Pre-trial Chamber Overturns Previous Rejection of 98% of Appealing Civil Party Applicants in Case 002

Source: ECCC

24 June 2011

PRESS RELEASE

PRE-TRIAL CHAMBER OVERTURNS PREVIOUS REJECTION OF

98% OF APPEALING CIVIL PARTY APPLICANTS IN CASE 002

In a reasoned decision issued on 24 June 2011, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) granted appeals submitted from 1,728 civil party applicants in Case 002 and granted them status as civil parties in the case. The appellants’ applications to become civil parties had previously been rejected as inadmissible.

In it’s decision, a super-majority of the Pre-Trial Chamber, with Judge Catherine Marchi-Uhel dissenting in part, found inter alia that an incorrect interpretation of the necessary casual link between crimes being investigated and the injury suffered by the civil party applicants had been applied when the applications previously were rejected as inadmissible. Furthermore, the Pre-Trial Chamber found that the criteria for what constitutes necessary injury in order to be recognised as a victim had been to narrowly interpreted. In this regard, the Pre-Trial Chamber emphasised the necessity of taking into account the mental suffering of the many Cambodians who survived the Khmer Rouge regime. The Pre-Trial Chamber also noted that determination of the threshold for admissibility of civil party applications in proceedings dealing with international mass crimes such as genocide, crimes against humanity and grave breached of the Geneva Conventions of 1949 differ from what is applicable in domestic proceedings dealing only with national crimes.

Following the decision of the Pre-Trial Chamber, a total of 1,728 civil party applicants who were previously rejected as inadmissible, has been granted status as civil parties in Case 002. This brings the total number of civil parties in Case 002 to 3,850.

The full reasoning of the Pre-Trial Chamber can be found in their decision which is available at http://www.eccc.gov.kh/en/document/court/decision-appeals-against-orders-co-investigating-judges-admissibility-civil-party-app

For more information, please contact:

Lars Olsen
Legal Communications Officer
Mobile: +855 (0) 12 488 023
Land line: +855 (0) 23 219 814 ext. 6169
Email: olsenl@un.org

Yuko Maeda
Public Affairs Officer
Mobile: +855 (0) 12 488 319
Land line: +855 (0) 23 219 814 ext. 6139
Email: maeday@un.org

Huy Vannak
Public Affairs Officer
Mobile : +855(0)12 339 427
Email : huy.vannak@eccc.gov.kh

Greater Participation by Civil Parties Urged for Tribunal

Chum Mey (L) and Theary Seng (R)

Sok Khemara, VOA Khmer
Washington, DC Friday, 28 January 2011

“I under [the defendants] are already old, and that’s why I’m pushing the court to do whatever, since they are still alive.”

Two prominent civil party participants at the Khmer Rouge tribunals say the more complainants allowed by the Trial Chamber, the more justice and reconciliation the trials will bring.

Seng Theary, a US-Cambodian lawyer, and Chhum Mey, a survivor of the Tuol Sleng torture center, told “Hello VOA” on Thursday that victim participation is an important aspect of the tribunal.

“Hearing information, seeking truth, that’s totally important for the next generation,” Seng Theary said.

“I wish to appeal that all [civil complainants] cooperate with their lawyers and say, ‘I want to participate,’” Seng Theary said.

Request of Civil Party Theary Seng to be on Co-Prosecutors' Witness List

Theary Seng (pointing at a mass grave, possibly where her mom was killed in 1978) speaking with man who was there at Boeung Rai (the heart of the East Zone) when she was a prisoner there; DC-Cam estimated that 30,000 to be killed here.  Mrs. Andrea Mann (the German Ambassador's real boss!), Helen & Wally Boelkins, Daravuth Seng, village children, filmmaker Marc Eberle (Svay Rieng, 18 Jan. 2010).

Order to file material in preparation for trial (in Khmer)

Order to file material in preparation for trial (in English)

Ordonnance aux fins du dépôt de pièces dans le cadre de la préparation du procès (en Français)

List of evidence issues (in Khmer)

List of evidence issues (in English)

Tableau relatif aux différentes catégories de faits (en Français)

NOTE to civil parties:  If you are interested in testifying, please assist your civil party lawyer by drafting your own application by following the Order to File Material in Preparation for Trial for Case 002 issued by the Trial Chamber this 17 Jan 2011 in light of the Closing Order.  Both are PUBLIC documents, made available here.  

I am informed that the UN French co-lead lawyer Elisabeth Simonneau Fort has recently arrived into Cambodia and will hold a meeting with all civil party lawyers on Tuesday, 25 Jan. 2011.

Closing Order (English)

For Closing Order in Khmer or French, go to: www.eccc.gov.kh.

-  Theary Seng, 20 Jan. 2011

------

*  I forgot to include in my original submission this additional information, but just now informed the UN Co-Prosecutor that I am one of only 3 civil parties as stated in the Closing Order who could testify on Wat Tlork Security Center and the only one to its nexus, Boeung Rai Security Center, and also as part of the Phase III East Zone Movement.  Moreover, as the person who started and shaped the victim-civil party movement since the ECCC came into operation in mid-2006, the representative of the only class (Civil Parties of Orphans Class), and the articulate public voice of victims - I'd make a strong and natural witness for the prosecution.  Of course, I will make a similar request via the civil party co-lead lawyers, but as I described earlier, the request is stronger through the co-prosecutors and the civil party lawyers lack adequate resources and coordination, with the newly-hired UN co-lead lawyer yet to arrive into Cambodia.

The Co-Prosecutors, as my (victims') representatives, have the duty to defend and advocate for the rights and benefits of victims effectively and comprehensively, especially in light of my long engagement and public role in the matter.


