Mass Victims Litigation Practices
Suggestions For Victims’ Participation at the ECCC
From Japanese Experiences in Mass Plaintiff Cases

July 9, 2008

Human Rights Now
Project Team on Khmer Rouge Trials

1Introduction .......................................................................................................................... 3
I. Scope and Methods of this Report....................................................................................... 3
1. Civil Procedures of Japan: Similarity and Differences with the ECCC system ................. 3
2. Selected Sources of Information, Knowledge, and Experiences ........................................ 4
II. Practices in Japan ............................................................................................................. 5
1. Group Representation/ Victims Organizations ................................................................ 5(1) Victims Organizations and Groups ............................................................................ 6(2) Lawyers Groups ........................................................................................................ 7(3) Suggestions for the ECCC from Japanese Experiences ............................................... 8
2. Methods for Proving Victimization ................................................................................. 9(1) Significance of the Process of Proving Victims’ Injuries .............................................. 9(2) Written Statements.................................................................................................. 10(3) Briefs on Injuries and Sufferings/ Findings of Researchers or Medical Doctors......... 10(4) Examination of Victims before Trial Judges ............................................................. 11(5) Importance of Planning and Cooperation by All the Parties Concerned.................... 12(6) Suggestions for the ECCC from Japanese Experiences ............................................. 13
3. Protection of Confidentiality and Privacy of Victims ..................................................... 13(1) Anonymous Party Practice....................................................................................... 13(2) Closed Court Sessions /Shielding at Open Sessions ................................................... 14(3) Suggestions for the ECCC from Japanese Experiences ............................................. 14
III. Conclusion..................................................................................................................... 14
Suggestions.......................................................................................................................... 15
Annex.................................................................................................................................. 182

Introduction
For the Extraordinary Chambers in the Courts of Cambodia (ECCC), Human
Rights Now (HRN) already issued “Justice for Victims – Fundamental issues for the
Extraordinary Chambers in the Courts of Cambodia” on September 13th, 20061 andcalled on the ECCC and those concerned to confirm the fundamental principles ofvictims’ rights, including the right of access to justice through participation in the legal
process and a right to reparations.
Subsequently, the ECCC adopted its Internal Rules in June 2007, 2
incorporating processes for victims’ participation as Civil Parties and the system of
reparations, as well as the provisions for the establishment of a Victims Unit, all ofwhich were recommended in our paper above.
Now, we see that victims have actually begun to participate in the ECCC
process and that the Victims Unit has initiated its operations. We emphasize again theimportance of victims’ voices and the recognition of victims’ rights as fundamental for
improved administration of the ECCC and ultimately for Cambodia as a whole in theprocess of national reconciliation.
At the same time, concerns have been expressed that the participation of too
many victims might delay or disrupt the proceedings.
Certainly, the establishment of efficient systems for the participation of mass
numbers of victims is among the crucial factors for the success of this tribunal. This
report is prepared with the hope of contributing to addressing at least some of theseconcerns about the participation of large numbers of victims in the ECCC. Introduced
here are practical experiences of mass-injury litigation in Japan, which were establishedin the 1970s and have evolved since.
I. Scope and Methods of this Report
1. Civil Procedures of Japan: Similarity and Differences with the ECCC system
The system of Japanese civil procedure is based on a civil law system3, not a
1

Revised slightly on October 13th, 2006. Available on the HRN website.
http://www.ngo-hrn.org/project/JusticeforVictims(HRN-Japan)english.pdf (English)
http://www.ngo-hrn.org/project/JusticeforVictims(HRN-Japan)japanese.pdf (Japanese)
2
Then revised on February, 2008. http://www.eccc.gov.kh/english/internal_rules.aspx
3Partly because both Cambodia and Japan are civil law jurisdictions, Japanese legal experts on civil
procedures, through the Japan International Cooperation Agency (JICA), assisted the Department ofJustice of Cambodia to prepare the Civil Procedure Code of Cambodia, which entered into force inJuly of 2006.
3

common law system. Japan does not have a class action system like that in the U.S.
Although Japanese criminal procedural rules were recently revised so that victims canparticipate in the criminal process, Japan has not yet had any experience of
mass-victims’ participation in criminal procedures. Therefore this report is based onJapanese experiences of civil lawsuits with mass victims.
In comparing Japanese procedures with the ECCC procedures, we begin byrecognizing the inherent difficulty and inadvisability of directly applying legal
mechanisms and practices from one jurisdiction to another. Building from thisrecognition of the limitations of applying Japanese practices to another context, thisreport discusses selected topics in which we still believe our experiences could be of use
to the Cambodian people.
2. Selected Sources of Information, Knowledge, and Experiences
For this report, we draw from seven lawsuits filed with courts in Japan bymany victim plaintiffs: (i) the SMON case (Tokyo)4; (ii) the HIV case (Tokyo)5; (iii) the
Yokota Air Base case (Hachiohji)6; (iv) the Hansen’s disease case (Kumamoto)7; (v) the
Hepatitis case (Tokyo)8; (vi) the case of Japanese “War Orphans” left in China (Orphanscase) (Tokyo)9; and (vii) the Atomic-Bomb Radiation Disease case (Tokyo)10.11 All ofthese cases attracted public attention in Japan and significant achievements were made4

