Following Khieu Samphan’s request for immediate release on bail, the Defence and the Co-Prosecutors were invited to present their arguments and observations during a Trial Chamber hearing on Thursday 11 April 2013.
The use of provisional detention in the ECCC proceedings is regulated by the Court’s Internal Rules. Khieu Samphan's request for immediate release on bail must in accordance with Internal Rule 82 (3) be decided "as soon as possible and in any event no later than 30 (thirty) days after receiving the oral request or application, unless circumstances justify a greater period".
The first condition which must be met in order to provisionally detain a defendant is that there must be “well founded reason to believe” that the person has committed the crimes he is charged with (Internal Rule 63 (3) a). The Trial Chamber has previously found that this condition is met at the trial stage when the defendant has been indicted and sent for trial. During the pre-trial phase, the Pre-Trial Chamber has held that “well founded reasons” exist if the information available on the case file would satisfy an objective observer that the defendant may have been responsible for, or committed, the crimes they he has been charged with. In this respect, it is necessary to look at both in inculpatory as well as exonerating evidence on the case file.
Once “well founded reason to believe” has been established, it is an additional requirement that provisional detention is a necessary measure to:
- prevent the defendant from exerting pressure on any witnesses or victims, or prevent any collusion between the defendant and accomplices of crimes falling within the jurisdiction of the ECCC; or
- preserve evidence or prevent the destruction of any evidence; or
- ensure the presence of the defendant during the proceedings; or
- protect the security of the defendant; or
- preserve public order
It is sufficient that only one of the five conditions above are met in order to keep a person in detention. Khieu Samphan is currently being held in detention as it has been deemed a necessary measure to ensure his presence during the trial proceedings. In its decision on a previous appeal from Khieu Samphan, the Supreme Court Chamber held:
“The reasons have less to do with the general risk of the Accused absconding in the face of the severity of potential penalty, and more to do with the risk of the Accused becoming unavailable for trial. Facts transpiring from the case file demonstrate that the trial in Case 002 is an enormous organisational and logistical undertaking involving four accused, most of whom have health problems, and numerous civil parties and multi-person legal teams. Even a single instance of an accused failing to appear before the court might undermine the prospect of arriving at the judgment within a reasonable time. The goal of speedy proceedings may be easily frustrated if the Accused goes into hiding, decides to disregard summons or even temporarily is prevented from attending a hearing. “
Khieu Samphan has been provisionally detained since 19 November 2007, and the procedural history of his detention can be outlined as follows:
19 November 2007: The Co-Investigating Judges ordered Khieu Samphan to be placed in provisional detention for a period of maximum one year. The Co-Investiganting Judge later rejected a release request from Khieu Samphan.
18 November 2008: The Co-Investigating Judges ordered the provisional detention to be extended for a period of one year. The Pre-Trial Chamber later found a request for release inadmissable and later also rejected Khieu Samphan’s appeal against the extension of the provisional detention.
18 November 2009: The Co-Investigating Judges ordered the provisional detention to be extended for a period of one year. The Pre-Trial Chamber later rejected Khieu Samphan’s appeal against the extension.
15 September 2010: Khieu Samphan was indicted, and the Co-Investigating Judges ordered that he should remain in provisional detention until he appeared before the Trial Chamber.
16 February 2011: The Trial Chamber rejected Khieu Samphan’s request for release.
6 June 2011: The Supreme Court Chamber amended part of the reasoning in the Trial Chamber’s decision of 16 February 2011, and rejected the remainder of Khieu Samphans appeal.