The Extent to Which Ieng Sary’s Prosecution at the ECCC Is Barred by His Prior Conviction

Jennifer Ford Walker, University of Michigan Law School,

Summer Legal Associate, Documentation Center of Cambodia



BACKGROUND

In August 1979 Ieng Sary and Pol Pot were convicted in absentia of “genocide”[1] by the People’s Revolutionary Tribunal, a court established after the fall of Democratic Kampuchea by the new Vietnamese-backed regime. They were convicted and sentenced to death and the confiscation of their property, but neither served his sentence. In 2007 Ieng Sary was arrested by the Extraordinary Chambers in the Courts of Cambodia (ECCC), and to date he has been charged with genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, murder, torture, and religious persecution. He has argued that, under ne bis in idem, his prosecution in the Extraordinary Chambers is barred by his prior conviction.

DISCUSSION

Ne bis in idem is the criminal law principle that no one should be subject to double prosecution or punishment for the same crime; it is the civil law analogue to double jeopardy. Although the principle is widely recognized across criminal law systems, its formulations vary. The ECCC has not fully expounded ne bis in idem as it will apply in the Chambers, preferring to defer the matter until after the Closing Order for Case 002 is issued. The manner in which the ECCC chooses to define ne bis in idem could have a significant effect on Ieng Sary’s prosecution.



I. Applicable Law

There are no provisions for ne bis in idem in either the Law Establishing the ECCC or the ECCC Internal Rules. The Cambodian Code of Criminal Procedure (CCCP) defines its application in articles 7 and 12, but it is not clear how the Cambodian law should be interpreted, and it may not be consistent with international standards: Cambodian law protects from retrial only those who have been acquitted, but with the exception of the American Convention on Human Rights, the ne bis in idem provisions of major international instruments prevent further proceedings against both those who have been acquitted and those who have been convicted. If the Cambodian law suffers from uncertainty either in interpretation or consistency with international standards, the ECCC must seek guidance from “procedural rules established at the international level”:

If these existing procedures no [sic] not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard [sic], guidance may be sought in procedural rules established at the international level.[2]



II. Ne Bis In Idem “at the International Level”

There are a number of international ne bis in idem provisions from which the ECCC can seek guidance. The International Covenant on Civil and Political Rights (ICCPR), Rome Statute, Statute of the International Tribunal for the Former Yugoslavia (ICTY), Statute of the International Tribunal for Rwanda (ICTR), American Convention on Human Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and Schengen Agreement all contain ne bis in idem provisions.[3] Distilled from the provisions in these instruments are the basic principles of international ne bis in idem:

1) The first proceeding must result in a final judgment acquitting or convicting the accused.

2) The second proceeding or penalty must be for the same crime as the first proceeding.

3) Subsequent proceedings are allowed in exceptional circumstances, such as when new evidence is discovered, or when the first proceeding was conducted improperly.

4) Subsequent proceedings by a different state are discouraged but not barred

A. A Final Judgment Is Required

Before ne bis in idem can be invoked, a final judgment of acquittal or conviction must

have been issued.[4] The jurisprudence on what constitutes a final judgment is not particularly relevant to Ieng Sary’s case. The cases concern the question of precisely when a trial is completed and are not analogous to Ieng Sary’s case, as the 1979 trial was unambiguously completed. ECCC co-prosecutors have argued that the 1979 People’s Revolutionary Tribunal conviction was not a final judgment because there was no right of appeal and because the accused were tried in absentia.[5] The co-prosecutors contend that a conviction cannot be final without a right of appeal, and that trials in absentia cannot result in final judgments because, under Cambodian law, the accused is retried once he is arrested or voluntarily surrenders. However, it is not clear that these features relate to the finality of judgments; rather, they are more likely to be considered defects that may constitute separate grounds for re-prosecution, as discussed below.

