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Legal news from Wednesday, May 18, 2011

UN urges DRC to strengthen rule of law
Julia Zebley on May 18, 2011 3:54 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official website] and the UN Security Council [official website] called Wednesday for continued reforms in the Democratic Republic of the Congo (DRC) [JURIST news archive] in order to strengthen the country's rule of law. President of the Security Council, Gerard Araud, spoke [text] on the DRC's "peace and security, the forthcoming elections, governance and institution building, and economic development":
The Security Council stresses the need for urgent progress, with regard to governance and institution building, on judicial reform and support to domestic courts, in order to ensure the rule of law and strengthen the fight against impunity. In this regard, the Council notes the interest of the Congolese authorities for establishing specialized mixed courts to address serious violations of international humanitarian and human rights law, complemented by their existing cooperation with the International Criminal Court.
Earlier, Ban also discussed [text] these four areas for development and emphasized the continued importance of the UN Mission in the Democratic Republic of Congo (MONUC) [official website]. Both focused on the continued prevalence of sexual assaults in the nation. In response, the DRC called for the UN to withdraw from the nation [AFP report].

The DRC continues to be a center for turmoil in Africa. In March, a military court sentenced 11 army officers [JURIST report] to prison for raping more than 20 women last year. The same court found Lt Col Kibibi Mutware guilty of involvement in mass rapes [JURIST report] that took place on New Year's Day and sentenced him to 20 years imprisonment, dismissing him from the military. Eight of his troops were also given prison sentences of between 10 and 20 years and expelled from the army for their involvement in the attack. The DRC has been called the rape capital of the world [BBC report] by senior UN officials. Members of the UN Security Council expressed "outrage" [statement] last August over a different mass rape in the DRC, calling for justice for the victims [JURIST report]. In December 2009, Human Rights Watch (HRW) [advocacy website] urged MONUC to stop funding military groups [JURIST report] in the country that are committing human rights abuses. MONUC has been operating in DRC since 1999. The conflict in the DRC has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.

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Ivory Coast president asks ICC to launch probe into crimes after disputed election
Zach Zagger on May 18, 2011 3:30 PM ET

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[JURIST] Ivory Coast President Alassane Ouattara [BBC profile] has asked the International Criminal Court (ICC) [official website] to launch an investigation into alleged crimes committed as a result of the disputed presidential elections last November, according to a letter [text, PDF, in French] dated May 3 and published to the ICC website Wednesday. The letter asks ICC chief prosecutor Luis Moreno-Ocampo [official website] to bring an impartial investigation [AFP report] into the most serious crimes since the November 28 election. Ocampo has said that his office will launch a formal investigation into the mass killings. Ouattara was sworn into office [WSJ report] earlier in May after months of conflict between his forces and those loyal to former president Laurent Gbagbo [BBC profile] who refused to leave office. Ouattara's forces, with the help of French military, finally captured Gbagbo in April after besieging his residence.

In April, a Human Rights Watch [advocacy website] report urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also last month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence. The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] had urged all parties in the Ivory Coast to show restraint and called for an independent investigation into post-election violence [JURIST reports]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent.

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Bulgaria government approves bill targeting organized crime
Julia Zebley on May 18, 2011 2:53 PM ET

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[JURIST] The Bulgarian government passed a long-delayed bill on Wednesday that allows "civil confiscation" of assets before conviction. This allows the Commission for Establishing of Property Acquired from Criminal Activity [official website] to launch investigations of people who cannot account for their income [Reuters report], in a move designed to target organized crime. The bill has yet to be passed by the parliament.

The European Commission (EC) [official website] released reports [JURIST report] in March 2010 that said Bulgaria [report, PDF; summary, PDF] needed to do more to combat corruption and organized crime and conduct judicial reforms in order to enjoy its full rights as a member of the European Union (EU) [official website]. In January 2007, Bulgaria and Romania officially joined the EU [JURIST report] following six years of accession negotiations. Both countries have been required to comply with a series of benchmarks. Failing to do so could result in EU intervention and the potential loss of economic aid under Articles 36-38 of the Act of Accession [text], which lays out safeguard mechanisms [EC backgrounder] in the event of problems posing a threat to the functioning of the EU.

