Cambodian Courts Still Struggle to Uphold Defendants’ Rights, CJR Study Finds

Center for Justice and Reconciliation

PUBLIC ANNOUNCEMENT
Cambodian Courts Still Struggle to Uphold Defendants’ Rights,
CJR Study Finds

PHNOM PENH, 7 June 2010: A revealing study by the Center for Justice and Reconciliation’s (CJR) Cambodian Courts Monitoring Project (CCMP) has found that defendants have been frequently denied the right to Equality of Arms, a fundamental legal principal including the rights to be tried in person, to defense counsel, and to examine and cross examine. From December 2009 to February 2010, the CCMP study monitored 484 full criminal trials at the Supreme Court, the Appeals Court, and the Courts of First Instance in Phnom Penh, Battambang and Kandal.

CJR found that the right to Equality of Arms, which is protected by the Constitution and the International Covenant on Civil and Political Rights, which Cambodia ratified in 1992, is often violated. On average, of the 799 defendants monitored, slightly more than one third was tried in absentia. At the Appeals Court, which is responsible for hearing appeals from all twenty-one courts of first instances nationwide, nearly seven in ten defendants were absent from their own hearings. This finding highlights the continuing lack of infrastructure and administrative support for defendants who need to travel great distances to the Appeals Court.

CJR’s monitors found the absence of defendants at trials resulted in shorter trial duration. Of the monitored trials held in absentia, more than 90% were less than 30 minutes in duration. Out of all trials monitored, less than 1 in 5 included the presence of witnesses examined by the judges. Less than 1 in 10 trials were conducted with both victims and witnesses in attendance. Thus, the majority of defendants were deprived of the right to examine all the witnesses brought against them.

CJR noted that the provincial courts, including the model court in Kandal, were better at upholding the law and ensuring that felony defendants were assisted by legal counsel. CJR also made the positive finding that among juvenile defendants charged with felonies, over nine in ten had representation at trial.

CJR’s analysis and recommendations are included in the full text of its CJR Law Review, available online at http://www.cjr-cambodia.org/reports_research.html. Two thousand copies will be distributed free of charge to the Ministry of Justice, Council of Legal and Judicial Reform, Bar Association of the Kingdom of Cambodia, judges, judicial police, media, the pubic and donors.

CJR’s Cambodian Courts Monitoring Project works to a) collect, record, and consolidate quality data, b) assist the Royal Government of the Kingdom of Cambodia and the NGO community in identifying shortcomings and offering recommendations to aid the legal and judicial reform process, and, c) inform the general public of fair trial rights. CJR is a non-profit non-governmental organization that seeks to promote justice, reconciliation, and democratic values in Cambodia. The United Nations Office of the High Commissioner for Human Rights generously supports the CCMP.

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For more information, please visit www.cjr-cambodia.org or contact:
1. Mr. Daravuth SENG, International Co-director: Justice Programs
Tel: + 855.92.617.530 Email: dseng@cjr-cambodia.org

2. Mr. IM Sophea, National Co-director: Reconciliation Programs
Tel: +855.77.777.367 Email: sopheaim@cjr-cambodia.org

3. Ms. CHOU Vineath, Cambodian Courts Monitoring Project Manager
Tel: +855.12.55.4828 Email: vineath@cjr-cambodia.org

5. Ms. Jennifer BOMBASARO-BRADY, Public Relations Manager
Tel: +855.17.345.647 Email: jennifer@cjr-cambodia.org

Office hours are 8 AM – 5 PM Monday – Friday, except on public holidays.

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Center for Justice and Reconciliation
"Moving Forward, Together"
#207 E1 Street 63, Beoung Keng Kang I
Phnom Penh, Cambodia

Office: +855.23.213.442
Fax: +855.23.213.443
Web: http://cjr-cambodia.org

At Trial, a Plea for Khmer Rouge Figure’s Rights

February 18, 2009
By SETH MYDANS
The New York Times

PHNOM PENH, Cambodia — The first trial addressing the Khmer Rouge atrocities of the 1970s opened Tuesday with a vigorous plea on behalf of the judicial rights of the defendant — a man who knows a thing or two about the treatment of prisoners.

After opening formalities before five red-robed justices, a lawyer for the defendant, Kaing Guek Eav, known as Duch, raised a strong objection to the inclusion of a last-minute party to the case, arguing that it violated “the human rights of the accused.”

Duch (pronounced DOIK) — the first of five top Khmer Rouge figures to face trial — was the commandant of Tuol Sleng prison, where at least 14,000 people were tortured and sent to their deaths.

They were among 1.7 million people who died at the hands of the fanatical Khmer Rouge regime between 1975 and 1979.

In Tuol Sleng, a prisoner was not only presumed guilty but also was tortured until he offered whatever was demanded — often an admission of simultaneous membership in the C.I.A., the K.G.B. and sometimes the Vietnamese security service.

It was a prison where Duch’s word was final and where an order like “kill them all” was a death sentence or “interrogate four persons, kill the rest” was one day’s assignment for his staff.

The issue on Tuesday was whether to add a rare child survivor, Norng Chan Phal, now 38, to a list of civil parties in the case although he had missed the filing deadline by two days.

The argument of Duch’s lawyer, François Roux, amounted to a passionate rationale for defending people accused of the most terrible crimes and of the primacy of legal principles in even the most emotionally charged cases. It was in effect an indictment of the methods and actions of the man he was defending.

In a judicial proceeding, Mr. Roux said, rules are sacrosanct, the final line of defense of impartial justice.

“We are defending a man and although this man has acknowledged responsibility, he is entitled to a fair trial,” he said. “The work we are doing is hard work but essential, and we can only do our work if we respect the rule of law, respect the rights of the accused and respect the principle of an adversarial proceeding.”

Duch, 66, a small man in a crisp blue shirt and a new pair of glasses, leaned forward from time to time and conferred earnestly with his lawyers, lifting his simultaneous-translation headphones from his ears.

“I repeat that we respect the victims,” Mr. Roux said. “We also owe respect to the accused and we also must respect the rule of law.”

The child survivor was just discovered and presented to the press on Monday, adding his name to a very short list of people who through chance or good fortune had evaded the death sentence that was the first step in the judicial process of Tuol Sleng.

The only other three known survivors who are still alive attended the hearing, along with hundreds of diplomats, journalists, human rights workers and victims who had joined the case as civil parties.

“I could not sleep last night,” said one of the survivors, Vann Nath, 62. “I was waiting for the sunrise so that I could see Duch in the dock.”

He added: “I think he is a very fortunate person, a very lucky person. Because when I was in jail I could get three spoons of porridge a day and both my legs were put in shackles.”

Despite the intensity of the moment, the trial, in an isolated military headquarters 25 kilometers from Phnom Penh, really does seem to be history in a bottle. Much of Cambodia seems oblivious.

Several people interviewed just down the road from the tribunal said they were not aware that a trial was under way, or what it was about, or even, among some younger people, what the Khmer Rouge years amounted to.

In an attempt to create an agrarian utopia, the Khmer Rouge regime caused the deaths of as many as one-fourth of the population through starvation, exhaustion and disease as well as torture and execution.

Four senior officials of the Khmer Rouge are in custody, waiting to follow Duch into court, perhaps next year. Their supreme leader, Pol Pot, died in 1998.

Asked if he know who Pol Pot was, a 25-year-old motorcycle taxi driver, Ieng Sok Heng, answered: “I’m young. I wasn’t born yet, so I’m not quite sure.”