Prosecutors divided in ECCC Case 004/02

Content image - Phnom Penh Post
Ao An, a former Khmer Rouge official photographed during an interview in 2011. DC CAM

The international and national co-prosecutors at the Extraordinary Chambers in the Courts of Cambodia (ECCC) held their positions in Case 004/02 against Ao An, with the former insisting that the case be sent to trial and the latter saying that doing so would be illegal.

The prosecutors issued two separate statements on Tuesday after the Pre-Trial Chamber declared last Thursday that the co-investigating judges’ issuance of two conflicting closing orders was illegal and violated the ECCC’s legal framework.

The Pre-Trial Chamber also said it could not come to an affirmative vote, with at least four judges needing to reach a decision based on common reasoning on the merits.

International co-prosecutor Brenda J Hollis said the Pre-Trial Chamber had not come to a decision last Thursday but rather had made what she called “considerations”, under which An’s case had not been concluded.

Under the governing law of the ECCC, she said a decision required the agreement of at least four of the five Pre-Trial Chamber judges, known as a “supermajority”.

She said a supermajority had not been reached last week, with three judges upholding the dismissal order and annulling the indictment, whereas the two others had annulled the dismissal order and upheld the indictment, with some amendments.

When an indictment issued by one co-investigating judge is not overturned by four of the five judges of the Pre-Trial Chamber, the rule states, the case is sent to trial, Hollis argued.

“To implement this ruling, they instructed that the amended indictment, the Pre-Trial Chamber’s ‘Considerations’ document and the Case 004/2 case file be forwarded to the Trial Chamber so that a trial against Ao An can commence.

“The international co-prosecutor will, therefore, act in accordance with the ECCC’s internal rules and prepare for trial,” Hollis said.

However, national co-prosecutor Chea Leang said in another statement that the Pre-Trial Chamber had issued a decision “violating the legal framework of the ECCC”.

Leang said: “The national co-prosecutor is of the view that the international co-investigating judges’ closing order [indictment] is illegal based on the effect of the Pre-Trial Chamber’s decision, declaring that the co-investigating judges’ issuance of the two conflicting closing orders was illegal, violating the legal framework of the ECCC.”

She said last Thursday that the Pre-Trial Chamber did not order the Greffier (clerk) of the Pre-Trial Chamber to forward the decision or the case file, compared to the previous Pre-Trial Chamber decision.

An served as deputy secretary of the Central Zone, a member of the Central Zone Committee and secretary of Sector 41 in the Central Zone of the Khmer Rouge regime.

He was charged with genocide, crimes against humanity and premeditated homicide by the international co-investigating judge in 2016. But in 2018 the national co-investigative judge dismissed all charges against him, arguing that he did not come under the scope of the ECCC’s personal jurisdiction.