The Presumption of Confidentiality at the ECCC

The Presumption of Confidentiality at the ECCC: The Need for Standards to Protect Private Investigations, Provide Consistent Public Access, and Increase Transparency

Krista Nelson, Seattle University School of Law
DC-Cam Summer Associate 2010


A. Background
The Extraordinary Chambers in the Courts of Cambodia (ECCC) is unique among internationalized criminal tribunals in that it functions within a domestic legal system. In light of its structure, the ECCC is to both uphold international standards of justice and serve as a model for the country of Cambodia. Following civil law practice, the ECCC operates under procedural rules far different from those of other tribunals; at the ECCC, investigating judges conduct lengthy investigations that are presumed to be confidential, with many party motions and judicial orders never made public. While the public’s right to open proceedings is preserved before the Trial Chamber, absent special circumstances, hearings before the Pre-Trial Chamber—addressing primarily appeals from orders of the Co-Investigating Judges (CIJs)—are conducted in camera. As a consequence public information about pre-trial proceedings has been extremely limited.
Yet the ECCC is also required to maintain transparency and keep victims informed throughout proceedings. Long investigations, large numbers of victims, and the detention of widely-recognized Khmer Rouge officials have led to increased demands for public information. Following the Co-Investigating Judges’ controversial order regarding the breach of confidentiality of the judicial investigation in 2009,[1] and more recently, the Pre-Trial Chamber’s warning to journalists for unauthorized disclosure of confidential information, questions regarding the balance of confidentiality and transparency in the ECCC remain.
First, given the unique structure of the ECCC, what are the contours of the presumption of confidentiality during the pre-trial period? Second, does the unique nature of the ECCC warrant additional measures to ensure greater public access?

B. Fundamental Principles of the ECCC: The Protection of Individuals, Transparency, and Inherent Specificities
Fundamental principles of the ECCC, established in Extraordinary Chambers in the Courts of Cambodia Internal Rules [hereinafter Internal Rules], Rule 21 (1) require that
[t]he applicable ECCC Law, Internal Rules, Practice Direction and Administrative Regulations shall be interpreted so as to always safeguard the interests of Suspects, Charged Persons, Accused and Victims and so as to ensure legal certainty and transparency of the proceedings, in light of the inherent specificity of the ECCC, as set out in the ECCC Law and the Agreement.[2]

Rule 21 thus requires that the interests of specific categories of individuals be balanced with the need to maintain legal certainty and transparency, and that these interests be considered in light of the “inherent specificity” of the ECCC. Inherent specificities is a vague reference, yet guidance can be sought from the ECCC’s own articulation of its principles, which can be distilled into two interrelated goals: to apply international standards of justice and to serve as a model for domestic Cambodian courts.
The language of Rule 21 thus suggests that governing laws of the ECCC, namely the Internal Rules, ECCC Law, and the Framework Agreement, be interpreted collectively, with consideration to the underlying purposes of the ECCC, rather than in isolation. The contours of the presumption of confidentiality similarly require not only a collective interpretation of the Internal Rules, but an analysis of the purposes behind the principle, as well as guidance from international law.

C. The Trend of Greater Public Access

Legal certainty and transparency, established in ECCC Internal Rule 21, are values shared by other international criminal tribunals. Of key distinction between these tribunals and domestic courts is their unique purpose to not only provide justice, but to facilitate national reconciliation. While confidentially protections remain a concern at these courts, namely to protect victims and witnesses and the integrity of the investigation, as the number of international criminal tribunals has grown around the world, so too has the general trend toward greater public access.
Among international tribunals, rules regarding confidentiality are divided into two subsets: 1) those that govern the prosecutor’s conduct during the investigation and 2) those that govern the chamber’s disclosure of information both in documents generally and the indictment in particular. While investigations are not expressly confidential in other tribunals, the prosecutor is afforded broad discretion during the investigation stage, similar to the discretion afforded Co-Investigating Judges at the ECCC. Nonetheless, the presumption among other international criminal tribunals appears to be that investigations are public, as circumstances that warrant non-disclosure are expressly provided in the rules of procedure. While rules governing both the prosecutor and judges apply at the pre-trial phase of other courts, the ability to keep information confidential becomes more limited once the investigation is complete, as the indictment is expressly deemed public.
The practice among other international tribunals suggests that despite the ECCC Co-Investigating Judges’ broad discretion to protect their investigation, there are limited justifications for keeping information confidential for that purpose, particularly once the closing order is filed.

