Before Kaing Guek Eav, who is charged with overseeing the elimination of more than 12,000 people at Tuol Sleng, is called for questioning when his trial resumes at the Khmer Rouge tribunal on March 30, prosecutors are to make a two-hour opening statement, outlining the charges against him. The de-fense may respond for an equal amount of time.
But according to trial judges’ directions given last week, those representing Duch’s alleged victims can only watch.
In a motion filed this week, law-yers representing a group of 18 victims asked the court to allow them to speak as well, saying that their exclusion from the opening statements relegates them to an inferior role in the trial.
“To refuse civil parties the right to an opening statement, being al-lowed to respond to the other parties and to submit their specific interests and concerns, deprives civil parties of their fundamental rights as a party in the proceedings,” wrote lawyers Kong Pisey, Yung Panith, Hong Kimsuon and Silke Studzinsky, representing one of four groups of victims in the trial.
Under a provision created in September, the tribunal’s procedural rules allow only prosecutors to make an opening statement.
According to Marianne Wade,
a senior researcher at the Max Planck Institute for Foreign and International Criminal Law, which was consulted by the tribunal during the drafting of its procedural rules in 2006, opening statements are a feature of the adversarial or “common law” systems used mainly in English-speaking countries and other contemporary tribunals.
Inquisitive, or “civil law” systems used in Cambodia, at the Khmer Rouge tribunal, and in continental European countries, do not involve opening statements, she said.
“It’s a fundamental difference be-tween the accusatory and the in-quisitive systems,” she said by telephone from Freiburg, Germany, adding that in the common law system, victims lack procedural rights.
“The idea of an opening statement by victims is really quite difficult,” she said, adding that victims and prosecutors often disagree about the severity of the charges and the inclusion of evidence.
“They might quite legitimately want to talk about the very purpose of the trial,” Wade said.