June Fair Trial Rights in Cambodia Monitoring at the Court of Appeal

Transcription

1 June 2014 Fair Trial Rights in Cambodia Monitoring at the Court of Appeal

2 Cambodian Center for Human Rights This report on Fair Trial Rights in Cambodia (the Report ) is an output of the Cambodian Trial Monitoring Project implemented by the Cambodian Center for Human Rights ( CCHR ). CCHR s vision is of a non-violent Kingdom of Cambodia ( Cambodia ), in which people enjoy their fundamental human rights, are treated equally, are empowered to participate in democracy and share the benefits of Cambodia s development. CCHR desires rule of law rather than impunity; strong institutions rather than strong men; and a pluralistic society in which variety is harnessed and celebrated rather than ignored or punished. CCHR s logo shows a white bird flying out of a circle of blue sky this symbolizes Cambodia s claim for freedom. To realize its vision, CCHR works to promote and protect democracy and respect for human rights primarily civil and political rights throughout Cambodia. For more information, please visit Acknowledgements This Report is made possible by the generous support of the United States Agency for International Development ( USAID ) and East West Management Institute ( EWMI ), and by the generous support of the Office of the United Nations High Commissioner for Human Rights ( OHCHR ). The contents of this Report are the responsibility of CCHR and do not necessarily reflect the views of USAID, EWMI or OHCHR. Queries and Feedback Should you have any questions or require any further information about this Report, or if you would like to provide any feedback, please CCHR at info@cchrcambodia.org. This Report, and all other publications by CCHR, are available online at and also via the CCHR hosted Cambodian Human Rights Portal, All data monitored are available via the Trial Monitoring Database, tmp.sithi.org Alternatively please contact CCHR at: #798, Street 99, Boeng Trabek, Khan Chamkarmon, Phnom Penh, Cambodia Tel: +855 (0) Fax: +855 (0)

3 Contents Figures... ii Definitions & Acronyms... iii Executive Summary... iv 1 Introduction The Right to a Fair Trial The right to a fair trial under international law The right to a fair trial under Cambodian law Purpose, Scope and Methodology Data and Evaluation Fair Trial Rights at Risk Right to a public hearing Right to understand the nature of the charge Right to legal representation and to be present at trial Presumption of innocence Evidentiary rights The right to a public and reasoned judgment Independence, impartiality and professionalism of the judge Trials involving juveniles Fair Trial Rights Upheld Right to adequate time and facilities to prepare a defense Right not to be compelled to confess guilt Prohibition against double jeopardy Prohibition against retroactive application of criminal law Conclusion and Recommendations Recommendations to Enhance the Independence of the Judiciary Recommendations Regarding the Explanation of Rights Recommendation Regarding the Right to be Present at Trial Recommendations Regarding the Right to Legal Representation Recommendations Concerning the Presumption of Innocence Recommendations Regarding the Impartiality and Professionalism of Judges Recommendations Regarding Trials Involving Juveniles Bibliography Appeal Hearing Monitoring Checklist i

4 Figures Figure 1(A): Appeal hearings monitored Felonies and Misdemeanors.6 Figure 1(B): Appeal hearings monitored Parties Bringing the Appeal 6 Figure 2: The Right to a Public Hearing 8 Figure 3: Right to Understand the Nature of the Charges.9 Figure 4: Explanation of Rights 10 Figure 5: Right to Legal Representation and to be Present at Trial..12 Figure 6: The Presumption of Innocence.13 Figure 7: Court s Ruling 16 Figure 8: The Right to a Reasoned Judgment 16 Figure 9: Impartiality and Professionalism of Judges.19 ii

5 Definitions & Acronyms BAKC The Bar Association of the Kingdom of Cambodia Cambodia Kingdom of Cambodia CCHR Cambodian Center for Human Rights CCPC Code of Criminal Procedure of the Kingdom of Cambodia Checklist The checklist used by CCHR Trial Monitor to record trial data when monitoring trials Checklist Guidance Comprehensive guidance notes to help CCHR Trial Monitor understand each question in the Checklist Code of Conduct A document outlining the obligations of non-interference, objectivity and confidentiality to which CCHR Trial Monitor is bound Constitution The Constitution of the Kingdom of Cambodia Court of Appeal The Phnom Penh Court of Appeal of the Kingdom of Cambodia CRC Convention on the Rights of the Child Penal Code The Criminal Code of the Kingdom of Cambodia Database The database in which CCHR Trial Monitor store trial data recorded on checklists EWMI East West Management Institute ICCPR International Covenant on Civil and Political Rights MoI Ministry of Interior MoJ Ministry of Justice MoSA Ministry of Social Affairs n-applicable NGO n-governmental organization ODIHR Office for Democratic Institutions and Human Rights OHCHR Office of the United Nations High Commissioner for Human Rights OSCE Organization for Security and Co-operation in Europe Project CCHR Trial Monitoring Project Report This Annual Report on Fair Trial Rights in Cambodia Reporting Period From 1 March 2013 to 31 January 2014 RGC Royal Government of Cambodia Strategy The Legal and Judicial Reform Strategy of the Royal Government of Cambodia Trial Monitor CCHR trial monitor UDHR Universal Declaration of Human Rights UN United Nations UNICEF United Nations International Children s Emergency Fund UNTAC United Nations Transitional Authority in Cambodia UNTAC Law Provisions relating to the Judiciary and Criminal Law and Procedure applicable in Cambodia during the Transitional Period, 1992 USAID United States Agency for International Development iii