- Theary Seng, 19 Jan. 2011

------

On a more consistent basis, I will be writing a column to be published on KI-Media, my personal website www.thearyseng.com, my FACEBOOK (currently at 2,200 "friends") and other outlets on the Extraordinary Chambers (ECCC) in my capacity not only as a US-trained lawyer and civil society leader engaging Cambodians on the work of justice, peace and reconciliation in light of the ECCC, but more importantly as a Civil Party in Case 002 against the Senior Khmer Rouge leaders (the heart of the Extraordinary Chambers), the first victim to be recognized as such by and to testify in the ECCC.

There is an important deadline coming up for the Co-Prosecutors, 15 days after the final decision on the Closing Order (hence, end of this month of Jan. 31) to submit their list of witnesses to testify on the substantive facts and laws (crimes) against the senior Khmer Rouge leaders as set out in the Case 002 Closing Order to the Trial Chamber.

It it imperative that many voices of the 2,000+ accepted civil parties be given this role to testify as witnesses, as this is now the only means for us to have a direct voice in the criminal proceeding. This, however, requires that the names of the civil parties and their reasons as related to the crimes in the Closing Order be established and forwarded to the ECCC Trial Chamber for deliberation and acceptance. The strongest case is if the civil party's name is included in the list of witnesses of the Co-Prosecutors, due 12-13 days from now.

But if not in the list of the Co-Prosecutors, the civil party has a second chance if it is included in the list of witnesses to be submitted by the Civil Party Co-Lead Lawyers, Mr. ANG Pich and Ms. Elisabeth SIMONNEAU FORT, the deadline being mid-February 2011, 15 days after the deadline of the Co-Prosecutors.

It is highly questionable if the civil parties' lawyers -- both Khmer and foreign -- are able and capable to handle and represent effectively 2,000+ clients and still make the deadline of mid-February 2011.

First, the UN French Co-Lead Lawyer has yet to arrive in Cambodia and start her position. She is expected to arrive the end of January 2011 which will then give her 15 days to settle into a new home, new country, master the learning curve of general knowledge of Cambodia, then the specific history and rules of the ECCC, then the very specific nature of civil parties representation and details of 2,000+ clients. There is a rumor that she only speaks French and not Khmer or English. I wish her luck!

True, the Co-Lead Lawyers work in cooperation with a coterie of both Khmer and foreign civil party lawyers, approx. 40. The Khmer lawyers are limited to less than 10 persons; the foreign lawyers are either not based in Cambodia tending to their full-time positions in their respective country or if based in Cambodia full-time, it is questionable whether they "get" it for various reasons, e.g. language barriers, lack of commitment/seriousness/experience.

To address the insurmountable problems, it is suggested that the names of the civil parties to be forwarded to the Trial Chamber via the Co-Lead Lawyers be based on a quota system: for example, [ 5 ] names of civil parties from each of the 11 civil party lawyer teams.

This is the most absurd suggestion for obvious reasons, the main ones being:

One, witnesses should be determined based on their ability to testify on a substantive point of fact or law of the Closing Order, not based a random lottery picking to satisfy the fairness/unfairness of lawyers. The interests of the law and of the civil parties (and not the lawyers!) should be paramount.

Two, each team of civil party lawyers has clients ranging from 1 individual to 700+ individuals.

Three, it is a lazy, fatalistic method of handling a challenge without even attempting to tackle the problem.

By way of example, I am here publishing an excerpt of only my personal request and reasons to the Co-Prosecutors to be in their list of witnesses to the Trial Chamber with the hope that other civil parties will follow my lead in proactively engaging and assisting this process with their lawyers.

- Theary C. SENG, Civil Party and representative of Civil Parties of Orphans Class (18 Jan. 2011, Phnom Penh).

============

I.               Introduction

1.      I, Theary C. SENG in my personal capacity as the first applicant and first-recognized Civil Party by the Extraordinary Chambers (“ECCC”) (see http://www.thearyseng.com/eccc-civil-party, in particular http://www.eccc.gov.kh/english/cabinet/courtDoc/176/C22_I_62_EN.pdf)  am requesting to have my name be included in the List of Witnesses of the Co-Prosecutors to be submitted to the ECCC Trial Chamber to testify in the criminal proceeding against the senior Khmer Rouge leaders—Nuon Chea, Khieu Samphan, Ieng Sary and his wife Ieng Thirith—of Case 002 for the reasons delineated below.

KRT judges rule on civil parties

Thursday, 13 May 2010
James O'Toole
The Phnom Penh Post

Decision also makes genocide charges unlikely in cases involving Khmer Krom

IN a wide-ranging decision made public Wednesday, judges at the Khmer Rouge tribunal clarified the requirements for civil party participation while also upholding a controversial decision not to bring genocide charges specific to the Khmer Krom.

Responding to appeals filed by lawyers for groups of Khmer Krom and Vietnamese civil party applicants, the court’s Pre-Trial Chamber (PTC) opted to reinstate a number of civil party applicants – the total is not clear in the redacted public documents – who had previously been rejected by the Co-Investigating Judges (CIJs).

The PTC judges held to the view, however, that civil parties must be able to demonstrate that they suffered as a result of crimes that the CIJs have announced are within the scope of their investigation in Case 002. Some civil party lawyers have argued that prior to an amendment in February, the court’s internal rules stipulated only that civil party applicants needed to prove that they suffered as a result of crimes committed under the Khmer Rouge.

UN court spokesman Lars Olsen said Wednesday that the issue “has been clearly resolved through this decision”.

“They say it’s very clear that there needs to be a relation, a connection to the crimes being investigated,” Olsen said.

In their decision, the PTC judges said that the requirement that civil party applications be connected to specific crimes under investigation had been clear since the establishment of the court. The civil party applicants reinstated by the PTC thus had the decisions against them reversed not simply because they were proved to be victims of the Khmer Rouge, but because the PTC judges determined that their applications bore a connection to the particular crimes included in the court’s investigation.