B. The Proceedings Must Be for the Same Crime

Ne bis in idem prevents a re-prosecution of the same crime, but there is a split over the

scope of “same crime.” It includes either the same offense (same criminal charge), or any offense relating to the same set of underlying acts, no matter how that offense is characterized. For example, if the accused attacks a person in a “same offense” jurisdiction, he may first be tried for assault, and later tried for attempt murder. In a “same acts” jurisdiction, this later charge of attempt murder would be barred by ne bis in idem, since it relates to the same acts that formed the basis of the first conviction.

It is not at all clear which formulation should be preferred by the ECCC. The Cambodian Code of Criminal Procedure uses “same acts,”[6] but the ICCPR, which the ECCC must act in accordance with,[7] uses “same offense.”[8] However, it may not be problematic for Cambodian law to offer more protections to the accused than the ICCPR.[9] The ICTY and ICTR statutes use “same acts,”[10] although one ICTR decision refers to “same offences,” citing the ICCPR.[11] The Rome Statute uses “same conduct.”[12] The American Convention on Human Rights uses “same cause,” which the Inter-American Court of Human Rights has explicitly interpreted to be broader than the ICCPR’s provision.[13] Finally, the European Convention for the Protection of Human Rights and Fundamental Freedoms uses “same offense,”[14] which the European Court of Human Rights (ECtHR) has interpreted in various ways, finally settling on the current interpretation: “Under this test, the Court must disregard the legal characterisation of the offences in domestic law and take their facts as its sole point of comparison.”[15]

The ECCC’s choice of “same acts” or “same offenses” could have a significant impact on Ieng Sary’s case. A “same acts” formulation is broader and has the potential to bar more charges, especially since the People’s Revolutionary Tribunal (PRT) held Pol Pot and Ieng Sary liable for many actions committed by the regime. Although a “same offense” approach is narrower, the “genocide” conviction of 1979 may still bar some of the current offenses with which Ieng Sary has been charged. There are numerous crimes that the PRT included under the genocide umbrella, and these crimes may be the same as or similar to other crimes with which Ieng Sary is currently charged. Since the 1979 “genocide” charge was not defined the way ECCC law defines genocide, the current genocide charge may not be barred. But until the Co-Investigating Judges decide to indict Ieng Sary (if they decide to indict him) we cannot know the details of the crimes he is currently charged with, such as the specific instances of murder and torture under investigation. Without this information, it is not possible to determine whether he is being tried again for either the same offenses or the same acts.

C. Exceptions to Ne Bis In Idem

Ne bis in idem provisions tend to make exceptions for extraordinary circumstances. These exceptions relate to newly discovered evidence, or to severe defects in the initial proceedings. The ICTR and ICTY can re-try cases that were improperly tried at the national level, such as when the national trial shielded the accused, or was not conducted impartially.[16] The Rome Statute has a similar provision:

No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.[17]



It does not appear that there have been any instances in which the international tribunals have applied the exception for defective proceedings,[18] but the People’s Revolutionary Tribunal probably falls within this exception. It is widely thought that the PRT was not conducted with the intent to bring Pol Pot and Ieng Sary to justice. Rather, their convictions were a foregone conclusion, and many believe the trial proceedings were used to justify the Vietnamese invasion and occupation, and to foster negative sentiment toward the Chinese, with whom the Vietnamese were engaged in a struggle over control of Indochina.

The PRT suffered from a number of defects that cast serious doubts on its impartiality and adherence to norms of due process, especially the rights of the accused.[19] Pol Pot and Ieng Sary were tried in absentia, represented by attorneys with whom they had no communication. The presiding judge publicly declared their guilt before the trial began, and the defense seemed to denounce the accused as well. If the ECCC decides to recognize exceptions to ne bis in idem similar to those of the other international tribunals, it may very well find that the 1979 trial was defective, allowing the ECCC to try Ieng Sary without deciding the “same acts” or “same offenses” issue.