6 Executive Summary The functioning of the judiciary has been among the major human rights concerns in Cambodia for some time, central as it is to the protection and enforcement of other rights and the establishment of the rule of law. 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. One of the major issues that impacts upon fair trial rights in Cambodia is the lack of separation of powers and the continued influence that the executive exert on the judiciary. Besides the overall concerns related to the lack of independence of the judiciary in Cambodia, issues related to the rights to a public hearing, to legal representation and to be present at trial, and the presumption of innocence, are at risk in Cambodia. In addition, the quality of evidence presented in hearings is often very poor and threatens the right to be convicted beyond a reasonable doubt. CCHR s Trial Monitoring Project (the Project ) has collected data from the monitoring of 204 criminal trials at the Court of Appeal between 1 March 2013 and 31 January 2014 (the Reporting Period ) in order to assess its adherence to fair trial rights as set out in international and Cambodian law. The Report presents and analyzes the data collected during the Reporting Period. Chapter 1 (Introduction) explains the right to a fair trial as a fundamental and universally recognized human right and provides a brief overview of relevant fair trial rights, before setting out the scope, methodology and purpose of this Report. Chapter 2 (Data and Findings) presents the data collected at the Court of Appeal for selected relevant fair trial rights and analyzes the data for the purpose of identifying trends in adherence to fair trial rights. Thanks to the analysis, this Chapter identifies which fair trial rights are well respected and ones which are violated at the Court of Appeal. Chapter 3 (Conclusions and Recommendations) makes recommendations addressed to a number of different bodies and institutions including the Royal Government of Cambodia ( RGC ), the Ministry of Justice ( MOJ ), law enforcement authorities, prison authorities, as well as non-governmental organizations ( NGOs ) in relation to the Reports findings. CCHR hopes that the data, analyses and recommendations set out in the Report will help to facilitate increased respect for fair trial rights and help support those working to ensure that the justice system in Cambodia is fair and equal for all. iv

7 1 Introduction 1.1 The Right to a Fair Trial The right to a fair trial forms an important component of the rule of law and the proper administration of justice. It is a fundamental and universally recognized human right, enshrined at the highest level of international law by the United Nations Universal Declaration on Human Rights ( UDHR ) and the United Nations International Covenant on Civil and Political Rights ( ICCPR ). Fair trial rights are also guaranteed in the Constitution of the Kingdom of Cambodia (the Constitution ), and through various individual provisions of domestic laws The right to a fair trial under international law The right to a fair trial is an essential part of any criminal justice system; it entitles each and every person charged with a criminal offense to be treated fairly and equally while the state determines their guilt or innocence. When implemented correctly, it protects the rights of the accused and the victim, and ensures the proper administration of justice. The right to a fair trial is comprised of a number of different individual rights, which encompass the entire legal process, from the initial arrest of the suspect, through to the completion of the final appeal. The UDHR 1 and the ICCPR 2 both guarantee the right to a fair and public hearing by an independent and impartial tribunal. The ICCPR further develops the concept of a fair trial which includes, but is not limited to, the following rights and principles: the rights to a public hearing, 3 to be tried without undue delay, 4 to understand the nature and cause of the charge, 5 to adequate time and facilities to prepare a defense, 6 to legal representation, 7 and to the presumption of innocence; 8 the right against self-incrimination (not to confess guilt as a result of coercion or inducement); 9 and the right to appeal to a higher court on grounds of fact and law. 10 Article 10 of the UDHR Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 1 United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, Article 10, 2 United Nations General Assembly, International Covenant on Civil and Political Rights ; 16 December 1966, Article 14 (1), 3 Ibid. Article 14 (1) 4 Ibid. Article 14 (3) (c) 5 Ibid. Article 14 (3) (a) 6 Ibid. Article 14 (3) (b) 7 Ibid. Article 14(3) (d) 8 Ibid. Article 14 (2) 9 Ibid. Article 14(3) (g) 10 Ibid. Article 14 (5) 1

