Today, the Co-Investigating Judges issued their decision on the request for submissions filed on 5 May 2017, regarding a potential stay of proceedings due to the funding situation at the ECCC. The Co-Investigating Judges have decided to defer the decision on a stay of proceedings for the time being due to the responses received from the United Nations (“UN”), the Principal Donors Group (“PDG”) and the ECCC’s Office of Administration (“OA”), as well as the noticeable improvement in the funding situation since the request for submissions was issued. They informed the Parties and the OA that they will remain actively seised of the matter until the last closing order has been issued. Should a future lack of funds or financial uncertainty threaten judicial independence, fairness, and the integrity of the proceedings, they will take the measures that they consider necessary to address the situation. This approach of judicial restraint will, however, only remain viable if the future funding matches the court’s requirements by complying with the budget accepted and endorsed by the UN and the PDG in a timely fashion and ideally with early and reliable assurance of compliance, as well as joined-up communication channels. There can be no bridge from the “is” of the prevalent imperfect funding practice on the international level to the “ought” of determining the normative parameters of judicial independence, fair trial and due process. The Judges invited the OA to report in the future on at least a quarterly basis on the status of the funding vis-à-vis the approved budget, for example, by adding a section on funding development to the public quarterly completion reports. This will provide public accountability for the funding development where it belongs, namely outside specific confidential investigations.

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