ECCC/UN Asleep, Hiding behind Veil of Confidentiality

ECCC/UN Asleep, Hiding behind Veil of Confidentiality

By Theary C. SENG

Published 13 April 2011

Dear Editor of The Phnom Penh Post:

I read UN spokesman Lars Olsen’s response to my April 7 letter published in The Phnom Penh Post on 8 April 2011 with grave concern for his persistent, intentional misinterpretation of procedural provisions which clearly favor victims to file now as civil parties in Cases 003 and 004.

It is the role of the CIJs, not Mr. Olsen, to determine whether my application pass legal muster on two grounds – procedural and substantive.  Here, I address only the procedural ground in response to Mr. Olsen’s highly charged accusations of “premature” timing, “irresponsible and reckless” breach of confidentiality and its relation to the well-established principle of the presumption of innocence (“PoI”).  

Mr. Olsen is deliberately “missing the point” on procedural matters in regard to (i) timing, and (ii) confidentiality.

     1. TIMING.  Based on national procedure and ECCC Internal Rules (“IR”), a victim can attach herself to a criminal proceeding as a complainant or civil party at any time.

As the matters stand now, Meas Muth and Sou Met are “Charged Persons” as defined by the CIJs.  Mr. Olsen is legally incorrect to refer to the five individuals in the Introductory Submission as “suspects”, because anyone named as a suspect in the Introductory Submission is automatically considered a legally “Charged Person” whether they have been publicly named or not, according to an Office of CIJ Order D298/2, esp. fn. 6.

Office of CIJ Order D298/2, esp. fn. 6

In Sept. 2009, the UN prosecutor forwarded the Introductory Submission (the "charging instrument") for Cases 003/004 to the CIJs, making Meas Muth, Sou Met et al at that moment in time "Charged Persons." 

Hence, the 5 individuals of Cases 003/004 are already "Charged Persons" clearly within the IR definition.  To consider them to be lesser "suspects" minimizes the stage at which this investigation is supposed to be.  Victims should have been able to file applications for Civil Party status from the moment of the filing of the Introductory Submission.  The CIJs are under an obligation to provide the public with enough information to file a IR 23bis application, which they are recklessly disregarding in Cases 003/004 for the last 19 months.

      2. CONFIDENTIALITY.  The names I mentioned have already been widely circulated and it is ridiculous to say that I am revealing “confidential” information. It is not confidential, I did not get access to it as a result of being a party to the court proceeding, and I am under no obligation to keep silent about who I think is responsible for a crime.

In this light, the ECCC is deliberately hiding behind the all-encompassing, impenetrable veil of confidentiality and imperialistically abusing its power of transparency and accountability.  The Office of CIJs has been sitting idly on Cases 003/004 for the last 19 months (!) with no meaningful activity.  For the last 7 months since the Closing Order of Case 002, its 40-member staff have been collecting salaries in the conservative range of US$250,000 per month for doing absolutely nothing, as the investigations of Cases 001 and 002 are completed and there is no discernable activity for Cases 003/004.  The stalling from overt political interference has been so outrageous, sustained and deep that one can hear the CIJs snoring under their cloak of secrecy against the backdrop of the deafening silence of the donor community.

By attempting to shut me up, the ECCC is furthering its abuse of the rights of victims and covering up its failure to follow the law and investigate Cases 003/004 with integrity.

3. PRESUMPTION OF INNOCENCE:  I am a victim (not a neutral observer or a judicial officer) alleging serious criminal charges against Meas Muth and Sou Met.  I am not the only victim, but one among millions with the same right to make public allegations about our injuries and claims.  The problem with mass crimes is that they produce majority victims in the minority public with the right to speak publicly about their claims and other available information (publications of the last 35 years!).  In accusing me of “mere speculation” with “no basis”, Mr. Olsen is asking me and other victims to suspend our reason, logic and knowledge of these materials relevant to our cases.  Mr. Olsen is mistaking the right of mass victims with obligations of the court officials and minority unaffected public; this is not a simple murder in the local neighborhood by which the PoI principle is to be viewed through a very narrow local lens without incorporating the countless distinguishing factors associated with mass crimes of international renown. 

In sum, Mr. Olsen is again clearly, misleadingly, legally INCORRECT on the procedural law of timing and confidentiality and attempts to hide the outrageous circumstances of Cases 003/004 behind the cloak of confidentiality by imbuing the CIJs with imperialistic powers, unchallenged.  As victims, we have the right to know, to apply as civil parties and the interests to demand a more satisfactory measure of justice than the current cheap, fabricated version vis-à-vis Cases 003/004 for our loved ones lost.  (As an aside, I am curious to know why Mr. Olsen thinks my application is a “pretext”, “irresponsible”, “reckless” which “bullied” and showed a complete disregard for the law, while Mr. Rob Hamill’s same application is only “unfortunate”?)