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The Prosecutor v. Kaing Guek Eav alias Duch

Court Extraordinary Chambers in the Courts of Cambodia, Cambodia
Case number 001/18-07-2007-ECCC/SC
Decision title Judgement
Decision date 3 February 2012
  • The Prosecutor
  • Kaing Guek Eav alias Duch
Other names
  • Case 001
  • Duch
Categories Crimes against humanity, War crimes
Keywords crimes against humanity, enslavement, extermination, grave breaches of the Geneva Conventions, inhuman treatment, other inhumane acts, persecution, prisoner of war, rape, torture, unlawful confinement, war crimes, wilful killing
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In the course of the armed conflict between the Democratic Kampuchea (now, Cambodia) and Vietnam from 1975 until 1979, the ruling Khmer Rouge regime perpetrated a number of abuses in their desire to establish a revolutionary State. Their policy of ‘smashing’ their enemies consisted of physical and psychological destruction involving torture and execution. This policy was implemented at S21, an interrogation centre under the leadership of Duch.

Duch was convicted by the Trial Chamber of the ECCC in its first ever judgement and awarded a sentence of 35 years’ imprisonment, with a reduction of 5 years for having been unlawfully detained by the Cambodian Military Court prior to being transferred to the ECCC. On appeal, the Supreme Court Chamber overturned this sentence and replaced it with life imprisonment and awarded no reduction in sentence. It argued that such a hefty sentence was warranted by the shocking and heinous nature of the crimes, the large number of victims (over 12000), Duch’s central leadership role and his enthusiasm for the crimes. 

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Procedural history

On 18 July 2007, the Co-Prosecutors of the ECCC opened a judicial investigation into five persons, including Kaing, alias Duch.  On 31 July 2007, the Accused was transferred to the Court’s detention centre. 

On 8 August 2008, Duch was indicted for multiple counts of crimes against humanity and war crimes, committed in his role as Chairman of S21, the headquarters of the Communist Party of Kampuchea’s Special Branch of the Secret Police. The indictment was confirmed on 5 December 2008.

The trial commenced on 30 March 2009. 90 victims were joined as Civil Parties to the proceedings grouped into four Civil Party groups. Closing statements were heard from 23 to 27 November 2009.

The Trial Chamber rendered its verdict on 26 July 2010 convicting Duch of persecution, enslavement, imprisonment and torture as crimes against humanity; and wilful killing, torture and inhumane treatment, wilfully causing great suffering, wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial and unlawful confinement of a civilian as war crimes. He was sentenced to 35 years’ imprisonment, with credit for time served.

The Prosecution, the Accused and three of the four Civil Parties groups appealed to the Supreme Court Chamber.

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Legally relevant facts

In April 1975, an international armed conflict broke out between the Democratic Kampuchea (DK) and Vietnam. The former had come into being as a result of Pol Pot and the Khmer Rouge’s entry into power following the fall of the governemnt of the Khmer Republic. The conflict lasted until at least January 1979 (Trial Chamber Judgement, paras. 62-63).

The acts for which Duch was convicted by the Trial Chamber took place at S21, a security centre used for the detention, interrogation, execution and re-education of suspected opponents of the ruling Communist Party of Kampuchea. Over 12 000 persons were executed at the camp, the majority of whom were tortured (para. 2).

Duch was the Deputy Chairman and then the Chairman of S21, with complete authority over all S21 staff (para. 3).

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Core legal questions

  • Did the Trial Chamber err in law in granting too much weight to the mitigating factors considered and thereby imposing too lenient a sentence?
  • Did the Trial Chamber err in law in awarding Duch a reduction in his sentence on the grounds that he had been unlawfully detained by the Cambodian Military Court?

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Specific legal rules and provisions

  • Article 39 of the 2001 ECCC Law.
  • Rule 98(5) of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia.

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Court's holding and analysis

Following a re-examination of the mitigating circumstances considered by the Trial Chamber – duress, subordinate position, cooperation with the ECCC, remorse, propensity for rehabilitation – the Supreme Court Chamber found that the Trial Chamber had erred in law in attributing too great an effect to the aforementioned circumstances at sentencing (para. 363).

The limited effect of the mitigating circumstances was neutralised by the aggravating elements and exceptional magnitude of the crimes (para. 371). In particular, the shocking and heinous character of the crimes, the large numbers of persons killed (para. 373), the central leadership role held by Duch (para. 377), and particular enthusiasm in the commission of the crimes (para. 378) warrant increasing the sentence to life imprisonment (para. 383).

The Supreme Court Chamber overturned the Trial Chamber’s determination that Duch should receive a reduction in his sentence as redress for his unlawful detention by the Cambodian Military Court. It considered that, absent evidence establishing either abuse of process or responsibility of the ECCC, the Chambers lack any legal basis upon which they could remedy an Accused’s violation of rights (para. 390). In the present instance, the detention by the Cambodian Military Tribunal cannot be attributed to the ECCC (para. 393). 

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Instruments cited

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Additional materials

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