Showing posts with label Criminal code. Show all posts
Showing posts with label Criminal code. Show all posts
Friday, July 01, 2011
Wednesday, January 21, 2009
The long road towards the creation of a specific code of procedure for international criminal courts
Kambol (Cambodia, Phnom Penh). 11/11/2008. Mock trial organised by the ECCC Defence Support Section (DSS) for Law students (Photo: John Vink/ Magnum)20-01-2009
By Stéphanie Gée
Ka-set in English
Click here to read the article in French
Click here to read the article in Khmer
A man called Jean-Jacques Gandini, an associate professor in French Literature, found himself standing before the Khmer Rouge Tribunal on November 26th last year, and was asked to answer for his verbal assault of public officials in the course of their duty... A much incongruous trial, held in premises intended for the hearings of senior leaders and criminals of Pol Pot's regime. The mock trial, performed by lawyers from the Montpellier Bar Human Rights Institute (in the South of France) was used as a test-trial, which turned out to be successful, to check the functionality of courtroom technical equipment but most importantly, to give an example of the French legal system, based on Romano-Germanic Law (Civil Law), but also of the Cambodian system which prevails within the Extraordinary Chambers in the Courts of Cambodia (ECCC), right beside International Law, elaborated on the basis of the Anglo-Saxon system (Common Law). Two legal systems, a single court... quite a headache for whoever deals with the mix.
A mock trial meant to throw light on many an issue
The Gandini case is based on a real trial, conducted under the principles of Criminal Law, and was examined by the Montpellier Criminal Chamber a few years ago, in which the Defence lawyer was actually François Roux, the French co-Lawyer for Duch, the former director of the S-21 torture centre, first on the list of the Khmer Rouge trials before the ECCC. However, the rules of French Law for the case procedure were slightly bent - and authorised - for the occasion so as to add to the impact of the trial within the ECCC: a “protected” witness was thus added, and his/her identity was concealed and protected. The French lawyers, who are none other than Francois Roux's colleagues from the same Bar, happily stood in the shoes of the different parties present at the trial.
The case: Events happened in the defendant's hometown, in the evening - to justify his intervention as the police proceeded to what he thought was an unfairly tough way of taking people in for questioning, a professor, speaking with composure and poise, pleads the state of lawful rebellion on the part of a citizen. He denies the charges pressed against him by three policemen, alleging he hurled insults at them. The defendant is discharged. In a matter of seconds, the “actors” left their part and went back to sit among the audience, mainly composed of Cambodian Law students and ECCC personnel. After the practical demonstration, the debate was opened. The aim, as explained, is not to “give a lesson” but to “take part in a common reflection”: how can different legal systems possibly work together?” Between Civil and Common Law, “the one is just as good as the other”, and the ECCC, basing its fundamental system on both, must therefore “invent something together”.
"See what works best"
The initiative was launched by the ECCC Defence Support Section (DSS), led by its acting head Richard Rogers. The hybrid court, established in Phnom Penh, has now been operating since 2006 but the union of the two legal systems still raises questions on both sides.
“The new Criminal Procedure Code of Cambodia (CPC) came into force in the country during the summer 2007 and is based on the French Penal Code. This gave rise to the idea of a mock trial organised along the lines of Civil Law”, Richard Rogers explains, pointing out that several elements of International Law, like the protection of witnesses, will be added to Civil Law in the ECCC. For him, “there is no fight” between those guided by Civil Law principles and those rather based on the Common Law system, but just a group of people “coming from different backgrounds, who think together to see what works best for serious cases coming under the responsibility of an International Criminal Court, within Cambodian context”.
Combining systems with a view to reduce trial length
“Many of the Common Law jurists who came here do not know the Civil Law system. Some see it positively while others approach it with more stiffness. This is why we thought about holding a criminal trial along the lines of Civil Law”, François Roux says. “There are Codes, rules, which allow everyone to express themselves according to different Common Law procedures but which also tend to reach the same result in the end, i.e. the manifestation of truth - this is what we are seeking - and therefore of justice. I still fundamentally believe that differences are not that major...”
The French co-Lawyer for Duch reckons that “International Criminal justice deserves trials to be held “within a reasonable amount of time”. “Here, we have the opportunity to test a system other than what is followed by other International Criminal Courts, so let's test it! In the end, we will obviously see whether it is better, not better, or worse! But if we notice that with that adaptation of both systems, we really do improve the length of these trials, then I think everyone will come off better.” The hard challenge, he continues, lies in “the way that we, today, can build up a new international Criminal Law system to allow trials to be held within reasonable periods of time, and trials which civil parties will attend and take part in, trials in which the defendant – and this is my wish here – will always be allowed to speak last”.
