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					Patricia O’Brien
Under-Secretary-General
Office of Legal Affairs
United Nations
New York, NY 10017
                                                                                             Richard J Rogers
                                                                               Lawyer for Suspect in Case 004
                                                                                      rjrogers@hotmail.co.uk

                                                                                                       5 June 2012



        RE: Interference in the Judicial Process by UNAKRT Office of Administration




         Dear Under-Secretary-General,

    1. I write as defence counsel retained by a suspect in Case 004 (“the Suspect”) at the
         Extraordinary Chambers in the Courts of Cambodia (“ECCC”).1 Knut Rosandhaug, the
         Deputy Director of the Office of Administration (“DDOA”), and Isaac Endeley, the Chief
         of the Defence Support Section (“DSS”), are continuing to flout a court order issued by
         the former UN-appointed international reserve Co-Investigating Judge, Laurent Kasper-
         Ansermet, and thereby undermining the rights of my client. 2 Because the national judges
         do not recognise the legality of Judge Kasper-Ansermet’s investigative work, including
         his orders, the Suspect is left without a practical and effective judicial remedy for the
         breach of his fair trial rights. Therefore, I am left with no choice but to request you to
         instruct the DDOA and DSS to comply with the court order.




1
  I act on the basis of a written Power of Attorney from the Suspect, dated 31 March 2012, a letter from the Suspect
confirming choice of counsel, dated 20 May 2012, and a Lawyer’s Recognition Order, dated 3 May 2012
2
  The right to engage counsel of choice is one of the most fundamental rights of a suspect, charged person or
accused. This right is enshrined in the ECCC Agreement, the ECCC Law, as well as the Internal Rules. The ECCC
Law Article 24 new reads: “During the investigation, Suspects shall be unconditionally entitled to assistance of
counsel of their own choosing, and to have legal assistance assigned to them free of charge if they cannot afford it.”
(Emphasis) Rule 21 of the Internal Rules provides that “every person suspected or prosecuted [...] shall be defended
by a lawyer of his/her choice.” Furthermore, pursuant to Article 17 of the ECCC Agreement, the UN agreed to be
“responsible for the remuneration of defence counsel.”


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           Relevant background:
      2. The United Nations Secretary-General, Ban Ki-moon (“UNSG”), has, through his
           spokesperson stated that “as the duly appointed international reserve Co-Investigating
           Judge, Kasper-Ansermet has performed his duties with full legal authority.”3 The view of
           the international judges on the Pre-Trial Chamber is consistent with the official UN
           position.4 Conversely, the national judges have taken the view that, because the Supreme
           Council of Magistracy did not officially appoint Judge Kasper-Ansermet, his
           investigative acts and Orders are not legally valid.5


      3. On 24 February 2012, Judge Kasper-Ansermet formally notified the Suspects in Case 004
           that they were under investigation and, in accordance with the Internal Rules of the
           ECCC, entitled to procedural rights and guarantees that attached to the status of a suspect,
           including the right to be defended by counsel of his/her choice. Around 14 March 2012,
           further to a request by Judge Kasper-Ansermet, the then Officer-in-Charge of DSS
           (“former OIC, DSS”) informed the Suspect that “[t]he DSS recommends that you choose
           a Cambodian and foreign lawyer to represent you.”6 On 26 March, the Suspect completed
           and signed DSS Form 7 (Engagement / Assignment of Co-lawyers), selecting myself and
           Mr Mom Luch to be his co-lawyers. The Suspect provided us both with a written and
           signed power-of-attorney, dated 31 March 2012, and a letter confirming his choice of
           counsel, dated 20 May 2012. On 3 May 2012, Judge Kasper-Ansermet issued a Lawyer’s
           Recognition Decision (“the Order”). The DDOA and DSS have refused to respect the
           Suspect’s choice of counsel or implement the Order.




3
  Statement by spokesperson for UNSG following resignation of Judge Laurent Kasper-Ansermet, SG/SM 14200
L/3190, dated 30 March 2012
4
  Public Opinion of Pre-Trial Chamber Judges Downing and Chung on the Disagreement Between Co-investigating
judges pursuant to internal rule 72, dated 10 February 2012
5
    Press Statement by National Co-Investigating Judge, 26 March 2012
6
    Letter from Former OiC to Suspect, dated 14 March 2012



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           Interference in the judicial process:
      4. Despite the unequivocal support for Judge Kasper-Ansermet from the UN, the DDOA
           and DSS have used their administrative authority to frustrate his judicial acts with respect
           to the assignment of the Suspect’s choice of counsel, by blocking my appointment and
           denying support.


