Ascertaining the Truth through a Partial Procedure: The Limited Obligations of the Co-Investigating Judges to Search for and Seek Exculpatory Evidence

Gina Cortese
Santa Clara University School of Law 2011
DC-Cam Summer Associate 2010

Background

The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) Internal Rules provide the Co-Investigating Judges with a duty to carry out their investigation impartially and to seek out any inculpatory and exculpatory evidence that may be conducive to ascertaining the truth. However, the duty of the Co-Investigating Judges to respond to the parties, in particular defense requests for investigation, and to what extent they must disclose potentially chargeable modes of liability, their investigation strategy, and their general line of inquiry is unclear.

1. Co-Investigating Judges Duty to Seek the Truth

Pursuant to the ECCC’s Internal Rules, the Co-Prosecutors conduct preliminary investigations to determine if evidence indicates that crimes within the jurisdiction of the ECCC were committed and to identify suspects and potential witnesses. The initial work of the Co-Prosecutors sets the parameters for the investigation. The Co-Prosecutors must provide an Introductory Submission to the Co-Investigating Judges, who may then take any investigative action conducive to ascertaining the truth. This power of the Co-Investigating Judges is consistent with Article 127 of the Cambodian Code of Criminal Procedure.

The central purpose of any civil law investigation is to ascertain the truth. Scholar Gregory Gordory explains, “This objective, where the main procedural rule is the search for truth, differs from the common law system, where “the truth” is viewed as the natural and logical result of a pre-determined process.”[1] At the ECCC, as in domestic civil systems, the law gives all necessary power to the investigating judges in order to guarantee freedom of action and enable them to perform their work. This gives the Co-Investigating Judges broad discretion when deciding how to gather inculpatory and exculpatory evidence in ascertaining the truth. It also is why, according to the Co-Investigating Judges, neither the systems put in place for the functioning of the Office of the Co-Investigating Judges, nor the internal discussions within the Office of the Co-Investigating Judges, are part of the case file or subject to disclosure to the parties. The rights of the parties to have access to the “results” of the investigations means access to the product of investigations, such as documents and records in the case file, and not information about the procedure followed by investigating authorities in analyzing the evidence that they have collected.

The ECCC Internal Rules limit the discretion of the Co-Investigating Judges by requiring that in all cases they conduct their investigation impartially, whether the evidence is inculpatory or exculpatory. However, it is difficult to assess whether this occurs in practice when a presumption of impartiality, derived from the Co-Investigating Judges’ oath of office, attaches to the judges. This places a high burden on an applicant to displace that presumption, and as scholar David Ormerod pointed out,[2] leaves little protection for the accused against deliberate or negligent failures to perform the investigative task fairly and effectively.[3]

These procedural issues need to be analyzed in the overall context in which they arise—a hybrid court trying senior leaders of the Khmer Rouge for crimes against humanity, genocide and violations of the Geneva Conventions. The presumption of innocence tends to change when suspects are accused of mass atrocities. It is indisputable that the acts occurred, and it is nearly impossible to deny the involvement of these specific persons. Ormerod, describing more generally the adversarial criminal justice system, pointed out that under such circumstances, the principal trial objective tends to be a focused inquiry into a single closed question: is the accused guilty of the offence charged? This results in a trial process that is “specific rather than sensitive—akin to the treatment of an ailment that has already been diagnosed where the instance is on resolving the problem, not investigating what the problem is.”

The power of the Co-Investigating Judges to take any action conducive to ascertaining the truth, and to refuse requests based on broad legal principals, raises the issue of whether they have a broad, unchecked discretion, limiting the rights of the parties to play a significant role in their own case, or whether the parties have a right to efficient recourse in the ECCC Internal Rules or international precedent and customary law.

2. Co-Investigating Judges Duty to Respond to Investigative Requests

Several challenges have been raised during the pre-trial investigation phases of Cases 001 and 002 as to whether fundamental principles regarding the rights of the accused are being protected. Specifically, the defense teams have raised concerns about the obligation of the Co-Investigating Judges to search the shared materials drive for exculpatory evidence; about the Co-Investigating Judges refusal to conduct witness interviews; and about the Co-Investigating Judges ability to request, seek and review exculpatory evidence.

The shared materials drive, or SMD, is a database accessible to all parties and the court through the ECCC search portal, containing documents and videos which have not yet been analyzed and put in the case file but are asserted to be potentially relevant to the case. Documents on the SMD comprise, among other items, records, interviews, newspaper clippings, and evidence of the structure and organization of the Democratic Kampuchea era. Defense teams have argued that the Co-Investigating Judges have a duty to investigate the SMD for potential exculpatory evidence. However, the Co-Investigating Judges have refused to review the materials on the SMD for this purpose. The Pre-Trial Chamber has upheld the Co-Investigating Judges decisions on this topic.

