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Logo of Phnom Penh Post newspaper Phnom Penh Post - Victims in emotional, legal limbo over participation at the KR Trial

Victims in emotional, legal limbo over participation at the KR Trial


SVAY RIENG PROVINCE

After calling for unprecedented levels of victim participation, the KR tribunal is struggling to accomodate civil parties and has even reneged, some claim, on their initial rights in court

TRACEY SHELTON

Rin, a civil party to the Duch trial at the Khmer Rouge tribunal, holds a photograph of her sister who died during her incarceration at Tuol Sleng.

How to file as a civil party

  1. Fill out a Victim Information Form available at the ECCC information center (House 6A, Street 21, Tonle Bassac I, Chamkar Mon, Phnom Penh) or the ECCC website (www.eccc.gov.kh).
  2. Send the application to the Victims Unit via email (victimsunit@eccc.gov.kh) or by post to the ECCC, National Road 4, Choam Chau, Dangkao, Phnom Penh, or the ECCC Information Centre.
  3. Include details verifying your status as a victim, and have any evidence of the crime(s) attached.
  4. Completed applications will then be transferred by the Victims Unit to the greffier of the Office of the Co-Investigating Judges or the Chambers, as appropriate, through the Case File Officer, together with all necessary information concerning common representation.
  5. If applicable, the judges will decide on the admissibility of the Civil Party application and such decision shall be open to appeal before the Pre-Trial Chamber or the Supreme Court Chamber depending on the stage of the proceedings.

Victims must have suffered physical, material or psychological harm, including suffering psychologically from the death of a family member, during the period under jurisdiction.

When Rin saw the man who organised the killing of her sister calmly escorted into a Toyota Land Cruiser on national television, she wanted to club him to death the way her sister had been years before.

"I respect the law ... but I can no longer hold back my anger," the 52-year-old said.

As a civil party to the trial of Tuol Sleng prison chief Kaing Guek Eav, who is also known as Duch, Rin has a healthy respect for the judicial process.

But even so, "we've been waiting too long for justice", she said.

Rin is not the only person troubled by the mixed emotions of participating in the trial of the man who allegedly ordered the death of so many, and her frustration is symbolic of the ongoing antagonism between speed and scope at the UN-backed tribunal.

The tribunal's Victims Unit is now flooded with applications from people seeking legal recognition for their suffering under the 1975-79 regime -  up to 1,800 victim and civil party applications have been received and are now waiting to be processed.

But ongoing delays, coupled with what critics call an erosion of the legal rights of civil parties at the pretrial stage, have many wondering whether victim participation on the scale previously planned is still a priority for the near-bankrupt court.

Untested ground

Cambodia's Extraordinary Chambers is the first hybrid tribunal in history to encourage victims like Rin to play a central role in the proceedings. For the first time ever, victims as civil parties are legal participants in the criminal proceedings. A civil party has most, if not all, of the rights as the prosecution and defense, including access to documents and the ability to produce evidence in court.

Terith Chy, head of the Victims Participation Project at the Documentation Center of Cambodia (DC-Cam), is facilitating the applications of several civil parties and says that civil parties are often uncertain of their role. 

"They want to tell the court what happened, everything they saw," he said. "But they are worried about how long the process has taken and will take."

The extent to which victims will be able to participate in the trials has been a contentious issue ever since the inception of the tribunal two years ago.

Cecile Aptel, who is in charge of the International Center for Transitional Justice's Cambodia program, describes it as a case of push-and-pull for the court.

"When victims play an active role in legal proceedings, they feel directly involved in the judicial process and empowered," she said. "But this also creates a challenge for the ECCC: to ensure that a potentially large number of victims can participate effectively in the proceedings."

Despite continuing calls for more applicants, the court has, in practice, made repeated attempts to backpedal on the rights initially given to parties, some observers claim.

They want to tell the court what happened, everything they saw ... but they are worried about how long the process has taken.

In July, civil party Theary Seng was denied the chance to address the court directly during Ieng Sary's appeal against his pretrial detention on the basis she had legal representation. When she then dismissed her lawyer, she was again denied the right to speak.
Written amendments were pushed through last week at the fourth plenary session of judges requiring parties to apply at least 10 days ahead of the initial hearing if they want to speak and giving the court the power to force them into groups with a single lawyer representing them.

Setting a precedent

TRACEY SHELTON

DC-Cam’s Terith Chy speaks to a civil party in Svay Rieng province.

As the tribunal is the first of its kind to offer victims the chance to participate as legally recognised parties, observers will be looking to it as a case study.

"Decisions made by the ECCC judges may have a significant impact on choices made by other mass crimes courts about whether or not victims should play an active part in proceedings and the appropriate scope of their participation," said Anne Heindel, a legal adviser to DC-Cam.

According to Aptel, the court could potentially "lead the way and create tremendously important precedents in international criminal law".

But a major flaw in the right of KR victims to participate is that currently no legal representation is provided to parties willing to seek civil party status.

"The court needs to get money for representation so their part [in the trials] will be meaningful," said DC-Cam's Terith Chy.

Court spokesperson Helen Jarvis said that the court's new budget, for which funds are now being sought, has provisions for more staff and support activities, and for "a modest level of legal assistance to support those approved to become civil parties".

But observers, who are concerned it might be another year until other defendants are even indicted, are warning that the court's legitimacy is at stake.

"Victim participation is important for the court's legitimacy because it is the best way of making a few trials of a handful of persons relevant to survivors 30 years after the fact," Heindel said. The Victims Unit declined repeated requests for comment. 

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