      5. Initially, on 17 April 2012, Judge Kasper-Ansermet sent a letter to the DDOA
           recognising Mom Luch and me as “acting as counsel for” the Suspect, and stating, “in the
           interests of the rights of the suspect and due process, I request your office to act swiftly in
           the issuance of the relevant contracts so that the Counsel may provide effective
           representation.”7 The DDOA did not respond to this judicial request, let alone act on it.
           Rather, on 7 May, the very next working day after Judge Kasper-Ansermet’s last day at
           the court, the DSS sent a letter to my national co-lawyer, Mom Luch, (“Conflict Letter”)
           stating “I believe that Mr Rogers is disqualified from being on any defence team at the
           ECCC” for reasons of conflict of interest. Not only was this assertion of conflict based on
           incorrect facts and law, but it was also undertaken without any meaningful examination
           and in breach of due process requirements. The timing of the Conflict Letter was
           apparently intended to avoid any scrutiny from Judge Kasper-Ansermet - who was the
           only judge engaged on this matter - thus suggesting a lack of good faith. Above all,
           although the Conflict Letter was in direct breach of the Order, it has not been retracted.


      6. Later, on 3 May 2012, Judge Kasper-Ansermet issued the Order. Whilst the substance of
           the Order is confidential (to protect the name of the Suspect), the fact of the Order is not;
           nor is the fact that the DDOA and DSS have failed to comply with it. In breach of the
           Order, the DDOA and DSS have refused to take any action to recognise me as the
           selected co-lawyer for the Suspect (such as announcing my assignment/appointment) or
           to provide me with the resources necessary to provide an effective defence on behalf of
           the Suspect.




7
    Letter from International Reserve Co-Investigating Judge to Knut Rosandhaug, dated 17 April 2012


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7. Instead, on 18 May, the DDOA sent a memorandum to the National Co-Investigating
   Judge You Bunleng, requesting him to ‘clarify’ the Order of Judge Kasper-Ansermet,
   (“Clarification Request”). In the context of the ECCC, this was a blazen act of bad faith.
   Firstly, the views of Judge You Bunleng and Judge Kasper-Ansermet with respect to each
   others’ work are well-known: Judge You Bunleng does not recognise as legally valid any
   of the investigative acts or decisions taken by Judge Kasper-Ansermet (arguing that he
   had not been sworn-in by the Supreme Council of Magistracy). For his part, Judge
   Kasper-Ansermet has accused You Bunleng of obstructing and impeding the proper
   conduct of investigations. In this context, it would have been obvious to the DDOA that,
   if asked to clarify an Order of Judge Kasper-Ansermet, Judge You Bunleng would reject
   the legal validity of the entire Order, as well as the investigative acts that led up to it.
   That is, unsurprisingly, precisely what Judge You Bunleng did in his response.




8. Secondly, even though the Clarification Request questioned my assignment and thus
   concerned my client’s fair trial rights, the DDOA did not copy me (or my national co-
   lawyer) on the Clarification Request, inform me that it had been sent, ask me to give
   input, or provide me with the response. A striking lack of transparency considering the
   interests at stake. Thus, the Clarification Request was sent in clear breach of the basic
   rules of natural justice and due process. As of today, neither Mon Luch or I have been
   provided with a copy of the Clarification Request.




9. Lastly, there was no need for clarification since the words as well as the intended purpose
   of the Order are clear. The Order sought to recognise a lawyer-client relationship and -
   with apparent prescience - protect it from challenges from the Office of Administration. It
   was issued to compel the DDOA to implement Judge Kasper-Ansermet’s request of 17
   April 2012 “to act swiftly in the issuance of the relevant contracts so that the Counsel
   may provide effective representation”, which the DDOA had completely ignored. Had
   there been a genuine need to clarify the Order, the DDOA could simply have requested




                                                                                             4
        clarification from the author himself, Judge Kasper-Ansermet - there is no rule
        preventing a former judge from clarifying his own order.




    10. In other words, soon after the UNSG described the Supreme Council of Magistracy’s
        refusal to appoint Judge Kasper-Ansermet as being a “clear breach of the Agreement
        between the United Nations and the Royal Government of Cambodia”8, the DDOA has
        sought to ‘exploit’ the very same breach to actively undermine the integrity of Judge
        Kasper-Ansermet’s vital investigative acts. The acts affected include not only the
        recognition of the Suspect’s lawyers, but also the act of formally notifying the suspects of
        the judicial investigation (which led to the right to counsel). 9 The acts of the DDOA
        amount to interference in the judicial process.