The defense teams have also expressed their concerns that their clients’ right to a fair trial has been impaired by the Co-Investigating Judges refusal to conduct witness interviews on behalf of the defense. The Co-Lawyers for Nuon Chea have requested interviews to be conducted and placed on the case file, but the Co-Investigating Judges have repeatedly denied such requests on the basis that similar or sufficient evidence already exists in the case file. This could potentially limit the right of the accused to have exculpatory evidence available, and ultimately their right to a fair trial.

The defense teams also have argued that their access to witness evidence and exculpatory evidence generally is limited due to a lack of clear investigatory standards and tests, as well as discrepancies in the Internal Rules as to whose burden it is to seek, review and include exculpatory evidence in the case file. Although the parties have a right to request investigative actions, the right offers little assistance when the Co-Investigating Judges have such broad latitude in refusing to comply.

a. Investigative Requests Defined

i. Types of Requests
The Rules do not clearly define what constitutes an investigative action. Nor do the Rules define the appropriate scope of an investigative request.

ii. Specificity of Request

Requests by the parties for the Co-Investigating Judges to make orders or undertake investigative action must meet a certain degree of specificity to ensure that the Investigating Judges understand the nature of the request. However, the Internal Rules do not provide a required degree of specificity, leaving it unclear whether the Co-Investigating Judges abuse their discretion to dismiss requests as unreasoned or unspecific, or whether the parties act irresponsibly in submitting requests, thereby impairing judicial economy.

Both the Co-Investigating Judges and the Pre-Trial Chamber have held that requests for investigative action must make out a prima facie basis as to why the Co-Investigating Judges should undertake the action. Several of the defense teams, including those for Ieng Thirith, Ieng Sary, and Nuon Chea, have contested the prima facie basis requirement, specifically as applied to requests to the Co-Investigating Judges to place additional files from the shared materials drive (SMD) in the Case File. The Pre-Trial Chamber stated that in the absence of any specific indication that any document on the SMD may be of exculpatory nature, the obligation to investigate exculpatory evidence does not, in itself, oblige the Co-Investigating Judges to review all materials contained in the SMD.

Thus, the Internal Rules do not stipulate an objective standard for the Co-Investigating Judges to follow in rejecting or accepting a request for investigative action, instead leaving it the discretion of the Co-Investigating Judges on a request-by-request basis.

3. Reasoned Opinion

The ECCC Internal Rules provide the Co-Investigating Judges with the discretion to reject requests generally for lack of specificity, yet maintain that it is the Co-Investigating Judges’ duty to provide reasons when granting or rejecting requests for investigative action.

Unfortunately, the Co-Investigating Judges have often failed to provide reasons, or have vaguely stated their rationale in dismissing requests, or have dismissed requests stating that the requests themselves were not sufficiently reasoned. This has, at times, made it impossible for the parties to determine the Investigating Judges’ actual basis for acceptance or rejection of their requests. Furthermore, when the Co-Investigating Judges reject requests, with the only reason being lack of specificity, the lawyers are not given enough information to be able to amend their request satisfactorily to have the investigative action performed.

Ultimately, the Co-Investigating Judges failure to provide coherent reasons for their decisions undermines the ability of the Pre-Trial Chamber to render decisions on appeal. In addition to requiring that the Co-Investigating Judges provide reasons, the Internal Rules stipulate that all decisions of the Pre-Trial Chambers shall be reasoned.

Although the ECCC Internal Rules may require that the Co-Investigating Judges provide reasons, the usefulness of this requirement is lost when it is supplanted by the Co-Investigative Judges right to deny requests on the vague reason that the requests are unspecific. In turn, the lawyers and the Pre-Trial Chambers are left unclear on how to make their requests more specific, making it harder for them to perform their own duties.

a. Standard of Review of Investigative Requests

i. Exculpatory Evidence Defined
A significant issue with regard to the balancing of rights is whether the duty of the Co-Investigating Judges to seek exculpatory evidence is limited to evidence that is determined to be exculpatory in nature, or whether it also extends to potentially exculpatory evidence. Exculpatory evidence is defined as evidence tending to establish a criminal defendant’s innocence.[4]

ii. Standard of Inclusion

Although the Internal Rules require that the Co-Investigating Judges provide factual reasons when ruling on requests for investigative action, the legal test for accepting or rejecting a request is unclear. The standard by which the Co-Investigating Judges must evaluate requests for investigative action turns on whether fulfilling such a request is conducive to ascertaining the truth. However, the Co-Investigating Judges appear to have used several different tests as their basis for evaluating whether certain requests are conducive to ascertaining the truth.[5] This has raised concern as to whether the investigation is a focused inquiry, or whether it is being directed by a partial and subjective discretion of the Co-Investigating Judges.