The decision also addressed the question of whether the court’s co-prosecutors had properly submitted evidence of genocide against the Khmer Krom for investigation by the CIJs.

The CIJs may only investigate evidence included in the co-prosecutors’ introductory submission and supplementary submissions. In January, the CIJs ruled that they could not investigate evidence of genocide against the Khmer Krom because the prosecutors had termed this submission an “investigative request”.

In the new decision, the PTC said court rules “do not exclude” the possibility of the co-prosecutors’ refiling the Khmer Krom information as a supplementary submission for inclusion in the case file. Given that the prosecutors have not yet refiled the information and have not appealed the CIJs’ initial dismissal of this information, however, Olsen said it remained unlikely that genocide charges relating to the Khmer Krom would be brought in the case.

Mahdev Mohan, a civil party lawyer representing a group of Khmer Krom civil party applicants, urged the prosecutors to take action on his clients’ behalf.

“If the [prosecutors] were to once again remain silent instead of filing a supplementary submission, our clients would find the ECCC’s process absurd,” he said in an email.

A final issue addressed by the PTC ruling was the question of whether civil parties may be admitted on a “provisional” basis. On this issue, judges Rowan Downing and Prak Kimsan offered a rare dissent from the three-judge majority ruling.

A number of civil party applicants in Case 002 have received letters from the court stating that their applications had been “placed on the case file”.

In a February appeal filed on behalf of Vietnamese and Khmer Krom civil parties, lawyers argued that the letters constituted the acceptance of their clients as civil parties, and that later decisions by the CIJs rejecting their applications were illegitimate.

Though PTC judges Ney Thol, Catherine Marchi-Uhel and Huot Vuthy argued that the letters had no legal force, Downing and Prak Kimsan said the letters “not only confirmed the receipt of civil party applications, [they] also evinced a desire to accept the applicants as Civil Parties”.

In the absence of a super-majority among the judges, the CIJs’ original decisions to reject the civil party applications were unaffected.

Olsen said the court had sent out roughly 200 such letters to civil party applicants. Though the CIJs have not ruled on the admissibility of all of these applications, Olsen said that the “majority” would likely be accepted, and that the court would not be sending out provisional acceptance letters in the future.

CAMBODIA: War crimes court juggles public demands

Participants of the war crimes tribunal line up outside a courthouse in the Cambodian capital, Phnom Penh (Photo: Brendan Brady/IRIN)

I think it will be a very big problem when many of the victims who want to be civil parties are told the crimes against them don’t apply.

PHNOM PENH, 10 March 2010 (IRIN) - Competing pressures in Cambodia’s Khmer Rouge war crimes tribunal could work against the victims it is supposed to represent, human rights groups warn.

Since its establishment in 2006, the UN-backed tribunal has sought to provide a greater voice to victims of the regime, while at the same time expediting a legal process bogged down by delays. As a result, the court decided last month to filter the representation of all victims through two lawyers because of the high number of applicants seeking to participate in the second case.

Known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal includes a “civil party” system designed to give lay people an official role to provide testimony, question suspects and request reparations.

More than 4,000 people applied and about 250 had been accepted by the end of last year. By contrast, just 90 civil parties participated in the tribunal’s first case.

Court delays

In the tribunal’s first case last year against the regime’s most notorious prison chief, Kaing Guek Eav, civil parties were represented by four legal teams, giving victims a strong presence in the courtroom.

But participation was often muddled by repetitive and irrelevant questions from some lawyers that steered testimony away from the core issues of the trial and slowed proceedings.

This, coupled with the ballooning number of civil parties, prompted the tribunal to seek victim participation reforms for its remaining case.

Still awaiting trial in the second case are four ageing leaders, widely considered the architects of the Khmer Rouge’s vision to transform the country into an agrarian utopia. Some 1.7 million Cambodians died in the process, according to estimates.

In a 9 February ruling, the court said victims would be represented in the second case by two lead lawyers, one Cambodian and one international, whose strategy and views are supposed to reflect a consensus among the individual civil party lawyers.

“The number of Civil Party applicants, combined with the complexity, size and other unique features of the ECCC proceedings, make it necessary to adopt a new system of victim representation during the trial and appeal stage,” the court said in a statement.

But while most observers recognize that the original system of individual legal representation would be impractical in the much larger second case, they warn that their diminished role could make victims feel disenfranchised.

“A lot of people’s stories will be lost,” says Thun Saray, president of the local rights group Adhoc. “The victims have an important role to play and this gives them a smaller role.”

Applications limited

The charges against the suspects in detention are restricted to particular crime sites, which means prospective cases pertaining to other sites will not be able to participate in the trial.

Under the Khmer Rouge, some 1.7 million Cambodians died from overwork and starvation
“It’s common in all courts dealing with crimes of this magnitude to limit the investigation to a representative sample of all the crimes committed because of time and resource constraints,” court spokesman Lars Olsen told IRIN.

While the court’s investigation into the second case began in 2007, the public was not told which sites were involved until last November – leaving them little time before the deadline in January.

“I think it will be a very big problem when many of the victims who want to be civil parties are told the crimes against them don’t apply [to the trial],” said Sok Sam Oeun, director of the Cambodian Defender’s Project, a legal aid group. “Many didn’t know about the guidelines until very late.”

The court, in turn, says victims should not regard their status in the court as an official judgment of their suffering.

“It’s a technical decision as to how they relate to the particular cases,” Helen Jarvis, head of the court’s Victims’ Support Section, told IRIN.

“Even if they’re not designated a civil party, their information is valuable to the court’s investigation of the systematic nature of the crimes. There is bound to be some disappointment but they should not feel there are first-class victims and second-class victims.”

