Defendants not informed of rights in Cambodian appeal court cases: Study

2014-06-23

Cambodian rights activists and workers (C) accused of causing violence during a January strike are escorted by prison guards at the Phnom Penh Municipal court, April 25, 2014. AFP

Judges in Cambodia's Court of Appeal fail to inform defendants of their rights and a high number of hearings do not even have the defendants or their lawyers present, according to a study by a local rights group.

In addition, the quality of evidence presented at the hearing is very poor and threatens the right to be convicted beyond reasonable doubt, and shows that judgments are, in the majority of cases, not based on law or evidence, the Phnom Penh-based Cambodian Center for Human Rights (CCHR) said in its study of more than 200 cases.

The findings point to additional concerns in Cambodia's judiciary, whose functioning has already "been among the major human rights concerns in Cambodia for some time," the CCHR said in a report.

"Although there have been steady improvements in the adherence to some of the procedures that underpin fair trial rights within the Cambodian judiciary, many areas of concern remain," it said.

"While the Court of Appeal is generally adhering to the procedures that are meant to ensure fair trial rights, the concerns lie in the more substantive issues."

"Judgments are, in the majority of cases, not based on law or evidence," CCHR said.

Witnesses absent

For its report, "Fair Trial Rights in Cambodia: Monitoring at the Court of Appeal," CCHR monitored 204 trials held between March 1, 2013, and Jan. 31, 2014, noting that in most cases no witnesses had appeared in the proceedings before the court, CCHR's Trial Monitoring Project Coordinator Piseth Duch told RFA's Khmer Service.

"Witnesses were present in only a few cases," Piseth Duch said.

"The court needs to collect more evidence [in these cases] and to summon witnesses in order to provide justice for both sides," he said.

"Presiding judges also didn't read out or clarify the defendants' rights or explain that they had a right to have a lawyer present or a right to keep silent," Piseth Duch said, adding that defendants themselves sometimes missed their own appeal proceedings because their prison could not get get them to the court.

"In at least 12 cases out of the 204, convicts and lawyers were both absent," Piseth Duch said.

An additional concern was the court's handling of cases involving juveniles, with minors "rarely released on bail," Piseth Duch said.

During the reporting period, eight cases involving juveniles were reviewed, with six aged between 16 and 17 at the time of their offense and one under 14 years of age, CCHR said in its report.

Following their appeal, judges imposed custodial sentences in five of those cases, CCHR said, adding that in only two cases were the defendants acquitted, and that in a third the defendant's original sentence was shortened and suspended.

"These figures are of serious concern and at great odds with both international and domestic law, which stipulate that custody in the case of juvenile offenders must only ever be used as a last resort," CCHR said.

'Proper and timely'

The report called on the government to enhance the capacity of the Court of Appeal to avoid backlogs and delays, and manage new cases "in a proper and timely manner."

It also called on the Constitutional Council, the nation's highest court, to send back to parliament a set of judicial laws passed recently that rights groups say will give Prime Minister Hun Sen's government effective control over the judiciary and further undermine the independence of courts.

Lawmakers should amend the Law on the Organization and Functioning of the Courts, the Law on the Organization and Functioning the Supreme Council of Magistracy, and the Law on Statute of Judges and Prosecutor "in order to ensure they comply with the Constitution of the Kingdom of Cambodia and international human rights law in upholding the principle of the independence of the judiciary," the report said.

All members of the ruling Cambodian People's Party (CPP) in the National Assembly agreed to adopt the laws, which in effect put the minister of justice at the center of all key decision-making by the judiciary and by the Supreme Council of the Magistracy (SCM), the body charged with appointing, disciplining, and overseeing the country's judicial system.

Broken promises

Though the Cambodian government has made promises to the Cambodian people and international donors to establish an independent judiciary, "it has utterly failed to keep them," Brad Adams, Asia director for the New York-based Human Rights Watch (HRW), said in a statement released before the parliament vote last month.

"By enacting laws empowering the justice minister over the judiciary's ruling body, Hun Sen can formalize his de facto power over the courts. If these laws pass, it is farewell to any hopes of judicial reform," Adams said.

The government of the ruling Cambodian People's Party (CPP) has for more than two decades used its control of Cambodia's courts as a tool for political purposes, HRW said in a statement last month.

"The courts are notoriously corrupt, lack competence, and have frequently tried and sentenced activists, journalists, and political opponents after unfair trials, which has been criticized by Cambodian lawyers, United Nations human rights experts, local and international organizations, and foreign donors," HRW said.

Reported by Samean Yun for RFA's Khmer Service. Translated by Samean Yun. Written in English by Richard Finney.

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