Cambodia: Prosecutor v. Kaing Guek Eav Alias Dutch (2009)

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A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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