ECCC/UN Asleep, Hiding behind Veil of Confidentiality (Unpublished 2,400-word version)

ECCC/UN Asleep, Hiding behind Veil of Confidentiality

By Theary C. SENG, 11 April 2011

Dear Editor of The Phnom Penh Post:

(unpublished 2,400-word version which elaborates on the published version)

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 where these cases sit dormant with the Co-Investigating Judges (“CIJs”) for the last 19 months since the Pre-Trial Chamber failed to obtain a “super-majority” (needing the voice of one UN judge to the Khmer judges’ simple majority) to block the Introductory Submission filed by UN Co-Prosecutor Robert Petit from advancing to the second phase of investigation with the Office of the CIJs.

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 (for a UN bureaucrat!) of “premature” timing, “irresponsible and reckless” breach of confidentiality and its relation to the well-established principle of the presumption of innocence. 

(I will address the substance of whether I possess a legal nexus of injury to the Charged Persons, if necessary after the response by the CIJs—if they don’t first altogether dismiss Cases 003/004, a rising concern for us victims who are following closely the activities of this Extraordinary Chambers, ECCC.  To be sure, it will be scandalous and damaging to the ECCC’s legacy should this happen.  And if it does happen—God forbid!—it would be even more scandalous if the UN Co-Prosecutor—who initiated the Introductory Submission, now reincarnated in the person of Andrew Cayley—does not appeal the dismissal.)

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

     1. TIMING.  Cambodian Code of Criminal Procedure (“Procedure Code”), ECCC Internal Rules (“IR”), Victim Information Form (“VIF”), other ECCC directives/rulings clearly favor victims filing NOW (and earlier!) as Civil Parties.

Pursuant to the agreement between the Royal Government of Cambodia and the United Nations in establishing the ECCC, as stated in the IR Preamble, the ECCC uses the national procedural law (e.g. Procedure Code, based on the French civil law system) and international substantive law (e.g. Genocide Convention, rulings of Nuremberg, ICTY/ICTR/ICC), plus the Cambodian Penal Code of 1956.

Based on national procedure, a victim can attach herself to a criminal proceeding as a complainant or civil party at any time; oftentimes, she initiates the lawsuit.

The VIF is a reflection of this understanding, allowing victims to file at all phases of the criminal proceeding.  The ECCC provides one form for victims to file as a “Complainant” (assisting the co-prosecutors) or “Civil Party” with the Office of Co-Investigating Judges.  The first version of this form had at the very top two boxes for the victim to tick: “Office of Co-Prosecutors” (complainant, before the Introductory Submission, or after, to add to the Supplementary Submission, if there is one) or “Office of Co-Investigating Judges” (civil party).  Victims can file during the first phase of investigation by the co-prosecutors and through the second phase of investigation by the co-investigating judges until 15 days after the closing of judicial investigation.  Here, Cases 003/004 have already advanced from the initial investigation by the co-prosecutors to the Office of CIJs, where they have been dormant for the last 19 months.

Moreover, the IR, Practice Directions on Victims Participation, other directives and rulings do not stand at odds with this understanding but favor the filing of civil party applications at this moment in time in Cases 003/004.  As the matters stand now, Mr. Meas Muth and Mr. 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 (see D298/2 “Order refusing request for further charging”), particularly footnote 6: 

“Any person named in the Introductory Submission is referred to as ‘the Charged Person’: see definition of Charged Person in the ECCC Internal Rules glossary: ‘any person who is subject to prosecution in a particular case, during the period between the Introductory Submission and Indictment or dismissal of the case’… any person named in the introductory submission, even if referred to as ‘X appearing to be…’, is automatically a charged person, regardless of the date on which he or she is notified of the charges by the investigating judge’.”

The IR glossary goes on to define "Suspect" as "a person whom the Co-Prosecutors or the CIJs consider may have committed a crime within the jurisdiction of the ECCC, but has not yet been charged."  Here, in light of clear provisions in the Procedure Code and OCIJ Order D298/2, we must apply a comprehensive and contextual approach to the interpretation of “Suspect” to mean either those subject to a preliminary investigation by the Co-Prosecutors, or where the CIJs have received an introductory submission charging some individuals, but their investigations lead them to believe that others may also have committed crimes ("suspects").

In Sept. 2009, the Office of Co-Prosecutors forwarded the Introductory Submission (the "charging instrument") for Case 003/004 to the Co-Investigating Judges, making Meas Muth, Sou Met et al at that moment in time "Charged Persons."  That is to say, it is the Introductory Submission which gives these five un-named individuals “Charged Persons” status; the later charging by the CIJs of these already “Charged Persons” is the public naming of them.  So, these five individuals have been legally “Charged Persons” for the last 19 months.

This understanding also accords with all the available documentation of Cases 001 and 002 judicial investigations where those individuals were correctly referred to as “charged persons”; the only difference between Cases 001 and 002 with the current two cases was that they were all arrested and detained within months of the filing of the Introductory Submissions, whereas with Cases 003/004, nineteen (19!) months later, we still have no investigation, arrests or detention.  Upon a careful reading of the provisional detention orders of Cases 001 and 002 which refer to them all as "charged", the CIJs are not themselves "charging" those persons, rather they're relying on the "charging" in the Introductory Submission.