Please see the Annex 1 to this report for general outlines of the case. For more detailed information(Japanese), see “Yakugai SMON Zen-shi” [Complete History of Drug induced disease SMON],
National Liaison Conference of SMON Associations ed., 1981
5
Please see the Annex 2 to this report for general outlines of the case. For more detailed informationin Japanese, see “Yakugai AIDS Saiban-shi” [Drug Induced AIDS Lawsuit History] vol.1“Sosho-hen” [Litigation], Tokyo HIV Litigation Representing Attorneys ed., 2002
6 Please see the Annex 3 to this report for general outlines of the case.
7
Please see the Annex 4 to this report for general outlines of the case. For more detailed information
in English, see http://www.mhlw.go.jp/english/policy/health/01/pdf/01.pdf. For more detailed
information in Japanese, see “Hansen-byo Iken Kokka-baisho Saiban Zen-shi” [Complete History ofHansen’s Disease Lawsuit on Government Liability of Unconstitutionality], The Editorial Committeeof the Complete History of Hansen’s Disease Lawsuit ed., 2006
8
Please see the Annex 5 to this report for general outlines of the case. See also “Zadankai; Seisaku
Keisei Sosho no Arikata wo Kangaeru,” [Round-Table Discussion: Insight into Policy Formation
Lawsuit], (Discussions by five lawyers) “Hoh to Minshu-shugi” [Law and Democracy], No.425,
Japan Democratic Lawyer’s Association, 2008.
9
Please see the Annex 6 to this report for general outlines of the case. See also supra “Zadankai” atnote 8.
10
Please see the Annex 7 to this report for general outlines of the case. See also supra “Zadankai”
at note 8.
11
While several courts are often involved in cases which are seen as one social issue with a similarfact pattern by the public (as victims can choose the court in which they file their case, within thebounds of civil procedural law), we generally focus on one court for the purpose of this reportamong the cases with the same fact pattern. See the Annex to this report.
4

as a result of the pursuit of inventive legal procedures by multiple victims. In somecases, advances came not necessarily through court decisions, but in the form of
settlements that contained various types of non-monetary reparations. Six of the cases
were tort litigation and the remaining one (the Atomic-Bomb case) was administrative
litigation.
Several staff lawyers working for HRN represented victims in these cases. This
report reflects direct knowledge and information gained from their practical experiences.
In preparing this report, we also interviewed leading attorneys in these cases andselected lawyers who played a key role in assisting the victims. We have also referred
to treatises and literature dealing with mass litigation in Japan.12 Though the bulk of theinformation in the report is based on the seven cases cited above, it is also informed by
the practical experiences of HRN staff lawyers representing plaintiffs in other similarcases.
In examining these cases, we focus on (i) group representation and the role ofvictims’ organizations, (ii) methods for effectively and efficiently introducing testimony
regarding victims’ injuries, and (iii) the protection of victims’ confidentiality, as we
believe this practical information could aid victims and those involved in the ECCC
procedures,13 even after considering the differences with Japanese civil procedures.14
II. Practices in Japan
1. Group Representation/ Victims Organizations
Group representation15 is an indispensable element of mass injury litigation in
12

Among others is “Daikibo-Sosho no Shinri ni Kansuru Kenkyu” [Study on Trials of Large-Scale
Litigation], Legal Training and Research Institute of the Supreme Court of Japan ed., 2000 (written
by five judges). See also supra “Zadankai” at note 8.
13
See the Annex to this report which contains other information.
14
From the filing of the cases to the achievement of settlements or the issuance of court decisions offirst instance the seven cases described in this report took between 2 years and 10 months (theHansen’s disease case) and 7 years and 3 months (the SMON case, for the plaintiffs who chose toreceive a court ruling rather than a settlement). These periods include time spent for pleadings,
preparatory proceedings for clarification of points at issue and for organizing documentary evidence,and the stage of proving the alleged illegality/liability. However, in the ECCC (i) the judicial
investigation precedes the trials and (ii) at the trial stage the primary responsibility for proving
perpetrators’ acts is assumed by Co-Prosecutors, the role of which were served by the plaintiffs’ side
attorneys in Japanese civil procedures, although Civil Parties of the ECCC may be involved in suchprocess.
15
Even when one lawyer represents many victims, the term “group representation” may be used.
However, it is extremely difficult to imagine such a situation for mass litigation in Japan. Plaintiffs
lawyers in Japan generally believe that plaintiffs who file collectively instead of individually are able
to obtain better reparations. Also, Japanese plaintiffs’ lawyers feel that multiple lawyers are better
able to represent collective victims than one individual lawyer and indeed the practice ofrepresentation by a team of lawyers has been developed to handle these situations, as is mentioned
5

Japan. In some cases, victims’ organizations or groups play significant roles, thoughthese roles are de facto ones as Japanese civil procedural rules have not yet recognized
the equivalent of the Victims’ Association system under the Internal Rules of the
ECCC.16 While organizational characteristics among such victims groups or lawyers
groups are common to some extent, none are identical. Such organizational
characteristics depend on the unique circumstances of each case, including not only the
specific nature of the litigation but also the historical situation, the local culture, andpersonal relationships among leaders involved in the litigation.17(1) Victims Organizations and Groups
In the SMON, Yokota Air Base, Orphans, and Atomic-Bomb cases, theorganizations of victims or patients pre-existed the litigation. In the SMON, Orphans,and Atomic-Bomb cases, these organizations had missions independent from the
purpose of the litigation, while in the Orphans case another association of victims waslater formed with a view to bringing a lawsuit. Roughly speaking, in all these cases such
victims’ organizations first made the decision to bring a lawsuit (or, in the Atomic Bombcase, to file applications collectively for administrative determination), and then a teamof lawyers to represent the group was organized.
On the other hand, in the HIV and Hansen’s disease cases, even thoughpatients’ organizations existed, these organizations did not play an active role in theinitial filing of the lawsuits.18 In the Hepatitis case, there was virtually no organizedgroup of patients. Therefore, lawyers’ groups who were interested in the issues, together
with a handful of active potential individual plaintiffs, took the initiative in organizing
other plaintiffs.
The relationship of one victims’ group with other groups varies. In the
Hepatitis case, the plaintiffs group at the national level was created from the beginninglater in the report.
In Japan there is a system that qualified consumer organizations are allowed to file a case under
the Consumer Contract Act.
17
For this reason, and to avoid misunderstandings, we suggest that the following examples should be
modified in their application to organizing Civil Parties at the ECCC.
18
In an earlier stage of the HIV case, hemophilia patients infected with HIV by tainted blood
products feared social discrimination against them, and a majority of them were reluctant to file alawsuit because they thought such an action could make their primary doctors avoid “plaintiff”
patients. In an earlier stage of the Hansen’s disease case, ex-patients also feared social discriminationand many of them thought a lawsuit would attract “unnecessary” public attention to them and theirfamilies. In addition, ex-patients who lived in a national sanatorium for decades were afraid thatsuch an action could make the government discriminate against them in their treatment. Therefore inboth cases, just a small group of victims began lawsuits first and expansion of the victims groupoccurred only gradually. For these reasons, the protection of plaintiffs’ anonymity and privacy wereamong the critical challenges for both cases, as is discussed below.
16