        DSS refusal to implement the Order:
    11. Rather than respecting the words and spirit of the Order, the DSS has sought to create all
        manner of formalistic and technical reasons to refuse to comply with it. In doing so, the
        DSS has proceeded with a complete lack of transparency, due diligence, and due process.
        This gives rise to the perception that the DSS too has not acted in good faith.


    12. The first attempt was on 7 May, when the DSS sent the Conflict Letter one working day
        after Judge Kasper-Ansermet had left the ECCC (see above para 5). The latest attempt to
        obstruct the Order came on 30 May when the DSS sought to deny my application to be
        on the List of Lawyers (“List”).10 This denial is procedurally defective since I have been
        on the List since 30 March 2012. Following the DSS approval of my application for the
        List in July 2011, the only outstanding step to be ‘on the List’ was my registration with
        the Bar Association in the Kingdom of Cambodia (“BAKC”). I was duly registered on 30
        March 2012 and, therefore, have been on the List since that date. The DSS has seemingly


8
  Statement by spokesperson for UNSG, dated 20 January 2012
9
  One of the defence teams has opined that, “Mr Rosandhaug’s action in this regard reveals an ethically bankrupt
position.” Letter from Nuon Chea team to DSS, dated 29 May 2012
10
   See Letter from DSS to Mr Rogers, dated 30 May 2012


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           confused the act of registration (required for the List) with the act of being sworn-in by
           the Cambodian Appeals Court (required for full rights of audience).




       13. The underlying reasons provided in the DSS letter purportedly denying my application to
           the List are patently deficient. The first ‘reason’ given is a conflict of interest due to my
           former work at the DSS. As I have explained in my Conflict Check, there is no such
           conflict and, in any event, it is for me (or the parties) to assess any conflict, not the
           DSS. 11 The DSS view, which was taken without any meaningful examination, runs
           contrary to the view of the former DSS lawyers (who approved my application to be on
           the List), nine lawyers representing five defence teams (who provided letters stating there
           is no conflict), the Cambodian Bar Council (who registered me), as well as the
           Cambodian Court of Appeal (before whom I was sworn-in).




       14. The second ‘reason’ is equally misguided. Although I was approved as being qualified by
           two former DSS lawyers in July 2011, the new DSS Chief has sought to reverse that
           decision by claiming that I do not have the requisite 10 years experience in criminal
           proceedings. This is curious since I have been working as a lawyer for almost 18 years,
           primarily in international criminal law, with only two years on non-criminal matters. The
           inaptness of the DSS calculation is illustrated by the fact that my four years experience as
           Deputy and then Chief of DSS was not even counted as ‘relevant’; one has to wonder
           what experience would be more relevant.




       15. The third ‘reason’ is of most concern. Having received my letter of 25 May suggesting a
           lack of good faith on his part, the DSS Chief now - for the first time - argues that there
           are ‘ethical’ issues regarding my selection. His hypothesis appears to stem from the mere
           facts that, 10 years earlier, I had worked at the same tribunal as the former OIC of the
           DSS, and that I sat on a panel recommending her as a DSS legal officer. If such past

11
     See Conflict Check, dated 17 May 2012


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           connections were to become a basis for preventing future engagement, then the
           international criminal courts would come to a standstill.




       16. To support his hypothesis, the DSS has highlighted two so-called ‘irregularities’. First,
           the DSS questions why the initial request for my contract, submitted by the former DSS
           OIC, was as a ‘legal consultant’, rather than as a co-lawyer. Yet the new Chief DSS has
           been informed on multiple occasions (and by several actors) that selected co-lawyers
           have always been contracted initially as legal consultants until they are sworn-in. 12
           Indeed, concerned at the DSS Chief’s lack of “commitment to the DSS mandate” one
           defence team sent him a letter stating:

                   “As you must be aware, all Co-Lawyers at the ECCC were provisionally
                   appointed as Legal Consultants until they were sworn-in by the Cambodian Court
                   of Appeal. No Co-Lawyers were sworn-in prior to being selected by their clients.
                   Again, your position on this point raises the concern that your office may be
                   constructing unnecessary administrative hurdles rather than acting expeditiously
                   in the best interest of [the Suspect].”13

       17. Notably, on 30 April 2012, seemingly without fuss, the Chief of DSS appointed Anta
           Guisse to be a co-lawyer after she had been initially contracted as a legal consultant.14
           For the Chief of DSS to suggest that the request by the former OIC DSS was irregular,
           knowing full-well that it was precisely the same procedure that has been followed since
           the very start of the ECCC, was patently disingenuous.

