Decision on IENG sary’s appeal against the closing order
The Pre-Trial Chamber found that neither the in absentia conviction of Ieng Sary by the People’s Revolutionary Tribunal in 1979 nor the Royal Amnesty granted to him in 1996, bar the current prosecution of Ieng Sary before the ECCC. Based on the assessment of all factors related to the trial conducted in 1979, the Pre-Trial Chamber found that “the 1979 trial was not conducted by an impartial and independent tribunal with regard to due process requirements”. Consequently, the Pre-Trial Chamber found that the prosecution, conviction and sentencing of Ieng Sary in 1979 do not bar the current prosecution of him before the ECCC under the legal principle of ne bis in idem.
In a Royal Decree proclaimed on 14 September 1996 Ieng Sary was granted an amnesty from the death sentence and the order to confiscate all his property issued by the People’s Revolutionary Tribunal in 1979. Furthermore, Mr. Ieng was also granted amnesty from prosecution under a law passed in 1994 that outlawed members of the Khmer Rouge (the “Democratic Kampuchea” group). When assessing the scope of the amnesty from the 1979 sentence, the Pre-Trial Chamber found that the amnesty was limited to ensure that the death sentence and the order to confiscate Mr. Ieng’s property was not put into effect. The Chamber found that the amnesty “had no effect on the possibility to institute future prosecutions as the amnesty was not related to the ‘acts’ allegedly committed”.
With regards to amnesty from prosecution under the 1994 Law outlawing the Khmer Rouge, the Pre-Trial Chamber found that the Law “did not create an autonomous criminal law regime to prosecute members of the Democratic Kampuchea group for any criminal act under existing criminal law”. The Chamber found that the Law created new offences and penalties to take into account the specific context that the Khmer Rouge failed to respect the peace agreement often referred to as the “Paris Agreement” from 1991. Other criminal offences not covered by the 1994 Law would continue to be prosecuted under the already existing laws. Consequently, the Pre-Trial Chamber found that the amnesty only prevented the prosecution of Ieng Sary for offences against State security set out in Article 4 of the 1994 Law and for the offence of being a member of the Democratic Kampuchea group. The Chamber therefore concluded that the current prosecution of Ieng Sary before the ECCC is not barred by the amnesty against prosecution under the 1994 Law.
The Chamber dismissed several other grounds of Ieng Sary’s appeal which challenged ECCC’s jurisdiction over international crimes and forms of liability.
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