Right of the Accused to Remain Silent
The Right to Silence in Case 002/01
Prior to the final stage of Case 002/01, each of the Accused had exercised their right to silence as follows:
A) Khieu Samphan
Despite initially assuring the Chamber of his willingness to testify, Khieu Samphan later clarified that he was not prepared to answer questions regarding the historical background of the Khmer Rouge regime. Throughout Case 002/01, Khieu Samphan responded to questions posed by Civil Parties on a number of occasions, but expressed a preference to testify at the conclusion of the hearing once all the evidence had been presented. However, on 9 July 2013, Khieu Samphan informed the Court that he had decided to exercise his right to remain silent, citing violations of his right to a fair trial. See KRT Monitor Issue 8, Issue 44, Issue 39.
B) Nuon Chea
At the early stages of the proceedings, counsels for Nuon Chea did not state definitively whether their client would exercise his right to remain silent. However, throughout the course of Case 002/01, Nuon Chea responded to a range of questions posed by the Civil Parties and the Trial Chamber Judges. As discussed in KRT Monitor Issue 12, at one stage during the proceedings, Nuon Chea invoked his right to remain silent after he refused to comment on documents until the OCP produced the originals. On 17 July 2013, shortly before the conclusion of the evidentiary hearings, Nuon Chea proclaimed his lack of confidence in the Court and its ability to respect fair trial principles. For this reason, he confirmed that he was no longer prepared to respond to questions from the Civil Parties and OCP. See KRT Monitor Issue 68, Issue 6, Issue 7, Issue 8, Issue 11, Issue 13, Issue 15, Issue 39.
C) Ieng Sary
Prior to the termination of proceedings against Ieng Sary following his death in March 2013, Ieng Sary had consistently exercised his right to remain silent. As discussed in KRT Monitor Issue 5, Ieng Sary declared at the beginning of the proceedings that he would not provide any testimony throughout the proceedings. Nonetheless, he continued to participate in the proceedings by coming to court and instructing his lawyers.
Right not to be compelled to testify
At the commencement of Case 002/01, the Chamber confirmed that the Accused would not be compelled to answer questions. However, on several occasions throughout the course of Case 002/01, the Chamber appeared to coerce the Accused Khieu Samphan into answering questions, despite being informed unequivocally that he had elected to remain silent. Accordingly, counsel for Khieu Samphan claimed that the Chamber had failed to respect Khieu Samphan’s right to remain silent. On two prominent occasions described in KRT Monitor Issue 12 and Issue 8, defense counsel for Khieu Samphan objected after the Trial Chamber Judges repeatedly asked Khieu Samphan to comment on documents, despite the fact that he had previously informed the Court of his intention to remain silent. At one stage, defense counsel for Ieng Sary, Michael Karnavas questioned whether the Court was complying with international standards of justice, adding that the fact that the Judges had framed the question as a “comment” was still a form of coercion capable of violating the rights of the Accused. The Chamber denied the allegations, arguing that their actions did not constitute coercion because the documents in question pertained to the Accused.
Adverse Inferences drawn from silence
The three Accused have invoked their right to remain silent at different stages of the proceedings in Case 002/01. From the outset, and prior to his termination from the proceedings, Ieng Sary informed the Court that he would exercise his right to remain silent for the duration of the trial. However, issues arose in relation to the decision of the remaining two Accused—Nuon Chea and Khieu Samphan, to alternate between exercising their right to silence and responding to questions. Although throughout the evidentiary hearing the two Accused declined to answer questions on occasion, Khieu Samphan and Nuon Chea informed the Court that they were prepared to respond to questions after the OCP had concluded its presentation of evidence. However, shortly before this was scheduled to occur, Khieu Samphan, followed closely by Nuon Chea, informed the Court they had changed their minds and were no longer willing to testify.
In response to this, the OCP asked the Chamber to draw adverse inferences against the Accused. This was strongly contested by the defense teams, who argued that to do so would render the right meaningless and requested the Chamber to consider the issue as part of its final deliberation. The Chamber did not rule finally on the issue. However, it did confirm that the manner in which the Accused had testified would form part of its overall assessment of their guilt or innocence. Importantly, and consistent with international practice, the Chamber also confirmed that it would not make a finding of guilt based “exclusively on an adverse inference—drawn from silence.”
For more information, see the following AIJI issues of KRT Monitor: Issue 5, Issue 6, Issue 7, Issue 8, Issue 9, Issue 11, Issue 12, Issue 13, Issue 15, Issue 19, Issue 39, Issue 44, Issue 60, Issue 67, Issue 68
Authored by Chhayrath Tan and Melanie Hyde
 ECCC Law on Establishment, Art. 35 (g) (new).  ECCC Internal Rules (IR), art. 21 (d).  Cambodian Constitution 1993, Art. 31; and Code of Criminal Procedure of Kingdom of Cambodia, 10 August 2007. Art. 143.  International Covenant on Civil and Political Rights (ICCPR), Art. 14.  AIJI. KRT Trial Monitor Case 002 Issue No. 44 (Hearing on Evidence, 22-23 November 2012) and No. 60 (Hearing on Evidence, 20-23 May 2013).  ECCC Transcript E1/25.1 (12 January 2012). Lines 21-23. 40.  ECCC Transcript (23 November 2011). Lines 11-15. 7. See also CASE 002/19-09-2007-ECCC/TC. Defense for Ieng Sary. “Ieng Sary’s Notice to the Trial Chamber that he will not Testify During Trials” (24 October 2011). E101/14.  ECCC Transcript E1/63.1 (18 April 2012). At lines 3-6. 40. Also see KRT Trial Monitor Case 002 Issue No. 19 (Hearing on Evidence, 18-20 April 2012) p. 4.  See AIJI. KRT Trial Monitor Case 002 Issue No. 8 (evidentiary hearing, 10-12 January 2012). p. 9.  Transcript E1/26.1 (12 January 2012). Lines 17-24. 59. Also see AIJI. KRT Trial Monitor Case 002 Issue No. 8 (evidentiary hearing, 10-12 January 2012). p. 9.  ECCC Transcript E1/41.1 (09 February 2012) at lines 23-24. 6. Also see AIJI. KRT Trial Monitor Case 002 Issue No. 12 (evidentiary hearing, 6-9 February 2012). p. 5.  Ibid, at line 16-24.