6through the initiative of the lawyers. In the SMON case, there was a nation-wide
patients’ association which later split. In the Hansen’s disease case, plaintiffs groups
were gradually organized at local levels and later the national-level network association
was established. In the HIV case, the relationship between the victims’ groups in Tokyo
and Osaka was not necessarily amicable at the beginning and a good relationship was
not developed until much later.
These organizations play substantial roles in the litigation process incommunicating among plaintiffs and victims, facilitating group decision-making so thatplaintiffs’ opinions can be delivered as a unified voice, building a sense of fellowship,
supporting victims mentally and emotionally, and attracting public awareness. 19
Meetings were usually held just after court hearings or sessions by the victims’ groups
along with lawyers and support people to ensure victims understood the day’s
proceedings. The organizations or the attorneys also often published newsletters toenhance communication with the plaintiffs. Such an organization, especially anational-level organization or network, is particularly important when victims
collectively request reparations other than monetary compensation. In Japan, mass
victims are often successful in obtaining non-monetary reparations20 from settlements if
the requests are based on coordinated or unified requests among multiple groups ofplaintiffs.
(2) Lawyers Groups
In each of these mass injury cases in Japan, victims were represented not by
one individual lawyer but by one or multiple teams of lawyers. Each attorney in theteam is usually responsible for one or more victims for the purpose of ensuringconsistent communication and preparing the victims’ written statements.
The relationship of one group of attorneys with other groups does not follow
the same path as that among plaintiffs groups. 21 Not only in the Orphans andAtomic-Bomb cases, but also in the SMON case (after the split of the nation-wide
patients’ organization), in the HIV case (even before the good relationship wasdeveloped between the two patients’ groups), and in the Hansen’s disease case (even19

To acquire centripetal force, it is essential for such an organization to maintain its integrity.
HRN is considering preparing another report on reparations including what type of non-monetary
reparations have been realized in mass victims cases and what role was played by victims in thisregard in Japan, with the hope that these experiences can serve as a reference for the ECCC.
21
In the Hepatitis case, there was only one national-level lawyers group from the beginning (around
November of 2000), even though cases were filed with five courts. The Yokota Air Base case wasbrought only in the Hachiohji Branch of the Tokyo District Court by a group of the plaintiffs andtheir lawyers.
20

7

before the plaintiffs were organized locally and nationally), each group of lawyers
representing a group of plaintiffs kept in communication or established good
relationships with other lawyers representing other plaintiffs groups, even when therelationships among these plaintiffs groups were not necessarily amicable. In the SMON
and Hansen’s disease cases national-level networks were later created among lawyers
groups.
The lawyers' groups shared various practical experiences and information on
the proceedings, such as what type of evidence had been produced or was being
prepared. Sometimes, evidence produced for one court was copied for another court
based on such communications.
(3) Suggestions for the ECCC from Japanese Experiences
One of the key factors for the success of the ECCC will be determining how tobest organize group representation, including determining which victim should be
represented by which lawyer. Based on the Japanese experiences, we suggest thefollowing, not as static guidelines, but as stepping stones to develop better practices forthe tribunal.
.
First, the formation of a very large group of Civil Parties represented by a small
group of lawyers would deserve serious consideration. Such a victims’ group does nothave to be a Victims’ Association. Worrying too much about the large size of the groupwill distract from recognizing the real values of participation, as the inclusion of large
numbers of victims can indeed work. As described in the Annex to this report, theYokota Air Base case had more than 6,000 victims represented by 20 lawyers and theTokyo Orphans case had around 1,100 victims represented by 40 lawyers. For the
ECCC, except for such Civil Parties who already have specific reasons (such asconflicts of interest22) or intentions of choosing particular lawyers23, all the Civil Parties
22

It could be difficult for attorneys to deal with conflicts of interest among victims in the same group.
However, each victim has a right to “opt-out” and can leave the group whenever she or he likes.
Civil Party lawyers or the Victims Unit of the ECCC should be able to listen to Civil Parties andexplain carefully, without putting any pressure on their choice, both the conflicts of interest(apparent or potential) and victims’ right to leave the group, and the possible benefits of remaining
in the group and waiving the conflicting interest. More precisely, those who want to remain in thegroup need not waive the conflicting interest forever, but only as long as they stay in the group andcontinue to be represented by the same lawyers. In Japan, while a victims’ group sometimes splits oris amicably separated due to conflicts of interests or opinions, in other cases many victims
voluntarily choose to remain in the large group despite conflicting interests as they appreciate thegroup’s ability to gather and share information, strengthen their collected voices, provide fellowshipand improve mental health. Discussions among victims in the same group can help them understandeach other and find better solutions for both conflicting interests.
23
The Civil Parties who have been supported by lawyers of the same NGO in filing a Civil Party
application may be better off forming one group with common lawyers.
8who have not joined any Victims’ Association may be requested or ordered be
represented by the same group of lawyers24 under Rule 23, sections 8 (a) and (c) of theInternal Rules in accordance with “the interests of Justice.” In short, the idea is to form
just one (or as few as possible) group(s) to which all the Civil Parties belong. This may
be done as a provisional solution until a more appropriate grouping, if any, isidentified.25
Second, the Civil Parties’ lawyers can and should communicate and cooperatewith each other. Especially among the lawyers representing different groups of Civil
Parties, frequent communication and exchange of information and best practices help
generate efficient and effective advocacy and a better management of court procedures,
as well as serving the interests of each client and of justice. The Victims Unit may hostmeetings to enhance cooperation among Civil Parties’ lawyers from time to time.
2. Methods for Proving Victimization(1) Significance of the Process of Proving Victims’ Injuries
Trial Judges must be given a clear picture of the reality of the injuries andsufferings of victims. The court’s determination of the nature of the crimes and theappropriateness of reparations depend on Judges’ understanding of victims’ experiences.
If Judges’ understanding of victims’ reality is only superficial, their decisions could
24

