Kambol (Phnom Penh, Cambodia). 26/08/2009: Ty Srinna, co-lawyer for civil parties, on Day 65 in Duch’s trial at the ECCC © John Vink / Magnum
By Stéphanie Gée
The issue of the admissibility of victims’ applications as civil parties in Duch’s trial was unresolved since the initial hearing on February 17th and 18th 2009. Two weeks ago, the Chamber asked the defence to prepare their observations on these applications, should they have any. The defence did. Since Tuesday August 25th, a heated debate started between the defence counsel and civil party lawyers, with the former challenging the legitimacy of some of the civil parties in the absence of adequate relevant documents while the latter protested such a questioning of the civil parties’ word barely a few weeks away from the end of the hearings.
26 civil parties challenged by the defence
Marie-Paule Canizarès, colleague of François Roux, Duch’s international lawyer, announced yesterday that the defence intended to challenge the admissibility* of 26 civil parties, all civil parties who did not request to be heard by the Chamber. These objections related to two elements: it appeared from the case file there was no filiation or other family link established between the civil party and the victim represented, or there was no element proving that the victim represented could have been detained at S-21.
Alain Werner: it is too late for such a questioning
It was time to discuss these contested cases, but Alain Werner, co-lawyer for civil party group 1, intervened to argue that, in light of Articles 23.4 and 83.4 of the Internal Rules, the examination of the admissibility of these civil party applications “at the initial hearing, not after” – even if Article 100 allowed the Chamber to rule on the admissibility of a civil party application in the judgment. “There is a rationale to this: when a civil party application is declared inadmissible, this allows for a means of redress […] for the civil party, who may appeal the decision before the Supreme Court Chamber.” The lawyer “preliminarily” asked the Chamber to “rule on this issue and say precisely whether or not the defence […] is entitled today, a few weeks from the closing of these hearings, to come and question the admissibility of the applications of 26 civil parties.” Alain Werner was immediately supported by the lawyers for the other civil party groups.
François Roux: the defence is responding to a request of the Chamber
François Roux responded for the defence and objected to Alain Werner’s “fallacious and belated” argument. He recalled it was the Chamber that asked them the previous week to state their objections and nobody for the civil parties intervened to protest at that moment. He also reminded that during the initial hearing, civil party applications had been admitted “provisionally” and the defence had asked to retain their right to challenge them, which had been allowed.
Alain Werner persisted: “On what legal basis does the defence come to question the admissibility of civil party applications today?” On Article 100 of the Internal Rules, François Roux retorted, before repeating he had responded to a “request” of the Chamber and observing that, for a number of files, civil party lawyers still had not provided the necessary elements for them to be declared admissible.
The Chamber decided to continue the debate on the contested cases. Before the hearing closed, Alain Werner made another argument: “As for our civil parties, we told them, five or six months ago, after the initial hearing: you are civil parties. […] That a civil party application is admissible gives rights to civil parties and our civil parties have enjoyed these rights for months. […] Yet, today, a few weeks from the close, they are being told: maybe you are not admissible, you are not a civil party?!” François Roux then brandished Article 100 again and added he was still receiving documents from the civil parties, “which is problematic.”
Suggestion for an expanded definition of kinship
The controversy resumed on Wednesday August 26th. Fabienne Trusses, co-lawyer for civil party group 3, launched into a “preliminary and general statement.” She expanded the quality of the relationship between the civil party and the victim represented by introducing a link of “closeness” further to the family link. She thus suggested a definition of a “relative” that may be, according to her, “a family relative, a third party, a person who raised you or even a friend.”
Obstacles to the filing of applications
As for the filing of civil party applications, the lawyer argued it “was not contested that the S-21 archives [were] incomplete” and therefore, someone may have been “smashed” at S-21 without any trace of it remaining today. She inferred that the declaration of civil parties must be examined in light of their “consistency,” their “logic” and “relevant information gathered during the investigation and the hearing.” “We have heard the accused say he did not admit the probative value of a simple photograph from S-21. It is not to the accused to admit it or not,” she rightly objected. She indicated that her group had requested the Tuol Sleng museum (formerly S-21) to certify the origin of the pictures and added she considered it pointless “to demand the accumulation of evidentiary elements,” such as photograph, biography, confession, execution order, etc. Fabienne Trusses called to “take into account the historical, cultural and economic context of this country,” as some civil parties were unable to present civil status records as those never existed or disappeared. She stressed that a further obstacle to these applications was the fact that some victims “may not have been registered under their real name” but that of a father, a grandfather or a revolutionary name unknown to the civil parties.