Absent a standard of investigative review in the ECCC Internal Rules, the Investigating Judges may act on an ad hoc basis without considering constraints on their power. For instance, the Co-Investigating Judges may have exceeded their power to reject requests when they determined that any investigative action that could have the effect of delaying the proceedings may be dismissed.

Despite the Co-Investigating Judges’ assessment that the right to an unduly delayed trial may be a reason for the preclusion of additional evidence, Article 14 of the ICCPR does not provide a hierarchy of the rights of the accused.[6] In fact, the right to be tried without undue delay is a minimum guaranteed right, part of the collective right of the accused to a fair trial. Thus, if any hierarchy were to be implied, the right to trial without undue delay would have to be weighed against whether protecting that right would contribute to or impair the fairness of the proceedings as a whole. The rights of the accused should not be divided to cut against one another. Nor may the right to a speedy trial be used as an excuse for the Co-Investigating Judges to avoid a comprehensive investigation into exculpatory evidence—the right belongs to the accused and to the accused alone to ensure his right to a fair trial.[7]

At most, the Co-Investigating Judges and Pre-Trial Chambers have put forth two requirements that must be met in order for the Co-Investigating Judges to agree to a request. The request must relate to a probative fact under investigation and the request must not be for something that would be unduly repetitive given the materials already in existence on the case file.

Unfortunately, neither standard is clear in practice when the Co-Investigating Judges do not explain their methodology in applying these standards. The defense teams need to understand what the Judges will consider “probative” and what exactly is included in the case file in order to be able to make efficient requests for investigative action.

4. Burden

a. Standard to be Applied

The responsibility of the Investigating Judges to collect and review evidence has been a particular issue for the defense lawyers, and one which they have contested before the Co-Investigating Judges and Pre-Trial Chambers. Structurally, the civil law system places the Prosecution and Co-Investigating Judges in a leading position to collect and review evidence and set the parameters of the case. This potentially narrows the line of inquiry and places the defense in a more passive position as compared with its adversarial and highly active role in the common law system. The defense teams alleged that the Investigating Judges have indeed focused only on proving the guilt of the accused, thereby impairing the right of the accused to the inclusion of exculpatory evidence in the case file.

International precedent, such as that from the ICC and ICTY, suggests that the defense should not bear the burden of searching for exculpatory evidence—that instead the Judges or Co-Prosecutors should bear the burden as both, due to the structure of the Court, have a more active role in the collection of evidence. The Co-Prosecutors thus should initially bear a strict burden of searching for and presenting evidence as part of the preliminary process of gathering materials to make out the case for the Investigative Judges. In overseeing an impartial investigation, the Co-Investigating Judges should ensure that the defense has the means to gather exculpatory evidence—whether this is through the Judges directly providing the means or through enforcing the Co-Prosecutors’ duty to do so.

5. Timing for Consideration

a. Internal Rules

The ECCC’s Internal Rules stipulate that if the Co-Investigating Judges do not agree with an investigative request, they shall issue a rejection order as soon as possible, and in any event, before the end of the judicial investigation. The lack of a specific timeframe in which the Investigating Judges must respond to investigative requests raises several concerns for the parties. If the Co-Investigating Judges choose to wait until the close of the investigation to reject a request, not only do the parties lose the motion, but also their right to effectively appeal the decision.

There appears to be agreement among international courts and tribunals that the prosecution is obligated to disclose the existence of exculpatory evidence to the defense. Implementing similar procedural rules for investigative judges regarding the disclosure of exculpatory evidence might better ensure a defense’s right to access, and receipt of, pertinent evidence to its case. Furthermore, the ECCC could benefit from mirroring procedural rules in place at other international courts and tribunals, such as Rule 84 of the ICC permitting the Trial Chamber to make any necessary orders for disclosure of documents or information not previously disclosed.[8] The ECCC may use such a rule to outline the timing and duties of the Co-Investigative Judges to disclose relevant evidence in place in other international courts and tribunals. The ECCC may operate more efficiently if such a rule corresponded with specific, articulated duties as to who must ensure the disclosure and within what time frame, rather than leaving it to the parties to make redundant requests for the disclosure of evidence and later appeal when requests are denied. Procedural rules providing for a more active role on the part of the Co-Investigative Judges would also facilitate the introduction of evidence at trial—helping to ensure that evidence is disclosed sooner, guaranteeing a more efficient trial.[9] This would potentially improve judicial economy in that the judges and prosecutors would be required to disclose and search for evidence in the preliminary aspects of the investigation, as opposed to minimal or nonexistent disclosure which may increase delays due to appeals.