For instance (i) just one lawyers group which consists of perhaps all or most of the lawyers on thelist without any specific client may represent most of the Civil Parties, or (ii) lawyers may be divided
into groups of a few or up to twenty to represent Civil Parties from each area or province
respectively, paying special attention to ethnic minorities.
25
In order to reach such a more appropriate grouping, if any, efforts by the Victims Unit tocoordinate among Civil Parties, lawyers, NGOs, and the ECCC staff would be crucial, if potentiallytime-consuming. In grouping victims, it may be good to start based on the communities (i) where
they now live and/or (ii) where they lived at the time of the crime(s) in question. Grouping based onplace of current residence would be convenient for communication regarding the trial. Grouping
based on place of residence at the time of the crime would help the representing lawyers have abetter understanding of the situation the victims faced and survived. Each community-based group
can also be a sub-group under a larger group based on each district, etc. Careful attention should be
paid victims’ expectations for the ECCC. Even if these expectations are not necessarily common,
they can continue to form one group unless there is serious conflict of interests or emotions. The
ECCC, Civil Party lawyers and the Victims Unit must be sensitive to and able to handle a difficult
situation such as one where a killer and a family of the victim killed are in the same community
based group. While Japanese plaintiffs lawyers may not have faced a analogous case, ourexperiences suggest that lawyers or staff of the Victim Unit must listen carefully to both of thestories (by different interviewers, as appropriate), consult with those concerned, judge as to which
would be better to leave the group, and try to explain each of them the reason for asking one to leave,with the last resort being requesting an court order. All the rights of the one (under the IRs) who left
one group must be guaranteed even thereafter, of course. The Victims Unit is best placed to establish
a guideline on common representation of a group of Civil Parties, including measures to settle suchdisputes.
9easily undermine the credibility of the tribunal.26
The presentation of evidence is also a crucial process through which victims
can feel a sense of participation. Merely watching a final court decision, even one
favorable to victims, is fundamentally different from victims actually participating inestablishing the evidence before the court. Experiences from Japanese mass-victims
cases have shown that participation in this process can even have a healing effect on
victims that contributes to their recovery from the trauma they have experienced.
On the other hand, there are unavoidable limitations of time and resources that
constrain the ECCC. The challenge, then, is how the relevant actors can organize thisprocess in an effective and efficient manner. Careful, coordinated efforts of lawyers
representing victims are crucial and the sections below describe some of the methods
that have been successfully used in Japanese mass-victims cases.
(2) Written Statements
Written statements are usually prepared based on interviews with each victimby their attorneys in order to document their personal histories, the contexts in which
the injuries were sustained, the impact of the injuries on their lives and their current
perspectives. Frequently, the attorney prepares a draft and the victim reads it by him or
herself or the attorney reads it to him or her for confirmation, and then he or she signs
it. 27 In mass-victims litigation in Japan, the plaintiffs’ attorneys usually prepare
written statements for as many victims as possible.28
Because many victims cannot physically appear in court to present their
testimony, written statements can serve to some extent as a substitute. Written
statements also can provide necessary information for the representing attorneys or thejudges who are selecting those plaintiffs whose appearance and testimony in court
would be most important.
(3) Briefs on Injuries and Sufferings/ Findings of Researchers or Medical
Doctors
Briefs are prepared by representing attorneys, based on analysis of theinterviews and the written statements of victims, as well as other sources.
26

For instance a court decision for some mass litigation in Japan was called “colder than snow,”even though the decision was for the plaintiffs.
27
Needless to say, building a trust relationship is crucial between an interviewer and an interviewee,
as interviews can reach suppressed hidden traumas. As some victims may not have talked about theirexperiences with anyone, not even their spouses, care in choosing the place of the interview isimportant to ensure confidentiality.
28
Where causal connection with injury is contested by the opposite party, then as a matter of course
a written statement of the victim is required. However, even in other instances, all or most of theplaintiffs usually submit their written statements. In the Yokota Air Base case, a written statement
was prepared for each family, not for each individual plaintiff.
10Additionally, representing attorneys may submit the results of studies by
researchers or medical doctors in the relevant field. Sometimes such experts may also
appear in court to explain and elaborate on the findings.
Such briefs and expert findings help judges to understand both the overall
picture of the injuries and the distinctive fact patterns of each case that characterize thenature of victims’ suffering.29 To ensure equal participation by victims, it is important
for lawyers to explain these briefs, studies and expert testimonies to the plaintiffs.
(4) Examination of Victims before Trial Judges
In order for the ECCC judges to understand the reality of the victimization thathas taken place, testimony by the victims themselves is indispensable. Though thepractice in the ECCC may differ because of its unique context, we still believe some of
the information below can be useful in order to develop the tribunal’s own practice inthis regard.
(a) Selection of Victims/Time Spent for Victims Testimony
In Japanese mass litigation cases, a court often determines that it will first issue
a ruling for the first group of plaintiffs and then expedites the proceedings for that group.
After such a determination to expedite proceedings for the first group, in some of thecases most or all of the plaintiffs in that group actually testified before the judges: the
SMON case (154 plaintiffs, taking less than 6 months); the HIV case (49 plaintiffs,
taking 15 months); the Hepatitis case (around 12 plaintiffs, taking 7 months); and theAtomic-Bomb case (around 30 plaintiffs, taking one year). 30 Although this broad
participation helped judges better understand victims’ experiences, such an approach toencouraging most or all of the plaintiffs to testify would not be appropriate for the
ECCC considering the constraints on its time and resources.
In several of the other mass plaintiff cases, only a limited number of selectedvictims testified: in the Yokota Air Base case (the plaintiffs side selected only 14 victims
out of 6,000 plaintiffs, taking 10 months), the Orphans case (40 out of 630 first groupplaintiffs, taking 14 months), and the Hansen’s Disease case (24 out of 127 first groupplaintiffs, taking 7 months). The factors considered, mainly by the plaintiffs, but also by
the judges, for the selection of victims to testify were (i) a balance of places of residence,
29

