VICTIM PARTICIPATION PROJECT

It is extremely important that survivors know about their opportunity to participate in ECCC proceedings. DC-Cam’s role is to provide survivors with all the information that they need to make an informed decision about whether or not to participate. This is, in and of itself, a major contribution to the process of reconciliation. A survivor’s decision not to participate is their personal choice and must be respected. For this reason, no survivor should be encouraged to participate if they have reservations.

Importance of Managing Expectations

When survivors choose to participate, it is critical that we do everything we can to manage their expectations so that they do not lose faith in the process. For example, most people will not be picked to be witnesses. Complaints and civil party applications are likely to be rejected. We need to explain to survivors that this does not mean that the information they provided, or the harm they suffered, is not important. It only means that, due to the Court’s limited jurisdiction and time frame, their specific situation will not be discussed by the Court. Nevertheless, their request to participate will become part of the historical record and contribute to our understanding of what happened in Cambodia during the Khmer Rouge period. Moreover, by filling out the form, they can voice their views about what type of collective or symbolic reparation they would like the Court to provide to victims at the end of the process.

Survivors will want to know the means by which they can participate, the benefits and obligations of participation, and what protections will be offered to them if they participate. This information sheet attempts to answer those questions. However, because the ECCC is a new court, there are many questions that will remain unanswered until they are raised before the judicial chambers. For this reason, it is important to be honest with survivors, and let them know that we cannot always give them full and complete answers. At the same time, we can only fill out the form to the best of our ability. Don’t be concerned about precise legal definitions. It is up to the Court to decide whether survivors qualify, not us.

Finally, we must also be clear about the role of DC-Cam in this process. DC-Cam hopes to (1) inform survivors about their participation rights; and (2) help survivors register with the ECCC.  However, DC-Cam will not provide legal representation or ongoing assistance throughout the proceedings.

Filling Out the Victim Participation Form

By filling out the Victim Participation form, survivors of the Democratic Kampuchea regime may request to participate actively in ECCC proceedings in three ways: by volunteering to be witnesses, by filing complaints, and by applying to be joined as “victims” in a civil party action.

I.          WITNESSES

 Survivors or anyone else who has information that helps the Prosecutor or the Defense prove the innocence or guilt of an accused may be called as a “witness.” A witness takes an oath to state the truth, and then tells his or her story directly to the Court. Their story becomes part of the official record. The Court will choose who will be witnesses in each case, depending on which crimes they charge and which victim has the most detailed and direct evidence going to prove those crimes.

A survivor can volunteer to be called as a witness on the Victim Information Form. Additionally, if a survivor files a complaint about a crime, it is possible he or she will be called as a witness. On the other hand, even if a victim tells the Court he or she wants to be a witness, he or she may never be called to testify. Very few survivors will be called as witnesses, so survivors should know that there is only a very small chance that they will be requested to do so.

If a survivor is chosen to be a witness, he or she cannot also be a civil party. However, because so few survivors will be called as witnesses, someone who would like to be called as a witness should also register as a civil party if they are interested in participating in both ways.

II.        COMPLAINTS

Who May File a Complaint

Complaints may be filed by any person, organization or other source who witnessed or was a victim of crimes falling within the jurisdiction of the ECCC, or who has knowledge of such crimes.

The Purpose of a Complaint

The ECCC Co-Prosecutors may initiate a prosecution based on information they find on their own, or on the basis of a complaint. Complaints provide the Co-Prosecutors with factual information that they can use to (1) add charges against an accused, or (2) to bring charges against a new accused.

Required Information

Complaints must be made using the Victim Information Form, and must include the following information:

A.        The identity of the person filing the complaint;

B.        The complainant’s contact information. The Court prefers to have his or her phone number if at all possible

C.        The subject of the complaint;

D.        A summary of the alleged crimes coming within the jurisdiction of the ECCC. This should be a factual explanation of what happened to the victim.

E.        Any details of potential witnesses;

F.         Any piece of evidence in the complainant‘s possession; and

G.        An indication as to whether the complainant wishes to be joined as a Civil Party should the case lead to the initiation of an investigation.

Confidentiality

All complaints are confidential.  However, there is always the possibility that if the Court contacts the victim by mail or visits them at home people may find out that the victim has contacted the Court.

Registration

Until the creation of the Victim’s Unit, complaints will be registered with and considered by the Co-Prosecutors.

Consequences if a Complaint Is Accepted or Rejected

The Co-Prosecutors will receive and consider all complaints. However, the filing of a complaint does not automatically initiate a criminal prosecution. The Co-Prosecutors can decide at their discretion whether to accept or reject a complaint. They are obligated to notify the person filing the complaint of their decision within 60 days.

If a complaint is rejected, it does not mean that the information is not useful to the Court or that the Court considers it untrue.  It means only that the Co-Prosecutors are focusing their limited investigative resources only on a few suspects, and those few crimes for which they think they can prove guilt most easily. 

 III.      CIVIL PARTY ACTIONS

 

Who May File a Civil Party Action

Only “victims” can file civil party applications. For the purpose of ECCC participation, the term “victim” does not include all survivors, but is a “term of art,” meaning that it has a specific, narrow definition.