8 Cambodia acceded to the ICCPR in 1992 and Article 31 of the Constitution 11 enshrines international human rights obligations into Cambodian domestic law and policy. Thus, international human rights norms, including provisions of the ICCPR, are directly applicable in Cambodian courts, as confirmed by a decision of the Constitutional Council in The right to a fair trial under Cambodian law The right to a fair trial is protected in Cambodia, through general and specific provisions, set out in a number of instruments. The Constitution provides the basic framework for fair trials. Article 38 of the Constitution establishes the rights of Khmer citizens and protects the right to a fair trial by guaranteeing that: There shall be no physical abuse against any individual; The prosecution, arrest, or detention of any person shall not be done except in accordance with the law; Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited; and persons who commit, participate or conspire in such acts shall be punished according to the law; Confessions obtained by physical or mental force shall not be admissible as evidence of guilt; Any case of doubt shall be resolved in favor of the accused; The accused shall be considered innocent until the court has judged finally on the case; and Every citizen shall enjoy the right to defense through judicial recourse. Furthermore, Articles 51, 128, 130, 132 of the Constitution also provide for the separation of powers and an independent judiciary guaranteed by the King. The Code of Criminal Procedure of the Kingdom of Cambodia (the CCPC ), adopted in 2007, 13 provides in detail how suspects should be treated and sets out the roles and responsibilities of judges, prosecutors and defense counsel, from initiation of an investigation, to the time of arrest, throughout the entire criminal process until the final appeal. Finally, the Criminal Code of the Kingdom of Cambodia (the Penal Code ), which was promulgated in 2009 and came into full force and effect in December 2010, sets out classes of offenses, principles of criminal responsibility and principles of sentencing. In addition, in June 2003, the Council of Ministers of the Royal Government of Cambodia ( RGC ) approved the Legal and Judicial Reform Strategy (the Strategy ). 14 The Strategy identifies four guiding principles from the provision of the Constitution to guide legal and judicial reform: the rights of individuals, liberal democracy, the separation of powers, and the rule of law. The Strategy also 11 The Constitution, Article 31: The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women s and children s rights, 12 Constitutional Council of the Kingdom of Cambodia, Decision. 092/003/2007, (10 July 2007) 13 The CCPC replaced sections of the provisions relating to the Judiciary and Criminal Law and Procedure applicable in Cambodia during the Transitional Period, 1992 (the UNTAC Law ). 14 Council for Legal and Judicial Reform, Legal and Judicial Reform Strategy, adopted by the RGC at the Plenary Session on 20 June

9 sets out seven strategic objectives, which form the basis of the Legal and Judicial Reform Action Plan, which was later approved in Purpose, Scope and Methodology The purpose of the Project is to collect data that can be analyzed to identify strengths and weaknesses in the justice system. By drawing attention to the areas in the trial process that require improvement in terms of respect of the right to a fair trial and making practical recommendations to the relevant justice sector institutions, CCHR supports efforts to strengthen and reform the justice system for the benefit of all citizens. Between August 2009 and January 2013 the Project monitored trials at the Phnom Penh, Kandal, Banteay Meanchey and Ratanakiri Courts of First Instances and published six bi-annual reports on fair trial rights. 16 In January 2013, the Project ended its monitoring activities at the Courts of First Instances to focus on monitoring at the Court of Appeal. The Project decided to monitor the Court of Appeal to assess how fair trial rights standards are implemented on a higher level. The aim is to provide an analysis of the trends emerging within Cambodia s Court of Appeal in regards to respect for fair trial rights and to create a platform from which further recommendations can be made and improvements implemented. The Project focuses on a number of fair trial rights. To determine which rights would be considered, CCHR relied on external resources such as reports and studies on fair trial rights in Cambodia and on the Cambodian judicial system. In addition, monitoring at the Court of Appeal, led CCHR to focus on certain components of the right to a fair trial that were different from the monitoring activities at the Courts of First Instances. The following rights were selected: Right to a public hearing; Right to understand the nature of the charge; Right to an explanation of rights owed to the accused; Right to legal representation and to be present at trial; Right to the presumption of innocence; Right to be tried by an independent and impartial tribunal; Right to not be compelled to confess guilt; Evidentiary rights (including the right to call and examine witnesses); Right to a reasoned judgment; Prohibition against retroactive application of penal legislation (being tried for an offense that was not an offense at the time it was committed); Prohibition against double jeopardy; and Rights of juveniles. 15 Council for Legal and Judicial Reform, Plan of Action for Implementing the Legal and Judicial Reform Strategy, adopted by the RGC at the Plenary Session on 29 April, The sixth bi-annual reports on fair trial rights in Cambodia are available at : 3

