In a majority decision rendered orally on 27 August 2009, with Judge Jean-Marc Lavergne partly dissenting, the Trial Chamber barred Civil Parties from making submissions regarding the sentencing of the Accused. Furthermore, it was decided that the Civil Parties were not allowed to participate in the questioning of the Accused, of witnesses or of experts when they testify about the character of the Accused. A written decision explaining the Trial Chamber’s reasoning was issued on 9 October 2009.
The Trial Chamber’s majority (judges Nil Nonn, Silvia Cartwright, Ya Sokhan and Thou Mony) notes that while certain provisions in the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (“ECCC Law) contain references to victims, “the ECCC Law did not envisage victim participation by means of a Civil party Procedure”.
The Majority also notes that neither the Agreement between the Royal Government of Cambodia and the United Nations nor the ECCC Law “provide for the Trial Chamber to award reparations against the convicted person”. Furthermore, even though the Civil Party model in the ECCC Internal Rules is based upon Cambodian criminal procedure, it is not identical with such procedure, and the model must remain consistent with the specific nature of criminal proceedings before the ECCC. The Majority finds that the ECCC Law and the nature of the criminal proceedings before the ECCC are limitations that must be acknowledged, and therefore “a restrictive interpretation of rights of Civil Parties in proceedings before the ECCC is required”.
When discussing the different roles of the Co-Prosecutors and the Civil Parties, the Majority notes that a prosecutor represents the community and public interest, but not “individual or sectional interests, such as those related to claims for reparations”. It is therefore the role of the Co-Prosecutors to prove the guilt of the Accused. On the other hand, the role and interest of a Civil Party is mainly to seek reparation. Since criminal conviction is a prerequisite for being awarded reparations, the ECCC Internal Rules allow the Civil Parties to support the prosecution in proving the guilt of the Accused and to establish the truth. A conviction will create the foundation for a Civil Party claim for reparations.
The roles of the Co-Prosecutors and Civil Parties must diverge with respect to sentencing, where the Majority finds that:
“The Co-Prosecutors’ responsibility is to ensure an appropriate sentence and the Civil Parties’ is to seek reparation as provided in the Internal Rules. The Co-Prosecutors have no role in seeking reparation, and the Civil Parties none in relation to sentencing. The latter is the sole preserve of the prosecution, in the public interest and in the interests of justice.”
With regards to the testimonies related to the character of the Accused, the Majority finds that “these are considerations for determining aggravating or mitigating circumstances in relation to any eventual sentence, and have no bearing on the guilt or innocence of the Accused”. Consequently, the Civil Parties are barred from questioning the Accused about his character, as well as questioning experts and witnesses who were called to testify exclusively on the character issue.
In his dissenting opinion, Judge Jean-Marc Lavergne writes that, fundamentally, his disagreement “pertains to the role of the Civil Parties, to the possibility for them to participate in the proceedings concerning the character of the Accused…”. He notes that the ECCC law explicitly offers the victims a possibility to participate in the ECCC proceedings and that:
“…being joined as a Civil Party is, legally speaking, still the only means for victims to participate in the proceedings. In order to ensure respect for the rights of the victims, the Chamber must therefore, inter alia, ensure effective exercise of the rights afforded to the Civil Parties by virtue of their status, as well as fair and adversarial proceedings for all the parties without exception.”
Judge Lavergne further notes that the Internal Rules of the ECCC awards rights to the Civil Parties at the different stages of the proceedings, either by explicitly mentioning Civil Parties, or by referring to “parties” without distinction. It must therefore be assumed that, unless a certain provision in the Internal Rules explicitly excludes Civil Parties from participating or restricting their rights, they have the same rights and obligations as all other parties. Neither the Cambodian Criminal Procedure Code nor the ECCC Internal Rules make any distinction between adversarial hearing of evidence related to proving guilt and evidence related to the character of the Accused.
Furthermore, Judge Lavergne argues that testimonies related to the character of the Accused are not only relevant for determining appropriate sentencing. Assessments of the personality of the accused and his possible motivations, character traits or psychological features are all important factors in ascertaining the truth and for understanding why crimes where committed. Victims have a clear interest in this.
Finally, Judge Lavergne also notes his concerns about what he sees as an inconsistency from the Trial Chamber, as the Civil Parties on numerous occasions had been allowed to pose questions about character both to the Accused and to witnesses and experts who had appeared prior to 27 August 2009.