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The 2005 Legal Training Project on
Criminal Defense before the Upcoming Khmer Rouge Tribunal
Report on the Legal Training of September 2005
This report describes the Legal Training, which took place at the
DC-Cam’s office from 19 to 30 September 2005.
I. The legal training’s sessions
1. Overview
The legal training’s sessions focused on “Criminal defense before the
upcoming Khmer Rouge tribunal (KRT)”.
The topics presented were the same than during the July and August
legal training. They are the following ones:
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An introduction to the upcoming KRT.
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The rights of the defendant.
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The role of the defense counsel before the KRT.
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Potential challenges for defense counsel before the KRT.
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Rights and duties of defense counsel before the KRT.
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Types of defenses.
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Defense’s motion and closing
arguments.
Those topics were presented in different fashions: lectures;
workshops; wrap up exercises (including questions and answers sessions
and drafting of essays); presentation and screening of a video on a
hearing before the ICTY (Milosevic case); visit to a courtroom and
monitoring of a criminal case; and screening of the documentaries
“Deacon of death” and “ S 21 : the Khmer Rouge Killing machine”
(September legal training’s agenda available on request).
2. Achievements
All the presentations made by the legal training team and the foreign
guest lecturers were translated into Khmer.
Most of the trainees confirmed to the legal training team that they
understood and were extremely interested in the topics presented. The
participation of the trainees during the lectures was very active.
During each training session, very pertinent and/or complex legal
questions were asked by the trainees to the guest lecturers or legal
training team.
In addition, during the workshops, all the trainees present performed
the assigned exercises in a committed manner. They were split into
different groups and were asked to prepare answers, which were later
presented orally by one or two representative persons of the group.
Finally, the wrap up exercises gave an additional chance to the
trainees to raise questions and to make comments on relevant issues,
while also allowing less confident trainees to take the floor.
3. Comments made by some of the trainees on the topics and forms of
the legal training’s sessions:
On the legal training’s topics:
“I liked this course. It made me understand about the relevant law
applicable before the KRT and about the ICCPR (articles 14 and 15).”
“Presenting the defendant’s rights and the role of the defense counsel
help people to understand the KRT’s [proceedings] and reduce the
social pressure on defense counsel.”
“I liked the topic such as role of defense counsel because it seems to
me that it is kind of a challenge before the KRT.”
“I liked the most the explanation of genocide, crimes against humanity
and rights of the defendant before the KRT”.
“I disagree because this training focused only on the role of the
defense counsel, but not on the role of the victims, right of
witnesses, role of prosecutor and judges.”
On the way the training was proceeding (lectures, workshops, etc…)
“I liked the way of lecturing by both Cambodian and foreign
lecturers.”
“I like the mixed presentation of lectures and exercises. It makes me
remember it.”
“The course has questions and answers sessions and presented
documentary films that made it easy for us to learn ….”
“The visit to the courtroom helped us understanding the court’s
procedure.”
II. Involvement of the foreign and Cambodian guest lecturers
Foreign guest lecturer I:
Abbe Smith,
professor of law and co-director of the Criminal Justice Clinic and E.
Barrett Prettyman Fellowship program at Georgetown University Law
Center, in Washington D.C., USA. Pr. Smith dealt with “the rights of
the defendants” and took part to four days of the legal training (days
2 to 5). Pr. Smith also facilitated the workshop on day 2 of the
training and took part in the wrap up exercise on day 5 of the
training.
Prof. Smith presented lectures on the following topics: the
presumption of innocence and right to a fair trial; the right to
defense counsel before the KRT; the right to adequate time and
facilities to prepare a defense and the right to call and examine
witnesses. Her presentations also involved some role-plays, as well as
the screening of excerpts of a video tape related to the right to have
a defense counsel.
The workshop on day 2 (a role-play) aimed at
giving the participants a better understanding of both the needs and
basic legal rights of the accused person, as well as the role, rights
and duties of the defense counsel at an early stage of the criminal
proceedings. During the
exercise,
the participants were divided into pairs of defense counsel and
clients. According to the role play’s scenario, the client was a 50
years-old farmer, who had just been charged by the KRT’s
co-prosecutors with having committed atrocities during the Khmer Rouge
regime. The setting was the first meeting between lawyer and client.
The wrap up exercise (on day 5) consisted of answering to numerous
written questions raised by the trainees on a variety of topics, which
had been dealt with during the week, such as for instance the
jurisdiction of the KRT, the law and procedure applicable before the
KRT, or the rights of the defendant.
Hereafter are some of the questions raised by the trainees:
“If it is found that there were other countries involved behind the
Khmer Rouge, will the KRT try those countries?”
“Could the KRT pronounce death sentence?”
“If both Cambodian and international judges cannot reach, at least, a
4-vote decision for a conviction of a Khmer Rouge leader, will this
person be acquitted?”