10 The Trial Monitor from CCHR attends criminal trials at the Court of Appeal on a daily basis. To effectively and efficiently record relevant trial data, CCHR designed a trial-monitoring checklist (the Checklist ) for use in the Court of Appeal. 17 This checklist is tailor-made for the Project and includes more than 70 questions, the answers to which indicate whether fair trial rights have been adhered to by the Court. In an effort to sustain constructive engagement, CCHR introduced and explained the Checklist and its trial monitoring activities to representatives of the Court of Appeal. CCHR has also developed a one-page annex to the Checklist for use in trials involving juveniles. With consideration of the brevity of the Checklist, CCHR has compiled comprehensive guidance notes (the Checklist Guidance ) 18 to ensure uniform interpretation of each Checklist question and understanding of the legal basis and purpose of each question. The Trial Monitor is also provided with a law bank, which outlines the relevant national and international laws underpinning each question in the Checklist. Finally, CCHR is committed to the international principles applicable to trial monitoring 19 and has devised a code of conduct (the Code of Conduct ) 20 for its Trial Monitor. The Code of Conduct outlines the obligations of non-interference, objectivity and confidentiality to which the Trial Monitor is bound. In the conduct of its monitoring activities, specific trials are not targeted; rather, trials were monitored arbitrarily, based on court schedules, to ensure that the data collection process remained objective. When the Trial Monitor observed a trial, the information was recorded directly onto the Checklist. The information sought was limited to the trial process itself and no additional interviews or dialogues took place, other than where the Trial Monitor made efforts to obtain information relating to trial verdicts that were not handed down on the day of trial, but were adjourned to a later date. After each trial, the data from the Checklist is entered into the CCHR Trial Monitoring Database (the Database ). 21 CCHR analyzes the trial data recorded in the Database, and identifies positive practices as well as areas for concern arising at trial. The ultimate purpose of the analysis is to identify the strengths and weaknesses of the Court of Appeal and to discuss these issues with the Court and other justice sector stakeholders in order to develop and implement ways to improve the protection of the right to a fair trial in the Cambodian courts. In the next years, as trial monitoring activities continue, the Database will be used to draw comparative analysis and to identify trends in the practices of the Court of Appeal, gauge improvements and identify further recommendations. A final draft of the Report was sent to the President of the Court of Appeal for comments and recommendations prior to final publication. Once published, Project staff request specific meetings with representatives of the Court of Appeal as well as other justice sector organizations, bodies and 17 Appeal Hearing Monitoring Checklist, 18 Guidance te for CCHR Appeal Court Monitoring Checklist, 19 See: Amnesty International, Amnesty International Fair Trial Manual (London: Amnesty International Publications, 1998), AI Index POL 30/02/98; Jelena Pejić and Vanessa Lesnie, What is a Fair Trial: A Basic Guide to Legal Standards and Practice (New York: Lawyers Committee for Human Rights, 2000); Organization for Security and Co-operation in Europe (OSCE)/ Office for Democratic Institutions and Human Rights (ODIHR), Trial Monitoring: A Reference Manual for Practitioners (Poland: OSCE/ODIHR, 2008); Bárbara Oliveira and Linda Besharaty-Movaed, International Commission of Jurists Trial Observation Manual (Geneva: International Commission of Jurists, 2002). 20 CCHR Trial Monitoring Code of Conduct, 21 CCHR Trial Monitoring Database, 4

11 institutions to which recommendations are addressed. The meetings serve as a basis for an exchange of ideas and provide insight into the challenges faced by those working to strengthen the justice system. The purpose of dialogue meetings is to promote the implementation of the recommendations set out in the Report. 5

12 2 Data and Evaluation This section of the Report sets out the raw data recorded on the Checklist at the 204 trials monitored at the Court of Appeal between 1 March 2013 and 31 January 2014 and evaluates this data. The right of appeal 22 includes the right to a full review. In other words, the review on appeal must concern both the legal and material aspects of the person s conviction and sentence. 23 As such the review must provide for a full evaluation of evidence and the conduct of trial. 24 FIGURE 1(A): APPEAL HEARINGS MONITORED- FELONIES AND MISDEMEANORS Data Felonies Misdemeanors N o % N o % Total number of trials 204 Figure 1(a) above shows the number of criminal trials monitored by the Trial Monitor during the Reporting Period, and separates the charges into two different classifications of offense. Article 46 of the Penal Code defines a felony as any offense for which the minimum penalty is imprisonment for more than five years. A misdemeanor is defined in Article 47 as any offense for which the maximum penalty is imprisonment for a term of more than six days and less than or equal to five years. 25 FIGURE 1 (B): APPEAL HEARINGS MONITORED PARTIES BRINGING THE APPEAL Data By the Defense By the Prosecution* By the Prosecution and the Defense By the Civil Parties N o % N o % N o % N o % Total number of trials *Prosecution from both the First Instance and the Court of Appeal 204 Figure 1(b) shows who appealed the First Instance decision. A judgment issued by a Court of First Instance may be appealed by the Royal Prosecutor of the Court of First Instance and the General Prosecutor attached to the Court of Appeal, the convicted person, the civil party or civil defendant 22 Article 14 (5) of the ICCPR and Article 375 of the CCPC 23 United Nations Human Rights Committee, Communication. 701/1996, Gómez v. Spain (Views adopted on 6 April 1998), in UN doc. GAOR, A/55/40 (vol. II), p. 109, para United Nations Human Rights Committee, Communications s. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia (Views adopted on 6 April 1998), in UN doc. GAOR, A/53/40 (vol. II), p. 111, para Penal Code, Article 48 6