D. Ne Bis In Idem Applies Only to Proceedings Within the Same State

Double prosecution is only barred within the same state; its application is not transnational, absent an additional agreement. However, there appears to be a trend in recognizing ne bis in idem across states. While the Human Rights Committee has interpreted the ICCPR not to protect against proceedings by another state, it also makes clear that states are free to bar such double proceedings through other instruments. In addition, the Schengen Agreement prevents double prosecution within contracting parties, a number of European countries. Finally, extradition laws generally allow for the refusal of extradition when the accused has already been tried, lending further support to the trend in recognizing ne bis in idem among states.

This is relevant because if the current Kingdom of Cambodia is not considered the same state as the 1979 Vietnamese-backed People’s Republic of Kampuchea (PRK), then ne bis in idem will not be available to bar a second proceeding against Ieng Sary, although retrial may be discouraged. At the time of the 1979 tribunal, Vietnamese forces occupied Cambodia and backed the communist PRK. In the following years a number of political changes occurred: the withdrawal of Vietnamese troops, changes in the country’s name, the establishment of the United Nations Transitional Authority for Cambodia (UNTAC), and national elections. Today the country is a constitutional monarchy, the Kingdom of Cambodia.

Even if it is considered the same state, if the ECCC is a hybrid or international—rather than a national—court, then the current proceedings may not be by the same state as the 1979 tribunal, and ne bis in idem will not be available to bar a second proceeding against Ieng Sary, although retrial may still be discouraged. The status of the ECCC is not clear. The Pre-Trial Chamber has declared that the ECCC is an “independent entity within the Cambodian court structure,” and referenced a decision by the Appeals Chamber of the Special Court for Sierra Leone, which set out a number of characteristics of international courts.[20] The ECCC shares some of these characteristics, such as its establishment appearing to be “an expression of the will of the international community,” but not others, such as being clearly separate from the Cambodian judiciary.[21]

E. Other Considerations

Beyond the above requirements, common among international ne bis in idem provisions, there are other requirements less widely shared, which the ECCC may want to consider. The French Code of Penal Procedure, on which the Cambodian Code of Criminal Procedure is based, includes an additional requirement for the application of transnational ne bis in idem in certain cases: the accused must have served his sentence, or had it extinguished by limitation.[22] The Schengen Agreement, too, requires that any penalty imposed must either have been enforced, be in the process of being enforced, or no longer be able to be enforced.[23] Although these provisions concern the application of ne bis in idem among states, the ECCC may want to consider this requirement, even if Ieng Sary is being tried by the same state. Ieng Sary did not serve his sentence and, further complicating matters, had his sentence pardoned by King Sihanouk in 1996.

Some of the provisions outlining exceptions to ne bis in idem allow for additional proceedings only if there is a possibility of a different outcome. Under the French Code of Penal Procedure a newly discovered fact is grounds for a retrial if the fact is “liable to raise doubts about the guilt of the person accused.”[24] In the event of defective initial proceedings, the ECHR allows a retrial only if a fundamental defect in the initial proceedings could affect the outcome of the case.[25] In Ieng Sary’s case, this places the ECCC in the unfortunate position of evaluating counterfactuals to determine whether, absent the defects of the PRT, there would have been a different outcome.[26]



III. The Purpose of Ne Bis In Idem

Ne bis in idem exists to protect the accused, though it is related to res judicata and preserving the finality of judgments. It is designed to protect the accused from the hardships associated with multiple trials and multiple punishments, to prevent false convictions that result from trying an acquitted person until he is eventually convicted, and to allow the accused to be free from the hardship of knowing he could be tried again at any time. It is not clear that trying Ieng Sary again at the ECCC violates these objectives.