For example, the experiences of victims in the A-Bomb case were truly unusual andunprecedented, and often their injuries affected their memories resulting in partial amnesia or inseemingly unreasonable narratives. For this reason, in the A-Bomb Radiation Disease case, thebooks and testimony of a psychiatrist who had seen many A-Bomb survivors were useful for thejudges to understand such phenomena.
30
For the HIV case, the Hepatitis case, and the A-Bomb case, it was necessary for most of theplaintiffs to testify as the causal connection with the injury of each plaintiff was a seriously contested
issue.
11

occupations, ages, and genders, (ii) severity of injuries, or a balance of types of injuries,and (iii) roles among the plaintiffs such as group leadership and desire to testify.
(b) Testimony before Commissioned Judge or Visiting Judge/ On Site
Testimony
A judicial body for each case usually consists of three judges in mass litigationin Japan. However, for a limited purpose such as hearing victim testimony, a court
sometimes allows one judge to conduct these sessions alone. This method makes
possible three simultaneous hearings conducted by the three judges in different
locations. A commissioned judge may also go outside of the court to conduct suchsessions in more convenient locations. In the SMON case, six or seven plaintiffs were
heard each day under the commissioned judge system. Also, in the SMON case thejudges made a one week stay at Tokushima (500 kilometers away from Tokyo) to hear
the testimony of 17 plaintiffs there. In the Hansen’s disease case, the judges went toseveral sanatoriums and each time they heard four to six plaintiffs’ testimony for twodays.
Depending on the health conditions of the victim testifying, judges may hear
the victims’ testimony in a hospital or another appropriate place. In the HIV case,twelve victims testified before visiting judges at hospitals in order to present theevidence in the voices of these terminally ill victims. One plaintiff with terminal cancer
also was heard in a hospital in the Hepatitis case as well.
(5) Importance of Planning and Cooperation by All the Parties Concerned
In order to ensure effective and efficient proceedings under the constraints oftime and other resources, Japanese judges and lawyers with experience of mass
litigation emphasize the importance of scheduling and planning proceedings withcooperation by all the parties. All the lawyers involved are responsible for improving
practice in this regard. Japanese rules of civil procedure provide for preparatory
proceedings in order to ensure cooperation and planning among all the parties.
Additionally, consultation sessions with all the parties are usually held from time to time
for scheduling and for more frank discussions31.

31

For the ECCC, if appropriate, (informal) consultation sessions prior to some hearings may beordered in advance by presiding judges with the condition of “without prejudice” to each formal
position, or such a consultation session may be explicitly established by a Practice Direction, etc.
(Please note, for the avoidance of doubt, these sessions are neither for fact-finding nor for arguments
on substantive issues. The principle of presumption of innocence must base such sessions. )Also such a consultation session can be useful in relation to reparation-related matters, which would
be discussed in our next report under contemplation.
12(6) Suggestions for the ECCC from Japanese Experiences
We believe that at least the Trial Judges32 of the ECCC should hear, for the
purpose of fact-finding, selected Civil Parties among those who wish to be heard.33 In
discussion with each other and with the coordination of the Victims Unit or the Trial
Chamber, if appropriate, Civil Parties’ lawyers should consider the factors listed above
and communicate the reasons for the selection of Civil Parties to the Trial Judges fortheir consideration.
To hear the testimony of such selected Civil Parties, sessions by commissioned
judges and/or on-site sessions by visiting judges may be held, as appropriate.34
In order to create effective and efficient hearings, written statements by Civil
Parties, briefs by Civil Parties’ lawyers, and findings by experts, as appropriate, should
be prepared and submitted in advance.
Such sessions for preparation or consultation as discussed in (5) above may behosted by the Trial Chamber between the Initial Hearing and the subsequent sessions.
Trial Judges may declare at the Initial Hearing (or any time they deem appropriate) thatsome matters should be put off for later decision and refer the scheduling of thesematters to subsequent consultation sessions to be attended by all the representatives ofthe parties, without prejudice to the position of each party and the final authority of thejudges to decide on the matters.
3. Protection of Confidentiality and Privacy of Victims(1) Anonymous Party PracticeIn the HIV case and the Hansen’s disease case, anonymity of the plaintiffs wasmaintained in order to protect the confidentiality and privacy of victim plaintiffs.35 Each
plaintiff was given a number and called by that number instead of his or her name atevery stage of the proceedings, unless a plaintiff waived the protection.
Case files were also kept strictly confidential. Only very limited staff of thecourt were allowed access to the list containing both the name and the corresponding
number of a plaintiff. The representing attorneys also designated a limited number oflawyers who had full access to the information regarding victims’ identities. Even postal
32