13 (both regarding the civil matter). 26 The Figure shows that the majority of the appeals (89%) are brought by the defense. The section below analyzes the implementation of different relevant components of the right to a fair trial by the Court of Appeal during the Reporting Period. For the purpose of the analysis the Report first sheds light on the practices that put the right to a fair trial at risk before highlighting positive practices. 2.1 Fair Trial Rights at Risk From the analysis based on the data collected during the Reporting Period it appears that a number of rights are not guaranteed and/or implemented in a fully satisfactory manner, and thus, threaten the individuals right to a fair trial Right to a public hearing Sources in Cambodian and International law: Article 14(1) of the ICCPR: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law [...] Article 392 of the CCPC: The appeal hearing shall be conducted in public. Everyone has the right to have their guilt or innocence determined in a public trial, except in certain exceptional circumstances, for example when the court considers that a public hearing will cause significant damage to public order or morality. 27 The right to a public hearing involves a number of elements: trials should generally be open to the public and conducted orally; information on the venue and date of the trial should be made available to the public; and there should be adequate facilities for public attendance CCPC, Article CCPC, Article 316 states that the court may order a complete or partial in camera hearing if it considers that a public hearing will cause significant damage to public order or morality, but a written explanation of such a decision must be included alongside the judgment on the merits of the case. Article 14(1) of the ICCPR provides that the press and public may be excluded from all or parts of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, where publicity would prejudice the interests of justice or where the interest of the private lives of the parties so requires. 28 United Nations Human Rights Committee, Communication. 215/1986, Van Meurs v. The Netherlands, in U.N. Doc. CCPR/C/39/D/215/1986 (1990) para Cited in supra te 12, 7

14 FIGURE 2: RIGHT TO A PUBLIC HEARING Data N o % N o % Was notice of the hearing posted on a public notice board outside the courtroom? Were members of the public obstructed from entering or dismissed from the courtroom? When CCHR started its monitoring activities at the Court of Appeal, no public hearing notice was posted. However, after raising the issue at a meeting with representatives of the Court of Appeal in April 2013, the Project observed that notice of hearing started being posted outside courtrooms. Unfortunately this still remains an inconsistent practice as data shows that it is only in 65% of the hearings that public notice was posted outside the courtroom. In addition, in the majority of the cases, important information such as case numbers, parties names, nature of the charges, etc., was missing. During a meeting with the President of the Court of Appeal, 29 the President admitted that the court lacked practice in posting public hearing notice with detailed information. However, he mentioned that there had been a series of internal meetings on the issue and that instructions were sent to the Chief of Court Clerk to address the problem more effectively in order to provide easy access to information to the public Right to understand the nature of the charge Sources in Cambodian and International law: Article 14(3)(a) of the ICCPR: In the determination of any criminal charge against him, everyone shall be entitled to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. Article 14(3)(f) of the ICCPR: In the determination of any criminal charge against him, everyone shall be entitled to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 322 of the CCPC: The court clerk shall call the names of the accused, civil parties, civil defendants, victims, witnesses and experts and verify the identity of those persons. Article 325 of the CCPC: The presiding judge shall inform the accused of the charges he is accused of. 29 CCHR dialogue with the Court of Appeal President, H.E. You Bun Leng and Chief of Court Clerk, Mr. Pun Savath on 5 June

15 Article 330 of the CCPC: If necessary, the presiding judge may seek the assistance of an interpreter/translator. Article 331 of the CCPC: When questioning a deaf and mute person, the court clerk shall write down the questions and ask the person being questioned to read the questions and answer them in writing. If the person cannot read or is illiterate, the presiding judge shall call on an interpreter/translator for him under the conditions stated in Article 330 [...] The presiding judge may call on any person who is able to communicate with the deaf and mute person. Article 396 of the CCPC: In addition, the rules that apply to hearings of the Court of First Instance shall also apply to the Court of Appeal. Those accused of criminal offenses must be informed of the nature of the offense with which they have been charged. Without this essential information, it is impossible to properly prepare a defense or to give comprehensive instructions to a lawyer in cases where the accused person is legally represented. CCHR s Trial Monitor collects data regarding the information conveyed to the accused person at the commencement of the trial. Although this information should have already been given to the accused person during the pre-trial/investigation procedures, it is nevertheless important for judges to remind the accused person of this information before the trial commences. This is particularly the case as sometimes charges may have been changed or amended between the initial arrest/charge and the trial. FIGURE 3: RIGHT TO UNDERSTAND THE NATURE OF THE CHARGE Data N o % N o % N o % Did the judge read a brief report of the case? Did the judge state all relevant charges? Did the judge state the relevant law? Did the judge state the date of the offense? Did the judge state the place of the offense? Did the judge state the parties involved? The figure above shows that in a significant majority of cases, judges at the Court of Appeal re-state the charges, facts, dates and information related to the charges. The right to understand the nature of the charge at the appeal stage of proceedings is almost fully respected. 9