For the most part, Ieng Sary was free from these hardships, as he was not present at the proceedings and he was not subjected to any punishment. Arguably, the death sentence he received was itself a hardship, since presumably Ieng Sary believed it would have been carried out had he been captured (at least until Cambodia abolished the death penalty in 1989). Without more, though, it is difficult to see why Ieng Sary should be protected from additional proceedings, when he was largely untouched by the hardships of the original trial. In addition, this is not a case of an acquitted person being tried repeatedly until a conviction is achieved. Finally, while the accused should be able to rely on the finality of his conviction and not fear subsequent proceedings, this must be balanced with other objectives, such as those embodied in the limited exceptions to ne bis in idem discussed above. The need to remedy improper or defective initial proceedings may receive greater weight than the right of the accused to rely on the finality of his conviction.

[1] The Tribunal found Pol Pot and Ieng Sary guilty of what was termed “genocide”; however, the crime was not defined as in the Genocide Convention, and contained elements such as “forced evacuation of people from towns and villages” and “planned massacre of groups of innocent inhabitants.” Judgment of People’s Revolutionary Tribunal Held in Phnom Penh for the Trial of the Genocide Crime of the Pol Pot-Ieng Sary Clique (1979), reprinted in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary 523, at 547-549 (Howard J. De Nike et al. eds., 2000).

[2] Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as amended and promulgated on Oct. 27, 2004, NS/RKM/1004/006, Unofficial Translation by the Council of Jurists and the Secretariat of the Task Force, art. 33 new [hereinafter ECCC Law].

[3] See International Covenant on Civil and Political Rights, art. 14(7), opened for signature Dec. 16, 1966, 999 U.N.T.S. 171; Rome Statute of the International Criminal Court, art. 20, opened for signature July 17, 1998, 2187 U.N.T.S. 90; Statute of the International Tribunal for the Former Yugoslavia, S.C. Res. 827, art. 10, U.N. Doc. S/RES/827 (May 25, 1993); Statute of the International Tribunal for Rwanda, S.C. Res. 955, art. 9, U.N. Doc. S/RES/955 (Nov. 8, 1994); American Convention on Human Rights, art. 8(4), opened for signature Nov. 22, 1969, O.A.S. T.S. 36; European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 7, art. 4, opened for signature Apr. 11, 1950, Europ. T.S. No. 005; Convention Applying the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at Their Common Borders, arts. 54-58, June 19, 1990, 30 I.L.M. 84.

[4] The American Convention on Human Rights is the sole outlier among the instruments named above, in that it allows only a final judgment acquitting the accused to be grounds for ne bis in idem. American Convention on Human Rights, supra note 3, art. 8(4).

[5] ECCC, Prosecution’s Response to Ieng Sary’s Submission on Jurisdiction, Case No. 002/19-09-2007-ECCC/OCIJ, ¶¶ 9, 16 (Pre-Trial Chamber, May 16, 2008).

[6] Code of Criminal Procedure of the Kingdom of Cambodia, Khmer-English translation 2008, art. 12.

[7] That the ECCC must act in accordance with the relevant ICCPR provision is evident from the ECCC Law and the Cambodian Constitution. ECCC Law, supra note 2, art. 33 new; Constitution of the Kingdom of Cambodia art. 31.

[8] International Covenant on Civil and Political Rights, supra note 3, art. 14(7).

[9] See, e.g., EU Law 385-86 (Paul Craig & Graínne de Búrga eds., 4th ed. 2008) (discussing whether human rights instruments are a floor or a ceiling).

[10] Statute of the International Tribunal for Rwanda, supra note 3, art. 9; Statute of the International Tribunal for the Former Yugoslavia, supra note 3, art. 10.

[11] Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal Concerning the Scope of Evidence to Be Adduced in the Retrial, ¶ 16 (Mar. 24, 2009). Other ICTR and ICTY decisions refer to “same acts.” Prosecutor v. Bagosora, Case No. ICTR-96-7-D, Decision on the Application by the Prosecutor for a Formal Request for Deferral, ¶ 13 (May 17, 1996); Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Defense Motion on the Principle of Non-Bis-In-Idem, ¶ 9 (Nov. 14, 1995).

[12] Rome Statute of the International Criminal Court, supra note 3, art. 20.

