COURT ALLOWS CHALLENGES TO CIVIL PARTY APPLICATIONS

August 26, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

The court in the trial of Kaing Guek Eav (alias Duch) decided to hear
defense challenges to civil party applications. Pursuant to the Internal
Rules, a civil party must demonstrate a personal physical, material, or
psychological injury sustained as a direct consequence of the crimes of the
accused. This typically involves establishing a family link between the
civil party and a victim of Tuol Sleng prison (S-21). Accordingly, the
majority of defense challenges were based on a lack of documentary evidence
to prove that the victim was detained and executed at S-21 and a lack of
documentary evidence to prove that the civil party was related to the victim
in the manner alleged. The defense also argued that a civil party
application cannot be based on friendship to a victim of S-21. Before
reaching the substance of these challenges, all the parties made preliminary
remarks.

Importance of liberal evidentiary standard

The prosecutor and civil party lawyers argued that the trial chamber should
not view documentary evidence, or the lack thereof, as conclusive with
regard to proving kinship between a civil party and a victim, or that the
victim was detained at S-21. Instead they reminded the chamber of the
liberal evidentiary standards under the Internal Rules and argued that the
chamber should consider all evidence which may be probative on these issues.
They noted that relevant facts often go back 30 years and it was impossible
to preserve some documents that would have been useful today. For example,
people were forced to destroy almost all photographs of family members
during the Khmer Rouge regime. Others destroyed evidence of family links to
protect themselves from being arrested and executed like their family
members.

More specifically, the prosecutor and civil party lawyers explained that the
archives at S-21 were incomplete and underrepresented the true number of
victims who perished at Tuol Sleng. Numerous documents were destroyed or
deteriorated over time because they were not properly archived. (The accused
himself also has admitted that the archives of S-21 were incomplete.)
Therefore, according to the prosecution and civil parties, the absence of a
victim from the archives of S-21 is not conclusive on the issue of whether
the victim was detained at the prison. Rather, the trial chamber should
consider the coherence and logic of civil party statements and assess them
within their specific historical context.

The prosecutor and civil party lawyers made similar remarks regarding civil
registry documents to prove kinship between civil parties and victims. The
civil registries in many provinces, communes, and districts cannot always
provide proper registration documents because some of these documents do not
exist or have disappeared. Therefore, the prosecution and civil parties
urged the chamber to consider other evidence to establish kinship.
Specifically, it should consider documents from the mayor of the civil party’s
commune or affidavits from persons who are familiar with the identities of
the civil parties and the victims.

Finally, the prosecutor and civil parties objected to the defense argument
that a civil party application cannot be based on friendship to a victim of
S-21. They argued that civil parties can suffer from psychological harm
following the death of their friends at S-21. All that is required, they
argued, is a close relationship which can include a direct family member or
a third party such as a close friend.

The defense counsels stressed that the burden of proof rested with the civil
parties to demonstrate a family link with a victim of S-21. They explained
that proof that a victim was detained at S-21 could be demonstrated by a
photograph from the prison, a confession, or the victim name on the prisoner’s
list. The defense explained that while they were not seeking all three of
these documents, they could not accept a civil party application that did
not contain at least one of these documents.

Trial chamber proceeds methodically through civil party application
challenges

As stated, the defense challenges were based almost exclusively on a lack of
documentary evidence to prove that the victim was detained and executed at
S-21 and a lack of documentary evidence to prove that the civil party was
related to the victim in the manner alleged. Most civil party applications
that the defense challenged were, in their opinion, deficient in both
respects. For each contested civil party application, the defense stated its
grounds of objection and provided a very brief description of the alleged
relationship between the civil party and the victim.

The civil party lawyers provided several general responses to the defense
objections. On the issue of proof that the victim was detained at Tuol
Sleng, many civil parties provided the chamber with either a photograph or
biography that was recently obtained from S-21. Many other civil parties
asked the court to consider the coherence and logic of their statements as
evidence that their family members were sent to S-21. For example, the
family member of one of the civil parties was suspected of involvement with
the Lon Nol regime and was arrested on April 17, 1975. According to prior
testimony before the tribunal, during that time period, those suspected of
having participated in the Lon Nol government were detained and sent to
S-21. Finally, some civil parties informed the court that they would submit
additional documentation in the coming days to prove that the victim was
detained at S-21.

On the issue of proof of kinship between the civil party and the victim,
some civil parties provided the chamber with documents from the mayors of
their communes. Others provided affidavits from persons close to the civil
party and the victim to prove that they were related in the manner alleged.
Finally some civil parties informed the court that they were in the process
of obtaining proper documentation and hoped to be able to deliver this
documentation to the court next week.

Two challenges to civil party applications were based on the defense
argument that a civil party application cannot be based on friendship to a
victim of S-21. On this issue the civil party lawyers reiterated their
preliminary argument that a civil party application is appropriate and
admissible when the civil party suffered from a personal physical, material,
or psychological injury sustained as a direct consequence of their friends’
detention and execution at S-21.

The court heard challenges to all but five of the contested civil party
applications. It will conclude this process during tomorrow’s session which
will be the last time that the chamber will address this issue.