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ICC warns Libya regime against covering up possible war crimes
Julia Zebley on May 18, 2011 1:58 PM ET

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[JURIST] The International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] declared on Wednesday that any authority attempting to cover up crimes in Libya will be held accountable. In a letter sent to Libyan Foreign Minister Abdelati Obeidi [AFP report], Ocampo warned against diplomats covering up crimes for Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive]. Further, Ocampo alleged that cover-ups in Libya go so far that any trace of a crime is destroyed [Middle East Online report]. Ocampo announced Monday that he is seeking arrest warrants [JURIST report] for Gaddafi and two others in his "inner circle" on charges of crimes against humanity. Libya's government spokesman Mussa Ibrahim dismissed this, stating the court has no jurisdiction over Tripoli and denied that any war crimes had occurred.

Ocampo had previously said that his office was planning to seek five arrest warrants [JURIST report] in connection with Gaddafi's administration. He indicated that there was strong evidence of Gaddafi's involvement in various crimes against humanity, including the shooting of civilians, massive arrests, torture and forced disappearances. Ocampo revealed in April that his office had uncovered evidence [JURIST report] that Gaddafi planned to attack civilians to forestall regime-toppling revolution. Ocampo indicated that the plans were made in response to the conflicts in Tunisia and Egypt and included shooting civilians. In March, Ocampo told the press that he was 100 percent certain his office would bring charges [JURIST report] against Gaddafi. Also in March, the ICC launched a probe into allegations of crimes against humanity [JURIST report] by the Libyan government.

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ECCC judges order prosecutor to retract public request for further investigations
Zach Zagger on May 18, 2011 1:46 PM ET

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[JURIST] Judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Wednesday ordered [order, PDF] a prosecutor to retract statements requesting further investigation into those responsible for war crimes committed under the Khmer Rouge [BBC backgrounder; JURIST news archives] regime. Co-Investigating Judges You Bunleng and Siegfried Blunk [official profiles] issued the order demanding that Co-Prosecutor Andrew Cayley retract his statement within three days. Cayley released a statement [press release] to the public that he had requested further investigation by the court into ECCC Case 3 [materials]. He said the information was released pursuant to tribunal rules "to ensure that the public is duly informed about ongoing ECCC proceedings." The judges, however, said Cayley breached the tribunal's confidentiality and ordered the retraction, though did not say what the penalty would be for failure to comply. Some critics believe that the investigation into ECCC Case 3 was ended prematurely [AP report] after demands by Cambodian Prime Minister Hun Sen [BBC profile] to limit the prosecutions.

Last October, Hun Sen informed UN Secretary-General Ban Ki-moon [official website] in a meeting that the government will not allow [JURIST report] the prosecution of low-ranking Khmer Rouge officers by the ECCC. Earlier this week in ECCC Case 2 [materials], a panel of judges denied a motion for pretrial release [JURIST report] by former Khmer Rouge official Ieng Sary [ECCC backgrounder; JURIST news archive]. Ieng, 85, served as deputy foreign minister under the Khmer Rouge regime during its reign in Cambodia from 1975-1979. Citing the ECCC rules and the Cambodian rules of criminal procedure, he argued that the court had no authority to detain a prisoner for more than three years without certain substantive rulings, making his detention illegal since November 2010. Ieng's co-defendants Nuon Chea, Khieu Samphan and Ieng Thirith [ECCC backgrounders] have all challenged pretrial custody unsuccessfully. In March, Kaing Guek Eav [ECCC backgrounder; JURIST news archive], a former prison chief at the notorious Toul Sleng prison under the Khmer Rouge, better known as "Duch," appealed a 35-year sentence for war crimes and crimes against humanity handed down by the ECCC [JURIST reports] last July. The conviction was the court's first since its founding in 2006.

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Rhode Island committee sends civil union bill to House
Julia Zebley on May 18, 2011 12:46 PM ET

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[JURIST] Rhode Island's House Judiciary Committee [official website] sent Bill 2011-H6103 [text, PDF] to the House floor [official website] after a 9-3 vote [AP report] in favor of it on Tuesday. The bill was introduced earlier this month [press release] and is modeled after similar laws in Illinois, Delaware and Hawaii [JURIST reports], granting all rights of marriage to same-sex couples. The bill, considered a compromise between gay and anti-gay rights activists, has upset both groups [AP report]. The House is expected to vote [materials] on the bill on Thursday.

Same-sex marriage [JURIST news archive] continues to be a controversial and divisive issue through the US, although a recent poll [materials] suggests support for legalization is growing. The Minnesota Senate [official website] earlier this month approved a voter referendum [JURIST report] to amend the constitution to ban same-sex marriage. Last month, a Montana judge dismissed a lawsuit [JURIST report] that had called for the state to provide legal status to same-sex relationships. Also in April, the Indiana Senate [official website] overwhelmingly approved [JURIST report] an amendment to the state constitution that would ban same-sex marriage or any "substantially similar" status, and the Wyoming Senate [official website] in February approved a bill that would void in Wyoming any same-sex marriages and civil unions [JURIST report] performed in other jurisdictions. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].

