Civil party lawyers have appealed against what they describe as an “outrageous decision” by co-investigating judges at the Khmer Rouge tribunal to reject a civil party claim in the court’s controversial third case, stating that the ruling may have been politically motivated.
In the ruling, quoted in an appeal to the Pre-Trial Chamber by civil party lawyers last month, judges Siegfried Blunk and You Bunleng said that a civil party applicant’s claims to have suffered psychological harm as a result of her spouse’s forced labour under the Khmer Rouge were “highly unlikely to be true”, prompting allegations that the judges had shown “contempt and disdain” for the rights of victims.
The appeal also quoted the judges’ ruling as saying that there was no direct link between the anonymous applicant’s suffering and the forced labour of his or her spouse, who was later executed.
In a statement released on Friday, civil party lawyers Silke Studzinsky and Hong Kimsuon said that the decision by the co-investigating judges to reject the application of their client on August 5 demonstrated “serious violations of legal certainty, rule of law and procedural fairness”.
They said that the judges had ruled their client was not a “direct victim” because “personal and direct harm” was related to their client’s spouse and that the applicant had already enjoyed civil party status in Case 002.
“This decision is a slap in the face for victims who suffer psychological harm,” the statement said. “The CIJs’ recent decision follows a line of failures by the Office of the Co-Investigating Judges in dealing
with Cases 003 (and 004) … [which] points to a likelihood that the decision is influenced by political concerns.”
According to the statement, before being executed the civil party applicant’s spouse experienced forced labour at Kampong Chhnang Airport construction site, which was one of a number of crime sites revealed earlier this year to have been under investigation in Case 003. A total of 318 victims have applied for civil party-status in the case.
The civil party lawyers’ appeal further argued that the co-investigating judges had continuously failed to properly investigate Case 003 and had shown a disregard for victims’ rights. “If the CIJs take a similar approach for all “indirect victims” of crime (immediate family members of direct victims), the result would be an indirect discrimination against victims who suffered personal and direct harm as a result of crimes committed against next of kin,” the appeal read.
The appeal said that the judges’ decision was inconsistent with their client’s admission as a civil party in Case 002, and that it echoed the rejection of civil party status in Case 003 for former Olympic rower Rob Hamill, whose brother Kerry was captured by the Khmer Rouge in 1978 along with two other foreigners, and later tortured and executed at the regime’s notorious S-21 prison.
“The non-recognition of legitimate Civil Party applicants who meet legal admissibility criteria by the CIJs demonstrates, once again, that the CIJs are moving in a direction of dismissing Cases 003 (and 004),” the appeal read.
It also stated that the judges had consciously failed to notify civil party lawyers of their decision, with the “intent … to shorten the 10-day deadline for the filing of an appeal”.
Anne Heindel, a legal advisor at the Documentation Centre of Cambodia, said yesterday that the co-investigating judges’ decision had “no legal basis” and reflected a pattern of attempts to exclude victims from participating in the case.
“It’s certainly the worst legal reasoning I’ve seen at this court,” she said. “It’s completely at odds with all jurisprudence related to victim participation. It’s at odds with the court’s own jurisprudence.”
Heindel added that the judges’ reasoning that the applicant did not suffer direct harm as a victim was “gratuitous”.
“It’s unnecessary to attack the victim in this way ... to suggest that [he or she] in truth did not suffer,” she said.
Following the co-investigating judges’ abrupt closure of the Case 003 investigation in April, international co-prosecutor Andrew Cayley filed a series of investigative requests in May, declaring that the case “had not been fully investigated”.
The judges closed their Case 003 investigation despite the fact that they had yet to examine a number of alleged crime sites or to question the suspects in the case, fuelling allegations from critics that they had deliberately scuttled their investigation amid political pressure from the government.
Court spokesman Lars Olsen said yesterday that he could not comment on the appeal.