Courts making an effort, but pre-trial detention ‘excessive’

Cambodian courts seem to be “making efforts” to ensure defendants’ rights to a fair trial are not compromised, but serious shortcomings remain, a report released yesterday on the well-being of fair-trial rights in the Kingdom by the Cambodian Center for Human Rights (CCHR) says.

Gathering data from nearly 500 court cases involving more than 900 defendants, CCHR’s fifth bi-annual report on the findings of its Trial Monitoring Program found that in the second half of 2011, Cambodian judges made “positive achievements” in their in-trial treatment of evidence and witness testimony, but urged greater reforms, especially in what it characterised as the excessive use of the country’s pre-trial detention laws.

“Pre-trial detention is an indication of an assumption of guilt, so you can say it’s probably the biggest [concern],” CCHR president Ou Virak said.  

In the four courts involved in the study – the Phnom Penh, Banteay Meanchey, Ratanakkiri and Kandal courts of first instance – pre-trial detention was recommended in about 70 per cent of cases, a figure at odds with the penal code’s assertion that “in principle, the charged person shall remain at liberty”, the report contends.

Virak said that although the law provided exceptional circumstances in which an accused can be detained, judges’ reasons aren’t always motivated by the letter of the law.

“Flight risk is one of them... but it’s nothing as scientific as that,” he said of judges’ reasoning for pre-trial detention. 

“They’re saying, ‘These are a bunch of criminals and robbers – why would we let them back into society?’”

Prominent defence lawyer Dun Vibol said the trend towards universally recommending pre-trial detention did not always translate into more time to prepare a case.

“Right now, the problems are getting worse,” said Vibol, who says he has represented clients with as little as two days’ notice.  “For the criminal case, they can detain an accused person up to one year. That’s why sometimes they have enough time to get you [on board] for the trial, but they don’t do that.”

Though difficult to substantiate, Virak and Vibol said they had heard of instances in which court officials discouraged detained suspects from seeking counsel because the presence of a lawyer makes striking an under-the-table deal more difficult. 

“In judicial reform, if you know what the charges are, and you know the defendant is required by law to have a lawyer, then you make the request for lawyers and the opportunity for corruption is narrowed,” Virak said.

Access to representation is another area the CCHR report singled out as needing improvement.  In almost half of all cases, defendants went unrepresented, the study said, and even in felony cases – in which the law requires a lawyer to be provided – defence counsel were absent in 10 per cent of trials.

Sok Sam Oeun, of the Cambodian Defenders Project, said courts rarely explained that defendants needed legal counsel.  

“They only ask you, ‘Can you answer by yourself?’, so many people misunderstand,” he said. “And when they write it down, they put: ‘The accused can answer by themselves without a lawyer.’” 

Ministry of Justice officials declined to comment and asked for questions in writing.