ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Saturday, February 18, 2012

Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part IX

On standing of civil party applicants. The Supreme Court found art. 13 of the CPC which is the base article for civil party standing. From there it followed the TC on the meandering anthropological path. While anthropology is doubtless fascinating in that National Geographic sense of the term and it might be extremely enticing to dabble in it, but there is no way to justify these cross-disciplinary forays when a perfectly fine law sitting right there. Art. 16 is the gateway to that law. It states that “in case of death of the victim, a civil action can be started or continued by his successor”. My troops are telling me that the Khmer word rendered by the translator of the version of the CPC the ECCC uses for ‘successor’ has the rough meaning of ‘offspring’ or ‘posterity’, not the narrow term ‘successor’ or ‘heir’ routinely adopted for civil law purposes. This is the test which culls out relatives who have standing from those who do not, not TC’s anthropological musings on the structure of the Cambodian family. Of course, any court might find it difficult to be guided by broad terms such as ‘offspring’ and ‘posterity’ but in the void of limiting language on these terms throughout the CPC, the court would have to recognize pretty much anybody – with few exceptions of blatancy – who claims to be a victim’s successor insofar as the court does not find itself in a situation where no connection of any kind can be shown between the victim and the person claiming to be his/her successor (which would be the sole meaning of ‘blatancy’ as suggested above). A conscientious reader might ask what prevents half the country from rushing to the court in a promising case to claim some sort of relation to a diseased victim and to latch itself to what might be a sizable payout. Safeguards were built into the CPC to prevent this from happening. These safeguards are, essentially, based on two things: (1) the security deposit a person is required to submit to become a civil party; this deposit is calculated on the anticipated cost of the proceedings; the court will not recognize a person as a civil party until the deposit is submitted (unless the court decides that this is an exceptional circumstance and waives this deposit requirement for reasons of the person’s indigence); the deposit is not returned to the civil party if the court finds that the civil party has committed abuse of process (wasting the court’s time with a claim of relation to the victim the civil party knows to be fraudulent can be found to be an abuse of process); and (2) in case the accusation brought by the civil party which has the effect of initiating a criminal prosecution is found to be fraudulent, the person against whom this accusation was brought acquires the right to bring a civil action against the civil party by way of recovering. ECCC made these safeguards go away in its jurisdiction when the free-for-all rule supplanted it (which the Court doubtless had done for reasons that a deposit for these proceedings would be insurmountable to any of the potential civil parties). Naturally, the Court found itself defenseless against fraudulent applications to become a civil party because, suddenly, applicants had nothing to lose by filing a bogus application. The year the ECCC judicial officers spent thrashing out the Internal Rules (IRs) of the Court should have been sufficient for experienced lawyers to anticipate this issue and build a way of dealing with it into the IRs (the preponderance test introduced into the relevant rules (worded as “more likely than not to be true”) of the IRs is inapplicable to this issue as it is limited to testing the factual basis of the application, not the factual and legal bases such as the applicant's standing). This is how the SCC found itself faced with having to resolve this sticky and previously not provided for issue with stories of Cambodian family culture and the oddity of “special bonds presumption”. SCC correctly found that art. 355 permitted – rather requires – a reassessment of the admissibility of civil party applications, even though such determinations will have been done at the pretrial by the time of the decision. What the SCC did not take into account is that art. 16 applies across the board which means that it equally applies to the trial level of the proceedings which, in turn, means that while the trial court has the authority and obligation to reassess, it is bound to do so on the basis of nothing other than the breadth of the term ‘successor’ or ‘offspring’ or ‘posterity’ which can only be limited by the ‘blatancy’ of the applicant’s misrepresentation of the truth, not the tenuousness of his or her relation to the victim.
Essentially, recognizing that the TC got the law right, the SCC went ahead and apologized for the “fundamental misunderstanding” which crept into the relationship between the TC and the civil parties. Apologizing is good manners (particularly if you yourself are in the wrong) but apologizing for someone else who you do not see as having made a mistake is a bit on the bizarre side of things. This “fundamental misunderstanding”, the Supreme Court felt, caused “anguish and frustration at the futility of their practical and emotional investment in the proceedings” (is the SCC still describing just how the civil parties felt or should we read between the lines here?) which merited a remedy, (only in some cases as it turned out) for the following reasons: (1) SCC’s perception that the character of these proceedings is “novel”; and (2) “conceivable lack of clarity”; and (3) confusion on the part of the civil parties. It is very touchy but the truth is that the writing had been on the wall before a single civil party application was filed (I believe we call this ‘legal certainty’ in law). This writing on the wall or legal certainty was a little document often ignored by this Court called the Criminal Procedure Code which was enacted in 2007 and which had been available in draft for years prior to that. The CPC was public, reasonably clear on the matter and there is no reason to believe that it was unavailable to the civil party lawyers in Case 001. There is nothing principally “novel” in the way the new CPC delineates the scope of civil party participation as opposed to its predecessor. The “conceivable lack of clarity” and “confusion” could have been avoided by this Court’s meddling in the Cambodian procedural canvass with its IRs and, of course, much, much better lawyers who would have known and been able and available to explain the procedural rules to their clients (as opposed to the humbuggery we witnessed during the 001 proceedings which appeared to be predicated on – particularly foreign -- civil party counsel aspiring to become self-styled Khmer Rouge-period historian through amateurish historical inquiry they had put us through). 


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