16 During a dialogue meeting with the President of the Court of Appeal, 30 the President claimed that defendants have already been informed of charges, relevant articles, relevant laws, and information relating to the offense at the Court of First Instance. However, he recognized that it is better practice for the presiding judges of the Court of Appeal to read a brief report of the case re-affirming charges, relevant laws, facts, and associated information to the defendants. However, in addition to understanding the nature of the charge, an individual can only exercise his legal rights if he is fully informed of them. As such, judges must not only inform the accused of his legal rights but also explain them. CCHR monitors not only whether judges inform the accused person of his or her entitlement to the individual rights set out in the table below, but also whether full explanations of these rights are given by judges. CCHR has also worked in collaboration with the President of the Court of Appeal on a fair trial rights poster. Since October 2013, the poster is displayed at the Court of Appeal and sets out the basic legal rights to which an individual accused of a criminal offense is entitled. FIGURE 4: EXPLANATION OF RIGHTS Data Did the judge inform (I) and explain (E) to the accused his/her right to legal representation or self-defense? Did the judge inform (I) and explain (E) to the accused his/ her right to remain silent? N o % N o % I only I & E Neither What appears from the figure above is that while judges at the Court of Appeal state the charges and facts, they almost systematically fail to inform the defendant of his or her legal rights, let alone explain them. In only one case out of the 204 cases monitored did the judge inform and explain the accused of his or her right to remain silent, or in other words the right not to be compelled to testify against himself/herself or to confess guilt. In addition, in only five cases out of 204 monitored did the judge inform and explain to the defendant his or her right to legal representation. These rights remain valid throughout the judicial proceedings and as such should be re-called at the appeal level. This practice, which seriously impairs the defendant s right to a fair trial, could easily be addressed. 30 CCHR dialogue with the Court of Appeal President, H.E. You Bun Leng and Chief of Court Clerk, Mr. Pun Savath on 5 June

17 2.1.3 Right to legal representation and to be present at trial Sources in Cambodian and International law Article 38 of the Constitution: Every citizen shall enjoy the right to defense through judicial recourse. Article 14(3)(d) of the ICCPR: In the determination of any charge against him, everyone shall be entitled: to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. Article 143 of the CCPC: When a charged person, who is a minor appears for the first time, he/she shall always be assisted by a lawyer. If a charged person does not choose a lawyer, the court shall appoint a lawyer according to the Law on the Bar. Article 300 of the CCPC: The accused shall appear in person during the hearings at the court. The accused may be assisted by a lawyer chosen by himself. He may also make a request to have a lawyer appointed for him in accordance with the Law on the Bar. Article 301 of the CCPC: The assistance of a lawyer is compulsory if (i) the case involves a felony; or (ii) the accused is a minor. Article 389 of the CCPC: An accused in detention shall be transferred without delay by the order of the General Prosecutor to the nearest prison or detention center to the seat of the Court of Appeal. Article 62 of the Law on Prison: Besides prisoners, any transfer of detained persons from one prison to another shall be notified to the Prosecutor of the transferring territorial jurisdiction to the Prosecutor of the receiving territorial jurisdiction or the competent General Prosecutor. (CCHR s translation) Being charged with an offense can be a daunting experience; legal procedures can be complex and confusing and it is therefore vital that individuals have the opportunity to retain legal representation. The right to be represented by a lawyer ensures that the accused has an opportunity to obtain expert professional advice from an advocate who has the ability to explain the charges against him/her, explain his/her rights, guide him/her through the trial process and represent his/her interests in court. It is compulsory for a person to be legally represented if he or she is accused of a felony offense or if he or she is a juvenile. While it is not mandatory to be legally represented if accused of a misdemeanor offense (unless a juvenile), individuals still have the option, 11

18 if they so wish to retain a lawyer (although in such cases the burden to retain a lawyer does not rest with the court). During a dialogue meeting with the President of the Court of Appeal, 31 the President emphasized that legal representation is mandatory for felony charges and that challenges to ensure legal representation in misdemeanor cases remain due to a lack of legal representation services. FIGURE 5: RIGHT TO LEGAL REPRESENTATION AND TO BE PRESENT AT TRIAL Data N o % N o % Was the defendant present? Was the defendant represented by a lawyer in felony trials? Was the defendant represented by a lawyer in misdemeanor trials? * This data is based on the total number of defendants (270 individuals) involved in the 204 cases monitored. The Figure shows that in still 18% of the cases the defendant is not present during the hearing and in 33% in cases of misdemeanor charges not represented by a lawyer. Even more worrying, in 12 cases, involving 15 defendants, the trial took place both without the defendant and without his/her lawyer. Of the 12 cases, one appeal was lodged by the civil party and as such only affected the amount of compensation but not the imprisonment sentence. The others complaints were lodged by the defendants in eight cases and by the prosecutor in three cases. In those cases the appeal affected the imprisonment sentence. Such instances are a serious violation of individuals right to a defense and equality of arms during the trial procedure. The absence of the defendant is often due to logistical issues and communication problems between the judges and correctional centers/places of detention. The fact that there is only one Court of Appeal for the entire country requires defendants incarcerated in correctional centers in provinces to travel to the Court of Appeal for the day of their hearing. However, often transportation of defendants does not take place because the Court sends information to the wrong correctional center because correctional centers fail to keep the Court updated about transfers of detained persons between correctional centers. These logistical problems could be easily addressed by not only the creation of other Court of Appeals but also by improving the record keeping and communication between the Court and correctional centers. In addition, such communication problems and the absence of the defendant also often create unnecessary delays, requiring judges to postpone the hearing. According to CCHR s data the Court of Appeal scheduled hearings in 838 cases between April 2013 and January Out of the 838 cases, 332 (or 40% of the cases scheduled) were delayed to another date. Reasons for delaying a hearing vary and can be because lawyers asked to adjourn the hearing, the defendants objected to the 31 CCHR dialogue with the Court of Appeal President, H.E. You Bun Leng and Chief of Court Clerk, Mr. Pun Savath on 5 June