Does Cambodian procedure have to have the last word?
In the Preamble to the Internal Rules , the ECCC indeed explain that the purpose of the document is “to consolidate applicable Cambodian procedure for proceedings before the ECCC and […] to adopt additional rules where these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application, or if there is a question regarding their consistency with international standards”. However, in practice, this calls for several interpretations. On many occasions, during Pre-Trial Chamber hearings, parties disagreed on the question as to whether the court should be guided by Cambodian procedure or rather refer to the ECCC Internal Rules.
Thus, on February 25th 2008, the Defence Team for Nuon Chea appealed against the Order refusing the Request for Annulment by the Office of the co-Investigating Judges (OCIJ), claiming that Cambodian procedure, i.e. the Criminal Procedure Code of Cambodia (CPC) had priority in this case. Co-Lawyers for the civil parties then decided to deal with the issue by supporting, in form rather than substance, the argument of the Defence. They called the pre-Trial Chamber to reconsider its decision dated August 28th 2008 regarding the relationship between the Internal Rules and the CPC, and stated that the latter must constitute the primary instrument in the proceedings, before the Internal Rules.
Indeed, the pre-Trial Chamber (PTC), emphasising the exceptional context of the ECCC, asserted that the Internal Rules constituted “the primary instrument to which reference should be made in determining procedures before the ECCC where there is a difference between the procedures in the Internal Rules and the Criminal Procedure Code”. The PTC then considered that “the provisions of the CPC should only apply where a question arises which is not addressed by the Internal Rules”. It is true that at the time of the adoption of the Internal Rules in June 2007, the CPC was not effective yet – it came into force in August 2007 – but, as pointed out by lawyers for civil parties, “the draft of the CPC, which was very similar to the ultimately enacted law, was already available”. They added that the CPC had already been adopted by the National Assembly during the June 2007 plenary session.
Legitimacy of the ECCC Internal Rules called into question
Silke Studzinsky, the German lawyer for the civil parties at the ECCC, claims that the Criminal Procedure Code of Cambodia should be implemented in accordance with the Agreement between the United Nations and Cambodia, and with the ECCC Law and quotes Article 33 (new) of the Law on the establishment of the ECCC: “If the existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard, guidance may be sought in procedural rules established at the international level”. By emphasising this aspect, Silke Studzinsky questions the legitimacy of the Internal Rules, drafted by her judiciary personnel during the plenary session(* ), which, she points out, was not subjected to any vote at the National Assembly of Cambodia. Thus, she suggests the question of hierarchy of rules and rights within the hybrid court be closely looked at again.
“The plenary session has no authority over the adoption of the Internal Rules which represent an independent system of legal procedure. However, in Cambodia, the National Assembly alone holds legislative power. Neither the Agreement establishing the ECCC nor the ECCC law delegate such legislative power to the plenary session. Even if the Internal Rules are valid, they come under the Criminal Procedure Code of Cambodia”, the lawyer details, reminding that practices are much different in International courts like the ones in Rwanda, Sierra Leone or former Yugoslavia, where a provision was created to allow judges to adopt their own procedural rules.
“Therefore, we expect judges to be creative”, Silke Studzinsky says, “since it is the first time they have to deal with so many victims. The solution, however, is not to restrict their rights by giving the Internal Rules priority over the Criminal Procedure Code, but to enforce them. This might serves as a pattern for future international courts.”
The debate over the hierarchy of procedures was already held by other international UN courts and might appear before the future Special Tribunal for Lebanon, due to start works on March 1st. The tribunal was also formed following a hybrid pattern applied to a country, in this case Lebanon, in which the legal tradition is that of French Law. After fifteen years and the creation of international jurisdictions, the international criminal justice system is still feeling its way along a winding path and trying to elaborate a code of procedure that would be specific to this type of crimes. But for the time being, these courts have not yet found a solution to organise trials within “a reasonable amount of time”...