We suppose that the Investigating Judges has heard more of their voices. Other Judges also shouldhear Civil Parties as appropriate in accordance with the nature of each stage of the procedures, ofcourse.
33 Protection of confidentiality and privacy of victims will also be discussed later in the report.
34
Rule 91 (1) would be applicable if the examination is conducted within the frame of “hearing.”
Rule 93 could be also utilized for this purpose. Otherwise, a Practice Direction or the revision of theIRs may be required.
35
As for the fears victims felt in the HIV case and the Hansen’s disease case, see supra note 18.
13

delivery of sensitive court documents with identifying information was sometimes
avoided. While trial documents are generally available for anyone to read under civil
procedural rules in Japan, some documents in the HIV and Hansen’s disease cases, suchas written statements of the victims, were protected by a restrictive order of the court
and physically separated from other parts of the case file.
Thanks to the efforts of all those concerned, there have been no reported
unintended disclosures or leakages of the identities of the victims who wanted
anonymity in these cases. The media also cooperated in maintaining anonymity.
(2) Closed Court Sessions /Shielding at Open Sessions
For the testimony of plaintiffs who wanted to remain anonymous, closed
hearings (i.e., hearings in camera) were conducted (by a commissioned judge in someinstances) in the HIV and Hansen’s disease cases. In the Hansen’s disease and HIV
cases some plaintiffs also testified at open hearings while maintaining their anonymity,in the latter case through the protection of partitions shielding their identity while
testifying in the open court room.
(3) Suggestions for the ECCC from Japanese Experiences
Though we have emphasized that the Trial Judges of the ECCC should hearselected Civil Parties among those who wish to be heard, we must also emphasize that
Civil Parties’ safety must be guaranteed by the court at all costs. Civil Parties who wish
to testify before Trial Judges (or any other Judges) should not be forced to give up their
desire to testify only because of security concerns. Ensuring both Civil Parties’
participation and their safety should be considered to be among the core missions of the
ECCC in the historical context of Cambodia. For this purpose, the tribunal needs totake all possible measures to ensure Civil Parties safety and anonymity, including thoseutilized in Japan as described above.

III. Conclusion
We would like to emphasize that an efficient and effective method of Civil
Party participation can and should be established at the ECCC. In this report, we have
not only described Japanese practices for mass-victim proceedings, but also ventured tomake some suggestions for the ECCC derived from these experiences. This is done only
because we would hope our report will be of use for those concerned with the ECCC
and for the Cambodian people as a whole. Aware that the practices of anotherjurisdiction cannot be directly applied to the ECCC in its effort to develop mass Civil
Party practice, we present this report and its suggestions as starting point from which to14

move forward, not as a static ending point or goal. Japanese practices tell us that while
there are similarities in the methods and procedures among various types of mass injury
litigation, no two cases are the same. Parties and lawyers must explore past experienceand possible solutions in order to develop a better practice on a case-by-case basis.
As we stated in our previous paper36, victims’ presence and participation in the
ECCC is essential to achieve real justice and the ultimate purpose for which the ECCC
was established. With this in mind, we believe that coordinated efforts among theVictims Unit and all concerned parties will develop a better practice for mass Civil
Party proceedings.37
Suggestions
For Lawyers Representing Civil Parties:¾ Communicate and cooperate with lawyers representing other victims’groups, as well as with the Victims Unit and the Trial Chamber as
appropriate, in order to create efficient and effective trial advocacy anda better management of court procedures, and in order to achieve thebest interests of each client and of justice.
¾ Support the organizing of a large group of Civil Parties in cooperation
with other lawyers.
¾ Select appropriate Civil Parties to testify before the judges,
considering the appropriate balance among types and severity of
injuries, ages, genders, occupations and places of residence, among
other factors. Lawyers representing different groups of Civil Parties
should communicate with each other in the selection process.
¾ Prepare and submit written statements of victims, briefs, and expert
findings, as appropriate.
¾ Make all possible efforts to maintain the confidentiality of the Civil
Parties, including developing a procedure to ensure anonymity andlimiting the number of lawyers who have full access to identifying
information, except for the Civil Parties who waive such protection.
Request, as appropriate, hearings in camera or protective screens toshield the identities of Civil Parties in open hearings.
36

See supra note 1.
We are available for inquiries and requests for more information regarding Japanese practices andexperiences.
37

15

¾ Establish strong relationships with civil society organizations
supporting victims in order to ensure their appropriate and effective
participation in the ECCC.
For the Victims Unit:¾ Coordinate Civil Parties, lawyers and the judges in order to organize
as large a group of Civil Parties as possible. The Unit may hostmeetings to facilitate the process of organizing Civil Parties to ensure
the broadest possible participation by victims. The division of theentirety of the Civil Parties into appropriate smaller groups may beconsidered later based on experiences of the functioning of the large
group.
¾ Assist and coordinate Civil Parties and their lawyers in the process of
selecting Civil Parties to testify before the judges.
¾ Make every effort to maintain the confidentiality of the Civil Parties,
including cooperating with anonymity procedures and limiting thestaff who have access to identity information as far as possible, except
for the Civil Parties who waive such protection.
¾ Facilitate strong relationships with civil society organizations andbuild their capacity by holding regular meetings to share information.
¾ Establish comprehensive guidelines for the common representation ofgroups of Civil Parties in order to ensure victims’ effective
participation and avoid conflicts of interests.
For the Judges:¾ Consider the formation of a large group of Civil Parties, inconsultation with the Victims Unit, represented by a small team ofcommon lawyers based on Rule 23, section 8 (a) or (c) of the Internal
Rules in accordance with the interests of Justice. This consolidation
may be undertaken as a provisional solution until more appropriategroupings are identified.
¾ Hear directly, especially at the trial stage, selected Civil Parties among
those who wish to be heard, in order to grasp the reality of victims’
experiences. The examination of such selected Civil Parties may beheld by commissioned judges and/or as on-site sessions by visiting
judges.

