The pre-trial chamber of the UN-backed Khmer Rouge Tribunal yesterday issued a conflicting decision over the closing order in case 004/2 against former Khmer Rouge cadre Ao An, leaving the case in limbo.
According to the judges’ decision, the pre-trial chamber failed to reach a majority decision on whether An’s case falls under the court’s jurisdiction.
“[The court] declares that it has not assembled an affirmative vote of at least four judges for a decision based on common reasoning on the merits,” the judges said. “The co-investigating judges’ issuance of the two conflicting Closing Orders was illegal, violating the legal framework of the ECCC.”
In a separate statement, the Extraordinary Chambers in the Courts of Cambodia said the decision is not subject to an appeal.
“The Pre-Trial Chamber was faced with, for the first time in judicial history, two conflicting closing orders, emanating from one single judicial office.”
It said the National Co-Investigative Judge issued an order dismissing all charges against An.
Ao An, known as “Ta An”, was a former Khmer Rouge deputy secretary of Democratic Kampuchea regime’s Central Zone and Sector 41 secretary.
He was charged in 2015 with premeditated homicide and crimes against humanity. In 2016, he was charged with additional crimes, including genocide.
In August 2018, the co-investigating judges issued separate closing orders against An. The national co-investigating judge issued a dismissal of the case, finding that An did not fall within the personal jurisdiction of the court.
However, the international co-investigating judge indicted him for genocide, crimes against humanity and violations of the 1956 Cambodian Penal Code.
The differing closing orders prompted an appeal for the case to be re-heard and on 19, 20 and 21 of June, the pre-trial chamber held a hearing in case 004/2 to hear the arguments of the parties.
The statement said in the decision the national judges considered that the national co-investigating judge carried out the judicial investigation in a comprehensive manner and found that the national co-investigating judge’s closing order dismissing the case against An is legally justified and should be upheld.
“The national judges concluded that the international co-investigating judge’s closing order [indictment] sending Ao An to trial shall be annulled and the national co-investigating judge’s closing order dismissing the case against Ao An shall stand,” the statement said.
It said the international judges concluded that the national co-investigating judge’s issuance of the closing order dismissing the case against An is ultra vires and void while the international co-investigating judge’s order.
“The National Judges concluded that the International Co-Investigating Judge’s Closing Order (Indictment) sending Ao An to trial shall be annulled and the National Co-Investigating Judge’s Closing Order Dismissing the Case against Ao An shall stand,” the statement said.
Mom Luch, a national lawyer for An, said yesterday said he still studies the decision as it is very complicated.
“It is a complicated case,” Mr Luch said. “So, when they could not get an affirmative vote of at least four judges for a decision, they could not send the case to trial.”
Speaking to VOA Khmer in Battambang province early this week, An denied that he had committed crimes.
“I did not commit any serious crimes and I already informed my lawyers. So, the accusation against me is wrong,” he said. “We just did farming to solve the people’s livelihoods.”
“They accused me of a leader of the regime’s Central Zone but I was not. I was only responsible for economic affairs and solved the people’s livelihoods,” he told VOA. “I was not the most responsible person.”