[13] Loayza-Tamayo v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 33, at 27 (Sept. 17, 1997).

[14] European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 3, art. 4

[15] Tsonyo Tsonev v. Bulgaria (No. 2), European Court of Human Rights ¶ 51 (2010), http://c

miskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=TSONYO&sessionid=56315122&skin=hudoc-en.

[16] Statute of the International Tribunal for Rwanda, supra note 3, art. 9(2); Statute of the International Tribunal for the Former Yugoslavia, supra note 3, art. 10(2).

[17] Rome Statute of the International Criminal Court, supra note 3, art. 20(3). The comments on the 1996 Draft Code further explain the provision:

In such a case, the individual has not been duly tried or punished for the same act or the same crime because of the abuse of power or improper administration of justice by the national authorities in prosecuting the case or conducting the proceedings. The international community should not be required to recognize a decision that is the result of such a serious transgression of the criminal justice process.

International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries 1996, p. 38, U.N. Doc. A/51/10 (SUPP) (Sept. 9, 1996). The ECHR also provides for exceptions. European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 3, art. 4(2). While the American Convention on Human Rights does not include exceptions in its text, it too has been interpreted to provide for exceptions similar to those discussed above. Almonacid-Arellano et al v. Chile, Inter-Am. Ct. H.R. (ser. C) No. 154, at 62-63. (Sept. 26, 2006).

[18] The human rights bodies have touched on defective proceedings. The ECtHR has applied the ECHR provision for defective proceedings in the context of supervisory review of a final judgment, allowing for the reopening of proceedings in cases when there was a fundamental defect in the initial proceedings, where “fundamental defect” is akin to judicial or procedural error. Bratyakin v. Russia, European Court of Human Rights p. 5 (2006), http://cmiskp.echr.

coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=BRATYAKIN&sessionid=56900764&skin=hudoc-en. The ECtHR appears to draw a distinction between a retrial and the reopening of proceedings, classifying supervisory review as a reopening of proceedings. Nikitin v. Russia, European Court of Human Rights ¶ 46 (2004), http://cmiskp.

echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=NIKITIN&sessionid=56857150&skin=hudoc-en. The Inter-American Court of Human Rights has found the trial of a civilian before a military tribunal not to constitute a “real proceeding” for the purposes of ne bis in idem, as it violates “the principle of access to a competent, independent and impartial tribunal. . . .” Lori Berenson-Mejía v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 119, at 95 (Nov. 25, 2004).

[19] However, Helen Jarvis has argued that some of the features of the trial, including trying the accused in absentia, were in line with civil law tradition. Tom Fawthrop & Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal 47 (2004).

[20] ECCC, Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav Alias “Duch”, Case No. 001/18-07-2007-ECCC/OCIJ, ¶¶ 19-20 (Pre-Trial Chamber, Dec. 3, 2007).

[21] See SCSL, Decision on Immunity from Jurisdiction, Case No. SCSL-2003-01-I, ¶¶ 37-42 (Appeals Chamber, May 31, 2004).

[22] Code de procédure pénale [C. pr. pén] art. 692 (Fr.).

[23] Schengen Agreement, supra note 3, art. 54.

[24] Code de procédure pénale [C. pr. pén] art. 622 (Fr.)

[25] European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 3, art. 4.

[26] It is not clear what falls within the scope of “different outcome.” Surely a different judgment would qualify, but it is not apparent whether different charges or sentences constitute a different outcome. The ECtHR appears to focus on whether or not there were serious defects, rather than how they affect the outcome. Bratyakin v. Russia, European Court of Human Rights p. 5 (2006), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&port

al=hbkm&action=html&highlight=BRATYAKIN&sessionid=56900764&skin=hudoc-en.


Full paper, please click: http://www.dccam.org/Tribunal/Analysis/pdf/The_Extent_to_Which_Ieng_Sary's_Prosecution_if_the_ECCC_Is_barred_by_His_Prior_Conviction.pdf

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