12
  For example, see my letter to the DSS on 22 May: “My selection followed exactly the same procedure as the
selection of the Foreign Lawyers in all the other cases. Due to the prohibitively high fees required for registration at
the Cambodian Bar, the DSS has maintained a list of lawyers approved by DSS, but not yet registered with the
BAKC. This DSS list has always represented the pool of lawyers from which the suspects have chosen. After the
Foreign Lawyer has been selected and assigned to the case (initially under a legal consultancy contract), his
application for registration is forwarded to the BAKC. Once registered and Sworn-In, his form of contract is
changed from a legal consultancy to a Co-Lawyer. This procedure has been accepted by the OCIJ and BAKC in all
the previous cases at the ECCC.”

See also Press Release, dated 1 August 2007, announcing selection of Duch’s co-lawyers: “On 31 July 2007, Mr
Kaing Guek Eav selected two co-lawyers from the list to represent him before the ECCC, Mr KAR Savuth and Mr
François ROUX. [..] On 31 July 2007, Mr ROUX filed his application for registration with the Bar Association of
the Kingdom of Cambodia in Phnom Penh. Whilst Mr Roux's application is being considered he is not able to speak
to the court but has been appointed as a Legal Consultant to assist in the preparation of the case.”
13
     Letter from Nuon Chea team to DSS, dated 29 May 2012
14
     See DSS Press Release, 30 April 2012


                                                                                                                      7
18. Second, and stranger still, the DSS even questions whether I was actually selected by the
   Suspect. This is despite having been provided with:
       a. DSS Form 7 (Engagement / Assignment of Co-lawyers), dated 26 March, on
           which the Suspect requests my assignment as his co-lawyer, writes my name, and
           places his thumbprint;
       b. A handwritten power-of-attorney from the Suspect, dated 31 March 2012, in
           which he states “I have already met my co-lawyers: Mr Mom Luch and Mr
           Richard Rogers”;
       c. A handwritten letter from the Suspect, dated 20 May 2012, in which he refers to
           “my Cambodian and international co-lawyers, Mr Mom Luch and Mr Richard
           Rogers, whom I selected by myself to represent and defend me until the case has
           ended.”


19. It is difficult to see this empty allegation of an ethical conflict as anything but a malicious
   attempt to ‘muddy the waters’. As such, the making of the allegation in itself may be an
   ethical violation. To address all these ethical issues, I would recommend an independent
   inquiry, conducted by a reputable criminal law practitioner, into the professional conduct
   of all the main actors involved in this dispute, namely the DDOA, the Chief of the DSS,
   and myself.


20. Whatever the purported reasons, the simple fact remains: The DDOA and DSS have
   failed to implement a valid court Order issued to protect the rights of the Suspect. The
   words and spirit of the Order are clear. And the Order is valid until there is an equally
   valid court order overruling it, which is not the case as of today (the response of You
   Bunleng to the Clarification Request was a memorandum, not an order). Administrators
   cannot pick and choose which court orders to implement according to their personal likes
   and dislikes.




                                                                                                 8
         Violation of the Suspect’s rights:

     21. The Suspect has instructed Mom Luch and myself to “take the necessary action to have
         the investigation against me stayed or dismissed, as soon as possible.” Moving for the
         dismissal of the investigation involves complex issues of international human rights and
         criminal law. In order to provide an ‘effective defence’ on the basis of the client’s
         instructions, Mom Luch and I must both be engaged on this case and be provided with
         the necessary funding and support to do our work. The refusal to comply with the Order
         is adversely affecting our ability to pursue the Suspect’s instructions and provide an
         effective defence.15 Considering that the Suspect is 78 years old, in poor health, and is
         known publicly to be facing allegations of mass atrocities, this situation is seriously
         prejudicial.


     22. The refusal to implement the Order has undermined the Suspect’s right to counsel of
         choice and right to an effective defence, in violation of the ECCC’s Agreement, Law, and
         Internal Rules.




         The lack of remedy for the breach:
     23. The Suspect is presumed innocent and is entitled to recourse to a judicial system that can
         ensure protection of his human rights. According to international standards, fair trial
         rights must be interpreted in a way that is “practical and effective, as opposed to
         theoretical and illusory.”


