How does the trial process work at the ECCC?

Posted Fri, 08/01/2014 - 16:10 by Camille Marie-Regnault

The ECCC trial process can seem a complex web of actors and legal systems. Read below for a summary of how the process works, an overview of who does what and when.

Investigative phase

• A judicial investigation will be initiated upon a formal request from the Co-Prosecutors. After collecting preliminary evidence about alleged crimes, the Co-Prosecutors can lodge an introductory submission with the Office of the Co-Investigating Judges.
• The Co-Investigating Judges will then carry out an investigation into the alleged crimes; they are required to search for both exculpatory and inculpatory evidence. They work independently and serve the interests of neither the defence nor the prosecution, but the parties can request the Co-Investigating Judges to carry out specific investigative steps, such as interviewing a specific witness.
• The Co-Investigating Judges will determine whether the facts set out in the introductory submission constitute a crime within the jurisdiction of the ECCC.
• Before a suspect is officially charged, his/her identify remains confidential. However, the suspect has the right to legal counsel and is represented by a defence team from the investigative phase onwards.
• During this time, victims of the Khmer Rouge regime are also invited to apply to become civil parties to the proceedings. Civil parties may ask the Co-Investigating Judges to interview them, question witnesses, go to a crime site, or collect other evidence on their behalf. If the case goes to trial, they will also have the opportunity to seek moral and collective reparations.
• Once the investigation has been completed, the Co-Investigating Judges will issue a closing order, either indicting the charged person and sending him/her to trial or dismissing the case.
• The ECCC system is based on civil law, which differs from the common law system, in which separate investigations are typically conducted by the prosecution and defence. At the ECCC, the Co-Investigating Judges collect relevant evidence and place it in a case file. The evidence contained within the case file then forms the basis of trial proceedings.
• During the investigative phase, the Pre-Trial Chamber can hear motions and appeals against orders and decisions issued by the Co-Investigating Judges.

Trial phase

• Cases that are sent to trial are heard before the Trial Chamber. An initial hearing is held to discuss, among other things, civil party reparation awards; the status of preliminary objections; proposed lists of witnesses, experts and civil parties to be called for testimony; and the sequence of trial proceedings. Evidentiary hearings can then begin.
• The Co-Prosecutors, Defence and Civil Party Lead Co-Lawyers participate in trial proceedings before the Trial Chamber Judges. They can draw upon the witnesses, experts, civil parties, evidence and documents included on the relevant lists filed with the Chamber before the start of hearings.
• The trial concludes with closing statements, where each party has the right to sum up its arguments. The Trial Chamber Judges then retire to deliberate and reach a verdict.
• The Trial Chamber sets a date to announce its verdict. The judgement will find the accused either guilty or not guilty. Any decision requires the affirmative vote of at least four of the five Judges. In case of a guilty verdict, the Trial Chamber will also decide upon the appropriate sentence and civil party reparations.

Appeals phase

• The Supreme Court Chamber can hear appeals against judgements issued by the Trial Chamber. Any party seeking to file an appeal against a trial judgement must file a notice of appeal, specifying the grounds of appeal within 30 days of the pronouncement of the appeal judgement. The party then has an additional 60 days to file the appeal brief.
• The Supreme Court Chamber can also hear immediate appeals against Trial Chamber decisions related to provisional detention and bail, decisions which have the effect of terminating the proceedings, decisions on protective measures, and decisions regarding interference in the administration of justice.
• Any decision of the Supreme Court Chamber requires the affirmative vote of at least five of the seven Supreme Court Chamber Judges. Their decisions are final and cannot be overturned.