“Could accused persons defend themselves before the KRT?”
“Could the accused file a motion for dismissal of a judge at the KRT?”
Foreign guest lecturer II:
François Roux, a lawyer based in Montpellier, France, and
defense counsel before the ICTR. Mr. Roux dealt with “the role of the
defense counsel before the KRT” and “rights and duties of defense
counsel before the KRT” over two days (on days 6 and 7 of the
training).
Throughout his presentation, Mr. Roux explained the role, rights and
duties of defense counsel at each stage of the criminal proceedings,
both before an international criminal court, such as the ICTR (which
strongly draws on the common law system), and before French criminal
courts (which are civil law jurisdictions). He then correlated the
role of defense counsel before such national and international
jurisdictions with the expected role of defense counsel before the KRT.
Mr. Roux notably highlighted the importance of the role of the lawyer
during the investigation stage before the future KRT. The issue of the
role of the victims during the future KRT’s proceedings was also
raised.
Mr. Roux also facilitated a workshop, which was held on day 7 of the
training and which was similar to the workshop set up on day 7 of the
August training (see August report).
Foreign guest lecturer III:
Judge Timothy Clayson, Circuit
Court Judge in Northern England,
former international judge in Kosovo and former defense counsel before
the Sierra leone Special Court. Judge Clayson dealt with “types of
defenses” and “defense’s motion and closing arguments” and took part
in the last three days of the training (days 8 to 10).
In the course of his first presentation, Judge Clayson focused on the
importance of having an effective defense in serious criminal trials.
He initiated a discussion with the trainees on issues related to this
question. Among the issues raised by the trainees were the following
ones: “When a lawyer realises that his client is guilty, does the
lawyer cease to work on the case?”, or “In your view, how the
independence of judges can be ensured?”
During his second lecture, Judge Clayson reviewed the most common
defenses raised during criminal trials and gave concrete examples of
defenses, which were successful in some criminal cases.
Judge Clayson’s presentations were afterwards put into practice during
a workshop dealing with the same issues on day 9 of the training.
During the workshop, the participants were divided in two groups: a
“defense counsel group” and a “prosecutor group”. They were given a
case-study and were asked to prepare arguments and counter-arguments
that they presented afterwards in the course of a mock trial to Judge
Clayson, who was acting as a KRT judge.
Finally, Judge Clayson also facilitated the wrap up exercise of day 10
of the training
Cambodian guest lecturer:
Mr. Bun Honn, a trial attorney
and Secretary General of the Lawyers
Training Center,
dealt with “the rights of the defendants in practice in Cambodia” and
“the potential challenges for defense counsel before the KRT”. He took
part in the afternoon session on day 6 of the training.
Mr. Bun Honn gave detailed presentations on the rights of the
defendant in Cambodia before criminal courts. He also provided the
trainees with detailed outlines of his presentations.
III. Legal training’s materials
The legal training team prepared two volumes of course materials on
“criminal defense before the upcoming KRT” (see report on LTP – July
2005).
Both documents were distributed and presented to the trainees on 16
September 2005 and on the subsequent days. During the training, the
legal training team and guest lecturers regularly informed the
trainees about where in the course materials they could find some
specific information (such as: information on the interpretation of
the defense of duress by the ICTY in Volume I or provisions of the
Laws included in volume II, etc…).
The legal training team also distributed to the trainees the
translation in Khmer of chapter two (rights of the defendant), chapter
three (role of defense counsel
and potential
challenges faced by defense counsel before the Khmer Rouge tribunal)
and chapter four (rights and duties of defense counsel) of the
training material, Volume I.
Throughout the training, the trainees noticeably were using the
training materials Volume I and II: by highlighting parts of it or
reading aloud some of the laws provisions, etc…, which were mentioned
during the guest lecturers’ presentations.
IV. The trainees’ attendance
There are 31 participants taking part in the legal training. They are
as follows:
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15 villagers coming from 6 different provinces, including Kampong
Cham, Kandal, Pursat, Prey Veng, Svay Rieng and Kampot.
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10 trainee lawyers,
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1 practicing lawyer,
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2 law students,
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1 NGO program coordinator,
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2 DC-Cam volunteers.
The training session had a total of 18 morning and afternoon sessions.
The number of the participants to each training session varied between
16 and 27 persons.
V. General comments made by some of the trainees on the legal training
“I learned a lot from this course.”
“I will enjoy participating in the KRT process.”
“…everything in this course is so useful.”
“The training made me understand generally about defense counsel
before the KRT.”
“The course made me happy and focused”
“I enjoyed this course very much.”
“I think that this training is good because students and villagers
were given a chance to attend the legal course so that villagers can
bring this knowledge to their home villages and share with their
communities.”
Prepared by Héleyn Uñac
heleynunac@hotmail.com
and Dara
P.
Vanthan
truthpdara@dccam.org
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