* Participants at the plenary session: co-Investigating Judges, Judges of the Chambers, co-Prosecutors, the director of the Defence Support Section, head of the Victims Unit, head and deputy head of the ECCC Office of Administration. However, as stipulated in Rule 18 (3b) of the Internal Rules, only the co-Investigating Judges and Judges of the Chambers are entitled to vote on the rules contained in Chapter III (Rule 21 to 114) regarding the procedure.
By Stéphanie Gée
Ka-set in English
Click here to read the article in French
Click here to read the article in Khmer
A man called Jean-Jacques Gandini, an associate professor in French Literature, found himself standing before the Khmer Rouge Tribunal on November 26th last year, and was asked to answer for his verbal assault of public officials in the course of their duty... A much incongruous trial, held in premises intended for the hearings of senior leaders and criminals of Pol Pot's regime. The mock trial, performed by lawyers from the Montpellier Bar Human Rights Institute (in the South of France) was used as a test-trial, which turned out to be successful, to check the functionality of courtroom technical equipment but most importantly, to give an example of the French legal system, based on Romano-Germanic Law (Civil Law), but also of the Cambodian system which prevails within the Extraordinary Chambers in the Courts of Cambodia (ECCC), right beside International Law, elaborated on the basis of the Anglo-Saxon system (Common Law). Two legal systems, a single court... quite a headache for whoever deals with the mix.
A mock trial meant to throw light on many an issue
The Gandini case is based on a real trial, conducted under the principles of Criminal Law, and was examined by the Montpellier Criminal Chamber a few years ago, in which the Defence lawyer was actually François Roux, the French co-Lawyer for Duch, the former director of the S-21 torture centre, first on the list of the Khmer Rouge trials before the ECCC. However, the rules of French Law for the case procedure were slightly bent - and authorised - for the occasion so as to add to the impact of the trial within the ECCC: a “protected” witness was thus added, and his/her identity was concealed and protected. The French lawyers, who are none other than Francois Roux's colleagues from the same Bar, happily stood in the shoes of the different parties present at the trial.
The case: Events happened in the defendant's hometown, in the evening - to justify his intervention as the police proceeded to what he thought was an unfairly tough way of taking people in for questioning, a professor, speaking with composure and poise, pleads the state of lawful rebellion on the part of a citizen. He denies the charges pressed against him by three policemen, alleging he hurled insults at them. The defendant is discharged. In a matter of seconds, the “actors” left their part and went back to sit among the audience, mainly composed of Cambodian Law students and ECCC personnel. After the practical demonstration, the debate was opened. The aim, as explained, is not to “give a lesson” but to “take part in a common reflection”: how can different legal systems possibly work together?” Between Civil and Common Law, “the one is just as good as the other”, and the ECCC, basing its fundamental system on both, must therefore “invent something together”.
"See what works best"
The initiative was launched by the ECCC Defence Support Section (DSS), led by its acting head Richard Rogers. The hybrid court, established in Phnom Penh, has now been operating since 2006 but the union of the two legal systems still raises questions on both sides.
“The new Criminal Procedure Code of Cambodia (CPC) came into force in the country during the summer 2007 and is based on the French Penal Code. This gave rise to the idea of a mock trial organised along the lines of Civil Law”, Richard Rogers explains, pointing out that several elements of International Law, like the protection of witnesses, will be added to Civil Law in the ECCC. For him, “there is no fight” between those guided by Civil Law principles and those rather based on the Common Law system, but just a group of people “coming from different backgrounds, who think together to see what works best for serious cases coming under the responsibility of an International Criminal Court, within Cambodian context”.
Combining systems with a view to reduce trial length
“Many of the Common Law jurists who came here do not know the Civil Law system. Some see it positively while others approach it with more stiffness. This is why we thought about holding a criminal trial along the lines of Civil Law”, François Roux says. “There are Codes, rules, which allow everyone to express themselves according to different Common Law procedures but which also tend to reach the same result in the end, i.e. the manifestation of truth - this is what we are seeking - and therefore of justice. I still fundamentally believe that differences are not that major...”
The French co-Lawyer for Duch reckons that “International Criminal justice deserves trials to be held “within a reasonable amount of time”. “Here, we have the opportunity to test a system other than what is followed by other International Criminal Courts, so let's test it! In the end, we will obviously see whether it is better, not better, or worse! But if we notice that with that adaptation of both systems, we really do improve the length of these trials, then I think everyone will come off better.” The hard challenge, he continues, lies in “the way that we, today, can build up a new international Criminal Law system to allow trials to be held within reasonable periods of time, and trials which civil parties will attend and take part in, trials in which the defendant – and this is my wish here – will always be allowed to speak last”.