Survivor Sees Khmer Rouge Trials As Catalyst For Accountability

March 9, 2010
Tejinder Singh, AHN Correspondent

Washington, DC, United States (AHN) - The Cambodian killing fields took her parents but Theary Seng is a survivor and sees the trial of former Khmer Rouge leaders as a great opportunity, calling it a "court of public opinion."

Seng, a Cambodian-born U.S.-trained lawyer, addressed a Newsmaker event at the National Press Club on Friday.

She expressed hope that the Khmer Rouge tribunal, formally the Extraordinary Chambers in the Courts of Cambodia (ECCC), could be "a powerful catalyst for social accountability--the constructive engagement of Killing Fields survivors and other Cambodians and their transformation into informed, empowered citizens."?

Seng accepted the fact that the ECCC or KRT does not have much to offer as a court of law for legal accountability. However, she said the trial is breaking legal ground by having victims of the Khmer Rouge participate as civil parties in a criminal proceeding.

She was the first such legal identity to be recognized by the ECCC, and in 2008 testified against the most senior surviving Khmer Rouge leader, Nuon Chea, known as "Brother No. 2."??

The eventual legacy of the tribunal "is still being written," she said. "Let's have another conversation five years from now, when the ECCC has closed shop."

Judges Seek To Include Civil Parties: Tribunal

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
24 February 2010

Khmer Rouge tribunal judges say they are working to admit as many civil parties into the trial process as possible, following complaints by victims of the regime in a provincial forum on Saturday.

Victims had voiced disappointment in the process of civil party selection for an upcoming trial of five jailed Khmer Rouge leaders, which they said was admitting too few people, in a process that was dragging on.

A tribunal spokesman said Wednesday the judges were reviewing applications “every day,” and that speculation on the number of applicants to be admitted to the trial process was premature.

“As you are aware, [there are] 4,004 applications,” the spokesman, Lars Olsen, said. “So it might take until the closing order in September to review all of them. Everyone has to wait until September before they know the outcome of the application procedure.”

Three hundred applicants had already been accepted by investigating judges, he said. “So it’s clear that the final number of civil party applicants will be significant.”

Less than 50 applications have been rejected so far, he added.

However, Thun Saray, president of the rights group Adhoc, said the court had more work to do in informing the public about the complaint process. People are filing complaints that are outside the purview of the court, he said.

Adhoc sponsored a forum in Takeo province on Saturday, in which victims complained about the civil party application process.

The court could admit all applicants, he said. “What’s the difference between 2,000, or 3,000, or 4,000 admitted applicants?”

Olsen said Wednesday applicants can only be admitted if their claims fall inside the investigation of the court, but the court cannot inform the public of this jurisdiction because that information is confidential.

Victims to play simpler role at KRT

A photo supplied by DC-CAM shows Boeung Rai prison, a security centre in Svay Rieng province that was not specifically named among the sites investigated by the Khmer Rouge tribunal for its second case. (Photo by: DC-CAM)

Wednesday, 10 February 2010
James O'Toole
The Phnom Penh Post

AS its critical second case approaches, the Khmer Rouge tribunal is wrestling with the issue of how to expedite proceedings against the ageing leaders set to stand trial, while at the same time giving adequate voice to the regime’s many victims.

On Tuesday, the court formally adopted reforms to civil party participation, including the establishment of a team of lead co-lawyers who alone will represent all admitted civil parties in court. In the first case, that of Tuol Sleng prison chief Kaing Guek Eav, civil parties were represented by four distinct legal teams.

This change was paired with an expansion of responsibility for the Victims Unit, renamed the Victims Support Section, to include “a broader range of services, as well as a more inclusive cross-section of victims than those who are admitted as Civil Parties in cases before the [court]”, the UN-backed tribunal said in a statement Tuesday.

More than 4,000 civil parties have applied to participate in Case 002, and about 250 had been accepted by the end of December, compared with just 90 who participated for the duration of the first case. Under the old system, this many civil parties could not have been accommodated, court officials say, though observers warn that the newly diminished legal role for civil parties may sow discontent among many victims.

“The judges ... have to balance between the rights of the accused and also respect for the victims,” said Long Panhavuth, project officer at the Cambodia Justice Initiative. “The victims have to have a meaningful way of participating.”

A further concern, aired by the Cambodian Human Rights Action Committee last week, is the potential disappointment of thousands of civil party applicants whose applications may be inadmissible.

Though the court’s mandate is to investigate crimes committed under Democratic Kampuchea (DK), charges in individual cases are confined to particular crime sites falling under the scope of the judges’ investigation. As such, prospective civil parties with applications pertaining to other sites will be unable to participate at trial.

Although the Case 002 investigation began in 2007, the sites being examined were not publicly revealed until last November.

Theary Seng, the former executive director of the Centre for Social Development and a civil party in the case, acknowledged the court’s need to keep the investigation confidential, but said the delayed disclosure did a disservice to victims.

“To use the blanket of confidentiality to keep the public from being adequately informed generally, and then to keep the victims who could become civil parties from knowing whether they fit into the scope or not is irresponsible,” she said.

After being imprisoned as a child at the Boeung Rai security centre under Democratic Kampuchea, Theary Seng was frustrated to learn that the site, where perhaps 30,000 people were killed, was not named specifically by the court (though it may be included in the investigation of purges in DK’s Eastern Zone). She said she plans to file an investigative request asking judges to examine the centre.

More broadly, Theary Seng said she resented what she views as the court’s diminished engagement with victims and civil parties.

“The fear is that they’re going to really emasculate and water down the concept [of civil parties] to make it completely not meaningful,” she said, calling victim participation essential “to give a larger meaning to this process”.