16

¾ Consider hosting, after the Initial Hearing, sessions for preparation or
consultation to be attended by representatives of all the parties, for the
purpose of scheduling and organizing the proceedings, without
prejudice to the position of each party or the final authority of thejudges to decide on such matters. Such sessions may also be held tofacilitate the selection of testifying Civil Parties.
¾ Make all possible efforts to maintain the confidentiality of the Civil
Parties, including developing and adopting procedures to maintainanonymity, separating sensitive parts of the case files for strict
confidentiality and limiting the staff who have full access to
identifying documents, except for the Civil Parties who waive suchprotection. Conduct hearings in camera or use protective screens toshield the identities of Civil Parties in open hearings upon request.

For International Donors and the International Community:¾ Support and fund the systems and practices necessary for theparticipation of victims, especially as Civil Parties, in the ECCC
process.

17Annex 1
Case Name
Estimated Number of Victims
Courts (venue and number)

Case Outlines (SMON case)Lawsuit on Drag Induced Disease SMON
More than 11,000
Tokyo, Osaka, Fukuoka, Kanazawa,
Hiroshima, Sapporo, Kyoto, etc (32)Tokyo
5,953 (national level) / 1,750 (Tokyo) *1

Venue Focused on in the Report
Number of Plaintiffs
Number of Attorneys Representing
24 (Tokyo) *2
Plaintiffs
Pharmaceutical companies and the
Defendant(s)Japanese government
Date of Filing
May of 1971
Period Required for Plaintiffs' Testimony
less than 6 months
before Trial Judges
Settlement in October 1977 (Tokyo), thecourt decision in August 1978 (Tokyo) *3,
national level memorandum for settlement
Closing of the First Instancebytheplaintiffs,
pharmaceuticalcompanies and the government in
September of 1979
Plaintiffs Organization or Network at Nation-wide network of associations was
National Level
formed March of 1974 *4
Attorneys Organization or Network at National level exchange conferences were
National Level
held beginning in June of 1973
Privacy Protection
N/A
Compensation claims based on tort for
negligent
production/distributionofquinoform by pharmaceutical companies
and negligent supervision by the JapaneseCase Abstract
government.
Quinoformisananti-flatulent and caused SMON (subacute
myelo-optico-neuropathy).
*1

The numbers (both national level and Tokyo) are as of 1981

*2

The number is for a group of 634 plaintiffs of 1,750 at Tokyo.

*3 899 HANREI JIHO 48*4 The nation-wide patients association (National SMON Association) was established in Novemberof 1969

18

Annex 2

Case Outlines (HIV case)

Case Name

HIV Litigation

Estimated Number of Victims

1,500 - 1,800

Courts (venue and number)Tokyo, Osaka (2)Venue Focused on in the ReportTokyo

Number of Plaintiffs

118 (Tokyo) / 99 (Osaka) *1

Number of Attorneys Representing 30 to 50 (Tokyo)
Plaintiffs
Defendant(s)Five(5) pharmaceutical companies and theJapanese government
Date of Filing
PeriodRequired

May of 1989 (Osaka), October of 1989 (Tokyo)
forPlaintiffs' 15 months (Tokyo), 8 months (Osaka)

Testimony before Trial Judges
Closing of the First Instance

Settlement in March of 1996 (for both Tokyo
and Osaka)

Plaintiffs Organization or Network at N/A (cooperation between the two groups from
National Level

March of 1996)

Attorneys Organization or Network at N/A (communication between the two groups)
National Level
Privacy Protection

Anonymity procedures/ Shielding during thetestimony of selected plaintiffs in open court
room/ Closed examination

Case Abstract

Compensation claims based on tort for
negligent

production/distribution

of

blood

products

forhemophilia

patients

bypharmaceuticalcompanies

andnegligentsupervision by the Japanese government. These
blood products were unheated and caused HIV
infection*1

The numbers (both Tokyo and Osaka) are as of March 199619

Annex 3

Case Outlines (Yokota Air Base case)
New Litigation of Jet Noise of Yokota Air

Case Name

Base

Estimated Number of Victims

300,000
Hachiohji Branch of the Tokyo District

Courts (venue and number)

Court (1)Hachiohji Branch of the Tokyo District

Venue Focused on in the Report

Court

Number of Plaintiffs
Numberof

Attorneys

5,957
Representing

Plaintiffs

About 20

Defendant(s)Japanese government

Date of Filing

April of 1996

Period Required for Plaintiffs' Testimony
before Trial Judges
Closing of the First Instance

Court decision in May of 2002 *1

Plaintiffs Organization or Network at
National Level
Attorneys Organization or Network at
National Level
Privacy Protection

10 months

N/A
N/A
N/A
Claims for compensation and injunction

Case Abstract

based on tort for jet noise from Yokota Air
Base, which is the base for U.S. Air Forcein Japan*1 1790 HANREI JIHO 47

20

Annex 4

Case Outlines (Hansen's disease case)
Hansen’s Disease Lawsuit on Government
Liability of Unconstitutionality
More than 5,000
Tokyo, Okayama, Kumamoto (3)Kumamoto
779 (national level) / 592 (Kumamoto) *1
1,702 (national level)/ 995(Kumamoto) *2

Case Name
Estimated Number of Victims
Courts (venue and number)
Venue Focused on in the Report
Number of Plaintiffs
Number of Attorneys Representing
Plaintiffs
Defendant(s)Date of Filing
Period Required for Plaintiffs' Testimony
before Trial Judges

About 20 (Kumamoto)Japanese government
July of 1998 (Kumamoto)
7 months (Kumamoto)