Does Cambodian procedure have to have the last word?
In the Preamble to the Internal Rules , the ECCC indeed explain that the purpose of the document is “to consolidate applicable Cambodian procedure for proceedings before the ECCC and […] to adopt additional rules where these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application, or if there is a question regarding their consistency with international standards”. However, in practice, this calls for several interpretations. On many occasions, during Pre-Trial Chamber hearings, parties disagreed on the question as to whether the court should be guided by Cambodian procedure or rather refer to the ECCC Internal Rules.
Thus, on February 25th 2008, the Defence Team for Nuon Chea appealed against the Order refusing the Request for Annulment by the Office of the co-Investigating Judges (OCIJ), claiming that Cambodian procedure, i.e. the Criminal Procedure Code of Cambodia (CPC) had priority in this case. Co-Lawyers for the civil parties then decided to deal with the issue by supporting, in form rather than substance, the argument of the Defence. They called the pre-Trial Chamber to reconsider its decision dated August 28th 2008 regarding the relationship between the Internal Rules and the CPC, and stated that the latter must constitute the primary instrument in the proceedings, before the Internal Rules.
Indeed, the pre-Trial Chamber (PTC), emphasising the exceptional context of the ECCC, asserted that the Internal Rules constituted “the primary instrument to which reference should be made in determining procedures before the ECCC where there is a difference between the procedures in the Internal Rules and the Criminal Procedure Code”. The PTC then considered that “the provisions of the CPC should only apply where a question arises which is not addressed by the Internal Rules”. It is true that at the time of the adoption of the Internal Rules in June 2007, the CPC was not effective yet – it came into force in August 2007 – but, as pointed out by lawyers for civil parties, “the draft of the CPC, which was very similar to the ultimately enacted law, was already available”. They added that the CPC had already been adopted by the National Assembly during the June 2007 plenary session.
Legitimacy of the ECCC Internal Rules called into question
Silke Studzinsky, the German lawyer for the civil parties at the ECCC, claims that the Criminal Procedure Code of Cambodia should be implemented in accordance with the Agreement between the United Nations and Cambodia, and with the ECCC Law and quotes Article 33 (new) of the Law on the establishment of the ECCC: “If the existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard, guidance may be sought in procedural rules established at the international level”. By emphasising this aspect, Silke Studzinsky questions the legitimacy of the Internal Rules, drafted by her judiciary personnel during the plenary session(* ), which, she points out, was not subjected to any vote at the National Assembly of Cambodia. Thus, she suggests the question of hierarchy of rules and rights within the hybrid court be closely looked at again.
“The plenary session has no authority over the adoption of the Internal Rules which represent an independent system of legal procedure. However, in Cambodia, the National Assembly alone holds legislative power. Neither the Agreement establishing the ECCC nor the ECCC law delegate such legislative power to the plenary session. Even if the Internal Rules are valid, they come under the Criminal Procedure Code of Cambodia”, the lawyer details, reminding that practices are much different in International courts like the ones in Rwanda, Sierra Leone or former Yugoslavia, where a provision was created to allow judges to adopt their own procedural rules.
“Therefore, we expect judges to be creative”, Silke Studzinsky says, “since it is the first time they have to deal with so many victims. The solution, however, is not to restrict their rights by giving the Internal Rules priority over the Criminal Procedure Code, but to enforce them. This might serves as a pattern for future international courts.”
The debate over the hierarchy of procedures was already held by other international UN courts and might appear before the future Special Tribunal for Lebanon, due to start works on March 1st. The tribunal was also formed following a hybrid pattern applied to a country, in this case Lebanon, in which the legal tradition is that of French Law. After fifteen years and the creation of international jurisdictions, the international criminal justice system is still feeling its way along a winding path and trying to elaborate a code of procedure that would be specific to this type of crimes. But for the time being, these courts have not yet found a solution to organise trials within “a reasonable amount of time”...
* Participants at the plenary session: co-Investigating Judges, Judges of the Chambers, co-Prosecutors, the director of the Defence Support Section, head of the Victims Unit, head and deputy head of the ECCC Office of Administration. However, as stipulated in Rule 18 (3b) of the Internal Rules, only the co-Investigating Judges and Judges of the Chambers are entitled to vote on the rules contained in Chapter III (Rule 21 to 114) regarding the procedure.