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Israel ex-president prison sentence delayed pending appeal
Julia Zebley on May 18, 2011 11:33 AM ET

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[JURIST] Former Israeli president Moshe Katsav [BBC profile; JURIST news archive] had his seven-year prison sentence for rape and sexual assault delayed Wednesday pending the completion of his appeal [JURIST reports]. The Supreme Court of Israel [official website, in Hebrew] also ruled earlier that the 300-page appeal will be made public [Ynet News report] in the future under court restrictions. The Tel Aviv District Court [official website] convicted Katsav [JURIST report] in December, finding that he assaulted a female employee of the Department of Tourism during his time as minister and two women at the President's Residence during his time as president. Katsav's appeal puts forth that his relationship with the female employee was consensual and the trying judiciary was biased against him due to the media's pervasiveness during the trial.

Katsav was initially indicted on rape charges [JURIST report] in 2009 for allegedly assaulting female employees in the 1990s. In 2008, Katsav rejected a plea agreement [JURIST report] that would have permitted him to plead guilty to lesser charges of indecent assault, sexual harassment and obstruction of justice in exchange for a suspended sentence and the dropping of rape charges. The plea deal had been criticized [JURIST report] by women's and civil rights activists, prompting five separate petitions to overturn the agreement.

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Argentina officers sentenced to life in prison for 'Dirty War' massacre
Julia Zebley on May 18, 2011 10:40 AM ET

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[JURIST] Eight former Argentine military officers were convicted on Monday of liability for the massacre of Margarita Belen [Provincial Commission for Memory materials, in Spanish] during the nation's 1976-1983 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. The massacre involved the torture and execution of 22 political prisoners mostly belonging to the Montoneros, an urban guerrilla rebel group, on December 13, 1976, as they were transported between prisons. The military maintained that the prisoners were armed and attacked them. One officer was found not guilty [Clarin report, in Spanish].

Argentina continues to prosecute those accused of committing human rights abuses during the Dirty War. An Argentine federal court in April sentenced [JURIST report] former general Eduardo Cabanillas to life in prison for his involvement in the Dirty War. Former general Luciano Benjamin Menendez, already serving a life sentence, was sentenced to an additional life sentence [JURIST report] in March for the attack and murder of five urban guerrilla group members. Also in March, an Argentine court commenced the trial of former dictators Jorge Videla [Trial Watch profile; JURIST news archive] and Reynaldo Bignone [JURIST news archive] for allegedly overseeing a systematic plan to steal babies [JURIST report] born to political prisoners. In December, Videla was sentenced to life in prison [JURIST report] for crimes against humanity. Videla's trial commenced in July after he was charged with an additional 49 counts [JURIST reports] of murder, kidnapping and torture last May following the identification of 40 bodies in Buenos Aires in 2009. Also last May, Argentine authorities arrested [JURIST report] former secret service agent Miguel Angel Furci on charges of human rights abuses. Furci, a former agent of the Secretariat of State Intelligence (SIDE), was charged with 70 kidnappings and the torture of detainees at Orletti.

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Myanmar releasing nearly 15,000 prisoners after UN visit
Zach Zagger on May 18, 2011 10:33 AM ET

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[JURIST] Myanmar began releasing as many as 15,000 prisoners Tuesday as part of an amnesty program after a visit from a special envoy from the UN secretary-general, but rights groups claim the government has not gone far enough. On Monday, President Thein Sein issued an order [UPI report] commuting death sentences to life sentences and commuting prison sentences by one year. The UN secretary-general's envoy to Myanmar, Vijay Nambiar [official profile], visited the country from May 11-13 and called on the government to release all of its political prisoners. But few of the prisoners being released by the government are political prisoners. Elaine Pearson, deputy Asia director at Human Rights Watch, criticized the response [press release]:
The government's gesture will be welcomed by a great many prisoners in Burma, but for the 2,100 political prisoners unjustly serving sentences of up to 65 years, the one-year reduction is a sick joke. This is a pathetic response to international calls for the immediate release of all political prisoners.
HRW is also calling on Myanmar to eliminate the death penalty entirely. The government maintains its position that it is not detaining any political prisoners [AP report].