a. Constructive Dismissal
The Pre-Trial Chamber at the ECCC has upheld the parties’ right to seek recourse through constructive dismissal. The Pre-Trial Chamber found that the failure of the Co-Investigating Judges to rule on a request as soon as possible, in the circumstances where a delay in making a decision deprives the Charged Person of the possibility of obtaining the benefit he seeks, amounts to a constructive refusal of the application which can be appealed under Internal Rule 74.
That being said, the Pre-Trial Chamber has made it clear that it would be improper to use the notion of constructive refusal to found a right of appeal where no substantive right exists. The Pre-Trial Chamber has stated its view that requests to put documents on the case file, such as requests to translate a document, qualify as requests for the Co-Investigating Judges to make an order, not a request for investigative action. The Pre-Trial Chamber noted that this difference is important, because only requests for investigative action contribute to ascertaining the truth. Under Internal Rule 74(3)(b) the right of the accused to appeal is limited to decisions on requests for investigation action, not requests to make such orders. This limits what the accused may appeal and what may be considered a constructive dismissal, in that the request must be appealable under Internal Rules 55(10) and 74(3)(b)—making it necessary that the request was for investigative action, and not merely for the Investigating Judges to act. In this way, the rights of the accused to recourse against the Co-Investigating Judges’ decisions are severely limited depending on how the request is categorized by the Judges and the Chambers.

Conclusion
The most pertinent lacunae in the ECCC Internal Rules with regard to exculpatory evidence are rules surrounding the scope of exculpatory evidence that should be included in the case file, and whether it is the Co-Investigating Judges or the defense teams’ burden to seek, investigate, and review exculpatory evidence. It is arguable that a necessary and natural component of the investigation in a civil legal system is for the Judges to be left with broad discretion in undertaking investigation and responding to requests. However, it is equally tenable that a lack of clear and finely drafted procedural rules results in a significant deficiency in judicial oversight. Judicial discretion when used improperly through ill-intentions or incompetence, jeopardizes the credibility of trial proceedings as a whole. The fact that the Pre-Trial Chamber has corrected the Co-Investigating Judges on the standard by which to respond to requests for investigative requests suggests that the lack of procedural guidelines as to the obligations of the Co-Investigating Judges has left too much discretion to Judges’ in their investigative process to ensure fairness. Although the Pre-Trial Chamber provides some oversight, it is questionable whether the rights of the defense are any better served when the Pre-Trial Chamber sends requests back to the Co-Investigating Judges on remand. Without a procedural mechanism or the threat of sanctions ensuring that the Co-Investigating Judges review the request on remand in a timely manner with the correct standard, the only purpose the Pre-Trial Chamber’s review serves is to further delay the Court proceedings.

Implementing procedural concepts from the civil law system into the ECCC Internal Rules has been a challenge given the unique circumstances of the Court. The Court’s cases involve national and international law, foreign lawyers with backgrounds in varying legal systems, a range of legal experience and competence, mixed national and international lawyer and judicial teams, and inflammatory charges stemming from a brutal history. Applying vague civil system procedure rules without considering how they fit into the context of the ECCC ignores the complexity of the Court and the challenges it inherently faces as a new court that won’t be around long enough to perfect its process through practice.

Furthermore, if Cambodia is able to justly try the senior leaders of the Khmer Rouge for international crimes, such success may be the most important component to the country’s reconciliation process and future. Alternatively, an impartial and unjust trial would not only leave questions as to the usefulness of the trials, but it could reaffirm international doubts of Cambodia’s competence, potentially leaving Cambodia in the same position as it was before the establishment of the ECCC.

Full report, please click: http://www.dccam.org/Abouts/Intern/Gina_Cortese_Memo--Investigative_Requests.pdf


[1] Gregory S. Gordon, Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Columbia Journal of Transnational Law, 45 Colum. J. Transnat’l L. 635, at 643 (2006-2007).
[2] David Ormerod, Improving the Disclosure Regime, 7 Int'l J. Evidence & Proof 102-129 (2003).
[3] Id. at 104
[4] Black’s Law Dictionary, “Evidence, Exculpatory Evidence,” 8th Edition (2004).
[5] E.g., The Co-Investigating Judges have at times referred to a sufficiency standard, a relevancy standard, and a prima facie basis standard.
[6] International Covenant on Civil and Political Rights, Article 14.
[7] Joint Defence Appeal from the OCIJ Order on the Request for Investigative Action to Seek Exculpatory Evidence in the SMD of 19 June 2009, Paragraph 33, July 24, 2009.
[8] International Criminal Court, Rules of Procedure and Evidence, Rule 84, “In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.”
[9] International Criminal Court Rules of Procedure and Evidence, Rule 81(5), “Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused.”

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