15
  As stated in my Letter to the DSS, dated 25 May 2012 : “As you are aware, my client has instructed me to “take
the necessary action to have the investigation against me stayed or dismissed, as soon as possible.” Moving for the
dismissal of the investigation involves complex issues of international human rights and criminal law. Whilst my
national Co-Lawyer, Mr Mom Luch, is extremely experienced in Cambodian law, he does not have the required
expertise in international law. Therefore, in order to provide an ‘effective defence’ on the basis of the client’s
instructions, Mom Luch and I must both be engaged on this case. The co-lawyers system is accepted practice at the
ECCC (for all three parties) and is required to ensure the equality of arms. In practical terms, to pursue our client’s
instructions, we require adequate funding, support, and access to the case-file. Firstly, I have been working on this
case for two months without any payment (or a flight to Cambodia). Further, I have not been provided with a
counsel ID card to enter the ECCC or with office facilities. This lack of funding and support will ultimately
undermine my ability to act. Secondly, the international greffier informed me this week that to obtain access to the
case-file, I should first sign a contract.”


                                                                                                                     9
24. In most tribunals, the Suspect would have a remedy for breach of an order and violation
   of his rights through the court system. However, due to the position taken by the national
   judges vis-a-vis Judge Kasper-Ansermet’s work – namely, that none of his investigative
   acts are legally valid – the Suspect is left without a practical and effective remedy, either
   before the Office of Co-investigating Judges or before the Pre-Trial Chamber. The timing
   of the Conflict Letter suggests that this lack of remedy formed part of the DDOA and
   DSS’s calculation to flout the efforts by Judge Kasper-Ansermet to protect the rights of
   the Suspect.




25. In short, through no fault of his own, the Suspect is left with no effective judicial remedy
   for the breach of his rights by senior UN staff.




   The United Nations must remain vigilant:

26. Whilst I do not take a position on the legality of the national judge’s approach to Judge
   Kasper-Ansermet’s appointment, it is worth highlighting the striking parallels to the
   DDOA and DSS’s approach to my appointment. The national side refused to recognise
   the appointment of Judge Kasper-Ansermet; used formalistic arguments to override the
   spirit of the Agreement and fair-trial principles; and raised ethical concerns which
   (according to the UNSG) were “unfounded”. This, according to the UNSG, was a breach
   of the Agreement and “resulted in serious irregularities and violations of proper
   procedure that endanger and impede due process of law and the proper conduct of
   investigations in the two cases.” It would appear that the DDOA and DSS have now
   engaged in a similar approach with a corresponding result.




27. According to the UNSG “it is essential that the judicial process in relation to Cases 003
   and 004 be brought back onto a positive course.” He has also urged the Royal
   Government of Cambodia to “afford the new international Co-Investigating Judge every


                                                                                             10
           assistance and full cooperation to carry out his or her functions.” And warned that; “the
           United Nations will remain vigilant in its efforts to ensure that such assistance and
           cooperation are provided.”16




       28. The appointment of the Suspect’s choice of foreign co-lawyer under the Legal Assistance
           Scheme should have been straightforward. The Suspect has exercised his right to choose
           his counsel and has twice confirmed that choice in writing. I am clearly well-qualified
           and there is no conflict of interest. And the procedure followed by the former OIC of
           DSS was exactly the same as with every other appointment. The formalistic and/or
           unconvincing arguments raised by the DDOA and DSS to breach the Order and deny the
           Suspect his choice of counsel violate both the words and spirit of the Agreement, and
           flout the express view of the UNSG that the Orders of Judge Kasper-Ansermet are legally
           valid. The UN must now exercise the promised vigilance in relation to its own staff. The
           interests in this case are too important to descend into a bureaucratic farce.




           Request:

       29. In the interests of justice and to help ensure this case is ‘brought back onto a positive
           course,’ I respectfully request that you:


               a. Instruct the DDOA and DSS to comply immediately with the words and spirit of
                   the Lawyer’s Recognition Decision, dated 3 May 2012, issued by international
                   reserve Co-Investigating Judge Laurent Kasper-Ansermet;
               b. If deemed necessary, initiate an independent inquiry into the professional conduct
                   of the DDOA, the Chief of DSS, and myself, to be conducted by a reputable
                   international criminal law practitioner;
               c. Instruct the DDOA to refrain from interfering in any way whatsoever with the
                   judicial process in the future.


16
     UNSG Statement following resignation of Judge Laurent Kasper-Ansermet, SG/SM 14200 L/3190


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  30. Rest assured, Under-Secretary-General, that I shall continue to promote and protect the
      best interests of the Suspect on the basis of my power-of-attorney and the Order. And I
      shall explore all proper and lawful means to ensure that the Suspect is provided with an
      effective defence.



                     Yours sincerely,




                     Richard J. Rogers,
                     Phnom Penh




CC:   Judge Laurent Kasper-Ansermet
      Andrew Cayley QC, International Co-Prosecutor
      All defence teams
      Knut Rosandhaug, the Deputy Director of the Office of Administration
      Isaac Endeley, the Chief of the Defence Support Section
      Former Officer-in-charge, DSS




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