Judges Required to Explain Reasons Behind Pre-Trial Detention

Judges are now required to write a reasoned explanation when placing citizens in pre-trial detention, instead of simply checking a box as was previously practiced, Justice Minister Ang Vong Vathana said Tuesday.

But the Ministry of Justice is also considering amending the criminal procedure code to transfer such powers to a panel, he added.

“Judges are required to give proper arguments or justifications for the pre-trial detention,” Mr. Vong Vathana said at a workshop on pre-trial detention in Phnom Penh on Tuesday.

“You need to have reasons, arguments to support your decision, you cannot just decide to detain someone that easily,” he said.

Mr. Vong Vathana said he has made the change due to the lack of transparency in the courts when such decisions were made.

On January 22, Mr. Vong Vathana signed and began disseminating three circulars that urge judges to consider alternatives to pre-trial detention. These included judicial supervision, the provision of suspended sentences with probation and the implementation of community service orders.

“These [circulars] can help judges to take high reasons for deciding to detain anyone, he said, adding that the Code of Criminal Procedure stipulates that “the accused shall remain at liberty.”

The decision comes as 21 protesters, arrested during demonstrations in January for a $160 minimum wage in the garment sector, remain in pre-trial detention in a high-security prison in Kompong Cham province.

On Tuesday, union leader Vorn Pao, who is among the imprisoned, was denied bail for the second time by the Court of Appeal. The reason given by the judge was that it could affect the “procedures” of the Phnom Penh Municipal Court, which is preparing to try him.

Ith Rady, an under-secretary of state at the Justice Ministry, said in a presentation Tuesday that the old method of determining whether pre-trial detention is necessary had been problematic because of the ambiguity surrounding a judge’s decision.

Mr. Rady also acknowledged that a failure to grant bail whenever possible is directly linked to chronic overcrowding in the country’s prisons, an issue long highlighted by rights groups.

The new provisional detention form, copies of which were handed out at the workshop, requires an investigating judge to provide reasons why pre-trial detention is necessary, citing grounds, relevant legal articles and the duration the accused should spend behind bars.

The forms also say that pre-trial detention should only be necessary when “no bail order would be rigorous enough to ensure that these needs would be sufficiently satisfied and therefore detention remains the only means to achieve these aims.”

The Ministry of Justice is also considering shifting pre-trial detention decisions away from judges.

“We are thinking about making some amendments to the Criminal Procedure Code regarding pre-trial detention,” Mr. Vong Vathana said. “So the judge cannot make the decision…we would need to have an assembly or chamber to decide on it [instead].”

Sok Sam Oeun, executive director of the Cambodian Defenders’ Project, said that he hopes judges will now consider the gravity of alleged crimes before determining whether or not to put someone behind bars ahead of trial.

“Sometimes a crime is not minor but related to money, fraud— it is not a dangerous crime, so I think that in such cases, it is better to allow them to avoid pre-trial detention,” he said.

Marie-Dominique Parent, deputy representative of the Office of the High Commissioner for Human Rights in Cambodia, said condemning people to pre-trial detention by ticking a box “has no place in a modern, rule-based society.”

She said that the new form marks a “small but tremendously important step” in judicial reform.

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