Defense lawyers for Ao An have called for Case 004/02 to be dismissed after the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) could not reach an affirmative vote on bringing their client to trial for genocide.
An’s defence team issued a press release after the ECCC issued its decision last week on the parties’ appeals against two closing orders issued by the co-investigating judges. An’s defence team said the majority of judges had called for the case to be dismissed.
“Today, the majority [three] of the Pre-Trial Chamber judges accepted the defence’s argument that the case should be dismissed for a lack of personal jurisdiction.
“The majority of judges found that Ao An was not a senior leader or one of those most responsible for Khmer Rouge era crimes and so cannot be tried at the ECCC,” defence team said.
The ECCC on Thursday issued a press release saying that the International Co-Investigating Judge issued an indictment in August 2018 sending An to trial, while on the same day the National Co-Investigative Judge issued a dismissal order on all charges against him after a 10-year investigation.
“The Pre-Trial Chamber was faced with, for the first time in judicial history, two conflicting closing orders, emanating from one single judicial office,” the ECCC said.
It said the Pre-Trial Chamber had concluded that the Co-Investigating Judges’ simultaneous issuance of the two conflicting closing orders was illegal and in violation of the very foundation of the ECCC’s legal framework.
The defence team said sending the case for trial despite the majority of judges holding that the court lacked jurisdiction would be a gross violation of An’s presumption of innocence.
The uncertainty was a violation of his right to a fair trial, and an affront to the principle of legal certainty.
“The Pre-Trial Chamber’s decision demonstrates, once again, that the ECCC’s rules and procedures are not fit for purpose. Case 004/02 must be terminated with immediate effect,” the defence team said.
Civil party co-lawyer Hong Kimsuon said it was usual for lawyers to call for a case they were defending to be dismissed.
He said the case would continue despite the Pre-Trial Chamber not reaching an affirmative vote of at least four judges for a decision based on common reasoning on the merits.
“At the ECCC, there are five judges [two international and three national] in the pre-trial, trial and Supreme Court chambers, and it requires at least four voices to dismiss a case from going to trial,” Kimsuon said.