What is the role of the judicial investigation?
The investigation is a fundamental phase in the overall criminal proceedings before the ECCC. Indeed, the investigative stage is an indispensable stage that directly impacts upon the remainder of the proceedings. With the assistance of the three Teams that make up the OCIJ (Investigating Team, Analysts Unit and legal Team), the Co-Investigating Judges collect the necessary evidence to define, on the one hand, whether the facts set out by the Introductory Submission amount to crimes within the jurisdiction of the ECCC, and at the same time, whether there is enough evidence to send the Charged Persons to Trial for the crimes for which they have been charged.
Why is the Investigation led by two Judges?
The existence of a national Judge with an international Judge is essential for the hybrid nature of the ECCC. This characteristic entails a close link between Cambodian law and International Law.
How long does the Investigation take?
It is difficult to define precisely the duration of a judicial investigation of this nature. It is undoubtedly a long process which starts with the Introductory Submission issued by the Co-Prosecutors, and ends through the Closing Order drafted and issued by the Co-Investigating Judges. The Investigation essentially consists of legal research, the collection and analysis of the written record of interviews of the charged persons, the witnesses and Civil Parties, physical evidence and any other documents that may form part of the evidence. Furthermore, the Co-Investigating Judges respond to different request of the Parties or other Third Parties to the proceedings. The duration of the Investigation, in part, therefore depends on the time the Co-Investigating Judges need to achieve the above mentioned investigative actions.
What is the competent organ in deciding who must be judged?
The Co-Prosecutors collect the elements of evidence and define the crimes that are to be pursued. The case file is then passed to the Co-Investigating Judges who have a duty to collect both inculpatory and exculpatory evidence and to further decide who must be indicted. Provided there is sufficient evidence that meets the legal standard in accordance with the applicable law, the case may then be sent to the Trial Chamber for adjudication.
Who could be subject to an Investigation by Co-Investigating Judges?
The ECCC only have jurisdiction over those most responsible for the crimes committed in Cambodia between 17 April 1975 and 6 January 1979. Consequently, lower level Khmer Rouge, their family members and those who were associated with the senior leaders of the Khmer Rouge cannot be subject to investigation before the ECCC.
To date, the Co-Investigating Judges have charged the following five persons:
- Kaing Guek Eav Duch, (S-21 Director): Crimes against Humanity and Grave Breaches of the Geneva Convention of 12 August 1949;
- NUON Chea (Parliament President): Crimes against Humanity and Grave Breaches of the Geneva Convention of 12 August 1949;
- IENG Sary (Minister of Foreign Affaires of Democratic Kampuchea): Crimes against Humanity and Grave Breaches of the Geneva Convention of 12 August 1949;
- IENG Thirith (Minister of Social Affairs of Democratic Kampuchea): Crimes against Humanity.
- KHIEU Samphan (President of Democratic Kampuchea): Crimes against Humanity and Grave Breaches of the Geneva Convention of 12 August 1949.
What happens if there is a disagreement between the Co-Investigating Judges?
If no consensus can be reached by the Co-Investigating Judges, each one, together or separately, can request the Pre-Trial Chamber to resolve the litigation. The decision of the Pre-Trial Chamber cannot be subject to appeal and the Co-Investigating Judges must immediately take the necessary steps outlined in the Decision.
Do the Co-Investigating Judges have jurisdiction within the facts occurred later than 1979?
The Jurisdiction of the ECCC is limited to the period of 17 April 1975 to 6 January 1979. The Cambodian Tribunals have jurisdiction within all crimes perpetrated later than this date.
What are the charged people’s rights?
In accordance with both Cambodian and international law, each charged person enjoys the fundamental rights during the Investigation:
- The right to a fair trial;
- The right to be considered as innocent until proven guilty;
- The right to a co-Defense lawyer of choice (Cambodian and International) or Court appointed Lawyer, in the case that the person is indigent;
- A reasonable waiting period and the sufficient means in order to prepare the Defense.