Defence teams, however, say the increased number of civil party applicants in Case 002 may undermine the rights of the accused.

Richard Rogers, chief of the court’s defence support section, said in a statement following the conclusion of Tuesday’s plenary that the newly established 10-day window for lawyers to appeal decisions about the admissibility of civil party applications is unacceptably small.

“According to international standards, an accused’s right to appeal must be practical and effective. In adopting these amendments, the plenary has left the accused with a right that is merely theoretical,” Rogers said.

Outside the courtroom

Helen Jarvis, head of the Victims Support Section, emphasised the importance of contrasting between “the issue of admissibility in a particular case … and recognition of somebody’s status as a victim”.

“It’s an important distinction. I think it’s a technical distinction, and I think that we have done and certainly will [continue to] bend over backwards to thank people for the information that they have provided,” she said.

Jarvis said her section was developing outreach efforts through “non-legal measures” to ensure that victims who are unable to officially participate nonetheless have their suffering addressed.

These measures notwithstanding, a more limited role for victims is inevitable in Case 002, said Youk Chhang, director of the Documentation Centre of Cambodia, who called on the court to be open about its reforms.

“If a person can no longer speak, you’re no longer a civil party,” he said, adding: “It’s a bumpy road by having to explain this, and perhaps the fear is of being resented by the victims.”

While he noted the importance of outreach efforts for Khmer Rouge survivors, Youk Chhang said the broader expectations of the Cambodian people are uncomplicated.

“None of the people here expect the court to go down to the villages and record their story on file,” he said. “They expect delivery of justice and a verdict.”

Tribunal Limits Civil Party Participation

A victim of the Khmer Rouge regime, currently living in the US, tells her story. She is supported by Dr. Nou Leakhena (Photo: AP)

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
09 February 2010

The Khmer Rouge tribunal will officially limit the participation of civil parties in upcoming trials, in an effort to streamline court procedures.

"In future trials, civil parties will form a consolidated group and pursue a single claim for reparations," the UN-backed court said in a statement Tuesday, at the end of a plenary session for court judges, prosecutors and other officials.

The decision was made to address "shortcomings" of the court's first trial, of prison chief Kaing Kek Iev, where the participation of multiple civil parties made procedures unwieldy.

The tribunal was designed to add victim participation in the form of civil parties, which participate alongside the defense and prosecution.

The new rules create two lead lawyers to coordinate with all civil party lawyers and victims themselves ahead of trials.

"Civil Party Lawyers may agree to support the Lead Co-Lawyers in the representation of the interests of the consolidated group," the tribunal statement said. "Such support, which will be coordinated by the Lead Co-Lawyers, may include oral and written submissions by Civil Party Lawyers, as well as examination in court of witnesses and their clients."

Tribunal To Limit Civil Parties in Court

By Kong Sothanarith and Heng Reaksmey, VOA Khmer
Original report from Phnom Penh
20 January 2010

Representatives for civil parties at the Khmer Rouge tribunal are discussing how to approach an upcoming decision that could limit their role in the courtroom.

Civil parties are groups of victims, with lawyers, who are allowed to file complaints and participate in trials at the UN-backed court, as a mechanism to help provide reconciliation for the crimes of the Khmer Rouge.

The tribunal is set to amend a rule of the court that would require all civil party lawyers to themselves be represented by select lawyers in the courtroom. The tribunal will meet for a plenary session Feb. 2 through Feb. 9.

Meanwhile the tribunal has also made a staffing change.

Tan Senarong, a deputy prosecutor for the tribunal and a judge in Kandal province, has resigned, saying his work at two jobs left him with not enough time to work effectively on either.

Chan Darareaksmey, a prosecutor in the national Court of Appeals, will replace him.

The Cambodian side of the hybrid court is filled with judges from the ranks of the court, forcing many judges to wear two hats.

Civil Party Number Spike at Tribunal

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
06 January 2010

The number of civil party applicants at the Khmer Rouge tribunal has seen a significant spike as the UN-backed court heads toward the trial of the regime’s senior-most leaders, officials said Wednesday.

The number of civil party applications exceeded 3,500 for Case No. 002, while the total number of victim complaints reached 7,200, officials said.

Judges are expected to announce a close to investigations in the second case, which seeks to try Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith and Kaing Kek Iev for atrocity crimes.

Victims have two weeks following the close to file complaints.

“It seems that people are away that they need to file now if they want to be a civil party,” tribunal spokesman Lars Olsen said, adding that one third of applicants had applied in the last three months alone.

Latt Ky, a tribunal observer for the rights group Adhoc, said the number wasn’t especially large, but the increase could signal a rise in awareness about the trial among the public.

It is unclear when the next trial will be held. Olsen said it may not be until the end of 2010 or the beginning of 2011, depending on the number of requests and appeals filed by prosecutors, defense and civil parties.

Tribunal Throws Out Civil Party Appeal

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
29 December 2009

The Supreme Court Chamber of the Khmer Rouge tribunal has announced it will take no action in a motion by civil parties who wanted a greater role in the closing sessions of the trial of prison chief Kaing Kek Iev.

The tribunal allows participation by victims of the regime in certain aspects of trial proceedings, though civil party lawyers.

At the close of the trial of Kaing Kek Iev, or Duch, in September, civil parties had appealed for the right to pose questions related to the defendant’s character and to have a say in his sentencing.

Duch’s trial ended in October, with a verdict and sentencing expected early in 2010, but as part of their appeal, civil parties had requested a Supreme Court Chamber review.

“The Supreme Court finds the appeal inadmissible,” said judge Kong Srim, the head of the chamber, in a Dec. 24 decision that was posted on the tribunal’s Web site Monday.

By weakening the impact on sentencing, the decision would diminish the credibility of the tribunal in the eyes of Khmer Rouge victims, said Kim Meng Khy, a civil party lawyer.