D. The Presumption of Confidentiality at the ECCC and the Need for Standards
Unlike other internationalized criminal tribunals, yet consistent with domestic civil law systems, the Internal Rules of the ECCC establish that judicial investigations shall be presumed confidential. According to the Office of the Co-Investigating Judges, as a general rule, all documents and information included in the case file are confidential, even when the document includes common knowledge readily available to the public.
Despite the presumption of confidential investigations, the Office of the Co-Investigating Judges has said that the principle of confidentiality is flexible in order to provide the public with a minimum amount of information. Yet ECCC Internal Rules are silent as to standards upon which confidentiality decisions are to be based; similarly, the Office of the Co-Investigating Judges has not established any specific criteria for when it is essential to keep the public informed and has consistently remind the public that decisions are best made on a case-by-case basis.
An analysis of documents retained as confidential during the judicial investigation and those released to the public provides little guidance regarding the presumption of confidentiality. An analysis of the inconsistent nature in which pre-trial hearings are decided similarly reveals apparently arbitrary decisions by both the Co-Investigating Judges and the Pre-Trial Chamber. Yet ECCC Internal Rule 77 (14) establishes that Pre-Trial appeals shall be reasoned, providing in part, “All decisions under this Rule, including any dissenting opinions, shall be reasoned and signed by their authors.” While Internal Rule 77 does not expressly require that the orders of the Co-Investigating Judges be reasoned, the Pre-Trial Chamber has ruled that like Pre-Trial decisions, orders of the Co-Investigating Judges must also be reasoned.
The Pre-Trial Chamber has reminded the Co-Investigating Judges of their need to provide reasons in their orders, stating that “all decisions of judicial bodies are required to be reasoned, as this is the international standard.” The Pre-Trial Chamber has also outlined two key purposes of reasoned decisions: first, that the public and parties have rights to reasoned decisions and second, that in order to fulfill its own mandate to provide for reasoned decisions, the Office of the Co-Investigating Judges must clearly present the logic and reasoning on which the Pre-Trial Chamber is to base its own appellate rulings.
The lack of reasoned decisions or clear standards governing confidentiality has resulted in much criticism of the ECCC, directed by parties themselves, court monitors, and the Cambodian people. Public perceptions of potentially illegitimate court operations are problematic for both domestic and international perceptions of the ECCC, decrease public investment in the tribunals, and hinder the Court’s function as a domestic model.
At a minimum, the establishment of confidentiality standards, even without additional measures for public access, will increase investment in the ECCC. Similarly, knowledge that the ECCC is operating under clear standards will assure the public that there is a legitimate basis for confidential information, and that even though some information is protected, justice is being fairly administered; efficiency at the ECCC will likewise increase, as should the Co-Investigating Judges deviate from the standard or fail to provide reasoned decisions, they will be accountable to the parties and the public. Moreover, greater public education about how legitimate judicial investigations function will ensure that the ECCC serves as a model for the domestic Cambodian legal system.

