Around 40 percent of all adults and over 60 percent of all juveniles in pretrial detention in Cambodia’s prisons are being detained longer than allowed by law. But the lengthy periods that suspects spend detained behind bars ahead of trial are commonplace in Cambodia, and it remains one of the major issues for courts to resolve, legal aid and human rights group workers said this week.
“Under Cambodian law, pretrial detention is not the rule but an exception,” said Chou Vineath, manager of the Center for Social Development’s Court Watch Project, which observed 1,898 trials in 2008 in seven of the country’s 21 municipal and provincial courts.
According to the research, Court Watch found that 75 percent of all juveniles detainees, those under 18, were held more than 2 months for a misdemea-
nor and 57 percent were held for more than 4 months for a felony-the maximum provisional detention periods allowed—before standing trial.
In late 2007, Court Watch identified a pretrial detention case in which a 16-year-old defendant at Kandal Provincial Court who had been held in custody 13 months and 15 days before he stood trial.
Article 37b of the UN Convention on the Rights of the Child, of which Cambodia is a signatory, states: “The arrest, detention or imprisonment of a child…shall be used only as a measure of last resort and for the shortest period of time.” Under Cambodian law a juvenile’s pretrial detention cannot be extended.
For adults, Court Watch found that 40 percent were held in pretrial detention longer than the legal time limit for a judge to investigate-four months for a misdemeanor and six months for a felony.
In some cases, pretrial detention was so long that the suspects were detained longer in prison than they could have been sentenced under the law if they were even found guilty, Mrs Vineath said.
She cited the example of an alleged thief, who if he had been found guilty could only have been sentenced to between one or two years in prison, but was detained for one and a half years without trial.
An adult’s legal pretrial detention can be extended to a maximum 18 months for felonies and 6 months for a misdemeanor, but only under strict conditions and with the court’s approval, according to the law.
Currently, extended pre-trial detention is the norm.
“I think it’s a serious issue…it violates the accused’s rights to be tried without undue delay,” Mrs Vineath said.
According the 2007 Code of Criminal Procedure, pretrial detention may only happen under conditions mentioned in the law, such as the need to preserve evidence or to guarantee the appearance of the accused for the court, while extending an original period of provisional detention is subject to even stricter rules
Sok Sam Oeun, executive director of the free legal aid Cambodian Defenders Project, said a lack of judges and courtrooms to process cases had caused a big caseload for judges. Because investigating judges have the power to extend pretrial detention, he said, they might be inclined to do so if they have lagged behind in investigating their cases.
Judges, he added, also tended to lay heavy charges, such as a felony instead of misdemeanor, in order to be able to detain suspects longer and to also have more time to process their case.
“[The judges] don’t implement the law properly, independently, “ Mr Sam Oeun said.
Kompong Speu Provincial Court Judge Khlot Pech, agreed a lack of lawyers and judges had caused delays of trials at his court, adding that his court had only seven judges and three lawyers and that investigating judges lacked capacity to collect evidence.
Kratie Provincial Court Judge Touch Sokhoeun said there were only two judges who are eligible to hear criminal cases in his province. “I have to request assistance from judges from other provinces, so sometimes they are busy and we suspend the hearing,” he said.
Ith Rady, undersecretary of state at the Ministry of Justice, said he did not know how many cases of extended pretrial detentions there were currently in the country, as he had not investigated it for years, adding: “Not many cases occur anymore, because there are more judges in each province.”
Mr Sam Oeun said: “Nobody knows [the number of extended provisional detentions], there is no functioning registration system,” though the number had probably decreased somewhat in recent years because of an increase in the number of judges.
Mrs Vineath said that judges must follow the rules on pretrial detention more closely and release detainees when the maximum provisional detention limit is reached, adding that the Supreme Court should take action against judges who do not follow the law on detention of suspects.
Mr Sam Oeun recommended further increases in the numbers of judges and courtrooms, and the handing over of the authority to grant bail to a judge not investigating a particular case in which a suspect has been detained beyond the lawful timeframe.