“This refusal is like a reduction in participation in finding truth and the fulfillment of justice for the victims,” he said.

Khmer Rouge survivors feel justice denied

Chum Mey feels the survivors have been denied justice

Friday, 11 December 2009
BBC News

For the first time at an international criminal tribunal, victims of Cambodia's notorious Khmer Rouge regime have been represented as well as the defence and prosecutors.

But as the BBC's Guy De Launey reports from Phnom Penh, the survivors are not happy with the experience.

"I lost my family," says Chum Mey.

"They killed my children and my wife. Nobody had rights or freedom then. That's why now I want to find justice - for the victims and the younger generation."

Despite his horrific story, Chum Mey does not have the air of a man who went through hell.

Now a sprightly 78, he seems many years younger, chuckles easily and speaks eloquently about his unenviable life.

The former mechanic not only lost his family to the Khmer Rouge, he also suffered torture and beatings at the notorious S-21 detention centre in Phnom Penh.

At least 14,000 inmates passed through its tiny cells and torture chambers in the late 1970s; Chum Mey is one of only three confirmed, living survivors.

Even now, his life revolves around S-21.

The prison has become a genocide museum and Chum Mey can be found there most days, offering his services as a tourist guide in exchange for a few dollars.

Equal voice

Three decades have passed since the Khmer Rouge caused the deaths of as many as two million Cambodians.

But with the start of the long-awaited, and much-delayed, Khmer Rouge tribunal, Chum Mey thought he might find some belated justice.

"Is the personification of suffering shown every day too hard to bear?" - Silke Studzinsky, Civil party lawyer

Like other survivors and the relatives of the victims, his hopes were raised by an innovation at the United Nations-backed special courts.

For the first time at an international criminal tribunal, victims - officially known as civil parties - would be given an equal voice alongside the prosecution and defence.

It raised the possibility of survivors confronting, and even questioning, their former tormentors in court.

Along with almost a hundred other people, Chum Mey was accepted as a civil party in the trial of the man who ran S-21, Kaing Guek Eav - alias Comrade Duch.

But their optimism at the start of court proceedings in March had turned to frustration and anger by the closing arguments in November.

The prosecution, defence and judges seemed, at best, ambivalent towards the civil parties.

Over the course of the trial a series of rulings whittled away at their rights to speak and question witnesses; their lawyers complained that little interest was shown in their testimony.

"They felt that the trial chamber was not very receptive to their sufferings," civil party lawyer Silke Studzinsky told the court in her closing statement.

"This left for them the impression that the trial chamber was rather uninterested in their stories," she said.

"They are still wondering why they were not treated with equal respect like all witnesses, experts and the accused. Is the personification of suffering shown every day too hard to bear?"

Perhaps the most infuriating factor for the civil parties was that while their rights to speak in court had been restricted, no such limitations appeared to apply to the defendant.

Day after the day they watched as Comrade Duch declaimed at length and quibbled with witnesses. For Chum Mey, it was hard to bear.

"When I raised questions to Duch, his lawyers objected," he said.

"Then the court did not allow my lawyers to ask questions. They seemed to ignore us. So at that point I felt like I did not have any rights to express my concerns, but Duch had the right to express himself."

Yawns and eye-rolling

The victims were not helped by the nature of their representation.

Various local and international lawyers worked with several different groups of victims - but there seemed to be little co-ordination among them.

Indeed, one international civil party lawyer conspicuously yawned and rolled his eyes while Silke Studzinsky delivered her closing statement.

Meanwhile, many civil parties appeared to have been poorly prepared for the rigours of cross-examination.

Some contradicted themselves during testimony and gave the impression of being unreliable witnesses.

"The Khmer Rouge Tribunal took the risk of allowing victims to become a party, and what we are seeing now is part of the administrative mess," says Theary Seng, who is a qualified lawyer as well as a civil party in the tribunal's forthcoming second trial.

"What we could not have envisioned as one of the problems was the grand-standing by the civil party lawyers. For some of them this was a way to build up their resume, to compete for status. That has been an embarrassing and shameful element of this."

The system will be completely overhauled for the second trial, which is not likely to start until 2011.

Instead of a gaggle of different lawyers, there will be one lead counsel for the civil parties - a mirror of the approach taken by the prosecution and defence.

The tribunal has also promised that victims will be given proper preparation before they testify.

But the changes have come too late for the civil parties in the trial of Duch.

Instead of gaining a sense of closure, some of them feel that they have been used as guinea pigs in a judicial experiment. Chum Mey believes the victims have been let down.

"We lost our voice," he says, "and there is no real justice for us."

Khmer Rouge victims seek new voice at UN tribunal

Cambodians attend the first trial of ex-Khmer Rouge man Duch

Friday, 11 December 2009
By Guy Delauney
BBC News, Phnom Penh

Victims of the Khmer Rouge are holding a conference discussing the role they are playing at a UN-backed tribunal taking place in Cambodia.

Five former Khmer Rouge leaders have been charged with crimes against humanity.

A first trial ended with accusations the special courts had shown little interest in the victims' testimony.

This conference is a chance for victims to air their concerns to officials before a second case goes to trial.

As many as two million Cambodians died in the late 1970s because of Khmer Rouge policies.

'Civil parties'

The Khmer Rouge Tribunal seemed to offer survivors - and relatives of victims - a unique opportunity.

For the first time in an international criminal process, they would be given a voice in court proceedings.

The so-called "civil parties" would have a similar status to that of the prosecution or defence.

But the first trial brought a series of disappointments.

The civil parties' rights to speak or question witnesses were whittled away as the process moved on.

Their lawyers complained that the court showed little interest in the testimony of victims and their relatives.