19 assigned lawyers, there were no legal representations in felony cases, or the defendant was absent. The absence of the defendant is one of the major reasons for delays: between September 2013 and January 2014 (over a period of five months), 44% of the delays were due to the absence of the defendant. During a dialogue meeting with the President of the Court of Appeal, 32 the President explained that the absence of both the defendant and/or his/her lawyer is often due to (1) defendants having been put out of detention and failing to appear in front of the Court, (2) defendants not finding a lawyer in misdemeanor cases, and (3) transportation issues as explained in the paragraphs above Presumption of innocence Sources in Cambodian and international law: Article 38 of the Constitution: The accused shall be considered innocent until the court has judged finally on the case. Article 14(2) of the ICCPR: Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The presumption of innocence is a fundamental and universally recognized fair trial right which applies throughout the period of criminal investigation and trial proceedings up to and including the end of the final appeal. 33 This presumption reflects the principle that the burden of proof lies with the prosecuting body, not the accused, so that the court must be satisfied that the evidence presented has proved the accused s guilt beyond a reasonable doubt. It is not up to the accused to present evidence to prove that he/her is innocent. FIGURE 6: THE PRESUMPTION OF INNOCENCE Data 34 N o % N o % N o % Did the defendant appear in prison uniform? Was the defendant handcuffed throughout the hearing? Were statements made by the judge about the guilt of the defendant prior to the delivery of the verdict? * This data is based on the total number of defendants (270 individuals) involved in the 204 cases monitored. 32 CCHR dialogue with the Court of Appeal President, H.E. You Bun Leng and Chief of Court Clerk, Mr. Pun Savath on 5 June Office of the United Nations High Commissioner for Human Rights ( OHCHR ), The Right to a Fair Trial Part I, Chapter 6, p219, 34 refers to the cases in which the defendant was not present at the hearing. 13

20 When accused persons attend trial in prison uniform, the presumption of innocence is undermined, particularly when the uniform makes no distinction between remand prisoners and convicted prisoners. Where remand prisoners attend court in prison uniform, they are presented in the same way as prisoners who may have already been convicted and sentenced in relation to other, unrelated offenses. As no distinction is drawn between the two categories of prisoners, this practice has the potential to create speculation as to whether the individual accused is in fact already a convicted offender and as such may influence the judges decision. Even when accused persons are serving sentences, the fact that they appear before the court in prison uniform is equally prejudicial. The issue of the uniform in which defendants appear in court relies within the responsibility of the General Department of Prison. The Figure above shows that it is still the common practice (52%) for defendants to appear in prison uniform during their hearings. Such a practice undermines the presumption of innocence Evidentiary rights Sources in Cambodian and International law: Article 14(3)(e) of the ICCPR: In the determination of any criminal charge against him, everyone shall be entitled to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Article 153 of the CCPC: The investigating judge may question any person whose response is deemed useful to the revelation of the truth [ ]The investigating judge may also arrange a confrontation between the charged person [ ] and witnesses. Article 298 of the CCPC: At their expenses, the accused and civil party may summons witnesses who have not been summoned by the Prosecutor. Article 324 of the CCPC: At the commencement of the trial hearing, each party may request the court to hear witnesses who are present in the court room but who were not properly summonsed to testify. Taking the testimony of those witnesses shall be approved by the presiding judge. The court clerk shall record the identity of the witnesses and instruct them to retreat to the waiting room. Article 326 of the CCPC: [t]he presiding judge shall listen to the statements of civil parties, civil defendants, victims, witnesses and experts in the order which he deems useful [.] The Royal Prosecutor, the lawyers and all the parties may be authorized to ask questions. All questions shall be asked with the authorization of the presiding judge. Except for questions asked by the Royal Prosecutor and the lawyers, all questions shall be asked through the presiding judge. In case of objection to a question, the presiding judge decides whether the question should be asked. Article 394 of the CCPC: Following his questioning of the accused, the presiding judge shall 14