E. Contours of the Principle of Confidentiality at the ECCC
Due to the ECCC’s lack of established rules or reasoned court decisions regarding the contours of confidentiality measures, guidance for appropriate limitations on the presumption of confidentiality requires an analysis of both the purposes of the principle of confidentiality, as articulated by the Court, as well as guidance from other international criminal tribunals. While consistency with domestic Cambodian procedure is an important factor to consider in drafting such standards, so too are the unique specificities of the ECCC.
The language of ECCC Internal Rule 56 establishes that the overarching principle behind confidentiality is to “protect the rights and interests of the parties.” The Office of the Co-Investigating Judges has also consistently articulated three specific reasons for the requirement of confidential investigations in order to ensure the quality of the judicial process: 1) the guarantee of the protection of privacy of those persons mentioned in the case file, 2) the presumption of innocence, and 3) efficiency and effectiveness in investigations.

i. Confidential Documents
The protection of victims and witnesses is the most often cited reason for restricting confidential information among international criminal tribunals. Considering the thousands of individuals who submitted complaints to the ECCC and have been incorporated into the case file, the number of persons potentially included in the privacy provision of confidentiality is expansive.
While the Co-Investigating Judges have said little regarding the protection of victims and witnesses, in practice they have limited the disclosure of information about people connected to the investigation. However given the unique nature of the ECCC, there may be situations in which protections of victims and witnesses are no longer required. In Cambodia, the number of Khmer Rouge victims totals thousands. The country’s tragic history makes victims abundant and many of these more than willing to share their stories. Thus the underlying purpose of confidentiality to protect victims’ privacy may no longer be necessary when those whom the provision is intended to protect voluntarily waive its application.
In the case of the ECCC, protective measures for victims and witnesses fearful of having information disclosed could be applied; however, where victims are not fearful and are willing to share their stories, there is little reason to withhold information for their protection. This proves especially true when considered in light of the ECCC’s role as a model court, which requires balancing the needs of specific individuals with the court’s greater obligations of legal certainty and transparency as established in Internal Rule 21.
Though Co-Investigating Judges’ public orders do not expressly cite the need for protecting the rights of the accused, it appears to be the primary objective of the privacy purpose of confidentiality frequently referenced at the ECCC. Yet in many cases, absent the discussion of witnesses or victims, or any other express reasons articulated by the court, there appears to be few reasons why the public distribution of information regarding accused persons was forbidden. A plain language reading of Rule 56, which states that the presumption of confidentiality is intended to “protect the rights and interests of the parties,” suggests that individuals may waive confidentiality measures created for their protection. This may be especially true when considered in light of Internal Rule 21’s mandate to balance the protection of parties with the public’s right to transparent proceedings.
The terms “efficiency in investigations” and “effectiveness of investigations” have been used interchangeably by the Co-Investigating Judges as justifications for the principle of confidentiality and are also highlighted reasons for the non-disclosure of information at other international criminal tribunals. It is likely that these two purposes principally aim to ensure speedy proceedings and impartial investigations, and the number of public withholdings that could arguably fall under this purpose of confidentiality is large.
Yet while the need for efficiency and effectiveness during the investigation remains an important consideration at the ECCC, the Co-Investigating Judges have acknowledged the need to release information when it is essential to keep the public informed, particularly in instances when information was made available to civil parties and certain journalists were permitted access to the judicial investigation. Other circumstances when it is essential to keep the public informed may similarly outweigh the need for confidentiality measures.
First, given the complex nature of the cases before the ECCC, the pre-trial period during which the public may be deprived of information is far longer than in most domestic civil systems that try less complex cases. Therefore, the need for efficient and effective investigations may no longer be as pressing over time when investigations span the course of many months. Furthermore, confidentiality measures for reasons of efficiency at the ECCC may also be reduced in light of Rule 21’s interest in transparency; though the ECCC is intended to serve as a model for Cambodian courts that utilize a confidential judicial investigation, in order to fulfill its mandate, the public must have some degree of understanding as to the basic proceedings of the Court. The public interest may therefore outweigh judicial efficiency in matters beyond those articulated by the Co-Investigating Judges.