And some civil parties contradicted themselves while giving evidence - which suggested a lack of proper preparation.

The experience left some feeling that they'd been guinea pigs in a judicial experiment - and a number boycotted the court.

This time the civil party system has already been streamlined in anticipation.

Tribunal spokesman Lars Olsen believes that should help to avoid a repeat of the first trial's frustrations.

He said: "There will be mainly one legal team representing the voice of the victim in the trial.

"But the most important thing will be that they will have a strong and consolidated voice in the trial.

"And there will be screening and better preparation for those victims who actually appear so they're not unprepared when they are testifying."

The Centre for Justice and Reconciliation has organised the conference.

It says the first trial caused a lot of frustration and nervousness - and that victims need more information about what it means to be a civil party at the tribunal.

The Khmer Rouge Tribunal Should Treat Victims with Respect

SEPTEMBER 8, 2009
Letter to The Wall Street Journal
By Youk Chhang

Regarding Sophal Ear's op-ed "Cambodian 'Justice'" (Sept. 1): I agree with the author's concerns that recent changes in personnel at the Khmer Rouge War-Crimes Tribunal have placed unqualified persons in charge of the critical tasks of the Victims Unit, which oversees the participation of civil parties in the tribunal. Despite seemingly good intentions, the court's attempt to include victims as civil parties in an international criminal trial has failed.

With an estimated five million survivors of the Khmer Rouge genocide still living, any serious attempt to include victims in the process would have resulted in overwhelming submissions to the Victims Unit. The Victims Unit was nevertheless established late, without sufficient staffing and financial resources, and was never able to catch up with processing the proportionately small number of applications it received.

The Judges now stand ready to substantially reduce or eliminate the role of civil parties in advance of the second trial due to concerns about the time involved in adjudicating the large number of expected defense challenges.

Whatever the Court's ultimate decision about the scope of victim participation in the second trial, it has the obligation to explain the changes directly to affected victims and to respectfully hear their views. I would encourage the Court to write civil party applicants individually to acknowledge their applications, notify them of any anticipated change in procedure, and assure them that their participatory role will remain historically significant. Additionally, the Court should invite each applicant to Phnom Penh to hear about proposed changes from judicial officials and be given an opportunity to voice their opinions. Finally, if representative victims are called to testify during the second trial, a number of these persons should be voted for by the current civil party applicants from among a group pre-selected by a Victim's representative.

Youk Chhang
Director, Documentation Center of Cambodia
Phnom Penh

Khmer Rouge Tribunal – News Victim Participation in Tribunal a Precedent: Official

By Sok Khemara, VOA Khmer
Washington
02 September 2009

The UN-backed Khmer Rouge tribunal has seen more victim participation than any other genocide court in the world, with more than 20,000 victims taking part in one way or another, a tribunal official told “Hello VOA” Monday.

“There are 500 to 600 per day participating in hearings, which is different from courts in the Hague, which tried cases that happened in the former Yugoslavia with a few participants,” tribunal spokesman Reach Sambath said.

The trial for prison chief Duch, dubbed Case No. 001, began in March and is still continuing, with the court room divided from an audience in an auditorium by plates of glass, testimony heard through headphones with real-time translation.

Case No. 002, which involves four senior leaders of the regime, may see even more.

Reach Sambath said the tribunal was resolving other issues as well, with Duch’s trial coming to an end, the establishment of an independent council to investigate allegations of corruption, and the replacement of a recently retired international prosecutor.

There are outstanding issues as well.

The tribunal is approaching the decision of the Pre-Trial Chamber on whether more suspects will be indicted, an act Prime Minister Hun Sen has warned would lead to instability within the country.

And 28 civil parties have begun boycotting proceedings, saying they have not been granted enough participation in the Duch trial.

Initial hearing prior to Duch's trial closes with debate on role of civil parties

Phnom Penh (Cambodia). 25/02/2006: Visitors in genocide museum Tuol Sleng, formerly Khmer Rouge torture centre S-21, look at picture of a body found in that very room when Vietnamese troops arrived in 1979. (Photo: John Vink/ Magnum)

19-02-2009
By Stephanie Gée
Ka-set

The Extraordinary Chambers in the Courts of Cambodia (ECCC) represent the first internationalised criminal tribunal to accept that victims register as civil parties. This comes partly from the fact that the hybrid jurisdiction pertains firstly to the civil law system, which was adopted by Cambodia. As a result, everything remains to be agreed to define the role of civil parties in an international criminal law system shaped until then by common law. The debate has started between the proponents of the two legal systems at the ECCC during the second and last day of the initial hearing, which is aimed to establish the rules for the trial of Duch, the former head of Khmer Rouge prison S-21 and the first who is due to appear before the Court, probably in late March.

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Tribunal Jurists To Discuss Road Ahead

By Mean Veasna, VOA Khmer
Original report from Phnom Penh
28 August 2008

Click here to listen to the Khmer audio program

Prosecutors and judges of the Khmer Rouge tribunal will meet next week in a plenary session to consider how to proceed in coming weeks, with five leaders in detention, one ready for trial and a number of complications ahead.

"They will go over the general progress of the courts," UN tribunal spokesman Peter Foster said Thursday. "They will discuss the opening of the trial chamber and the arrival of those judges, and they will discuss any changes or experiences with the internal rules as they are now written, and perhaps suggest some revisions."

The meeting, which will last from Monday to Friday, will center around "how they are going to proceed in the coming month," he said.

The judges and prosecutors, collectively known as jurists, will also discuss technical aspects of a new court room, an audio-visual system, translation and interpretation, Foster said.

The meeting comes as the tribunal is facing a funding crisis, as it seeks to increase its mandate through 2010 and has been hampered by allegations of kickbacks and mismanagement.