In March, Myanmar underwent a transfer of power [BBC report] from a military regime to a civil system after holding its first elections in 20 years. However, critics argue that the new regime is merely a sham since it is made up of military generals and with the military party winning 80 percent of the vote. Last December, a UN Human Rights Council (UNHRC) [official website] expert Tomas Ojea Quintana [official profile; JURIST news archive], a UN Special Rapporteur, urged Myanmar's military government [JURIST report] to release 2,202 political prisoners. Quintana called for the release of the "prisoners of conscience," many of whom, he says, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy. Last November, Myanmar's government released pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive], ending her almost eight years under house arrest. UN Secretary-General Ban Ki-moon [official website] hailed her release and encouraged the country to release all political prisoners [press release]. Suu Kyi's release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest.

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Khodorkovsky files appeal, seeks probe against judge
Julia Zebley on May 18, 2011 9:15 AM ET

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[JURIST] Lawyer for former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] on Tuesday appealed [executive summary, PDF] his December conviction [JURIST report] and requested that an Investigative Committee open a probe [text, in Russian] against Judge Viktor Danilkin. In February, Danilkin's assistant accused the judge of not writing the verdict [JURIST report] and stated he was coerced into reading it [interview text, in Russian]. Khodorkovsky's lawyers allege that Danilkin committed fraud and forgery and knowingly made unfair judgments. The appeal alleges that the verdict does not identify acts implying criminal liability, that there were fundamental and irreparable violations of due process and that the verdict contradicts previous rulings:
The verdict subsequently issued in the second criminal case against Khodorkovsky and Lebedev—most likely to be enshrined as "sacred" by the appellate court—does in fact rely upon canceling and changing laws of formal logic and commonly known facts. The verdict is a knowing and willful fictional description of purported criminal conduct, devoid of corpus delicti, blind to the preponderance of exculpatory evidence and built upon a bulldozing of due process. Should it be upheld as expected upon appeal, the verdict will stand as a monumental embarrassment to the Russian judiciary and to those state officials who seek to portray it as a valid act of justice.
The appeal hearing has been postponed for a week [Moscow Times report], so judges can fully understand Khodorkovsky's claims. Supporters of Khodorkovsky assert that this is to prevent President Dmitry Medvedev [official profile; JURIST news archive] from being questioned on the trial during his press conference on Wednesday.

In December, Danilkin sentenced [JURIST report] Khodorkovsky and his business partner, Platon Lebedev [defense website; JURIST news archive], to six additional years in prison, extending their imprisonment to a total of 14 years. Their defense counsel staunchly criticized the ruling, claiming [press release] that the court blocked significant amounts of testimony and evidence submitted by the defense and systematically quashed objections to their omission. The verdict drew vehement international criticism [JURIST report], including from US Secretary of State Hillary Clinton [official profile], who said [press release] that the ruling "raises serious questions about selective prosecution." The Russian Ministry for Foreign Affairs [official website, in Russian] dismissed critics, saying [press release, in Russian] that "[a]ttempts to exert pressure on the court are unacceptable." The men are currently serving eight-year prison sentences for fraud and tax evasion [JURIST report], to which they were sentenced in 2005 for the same money laundering from Yukos. Last May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that Putin ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. In March 2010, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty.

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Rights group claims Palestinian Authority, Hamas guilty of torture
Daniel Richey on May 18, 2011 8:50 AM ET

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[JURIST] A Palestinian human rights group released a report this week criticizing Palestinian Authority (PA) and Hamas [CFR backgrounders] security forces for violations of civil rights in the Gaza Strip and the West Bank. In its newest annual report, the Independent Commission for Human Rights (ICHR) [advocacy website] accuses the PA of torture, onerous security screenings and arbitrary detentions, while also accusing Hamas of torture and arbitrary arrests. The report warns the organizations not to allow Palestinians' rights to be suppressed by overwhelming security apparatuses, citing recent revolts in Arab states such as Egypt, Bahrain, Yemen and Libya [JURIST news archives] as the consequences of oppressive use of police power.

Accusations of human rights violations in the Palestinian territories [UNICEF backgrounder], not just by Israel but by the PA and Hamas as well, continue to be of international concern. In January, UN Special Rapporteur Richard Falk alleged that Israeli authorities continued to commit illegal acts that threaten the viability of the Palestinian state [JURIST report] in the Palestinian territories, including the killing of four Palestinians by Israel Defense Forces (IDF) [official website]. Last September, a UN panel of experts [UN materials] criticized [JURIST report] investigations carried out by Israel and Hamas into the 2008-2009 conflict in the Gaza Strip [JURIST news archives], but praised the PA's report, which it said comported with international standards. In June 2010, Israel-based rights group B'Tselem [advocacy website] released an annual report [text, PDF; JURIST report] on human rights in the Palestinian territories, which noted that fatalities dropped 80 percent from 2009 to 2010 and that the quality of life had improved in the West Bank, something it attributed to a reduction in security checkpoints and detentions.