21 hear the civil party and the civil defendants in the order he deems useful. Witnesses and experts will be questioned only if the court so orders. All decisions of the court must be based exclusively upon the evidence presented during the course of the trial. It is therefore essential that each party has the opportunity to present evidence and call witnesses in support of their case. 35 It is equally important that each party is given the opportunity to cross-examine witnesses and to challenge evidence that he or she does not accept. It is encouraging and very positive to note, as the collected data indicates, that in all 204 cases monitored there was nothing to suggest that a party was not given the opportunity to call witnesses. However, evidentiary rights remain at risks for two main reasons. The Trial Monitor noticed that in the small number of cases in which live witnesses were present (14 cases out of 204), in six instances out of 14 witnesses were present in the courtroom before they were questioned. It is better practice for the witnesses to leave the courtroom and not return until they are called to testify as a way to make sure they are not influenced by other evidence and testimony presented during the trial. In addition, while it is encouraging to see that the Court continues to seek evidence during the course of trials, the Court of Appeal must also ensure that the evidence that is relied upon is of sufficient quality and that all parties have the opportunity to challenge the evidence. The data collected during the trial monitoring activities indicate that the quality of evidence presented is concerning. Most of the evidence presented in the trials monitored was confessions or documentary evidence. The quality and numbers of evidence presented and considered during a trial hearing is essential to ensure that individuals are proven guilty beyond reasonable doubt. In addition to documentary evidence, judges and prosecutors should be actively seeking and examining other types of evidence where relevant, such as live witnesses, medical evidence and forensic evidence. During a dialogue meeting with the President of the Court of Appeal, 36 the President explained that the Court of Appeal is a court that reviews both matters of fact and of law. As such, witnesses presence or the submission of new evidence is necessary. netheless, he highlighted that regardless of continuous efforts from the Court of Appeal, a number of challenges remain, preventing the Court from hearing all witnesses during the hearing. These challenges include (1) summon delivery system to witnesses remains slow, (2) some witnesses provide no clear address, and (3) some witnesses who have already testified are unwilling to provide those testimonies again at the appeal stage. Therefore, the Court of Appeal cannot continuously adjourn hearings to ensure all witnesses presence so as not to create undue delays. 35 Article 334 of the CCPC 36 CCHR dialogue with the Court of Appeal President, H.E. You Bun Leng and Chief of Court Clerk, Mr. Pun Savath on 5 June

22 2.1.6 The right to a public and reasoned judgment Sources in Cambodian and International law: Article 14(1) of the ICCPR: [ ] but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Article 317 of the CCPC: In all cases, the court shall announce the judgment during a public session. The right to a reasoned judgment is inherent to the right to a fair trial and is included in the right to a public judgment. According to international standards a convicted person is entitled to have, within reasonable time, access to written judgments, duly reasoned, for all instances of appeal in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law. 37 FIGURE 7: COURT S RULING Data Guilty t Guilty Re- Investigated N o % N o % N o % N o % What was the Court s ruling? * This data is based on the total number of defendants (270 individuals) involved in the 204 cases monitored. FIGURE 8: THE RIGHT TO A REASONED JUDGMENT Data N o % N o % N o % Was the verdict announced in public? * This data is based on the total number of defendants (270 individuals) involved in the 204 cases monitored. It is very positive to note in the Figure above that in all the cases for which information was available the right to a public judgment was respected. However, CCHR Monitor still noticed that in an important number of cases, judges did not refer to articles of the law or evidence presented during the appeal hearing in their verdict. Even when the Court of Appeal upholds a judgment of First Instance, it must explain why it has decided to do so. This is a clear violation of the right to a reasoned judgment and as such a core component of the right to be tried in a fair manner by an independent court. As such, we can only encourage judges of the Court of Appeal to change their practice in order to lift any doubts over the impartiality and professionalism of the judges. 37 United Nations Human Rigths Committee, Communication. 320/1988, V. Francis v. Jamaica (Views adopted on 24 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 66, para. 12.2; 16

23 2.1.7 Independence, impartiality and professionalism of the judge Sources in Cambodian and International law: Article 128 of the Constitution: The Judicial power shall be an independent power. The Judiciary shall guarantee and uphold impartiality and protect the rights and freedoms of the citizens. Article 132 of the Constitution: The King shall be the guarantor of the independence of the judiciary. The Supreme Council of Magistracy shall assist the King in this matter. Article 14(1) of the ICCPR: In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The right to be tried by an independent and impartial tribunal is a cornerstone of fair trial rights. Individuals accused must be tried objectively. This fair trial right has been described by the UN Human Rights Committee as an absolute right that may suffer no exception. 38 Indeed, if a tribunal is not independent or impartial, then all other fair trial rights become superfluous. A court that is affected and influenced by outside sources is not capable of discharging its duty to ensure fair trials. Although instances where there may have been opportunities for parties to speak to the judge during deliberation are infrequent, it is important to ensure that such cases are eradicated completely. While the data that CCHR has collected does not suggest explicitly that there were any cases of interference in any deliberations, judges must ensure that their conduct does not give rise to the perception that this may have occurred. Case Study: Trial of Chhouk Bandith 39 Date: 31 October 2013 Court: Court of Appeal, Phnom Penh Judge: Tang Sunlay (Presiding Judge), Blong Samnang and Oum Sarith The Charge: Article 236 of the Penal Code Causing involuntary bodily harm. The charge was based on allegations that Chhouk Bandith fired a gun into a crowd of demonstrators at the Kaoway Sports Limited garment factory on 20 February 2012, causing serious injury to three female workers: Keo Nea, 19, Bun Chenda, 21, and Nuth Sokhon, Human Rights Committee, Communication. 263/1987; M. Gonzalez del Rio v. Peru (CCPR/C/46/D/263/1987), October 28, 1992, para. 5.2., 39 CCHR, Legal Analysis of the Criminal Case Against Ex-Bavet Governor Chhouk Bandith and Police Chief Sar Chantha Arising from the Shooting of Kaoway Factory Workers on 20 February 2012, (Legal Analysis), vember 2013, 17