Courts violate basic rights of defendants, report finds

Defendants in Cambodian courts are frequently denied basic rights protected by the Constitution, including the right to be tried in person and the right to examine witnesses, according to a new report.

About one third of the 799 defendants monitored by the Center for Justice and Reconciliation were tried, and convicted, in absentia, and more than 90 percent of their trials lasted less than a half hour, the organization said in a statement on Monday. The Phnom Penh-based NGO also found that only 18 percent of all 484 monitored trials proceeded in the presence of witnesses who were examined by judges.

The CJR monitored trials from December to February in the Supreme Court, the Court of Appeal, the Phnom Penh Municipal Court and the Battambang and Kandal provincial courts.

The results were largely consistent with similar surveys previously conducted by the Center for Social Development.

Daravuth Seng, international co-director of justice programs at CJR, said yesterday that the results of the three-month study were an unsurprising indication of a “serious problem.”

“Cambodia still has a very young judiciary system and there is a lot of need for infrastructure and just a lot of training,” he said. “It’s really a question of time and working toward a goal.”

Bunyay Narin, spokesman for the Ministry of Justice, said that he could not comment on the findings because he had not seen the report.

But Judge Chiv Keng, president of Phnom Penh Municipal Court, denied that there were widespread rights violations in the courts. There was, Judge Keng said, no need for witnesses to always come to trial.

“The witnesses do not come to the court hearing because they do not have time,” he said. “We have already had evidence because they gave evidence to the police and investigating judges.”

He also said that, as required by law, authorities find representation for defendants if they have been charged with a felony.

CJR found that of 467 monitored felony defendants, 94 percent were represented by counsel at trial.

The study looked at rights guaranteed under the “equality of arms” principle, which is meant to ensure that the accused has the opportunity to prepare a defense.

Sok Sam Oeun, executive director of the Cambodian Defenders Project, a legal aid organization, said some judges might not understand this principle.

He also pointed to other problems with the Cambodian justice system.

“The role and the power of the investigating judge must be reviewed,” he said. “During the inquiry by the investigating judge, [there is] no right to cross-examine by the defense counsel.”

Also problematic, he said, is the right to a defense counsel when no funds for a counsel are guaranteed by the government.

“The government does not yet think it has the obligation to give money to the bar or any lawyer for the poor,” he said.

The CJR study was supported by the UN Office of the High Commissioner for Human Rights “as part of rule of law work, aimed at improving the administration of justice,” UNOHCHR Country Representative Christophe Peschoux wrote in an e-mail yesterday.

“Independent monitoring of court proceedings is key to the effective protection of human rights, especially fair trial rights,” he wrote. “The data collected by CJR in monitoring trials in five courts in the country is an important source of information on the functioning of the criminal justice system. This contributed to enable judges, lawyers, the government, civil society and others interested in supporting judicial reform, such as our office, to understand what the problems are in the justice system, and look for solutions to improve the administration of justice.”

The release of the CJR report came a day before the arrival of UN human rights envoy Surya Subedi, who is visiting Cambodia to examine the judiciary.

In a statement Friday, Mr Subedi said he will look at “the functioning of the judiciary…with a view to assessing the extent to which it is accessible to ordinary Cambodians and delivers justice.”

Mr Subedi’s outspoken predecessor, Yash Ghai, issued a report in 2007 in which he said that Cambodia’s legal system was a “principal agency of oppression.” The report cited a lack of independence and integrity in the judiciary.


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