Wednesday, June 06, 2007
There Could Be A New Obstacle In the Khmer Rouge Tribunal
Posted date: 04-06-2007
By Sovannarith
Samleng Yuvachun Khmer
Translation from Khmer by The Khmer Rouge Trial Web Portal
By Sovannarith
Samleng Yuvachun Khmer
Translation from Khmer by The Khmer Rouge Trial Web Portal
Civil society organizations have shown their concern that there will be a new obstacle in the legal procedures of the Khmer Rouge Tribunal although the Cambodian and international co-judges agreed to sit in the plenary session on May 31 to discuss the internal rules in order to urge the process of the tribunal.
Recently, the National Assembly has been discussing the drafts of the criminal legal procedures in which some articles will be used in the Khmer Rouge Tribunal. However, around 10 per cent of those drafts doesn't conform to the internal rules of the Khmer Rouge Tribunal and the international criminal law, which it can lead to another obstacle in urging the process of the Khmer Rouge Tribunal.
To make the drafts of the penal code become laws so that the Khmer Rouge can use in its process in 2008, National Assembly's members, who are discussing the drafts, must verify the laws clearly in order find justice for more than 2 million victims who died during the Pol Pot Killing Fields.
Chhang Youk, director of the Documentation Center of Cambodia (DC-Cam), said that he hadn't studied the new problem which might cause another obstruction to the legal procedural practice of the Khmer Rouge tribunal yet. "If they want to create obstacle, they can," he said.
The Khmer Rouge Tribunal which has also been participated by the United Nations practices in accord to some articles of the Cambodian penal code whose drafts are being discussed by the National Assembly. However, these laws do not conform to the international law. The legal procedural practice in the Khmer Rouge Tribunal will use the international criminal law according to the agreement between the government of Cambodia and the UN.
As a result, the leaders of civil society organizations consider the problems as a new obstacle to delay the process of legal procedural practice in the Khmer Rouge Tribunal. It should be noticed that the Khmer Rouge Tribunal has only 3 years in which it has spent 1 year already.
Sok An, who is in charge of the Khmer Rouge Tribunal and who negotiated with the UN, denied the accusations. He said the Cambodian and international judges must not only respect the agreement between the government of Cambodia and the UN and that but the court must also pay respect to the laws and regulations which are the 'internal' laws of Cambodia. Those problems were not difficult, he said.
Marcel Lemonde, co-investigating judge of the Khmer Rouge Tribunal, claimed that the penal code which the National Assembly of Cambodia was discussing did not cause any 'serious' obstacle to the adoption of the Khmer Rouge Tribunal's internal rules.
Meanwhile, some civil society organizations including Center for Social Development (CSD), Human Rights organization ADHOC, and the DC-Cam, which are funded by international organizations, are working actively to educate people about the importance of the Khmer Rouge court.
Reach Sambath, spokesman to the Khmer Rouge Tribunal, once said that co-prosecutors had not accused anyone officially yet and that the Khmer Rouge Tribunal had received a lot of legal complaints from Cambodians living both inside and outside Cambodia. In those complaints, they insisted for compensations from the former Khmer Rouge leaders who had killed their family members, he said.
Reach Sambath claimed that the compensations for many Cambodians were not possible since there could be a for-all-together compensation building some achievement for the country.
Recently, the DC-Cam has distributed historical books about the Khmer Rouge regime to more than 200 high schools around Cambodia to help young Cambodians understand clearly about the history of the Khmer Rouge leadership which caused the killings of more than 2 million Cambodians from 1975 to 1979.
(Informal Translation)
Extracted from Samleng Yuvachun Khmer, vol. 14, #3051, Friday, June 2, 2007
Recently, the National Assembly has been discussing the drafts of the criminal legal procedures in which some articles will be used in the Khmer Rouge Tribunal. However, around 10 per cent of those drafts doesn't conform to the internal rules of the Khmer Rouge Tribunal and the international criminal law, which it can lead to another obstacle in urging the process of the Khmer Rouge Tribunal.
To make the drafts of the penal code become laws so that the Khmer Rouge can use in its process in 2008, National Assembly's members, who are discussing the drafts, must verify the laws clearly in order find justice for more than 2 million victims who died during the Pol Pot Killing Fields.