UNDP has halted $300,000 in funding to the courts, as donors consider whether and how much they will continue to contribute.

"First of all, we can note the corruption within the [tribunal]," said Long Panhavuth, a tribunal monitor for the Open Society Justice Initiative. "Secondly, there is no coherence of work between international and national jurists. And third is transparency and that people do not get enough access to information on the court related to the progress of the court."

These concerns will have to be resolved, he said.

The tribunal has completed most of the pre-trial proceedings against Tuol Sleng prison chief Duch, whose real name is Kaing Kek Iev, and had hoped to begin a trial by September.

Prosecutors, however, have appealed for a redrafting of the investigating judges' closing order, which includes indictments, for Duch.

Hisham Mousar, a tribunal monitor for the rights group Adhoc, said Thursday the jurists must settle some of the challenges facing them, including the continued participation of civil parties.

"We think that the participation of civil parties makes for a more complicated procedure," he said. "They will discuss this issue because there are many problems related to it in the Pre-Trial Chamber."

Tribunal Struggles With Civil Party Role

Chum Mey, one of the few survivors of Tuol Sleng prison, is also one of the civil parties participating in Khmer Rouge tribunal proceedings.

By Mean Veasna, VOA Khmer
Original report from Phnom Penh
04 July 2008

As the pre-trial detention hearing of jailed Khmer Rouge leader Ieng Sary came to a close this week, participants found themselves at odds over how much victim participation through civil parties was too much.

Prior to one session of the hearings, the Pre-Trial Chamber judges ruled that one individual, Seng Theary, a Cambodian-American lawyer whose parents died under the Khmer Rouge, would not be allowed to participate directly. Pre-trial judges ruled that for the Ieng Sary hearings, civil party victims of the regime would only be allowed to express themselves through lawyers.

That ruling has raised questions over how much participation should be allowed in the future.

The UN-Cambodia tribunal was designed with a unique element: the presence of civil parties, who participate alongside prosecutors and the defense, representing their own cases but also speaking as a voice of the victims. But following the hearings Thursday, lawyers told reporters there was a limit.

"In some ways, it was really a bad week from the perspective of the civil parties," said lawyer for the civil parties Silke Studzinsky. "We received this week a ruling by the Pre-Trial Chamber saying that civil parties are not allowed to speak personally if they are not represented."

Under the tribunal's internal rules, civil parties are not obligated to have a lawyer, Studzinsky said.

Seng Theary called the ruling "a prevention of the civil parties' rights."

Michael Karnavas, co-defense for Ieng Sary, disagreed.

"We still have not set up the modality, how far can [civil parties] go, what should they do?" he said Thursday. "Half the time they are just repeating the arguments that the prosecutors made, rather than say, 'I concur,' and then adding one or two points."

However, Studzinsky said Karnavas was used to working with courts in a system of common law, unlike the system used to set-up the tribunal.

William Smith, co-deputy prosecutor, called civil parties very important for the tribunal. They play a watchdog role, he said, and stand up for the interest of all victims.

Tribunal spokesman Reach Sambath said the role of the civil parties was important to the courts, but in some cases, testimony such as Seng Theary's is not crucial.

"Seng Theary's case is not the same," he said. "The expression of the victims in person will be more interesting in the trials."

Cambodia Tribunal Allows Victims of the Khmer Rouge to Participate in Proceedings

28/03/2008
Cambodia / ECCC

The International Federation for Human Rights (FIDH), the REDRESS Trust (REDRESS) and Avocats Sans Frontières (ASF), with headquarters in Belgium, welcome the landmark ruling of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to allow victims of the Khmer Rouge atrocities to participate in the Courts proceedings.

Although the decision on the 20th March [1] only applies to this specific case and situation, FIDH, REDRESS and ASF believe that the ruling sets an important precedent in the interpretation of the rules applicable to civil party participation before the ECCC. It is a landmark decision in international criminal justice and a major achievement for victims of gross human rights violations, whose voices have long gone unheard.

According to the Courts decision, victims can be full parties to the criminal proceedings. This allows victims to participate in specific proceedings, such as appeals against provisional detention orders. The Pre-Trial Chamber found that the Tribunals rules make it clear that civil parties have the right to participate in the investigative phase of the procedure. Contrary to the arguments of the Defence, the Pre-Trial Chamber found that civil party involvement did not affect the rights of the Defendant to a fair trial.

The decision follows the participation of victims at a hearing on the appeal against the provisional detention of Mr. Noun Chea, one of the five persons so far indicted by the Tribunal. At the hearing, the Defence had challenged victim involvement at that particular stage of the proceedings. Considering the fundamental character of the issue to be decided upon, the Pre-Trial Chamber invited amicus curiae submissions. REDRESS, ASF and FIDH filed an amicus brief on 21st February 2008, arguing that victim participation at this stage is in accordance with international standards [2].

The Chamber sought guidance in Cambodian law provisions, and found that these were in accordance with international law developments in the area of victim participation.

Background

The ECCC is a hybrid tribunal created as a result of an agreement between the United Nations and the Government of Cambodia. It has jurisdiction to try the top Khmer Rouge leaders who committed serious crimes between 1975 and 1979 [3]. The Tribunal’s rules on victim participation are ground-breaking because victims will be permitted to join in the proceedings as civil parties, going beyond the regime of victims’ participation before the ICC. The 20th March 2008 decision is the first ever decision on civil party involvement in proceedings made by this Tribunal.
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[1] The ECCC Pre-Trial Chamber decision of 20 March 2008 on civil party participation in provisional detention appeals is available on the ECCC website.

[2] The FIDH-REDRESS-ASF amicus brief on civil party participation is available on the FIDH website.

[3] i.a. genocide, crimes against humanity, war crimes and other breaches of Cambodian criminal law.