Any victim of a crime falling within the jurisdiction of the ECCC may act as a civil party in a case concerning that crime. Crimes in the jurisdiction of the Court include war crimes, crimes against humanity, genocide, etc. A “case” means the proceedings against a particular accused, or against more than one accused if they are prosecuted together. This means that a victim can only be joined to proceedings against someone under investigation by the Court, and must tell the court to which case he or she wishes to be joined.

The criteria for being recognized as a civil party are stricter than the criteria for filing a complaint. However, we do not yet know how broadly or narrowly this criteria will be interpreted by the Court. For this reason, we should encourage all survivors to file civil party actions, but also make it clear that there is always a possibility that the Court will find that their story is not sufficiently linked to the case they have asked to join.

When Civil Party Actions Can Be Filed

Victims can file civil party applications at any time during the judicial investigation in a particular case and until the opening of proceedings before the Trial Chamber.

The Purpose of a Civil Party Action

The purpose of Civil Party action before the ECCC is to:

a)    Participate in criminal proceedings against accused persons by supporting the prosecution; and

b)   Allow Victims to seek collective and moral reparations (not including individual financial awards, as discussed below).

Required Information

Complaints must be made using the Victim Information Form, and must include the following information:

A.        The number of the case in which the victim wished to participate. Currently there are two cases:

            KAING Guek Eav (Duch)      - Case No: 001/18-07-2007

NUON Chea                            - Case No. 002/19-09-2007

B.        Verification of the applicant’s status as a “Victim”

Civil party applicants must provide enough information so that he ECCC can verify that they are a “victim” as defined by the ECCC Internal Rules.

1.    Victims can be either persons or legal entities

2.    Victims’ injury must the result of the commission of a crime within the jurisdiction of the ECCC. This means, a grave breach, a crime against humanity, etc.

3.    Victim’s injury must be a direct consequence of a crime charged against a particular accused. This means that a link must be shown between the victim’s injury and specific crimes with which the accused is charged. 

4.    Victims must have personally suffered the harm, possibly excluding claims by, for example, a victim’s successors. This means that the child of a victim may not be able to act as a civil party on behalf of his or her deceased parent.

5.    Victims must have suffered and actual physical, material or psychological harm/injury.

·         Physical harm means bodily injury.

·         Material harm means property loss or damage.

·         Psychological harm means mental pain, including loss includes the death relatives who were the direct victim of a crime within the Court’s jurisdiction. However, psychological harm is probably a narrower category than “emotional harm” and therefore may require some showing of actual injury/impairment.

C.        Information about the alleged crimes

D.        The address where the victim lives or the address of his or her Victim’s Association or lawyer. A Victim’s Association is a special kind of organization that must be recognized by the Court.

E.         Any protective measures requested by the Victim, such as protection of his or her identity. There is no place on the form for this information, so it should be provided on a separate piece of papers.

F.         Any evidence the victim has of the injury suffered or showing the guilt of the accused or his or her accomplices.

Notification

A Civil Party application may be rejected if these criteria are not met. This decision may be appealed.

Consequences of Participation

If joined as a civil party, a victim is considered a “party” to the criminal proceedings against the particular accused. A “party” can not be called as a witness. A civil party can be questioned by the Court and have their story entered into the official Court record. A civil party call also request the Co-Investigating Judges to interview him or her, question witnesses, go to a site, and collect evidence on his or her behalf. This request can be rejected.

A civil party may abandon their civil party action at any time.

Representation in Proceedings

A Civil Party has the right to be represented by a lawyer, or be represented by a lawyer or a Victim’s Association as part of a group of victims. A Victims Association is a specific type of victim membership organization and must be formally recognized by the Victims Unit. The Victim’s Unit can provide the names of lawyers and Victims Associations who are available.  It will also help organize group representation.

Reparations

Only Civil Parties will be entitled to reparations. Reparations will NOT be individual, but will be “collective” or “moral.” “Moral” has a similar meaning to “symbolic.” Such awards may take the following forms:

a) An order to publish the judgment in any appropriate news or other media at the convicted person’s expense;

b) An order to fund any non-profit activity or service that is intended for the benefit of Victims; or

c) Other appropriate and comparable forms of reparation. This could include a wide range of things, but NOT cash. For example, it could include the creation of a national memorial, or a mental health clinic.

IV.       VICTIMS UNIT

The ECCC Victims Unit is the sole contact for victims filing to participate in proceedings. The Victim’s Unit may be contacted at:

ECCC Victims Unit

National Road 4

Chaom Chau, Dangkao, Phnom Penh, Cambodia

Email: victims unit@eccc.gov.kh

However, the Victims Unit has not yet been established. Until it is, victims should file complaints directly with the greffier (clerk) of the office of the Co-Prosecutors, and civil party applications directly with the office of the Co-Investigating Judges.

The Victims Unit will provide administrative assistance in filing complaints and processing civil party applications. It will also help victims locate lawyers and Victim Associations. It will not provide financial or legal assistance.

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