Co-prosecutor: the Chamber must set a final deadline
International co-Prosecutor Vincent de Wilde intervened: he stated that any evidence could be used in criminal matters and it should be appreciated in a reasonable way according to the consistency of the story. Then, he urged to take into account a number of elements: the facts were more than 30 years old and it was difficult to keep many documents under the Khmer Rouge; the S-21 archives were incomplete and the combined list established by the office of the co-Prosecutors did not reflect the reality of the number of people killed at S-21 and was an “under-estimate;” in the absence of civil status records, “auxiliary documents must be taken into account, like those issued by mayors or even testimonies.” Finally, noting that the Trial Chamber did not give any “deadline” to complete the civil party applications, the co-Prosecutor called for a final deadline to be set.
Civil party participation: “Let’s not spoil this result,” François Roux calls
As for Kar Savuth, Duch’s national co-lawyer, he argued that in order to be admissible as civil party, one must fulfil the following criteria: to be the husband or wife of the victim, his or her son or daughter, his or her father or mother, and that was all. To support a civil party application, it was necessary to produce “at least one element of evidence” and the defence would accept it. After quoting the Latin phrase “Dura lex, sed lex” (the law is harsh, but it is the law), his international colleague recalled it was here the “first international tribunal to accept civil parties.” “We have fought for 15 years to reach this situation today. We have obtained this result, but please, please, let’s not spoil this result! […] Last week, some civil parties came out of their role as civil party in this trial and had to be called to order by the president or the defence. We are making considerable progress, all together, in international criminal justice and we are therefore condemned to excellence.”
François Roux then turned to the civil party lawyers to tell them it was up to them “to provide the legal elements that will allow people to be admitted as civil parties or not.” “Some families may believe in good faith their [relative] died at S-21 and one may realize it was not at S-21 but another prison. What would we have done then? We would have done anything but law! We are here in a place of justice. There are rules […]. I wanted to insist on the necessity of these rules. It is in the interest of law and in the interest of the civil parties themselves, if we want to pursue tomorrow in other international tribunals the progress that was the admission of civil parties in this tribunal.”
Kambol (Cambodia, Phnom Penh). 26/08/2009: Chess game during the debate on the admissibility of civil party applications on Day 65 in Duch’s trial at the ECCC © John Vink/ Magnum
The case-by-case review of contested applications
After some civil party groups provided documents on the previous day and the very morning, the defence announced they did not maintain their objections against two plaintive. But they again took offence that documents continued to reach them at this stage of the trial. Then ensued the review of 18 civil party applications challenged by the defence, for which their representatives sought to provide sufficient elements to convince the Chamber. The civil party lawyers were sometimes put in an awkward position by the empty application files and said they left it to the court to appreciate these cases. Such an example was the application of a man who applied as civil party in memory of friends disappeared at S-21, was difficult to contact – as he lived in a remote location in Ratanakiri province – and with whom it was difficult to have meaningful discussions due to his advanced age, Fabienne Trusses argued. In other applications, the evidence of the disappearance of the victim at S-21 was only the sole declaration of the person who applied as civil party in his or her name.
Who to blame?
This debate on the admissibility criteria for civil parties asked the question of the prior examination of their applications. These were sent to the tribunal’s Victims Unit, which forwarded them to the office of the co-Investigating Judges, who ruled on their admissibility until their closing order was published. It then pertained to the Trial Chamber to rule on civil party applications filed after that date. Might judges have failed to take their responsibilities by neglecting to establish clear admissibility criteria from the outset? As for civil party lawyers, it seemed the legal grey area led them to be negligent by taking for granted the admissibility of their clients and not seeking to strengthen their applications. Clarifying the admissibility criteria is crucial, even more so as this issue will also rise in case file no. 2, in which civil parties will experience more difficulty to present elements proving a link between the victims they represent and those indicted. By chance, seventy civil parties in case file no. 2 were in the public gallery to watch the trial this Wednesday.
* The ruling in a lawsuit happens in two steps, on the procedure and the substance: judges first examine its “admissibility,” that is whether pre-conditions to claim a right are met – in the present case, to be a victim and suffer prejudice in connection to S-21 –; then, they look at the “validity” of the claim, that is whether the prejudice is justified and the plaintive can legitimately demand reparation.