ECCC: Pre-Trial Chamber Issues Considerations on Appeals against Co-Investigating Judges’ Closing Orders in Case 004/2

The Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) yesterday issued its considerations on the appeals against the Co-Investigating Judges' Closing Orders in Case 004/2.

On Aug. 16, 2018, after the 10-year-long investigation, the International Co-Investigating Judge issued an indictment sending AO An for trial, while on the same day, the National Co-Investigative Judge issued a dismissal order dismissing all charges against him. The Pre-Trial Chamber was faced with, for the first time in judicial history, two conflicting closing orders, emanating from one single judicial office.

The Pre-Trial Chamber was thereafter seised of the Appeals lodged by the National Co-Prosecutor and the Co-Lawyers for AO An, on Dec. 14, 2018 and Dec. 19, 2018, respectively, against the International Co-Investigating Judge's Closing Order (Indictment), and the Appeal lodged by the International Co-Prosecutor on Dec. 20, 2018 against the National Co-Investigating Judge's Order Dismissing the Case against AO An.

On June 19-21 2019, the Pre-Trial Chamber held a hearing in Case 004/2 to hear the arguments of the Parties.

Common Disposition, Unanimously Decided by the Pre-Trial Chamber

First, after a meticulous review of the Case File, the Pre-Trial Chamber concluded that the Co- Investigating Judges' simultaneous issuance of the two conflicting Closing Orders was illegal, in violation of the very foundations of the ECCC legal framework.

The Pre-Trial Chamber found that the joint conduct of investigations by the National and the International Co-Investigating Judges is a primary fundamental legal principle at the ECCC (at para. 103). More specifically in the case of disagreements related to matters that must be determined by a closing order under Internal Rule 67, the Chamber found that the ECCC legal framework allows only two courses of action pursuant to Article 23new of the ECCC Law and Internal Rule 72(3). The Co-

Investigating Judges are obliged either to reach a tacit or express consensus on those matters, or to refer their disagreement on such matters to the Pre-Trial Chamber (at para. 120).

The Pre-Trial Chamber further clarified its authority over the investigative stage (at paras 31-54). The Chamber confirmed that the ECCC is a specialised court within the Cambodian court system (at para. 58), and reaffirmed its unanimous finding in Case 004/1 that the ECCC's applicable law does not preclude national jurisdiction and that ordinary Cambodian courts inherently have full jurisdiction over matters of criminal justice (at para. 59).

The Pre-Trial Chamber noted the Co-Investigating Judges' issuance of their Closing Orders 16 months after notifying, for the second time, the conclusion of the judicial investigations and found that the Co-Investigating Judges failed to issue the Closing Orders within a reasonable time (at paras 62, 70).

In accordance with Internal Rule 77(13), the present decision is not subject to appeal.

Ao An, also called Ta An, was a Deputy Secretary in the Central Zone of Democratic Kampuchea during the Pol Pot dictatorship between 1975 and 1979. He was allegedly involved the death of thousands of civilians, killings of Cham Muslims. The international Co-Prosecutor of the ECCC requested to investigate him since 2009.

Source: Agency Kampuchea Press