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US Senator Leahy proposes bill requiring warrants to search e-mails
Zach Zagger on May 18, 2011 8:47 AM ET

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[JURIST] US Senator Patrick Leahy (D-VT) [official website] introduced a bill [text, PDF] Tuesday amending the 25-year-old Electronic Communications and Privacy Act (EPCA) [text], which he authored, to require the government to obtain a warrant before searching private e-mails and other data stored on an Internet cloud. The bill removes the 180-day rule that only requires a warrant to search e-mails that are unopened and stored for less than 180 days. In 1986, e-mail was only stored on servers briefly [Wired report] before being delivered to the the recipient's inbox, and e-mail older than six months was assumed to be abandoned. Leahy, who is the chairman of the Senate Judiciary Committee [official website], expressed the need to update the EPCA, passed in 1986, to bring it up to speed with the vast changes in Internet communication. He made a statement [press release] that, at the time, the EPCA was one of the nation's premier privacy laws:
But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security.
The American Civil Liberties Union [advocacy website] lauded the proposed legislation [press release] as a step forward but said more protections are needed such as stricter reporting requirements to inform the public how the surveillance powers are being used and a suppression remedy to exclude improperly obtained evidence from trial.

Last year, the Federal Bureau Investigation (FBI) [official website] came under fire after it was discovered it had collected more than 2,000 telephone records [JURIST report] between 2002 and 2006 by claiming the phone calls being made related to possible terrorism emergencies. The collection of telephone records on the basis of non-existent emergencies is a violation of the EPCA. In 2005, the US Court of Appeals for the First Circuit [official website] held that the EPCA should be broadly interpreted [JURIST report] to allow an e-mail provider alleged to have read correspondence in transit to customers to be tried on federal charges. The federal government filed suit [EPIC backgrounder] against Bradford Councilman, former vice president of online bookseller Interloc, which is now part of Alibris [corporate website], alleging the defendant provided customers with e-mail addresses and then directed employees to write code that would save and copy inbound communications from Amazon.com to those addresses before they were delivered.

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Ex-Khmer Rouge minister denied pre-trial release
Daniel Richey on May 18, 2011 7:55 AM ET

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[JURIST] A panel in the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday denied [judgment, PDF] a motion for pretrial release by former Khmer Rouge [BBC backgrounder] official Ieng Sary [ECCC backgrounder; JURIST news archive]. Ieng, 85, served as deputy foreign minister under the Khmer Rouge regime during its reign in Cambodia from 1975-1979. Citing Rules 63(6-7) and 68(1) of the Internal Rules of the ECCC [text, PDF] and Article 210 of the Cambodian Code of Criminal Procedure [text, PDF, in French], he argued that the court had no authority to detain a prisoner for more than three years without certain substantive rulings, making his detention illegal since November 2010. Taking a different interpretation of the statutes and emphasizing the need to prevent the defendant from fleeing, the court denied Ieng's request:
[The Chamber has been] provided with limited practical particulars in support of the Defence request for bail. ... At the hearing, the Defence merely expressed the hope that either the Royal Government of Cambodia or the ECCC would be in a position to provide security, transportation and medical care for the Accused if he were detained outside the ECCC Detention Facility. It has not provided ... any guarantee that the Accused would respect summons to appear in court. The Chamber therefore finds continued detention at the ECCC to be necessary to ensure the presence of the Accused during trial proceedings[.]
Ieng faces charges of war crimes, genocide and crimes against humanity in connection with the deaths of more than 2 million Cambodians in the Khmer Rouge "Killing Fields."

Ieng's co-defendants in ECCC Case 2 [materials], Nuon Chea, Khieu Samphan and Ieng Thirith [ECCC backgrounders] have all challenged pretrial custody unsuccessfully. In March, Kaing Guek Eav [ECCC backgrounder; JURIST news archive], a former prison chief at the notorious Toul Sleng prison under the Khmer Rouge, better known as "Duch," appealed [JURIST report] a 35-year sentence for war crimes and crimes against humanity handed down by the ECCC [JURIST report] last July. The conviction was the court's first since its founding in 2006.

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