ii. In Camera Hearings
Similar to its practices regarding document release, the Pre-Trial Chamber has not articulated any specific reasons for the presumptions of in camera hearings, nor do the Internal Rules establish any purposes behind the provision. Yet it appears that at least one underlying purpose for the presumption of in camera hearings is to uphold the integrity of confidential investigations, particularly confidentiality measures intended to protect victims and witnesses.
An established exception to the presumption of in camera hearings are circumstances in which a case may be brought to an end by a decision of the Pre-Trial Chamber. Other circumstances that may warrant a public hearing are unclear, as decisions appear to be made on a case-by-case basis. While hearings regarding pre-trial detention orders have been inconsistent, there is a growing trend at the ECCC toward holding these hearings partially in public and partially in camera.
One appropriate basis for determining whether or not to hold pre-trial hearings in camera may be the request of parties. Open proceedings are a fundamental right in a fair trial, as provided in the International Covenant on Civil and Political Rights; however, it is common practice among other international courts, including the ECCC, that the right to open proceedings does not apply during the pre-trial period. Nonetheless, as stated by the European Court of Human Rights, the public character of proceedings “protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to…a fair trial.”
In compliance with Rule 21’s mandate to balance the protection of accused persons and the needs for transparency, the ECCC should strongly consider public hearings when parties, especially the Defence, seek increased public scrutiny. Furthermore, allowing for public discussions of administrative manners while holding other aspects of proceedings in private would thus fulfill the ECCC’s transparency obligations under Internal Rule 21, and likewise protect the rights of victims and witnesses, also a concern addressed in Rule 21 and underlying purpose for the presumption of confidentiality.
A second basis for holding public hearings at the pre-trial stage is when the purposes for confidentiality are no longer necessary, especially considering ECCC Internal Rule 21’s mandate to provide for transparency whenever possible. Limiting the presumption of in camera hearings at pre-trial has support from both the Prosecution and Defence teams before the ECCC, as Defence teams have consistently advocated for more public pre-trial hearings. In comments on the Internal Rules, Court monitoring groups have also urged the ECCC to adopt procedures that require the Pre-Trial Chamber to be open to the public.
While public hearings may lengthen what are already complex and time-consuming proceedings, additional public access would not only provide the ECCC an opportunity to operate as a model for domestic courts, but would also increase public investment in the Khmer Rouge Tribunal by facilitating greater knowledge among the public. Similar to the establishment of standards governing document release, at the very least, clearly established factors for determining when pre-trial hearings may be held in public would provide the public with some sense that decisions are firmly grounded in the law.

F. Conclusion
An analysis of both the Co-Investigating Judges’ release of information to the public and the Pre-Trial Chambers’ allowance of public hearings reveals a seemingly arbitrary basis for granting public access to information at the ECCC. The absence of procedural rules defining the contours of the principle of confidentiality and the lack of reasoned decisions provided by the Court evidence the need for standards to establish the confines of the presumption.
In regard to document access, the ECCC should consider lessening stringent confidentiality measures created for the purpose of protecting victims and witnesses when those individuals are willing to speak publicly about their experiences and are not in objective danger. Similarly, the ECCC should consider allowing defendants to waive confidentiality measures created for their protection. Judicial discretion in confidentiality measures created for efficient and effective investigations should likewise be limited, considering transparency requirements of the Court established in Internal Rule 21.
Moreover, considering the unique nature of the ECCC, the Pre-Trial Chamber should revisit—and provide reasoning in—its decisions regarding in camera hearings. Greater deference to the requests of parties and strictly construing the presumption of in camera hearings would not only protect the fair trial rights of defendants, but also ensure that the ECCC is fulfilling its mandate to provide for transparency whenever possible.

[1] Order on Breach of Confidentiality of the Judicial Investigation, Case No. 002/14-08-2006 (Office of the Co-Investigating Judges, Mar. 3, 2009). The order was the subject of significant media attention and sparked criticism among the public due to the seemingly arbitrary nature in which the Co-Investigating Judges constructed the principle of confidentiality. Without a reasoned decision and in the absence of further guidance, it appeared as though the Co-Investigating Judges forbid the disclosure of any information not presently on the ECCC’s website.
[2] ECCC Internal Rules, R. 21(1) (emphasis added).

For a full report: http://dccam.org/Tribunal/Analysis/pdf/The_Presumption_of_Confidentiality_at_the_ECCC.pdf


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