Court decision in May of 2001
(Kumamoto) *3 & Basic Settlement
Closing of the First InstanceAgreement with the Government in July of
2001(national level)
Plaintiffs Organization or Network at Nation-wide network association was
National Level
formed in April of 2001
Attorneys Organization or Network at National level network conference was
National Level
held in October of 1999 and thereafter
Anonymity procedures/ Closed hearings
Privacy Protection
for selected testimony
Compensation claims based on tort for theJapanesegovernment
policyofsegregating Hansen's disease patients into
sanatoria, discriminatory and inhumane
Case Abstract
treatments including forced labor, andeugenic measures (forced sterilizations
and abortions). Most of the plaintiffs havebeen placed in national sanatoria since1940's, 1950's, or 1960's.
*1

The numbers (both national level and Kumamoto) are at the time of the court decision by the
Kumamoto District Court (11 May 2001)*2

The numbers (both national level and Kumamoto) are as of 21 May 2001

*3 1748 HANREI JIHO 30

21

Annex 5

Case Outlines (Hepatitis case)

Case Name

Drug Induced Hepatitis C Litigation

Estimated Number of Victims

10,000Courts (venue and number)Tokyo, Sendai, Nagoya, Osaka, Fukuoka (5)Venue Focused on in the ReportTokyo

Number of Plaintiffs

50 (Tokyo), 7 (Sendai), 16 (Nagoya), 69(Osaka), 58 (Fukuoka) *1

Number of Attorneys Representing
about 30 (Tokyo), about 100 (nationally)*2
Plaintiffs
Defendant(s)Three (3) pharmaceutical companies and theJapanese Government

Date of Filing

October of 2002 (Tokyo and Osaka)

Period Required for Plaintiffs'
7 months (Tokyo)
Testimony before Trial Judges
Closing of the First Instance

Court decision in March 2007 (Tokyo) *3 andsettlement based on the Redress Act enacted on
11 January 2008

National organization existed at the beginning
Plaintiffs Organization or Network at
and the five cases were filed based on the
National Leveldecision of the national organization
National organization existed from January ofAttorneys Organization or Network at
2001 prior to the establishment of the plaintiffs
National Level
group
Privacy Protection

Anonymity procedures/ Shielding
selected open plaintiffs' examination

Case Abstract

Compensation claims based on tort for
negligent production/distribution of blood
products by pharmaceutical companies andnegligent supervision by the Japanese
government. These blood products caused
Hepatitis C infection*1 As of the time of the enactment of the Remedial Act on 1/11/2008*2 As of January of 2008 (see above *1)*3 1975 HANREI JIHO 2

22

duringAnnex 6

Case Outlines (Orphans case)

Case Name

Government Liability Lawsuit by "Japanese War
Orphans Left" in China

Estimated Number of Victims

Around 2,500

Courts (venue and number)Tokyo, Sapporo, Sendai, Nagoya, Kyoto, Osaka,
Fukuoka, etc.(15 )Venue Focused on in the ReportTokyo

Number of Plaintiffs

2,211 (national level) / 1,100 (Tokyo court) *1

Number of Attorneys Representing About 150 (national) / 40 (Tokyo)
Plaintiffs
Defendant(s)Japanese government

Date of Filing

December of 2002

PeriodRequiredfor

Plaintiffs' One (1) year and two (2) months

Testimony before Trial Judges
Closing of the First Instance

Court decision in January of 2007 (Tokyo) &wthdrawal of complaints in December of 2007 andthereafter in response to the enactment of a revised
Support Act (national level)

Plaintiffs Organization or Network Nation-wide network of plaintiff organizations
at National Levelwas formed in July of 2004.

Attorneys Organization or Network National organization existed from July of 2002
at National Levelprior to the establishment of the plaintiffs’ group

Privacy Protection

N/A

Case Abstract

Compensation claims based on torts for the Japanese
government policy and measures which failed to support
Japanese who were left (in childhood at the time) in
China in turmoil due to the defeat of Japan in World War
II. The Japanese government officially promoted
immigration of Japanese to northeastern China until
1945. Alleged necessary assistance was to support
further the orphans returning to Japan and to support
their self-reliant living in Japan after returning.

*1 The numbers are as of January of 200723

Annex 7

Case Outlines (A-Bomb Radiation Disease case)

Case Name

Lawsuit for Administrative Determinationof Atomic-Bomb Radiation Diseases

Estimated Number of Victims

Up to 250,000

Courts (venue and number)Tokyo, Sapporo, Nagoya, Nagasaki,
Osaka, Hiroshima, Sendai, etc. (17)Venue Focused on in the ReportTokyo

Number of Plaintiffs

304 (national level) / 80 (Tokyo) *1

Number of
Plaintiffs

Attorneys

Representing 40 (Tokyo)

Defendant(s)Japanese government

Date of Filing

May of 2003

Period Required for Plaintiffs' Testimony 1 year
before Trial Judges
Closing of the First Instance

Court decision in March of 2007 (Tokyo)(appeal pending)Plaintiffs Organization or Network at National group of Atomic-Bomb survivors
National Level
existed from 1946. The nation-wide
plaintiffs group for this litigation wasorganized in 2007.
Attorneys Organization or Network at The first national level network
National Level
conference was held in October of 2002,prior to filing the lawsuits.
Privacy Protection

N/A

Case Abstract

Administrative lawsuit to request reversalof administrative decisions by theJapanese government which failed todeterminepatients’
symptoms
asAtomic-bomb radiation diseases caused by
the Atomic-bomb dropped by the U.S. in
1945. Under the existing law, an
administrative decision of Atomic-bombradiation disease entitles the said patient toreceive JPY 140,000 per month as a
special medical allowance.

*1 The numbers (both national level and Tokyo) are as of December of 200724

Mass Victims Litigation Practices
Suggestions For Victims’ Participation at the ECCC
From Japanese Experiences in Mass Plaintiff Cases(July 9, 2008)
Human Rights Now
info@ngo-hrn.org
Marukou Bldg. 3F, 1-20-6, Higashi-Ueno
Taitou-ku, Tokyo 110-0015 Japan
Phone: +81-3-3835-2110

25

Fax: +81-3-3834-2406