Chhang Youk, director of the Documentation Center of Cambodia (DC-Cam), said that he hadn't studied the new problem which might cause another obstruction to the legal procedural practice of the Khmer Rouge tribunal yet. "If they want to create obstacle, they can," he said.
The Khmer Rouge Tribunal which has also been participated by the United Nations practices in accord to some articles of the Cambodian penal code whose drafts are being discussed by the National Assembly. However, these laws do not conform to the international law. The legal procedural practice in the Khmer Rouge Tribunal will use the international criminal law according to the agreement between the government of Cambodia and the UN.
As a result, the leaders of civil society organizations consider the problems as a new obstacle to delay the process of legal procedural practice in the Khmer Rouge Tribunal. It should be noticed that the Khmer Rouge Tribunal has only 3 years in which it has spent 1 year already.
Sok An, who is in charge of the Khmer Rouge Tribunal and who negotiated with the UN, denied the accusations. He said the Cambodian and international judges must not only respect the agreement between the government of Cambodia and the UN and that but the court must also pay respect to the laws and regulations which are the 'internal' laws of Cambodia. Those problems were not difficult, he said.
Marcel Lemonde, co-investigating judge of the Khmer Rouge Tribunal, claimed that the penal code which the National Assembly of Cambodia was discussing did not cause any 'serious' obstacle to the adoption of the Khmer Rouge Tribunal's internal rules.
Meanwhile, some civil society organizations including Center for Social Development (CSD), Human Rights organization ADHOC, and the DC-Cam, which are funded by international organizations, are working actively to educate people about the importance of the Khmer Rouge court.
Reach Sambath, spokesman to the Khmer Rouge Tribunal, once said that co-prosecutors had not accused anyone officially yet and that the Khmer Rouge Tribunal had received a lot of legal complaints from Cambodians living both inside and outside Cambodia. In those complaints, they insisted for compensations from the former Khmer Rouge leaders who had killed their family members, he said.
Reach Sambath claimed that the compensations for many Cambodians were not possible since there could be a for-all-together compensation building some achievement for the country.
Recently, the DC-Cam has distributed historical books about the Khmer Rouge regime to more than 200 high schools around Cambodia to help young Cambodians understand clearly about the history of the Khmer Rouge leadership which caused the killings of more than 2 million Cambodians from 1975 to 1979.
(Informal Translation)
Extracted from Samleng Yuvachun Khmer, vol. 14, #3051, Friday, June 2, 2007
Tuesday, June 05, 2007
Lawyers Address Penal Code, Tribunal on 'Hello VOA'
Khemara Sok, VOA Khmer
Washington
04/06/2007
Washington
04/06/2007
Ang Udom, head of the legal unit for the Center for Social Development, and Ouk Vandeth, a lawyer for the International Bridge of Justice group, said Monday they shared a concern with other groups that a newly drafted penal code could outstrip a Khmer Rouge tribunal.
The tribunal, which was formed under the old laws, could run into snags once the new penal code passes debate in the National Assembly, they said.
The draft law will be effective immediately following its passage, Ang Udom said, leaving little time to solve conflicts between the law and the tribunal.
Ouk Vandeth said he wasn't as concerned about the tribunal as he was for the Cambodian courts and people. In a draft of the law, he said, was less freedom for the defendant's rights to a lawyer and provisions for longer detention without trial.
The new law allows detention of suspects for up to 48 hours without a lawyer present, twice the time of the current law. In 48 hours, the lawyers said, a suspect could be coerced into a confession, among other abuses.
Ang Udom said the court was only an institution, and its independence was up to individual judges and prosecutors. He encouraged victims of crimes to speak out.
The tribunal, which was formed under the old laws, could run into snags once the new penal code passes debate in the National Assembly, they said.
The draft law will be effective immediately following its passage, Ang Udom said, leaving little time to solve conflicts between the law and the tribunal.
Ouk Vandeth said he wasn't as concerned about the tribunal as he was for the Cambodian courts and people. In a draft of the law, he said, was less freedom for the defendant's rights to a lawyer and provisions for longer detention without trial.
The new law allows detention of suspects for up to 48 hours without a lawyer present, twice the time of the current law. In 48 hours, the lawyers said, a suspect could be coerced into a confession, among other abuses.
Ang Udom said the court was only an institution, and its independence was up to individual judges and prosecutors. He encouraged victims of crimes to speak out.
