documentation Center of
Cambodia, on November 16, 2006, thus covering topics different from those that
have been thoroughly addressed in that document.
[3][3] This point is more
fully elaborated in the Memorandum from Sarah Thomas dated November 16, 2006.