Hence, the five individuals referred to in the Introductory Submissions 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, 19 months ago (IR), or earlier (Procedure Code).  The CIJs are under an obligation to provide the public with enough information to file an IR 23bis application—an obligation they fulfilled in relation to Cases 001/002 but which they are recklessly disregarding in Cases 003/004.

     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.

The ECCC rule protecting the confidentiality of the investigation applies to persons with access to case file information. Of course, applicants do not have access to the case file and thus, the rule is not yet relevant to them. An applicant can discuss publicly available information relevant to her claim. A civil party applicant is entitled to communicate publicly facts about her own claims. The ECCC does not have some monopoly on any facts so as to dictate that no one can discuss them. 

In this light, the ECCC is deliberately hiding behind the all-encompassing, impenetrable veil of confidentiality in Cases 003/004 and imperialistically abusing its power of transparency and accountability.  The Office of CIJs has been sitting idly on Cases 003/004 for the last one year and a half (19 months!) with no meaningful activity.  For the last seven 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.

When I, a victim with a legitimate, timely right to file for Civil Party status, attempted to awaken the conscience of the ECCC as well as the public on these issues, the ECCC spokespersons immediately went into spin mode and try to shut me up, with the UN legal communications officer Lars Olsen leading the angry charges by calling me “irresponsible and reckless”, based on “mere speculation” “with no basis” for my naming publicly Charged Persons Meas Muth and Sou Met.  They want to dismiss wholesale victims’ rights to information and as civil parties; this is the same ECCC that claims, when convenient, “historic” victims’ participation, ironically with regards to my court appearance with Nuon Chea in Feb. 2008.  These charged comments are chilling in their pre-emption of other potential applicants as well as shielding the CIJs from their IR 56 obligations to provide public information.  There exists a balance of interests between the victims’ right to know/access to information and the ECCC’s legitimate/reasonable need for confidentiality.  As such, the 19 months of stalling certainly qualifies as IR 56 “exceptional circumstances” on which I plan to file a separate request to the ECCC for information.  Is the veil of confidentiality reasonable in light of these outrageous circumstances?  Resoundingly, NO! 

Moreover, the judicial investigation is into a CRIME (not just individuals) and a victim of that crime has a right to name those she believes should be investigated as potentially responsible for the crime. There is nothing in the ECCC’s rules or in the law of Cambodia that I am aware of that prevents me from stating publicly that I am a victim of a crime under investigation and who I think should be held responsible.

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. 

(As an aside: What if I am wrong in my claim that Mr. Meas Muth and Mr. Sou Met are named in the confidential Introductory Submission?  First of all, it should be noted that I did not make a random guess in the dark (“reckless” in the words of Mr. Olsen; see my below comments on PoI principle) but relied on countless trusted, public materials and based on a long engagement and study of these issues.  But for that .00000000001 chance that I am mistaken, then as a matter of criminal procedure, the CIJs are to use the submitted information in their investigations which could trigger additional suspects within the jurisdiction of the ECCC.)

PRESUMPTION OF INNOCENCE:  I am a victim (not a neutral observer or a judicial officer) alleging serious criminal charges against Mr. Meas Muth and Mr. Sou Met, based not on “reckless” (heedless, rash choice) but fully considered action.  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 having “no basis”, is Mr. Olsen asking me to dismiss as “mere speculation” or gossips all the published materials available in the public arena, e.g. “Seven Candidates for Prosecution” by Prof. Steve Heder and international lawyer Brian D. Tittemore, books written by scholars David Chandler, Craig Etcheson, Milton Osborne, Phillip Short, Elizabeth Becker etc., all the news articles attaching Mssrs. Meas Muth and Sou Met’s names to Cases 003/004?

That we victims should suspend our reason, logic, knowledge of these well-researched materials regarding our cases under investigation and in light of our personal injuries suffered?

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 mass crimes, the PoI principle must be implemented through multiple larger lenses in order to capture the magnitude and scope, incorporating countless victims and well-established research and information tested over a period of time into its consideration across a broad swath of the population. 

By way of illustration, is Mr. Olsen saying that a raped victim does not know or cannot name publicly the person she knows/believes to be the perpetrator, but instead should presumed her perpetrator “innocent” until proven guilty?  Everyone else, yes, especially public figures and judicial officers should presumed the accused/suspect/charged person/defendant “innocent” until a final judgment by a legitimate court.  Here, the raped victim is multiplied by 10,000 persons or 1,000,000 or more, each with the right to speak about his/her specific crimes and to point the finger publicly to persons s/he believed to be responsible.  The society of one raped victim or a society with majority raped victims generates different conversations especially in light of countless published materials. 

All to say, the PoI principle establishes different limits on whether the conversations are among (i) observers removed from the criminal investigation, (ii) public figures and judicial officers, or (iii) victims of crimes under investigation.

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”?)