Thursday, May 24, 2007
New criminal code sent to the National Assembly
Thursday, May 24, 2007
By Leang Delux
Cambodge Soir
Unofficial translation from French by Tola Ek
By Leang Delux
Cambodge Soir
Unofficial translation from French by Tola Ek
Click here to read Cambodge Soir's original article in French
Members of Parliament started, since yesterday, to consider the new criminal code. The code is considered by the government as the necessary preamble for the adoption of the anti-corruption law which would be approved within this mandate, i.e. before July 2008.
Members of Parliament started yesterday the review of the long awaited criminal code which was prepared by the Ministry of Justice with the support of French lawyers, for more than 10-year now. The criminal code is considered by the government as the necessary preamble for the adoption of the anti-corruption law which would be approved within this mandate, i.e. before July 2008.
This new criminal code, which is inspired by the French law and adapted to the local condition, will replace the former sketchy one adopted since 1993. “There are loopholes in the law that we use currently, in particular, regarding the right of the defense, the right of the victims, the authorities of the criminal police … The new procedural code bring in more needed details in the working procedures, the development of the investigation, the adjudication …” Ek Sam Ol, the president of the law committee, explained. One of the most important progresses made by the new code is the introduction of a 3-judge system for criminal cases instead of the 1-judge system currently in practice, Y Dan, the secretary of state for the Ministry of Justice, explained to the lawmakers. The presence of only one Cambodian judge was heavily criticized by lawyers who considered the sole judge position too vulnerable in a country subjected to corruption and political interferences. The presence of a 3-judge system would allow these judges to better resist any form of pressures applied on the court.
Funcinpec lawmaker Monh Saphan is happy to see this new draft law, but he wants to know how it will be actually implemented. Sam Rainsy shares the same concern, he is also wondering if the government really has the will to put to an end the culture of impunity and if the prosecutors will really dare take action against powerful people involved in criminal activities. “Often, the criminals buy off their victims so that they do not press charge. I propose that the new code prescribes that the victims and the prosecutor must bring up their complaints at the same time. The prosecutor represents the authorities, the common interest. He must absolutely press charge,” Sam Rainsy said. On the floor, Justice Minsiter Ang Vong Vattana approved the proposition presented by the opposition leader which could be put to debate during the review of the section involved.
The National Assembly adopted the civil code last year, the latter is currently in the hands of the law committee of the National Assembly. The criminal code is still under preparation by the Ministry of Justice. Y Dan hoped these there two laws will be ratified by the end of the year.
Members of Parliament started yesterday the review of the long awaited criminal code which was prepared by the Ministry of Justice with the support of French lawyers, for more than 10-year now. The criminal code is considered by the government as the necessary preamble for the adoption of the anti-corruption law which would be approved within this mandate, i.e. before July 2008.
This new criminal code, which is inspired by the French law and adapted to the local condition, will replace the former sketchy one adopted since 1993. “There are loopholes in the law that we use currently, in particular, regarding the right of the defense, the right of the victims, the authorities of the criminal police … The new procedural code bring in more needed details in the working procedures, the development of the investigation, the adjudication …” Ek Sam Ol, the president of the law committee, explained. One of the most important progresses made by the new code is the introduction of a 3-judge system for criminal cases instead of the 1-judge system currently in practice, Y Dan, the secretary of state for the Ministry of Justice, explained to the lawmakers. The presence of only one Cambodian judge was heavily criticized by lawyers who considered the sole judge position too vulnerable in a country subjected to corruption and political interferences. The presence of a 3-judge system would allow these judges to better resist any form of pressures applied on the court.
Funcinpec lawmaker Monh Saphan is happy to see this new draft law, but he wants to know how it will be actually implemented. Sam Rainsy shares the same concern, he is also wondering if the government really has the will to put to an end the culture of impunity and if the prosecutors will really dare take action against powerful people involved in criminal activities. “Often, the criminals buy off their victims so that they do not press charge. I propose that the new code prescribes that the victims and the prosecutor must bring up their complaints at the same time. The prosecutor represents the authorities, the common interest. He must absolutely press charge,” Sam Rainsy said. On the floor, Justice Minsiter Ang Vong Vattana approved the proposition presented by the opposition leader which could be put to debate during the review of the section involved.
The National Assembly adopted the civil code last year, the latter is currently in the hands of the law committee of the National Assembly. The criminal code is still under preparation by the Ministry of Justice. Y Dan hoped these there two laws will be ratified by the end of the year.
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