COURT EFFECTIVELY ENDS SUBSTANTIVE PARTICIPATION OF CIVIL PARTIES UNTIL CLOSING ARGUMENTS

August 27, 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) issued two procedural
rulings that severely restricted the substantive roles of the civil parties
until closing arguments. First, it pronounced that civil parties would not
be permitted to make submissions to the court on the issue of sentencing.
Only submissions relating to guilt or civil party reparations would be
accepted. Second, it ruled that civil parties would not be permitted to
question the remaining witnesses because those testimonies will address
exclusively the character of the accused. However, before delving into these
important procedural issues, the court concluded yesterday’s process of
hearing challenges to civil party applications.

Conclusion of challenges to civil party applications

The five remaining challenges were all related to group three civil parties.
The two sides agreed to present their arguments at once rather than on a
case-by-case basis as was done yesterday. The defense argued that the civil
party applications were not admissible because no documents were provided in
the case files of any of these witnesses. Specifically, there were no
photographs, biographies, confessions or names on the prisoner’s list.

Civil party lawyer Alain Werner responded with several general observations
that were not raised yesterday. First, he argued that the jurisprudence of
international criminal law tended to favor accepting indirect evidence to
support civil party applications. He stressed that accepting these civil
party applications would not prejudice the accused because the civil parties
were not providing any incriminating evidence and Duch would not be required
to pay individual monetary reparations. Werner also argued that just as Duch
benefits from the presumption of innocence so too should civil parties
benefit from a presumption of good faith. Finally, Werner stressed the
importance of the trial chamber’s decision on this matter by noting that it
will have a big impact on the civil parties in the subsequent case at the
ECCC (case 002). In that case, many civil parties will be claiming a kinship
link to family members detained in Khmer Rouge facilities other than S-21.
It will be even more difficult to obtain relevant documents from those
detention centers because they maintained even fewer records of victims than
did Tuol Sleng prison. (However, proof of an injury should be easier to
demonstrate in case 002 because the scope of the crimes of the accused
persons is much broader than in the Duch case.)

The trial chamber informed the parties that all additional evidence relating
to civil party applications must be submitted to the court by Thursday,
September 03.

Trial chamber rules that civil parties may not question character witnesses

The trial chamber then asked the parties for submissions with regard to
whether civil parties were permitted to question character witnesses.
However, before opening the floor for the debate, the trial chamber read
aloud its decision on a related procedural matter. Responding to a request
from two civil party groups, the trial chamber ruled that civil parties were
not permitted to make submissions relating to sentencing. The timing of this
oral decision was a very ominous sign for the prosecution and civil parties
and proved to be highly suggestive of the court’s eventual ruling on the
issue of civil party questioning of character witnesses.

The prosecution argued that the civil parties should be permitted to
participate in the questioning of character witnesses. It cited numerous
articles of the Internal Rules which made reference to civil parties as
“parties to the criminal proceedings” whose purpose was, in part, to
“support the prosecution.” The prosecution emphasized that the civil parties
had been participating in all stages of the proceedings and no rule
prohibited them from questioning character witnesses. Indeed no distinction
is made in the Internal Rules between normal witnesses and character
witnesses. The prosecution argued that the voice of the civil parties is
essential and distinct from the prosecution, and would aid the chamber in
rendering an informed and just verdict.

The civil parties supported the submissions of the prosecution and added
several unique observations. First, they invoked article 90 which states
that “all parties and their lawyers shall have the right to question the
Accused.” They noted that throughout the entire proceedings witnesses had
been questioned about the character of the accused and it would untenable
were the trial chamber to restrict this practice at such a late stage. They
also stressed that Cambodian criminal procedure, much like its counter-part
in all other national civil law jurisdictions, permitted civil parties to
question all witnesses, including those who testify to the character of the
accused.

The defense countered that given the court’s ruling that civil parties were
not permitted to make submissions relating to sentencing, it followed
logically that they should not be permitted to question character witnesses.
Character evidence, the defense argued, goes directly to sentencing and has
no relevance with the issue of guilt, pain and suffering of the civil
parties, or the reparations they seek. The defense conceded the fact that
under pure national civil law systems, civil parties could question
character witnesses, but, they argued, national rules could not be
transposed to international proceedings such as these that deal with trials
of mass crimes. The defense also explained that when a defendant pleads
guilty in other international tribunals, the prosecutor agrees not to
challenge any defense character witnesses.

After an extended adjournment, the trial chamber pronounced its decision. By
majority vote, with Judge Lavergne dissenting (as he did with the earlier
procedural ruling), the chamber ruled that it would not allow civil parties
to question character witnesses. Given that all of the remaining witnesses
are character witnesses, the trial chamber effectively ended the substantive
role of the civil parties until closing arguments.

Trial chamber calls Duch to the stand

The trial chamber, displaying a renewed sense of urgency, decided to call
Duch to the stand, late in the afternoon, to begin questioning him on his
character. He only had time to answer several questions from the judges
before the court was adjourned. He provided a brief preliminary background
of his life, explaining that he was born to a relatively poor family and
became interested in political activism at a very early age. He joined the
revolution because he believed that it was a just cause that would help
liberate the Cambodian people. It was only later, and little by little, that
he discovered the criminal nature of the regime. By that point it was too
late. To leave the movement, he explained, was to lose his life.