01005689
Case File No. 002/19-09-2007/ECCC/TC
E313
2.4.2. Alleged Defects in the Judicial Investigation
42.
Repeating arguments and submissions made previously over the course of the
proceedings in Case 002/01, in their Closing Statements, the Accused submit that the
judicial investigation was so impaired by procedural defects and tainted by political
interference that the Trial Chamber could not rely on it without infringing the right of
the Accused to a fair trial.110 The Chamber has already ruled that, during the pre-trial
stage, the Accused had made extensive use of the procedural safeguards existing in
the ECCC legal framework to address alleged defects in the investigation either
before the Co-Investigating Judges or on appeal to the Pre-Trial Chamber. The
Accused have also failed to satisfy the Trial Chamber that alleged procedural defects
or allegations of government interference had a tangible impact on Case 002/01.111
Appeals against these decisions were dismissed by the Supreme Court Chamber.112
110
NUON Chea’s Closing Submissions in Case 002/01, E295/6/3, paras 16-26 (alleging unfairness
arising from selective prosecution and the allegation that the ECCC represents the “basest form of
victor’s justice”), 27-37 (systematic flaws in the conduct of the judicial investigation), 45-46 (failure of
the Co-Investigating Judges to summons key witnesses), 51 (failure of the Co-Investigating Judges to
explore the historical context of the crimes), 71 (failure of the Co-Investigating Judges to explore the
chain of custody and origins of evidence), 73-77 (the investigatory practices during the judicial
investigation were flawed), 80-81 (the Co-Investigating Judges were biased and subject to government
interference); T. 22 October 2013 (NUON Chea Defence Closing Statement), pp. 6-8, 28-37, 45-47,
49-51, 55-60; T. 31 October 2013 (NUON Chea Defence Rebuttal), p. 44; T. 31 October 2013 (KHIEU
Samphan Defence Rebuttal), pp. 63-64.
111
See e.g. Decision on IENG Sary’s Motion for a Hearing on the Conduct of the Judicial
Investigations, E71/1, 8 April 2011 (The Chamber dismissed the Defence motion finding that no
specific matter or alleged procedural defect was raised and that no specific relief was requested. The
Chamber referred to Internal Rule 76(7) which states “Subject to any appeal, the Closing Order shall
cure any procedural defects in the judicial investigation. No issues concerning such procedural defects
may be raised before the Trial Chamber or the Supreme Court Chamber”); Decision on NUON Chea
Motions regarding Fairness of Judicial Investigation (E51/3, E82, E88 and E92), E116, 9 September
2011; Decision on NUON Chea’s Request for a Rule 35 Investigation regarding Inconsistencies in the
Audio and Written Records of OCIJ Witness Interviews, E142/3, 13 March 2012 (discrepancies
between audio and written records are a matter which is relevant to the final assessment of evidence);
Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial
Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), E251, 7 December 2012;
Decision on Rule 35 Applications for Summary Action, E176/2, 11 May 2012; Decision on
Application for Immediate Action Pursuant to Rule 35, E189/3, 22 November 2012. NUON Chea
argues that the Chamber’s decisions concerning political interference were “systematically weak and
evasive” (NUON Chea’s Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, para.
89). Beyond this general assertion, he fails to either identify those decisions he believes to be deficient
or substantiate this argument. The Chamber is therefore unable to assess this submission and
summarily dismisses it.
112
Decision on Immediate Appeal by NUON Chea against the Trial Chamber’s Decision on Fairness
of the Investigation (SCC), E116/1/7, 27 April 2012; Decision on NUON Chea’s “Immediate Appeal
against Trial Chamber Decision on Application for Immediate Action pursuant to Rule 35” (SCC),
E189/3/1/8, 25 March 2013; Decision on NUON Chea’s Appeal against the Trial Chamber’s Decision
on Rule 35 Applications for Summary Action (SCC), E176/2/1/4, 14 September 2012.
Case 002/01, Judgement, 7 August 2014 - Public
22
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents