Who can file a case with the ECCC now that the Internal Rules have been adopted and what will the process look like?

Who can file a case with the ECCC now that the Internal Rules have been adopted and what will the process look like?


Analysis

Stan Starygin


Under the newly-minted Internal Rules (IRs) of the ECCC, a reparations case (legally known as “civil party action”), technically, can be filed by anyone. This right is significant requirement by a requirement that to show injury which was inflicted on the victim during the period from April 17, 1975 to January 7, 1979. The requisite injury can’t be of general nature, but must be “physical, material or psychological”, which is likely to be a challenge to prove for the prosecution and the victim’s lawyer now that 30 years have spanned since the alleged offenses were committed. With this in mind, a civil party case of this type will have to be built like a patchwork and will require gathering evidence from sources other than documentary evidence. This will require time and resources that will need to be pulled together by the victims. A number of things will make this process easier, less costly and more coordinated. For one, the prosecution had been building cases against suspects throughout the entire time of the negotiation of the IRs and by now is likely to enough material evidence to turn them over the Co-Investigating judges. The more work is being done by the prosecution, the less work there will be to do for victims’ lawyers. However, anything that seems too easy always has a catch. Here the catch is that the prosecution builds cases with the assistance from the Co-Investigating judges, which means that they, and not the victims, have the authority to decide what to charge the suspects with. It is possible to try to influence the prosecution’s decision about what the charges should be and who they can be filed against by filing complaints far in advance of the prosecution handing over the preliminary investigations to the Co-Investigating judges, but, again, the final decision about what to include and what to leave out will remain with the Co-Prosecutors. The fact that the ECCC Law – and generally the Cambodian Criminal Law – hinges the success of a victim’s case upon the success of the prosecution’s case to which it is linked. This means that if the prosecution’s case fails, the victim’s case will not survive either. By the same token, if the prosecution’s case fails and the prosecution chooses not to appeal, the victims can’t appeal either. If the prosecution’s case is successful or successful in part and unsuccessful in part, the trial judge will hand down a judgement that equally applies to the prosecution’s case and the victim’s case.
In addition to this, substantively, victims will have to show that the injury they allege had been inflicted to them was a “direct consequence of the offense, personal and have actual come into being”. This is known as causality in legal practice. Lucky for the potential victims in this case the standard of causality here is lower than it would in some domestic legal systems and only requires that “direct consequence” be proved, rather than that coupled with “perpetrator’s intent”. This means that whether it may or may not have been the perpetrator’s intent to inflict injury upon the victim is irrelevant for as long as the injury directly resulted from the actions of the perpetrator, the victim was the one the injury was inflicted upon and it can be proven that the alleged injury was indeed inflicted.
The good news for the potential victims/civil parties is that the IRs authorized the use of victims associations we can have one lawyer represent a fairly large (there’s no restriction as to the size of the group) group of victims in what is known as class action lawsuits. Victims associations must registered organizations, but don’t have to necessary be registered in Cambodia, which opens the door for Cambodians living elsewhere in the world to form these associations and, thus, be represented before the ECCC.
The ultimate difficulty for potential civil parties remains the unfettered discretion of the Co-Prosecutors and the Co-Investigating judges in rendering a case inadmissible on reasonable grounds (“reasoned order” in the IRs) for which there’s only one instance of appeal. If the civil party’s claim gets past the Co-Prosecutors’ and Co-Investigation judges’ level, it can still be killed in the Chambers by the trial judge declaring it in admissible. Even the success of the prosecution’s case doesn’t automatically guarantee a success to all civil party claims attached to this case with the judges having the authority to rule on each civil claim individually, if deemed necessary. This may open a venue for a new hearing once the judgement in the prosecution’s case has been handed down and result in an extension of the legal process for the victims beyond the end of the prosecution’s case. In the case of the civil party is not satisfied with the decision of the Trial Chamber, appeal is likely to present another conundrum for the victims for several reasons. One is that the Trial Chamber may schedule a separate hearing for all civil party claims after it has issued the judgement in the prosecution’s case. Unless appeal is not allowed until all proceedings pertaining to a particular case are terminated in the Trial Chamber, the prosecution may go ahead with the appeal – which under these IRs is allowed within 30 days since the judgement – and the civil parties who have to hinge their claims to the prosecution’s appeal will have to scramble and play a catch-up with the prosecution while still having their claims adjudicated in the Trial Chamber. The victims’ lawyer doubtless will find themselves in a tight spot, if the termination rule is not cleared phrased and enforced at the end of the proceedings in the Trial Chamber and beginning of the appeal.