Cambodia’s judiciary fails to comply with several fundamental fair trial rights, including the presumption of innocence and whether confessions are obtained under duress, a local NGO said Tuesday, in a report based its observance of a year of criminal cases at the country’s Court of Appeal in the capital Phnom Penh.
In an annual report entitled “Fair Trial Rights in Cambodia, Monitoring at the Court of Appeal,” covering the period of Nov. 1, 2016 to Oct. 31, 2017, the Cambodian Center for Human Rights (CCHR) analyzed data gathered through the daily monitoring of 340 randomly selected cases at the Court of Appeal.
The monitoring period did not include a number of more recent high-profile cases, such as those involving members of the now-dissolved opposition Cambodia National Rescue Party (CNRP) on charges of treason, although observers have criticized the court for its handling of those trials based on several of the concerns the group highlighted.
CCHR found that a number of key fair trial rights were guaranteed before the Court of Appeal during the monitoring period, including protections against double jeopardy and non-retroactivity, as well as of the right to understand charges, the right to adequately prepare one’s defense, and the right to a public judgment.
But while the group welcomed what it called “steady improvements” in the adherence to some of the procedures that underpin fair trial rights, it warned that “many areas of concern remain.”
“CCHR’s monitoring showed that the presumption of innocence was not fully respected, and insufficient attention was given to allegations that a confession—which often form the basis for convictions—was obtained under duress or violence, despite 40 defendants making such allegations before the Court of Appeal,” the report said.
In more than 65 percent of the cases monitored, the judge also failed to inform the defendant of their right to remain silent, CCHR noted.
Earlier this month, after CNRP President Kem Sokha was refused bail from detention while awaiting trial on charges of allegedly plotting to topple the government, his lawyer suggested that the Court of Appeal had “violated the presumption of innocence principle” by denying him the right to appear at the hearing, and said her client’s rights had been “severely restricted, as if he had already been convicted.”
Meanwhile, the right to legal representation “was not always respected,” CCHR added, with 21 percent of defendants attending hearings without lawyers.
CCHR called the lack of respect for the right to a reasoned judgment “one of the most concerning findings” in its report, noting that international standards require that a convicted person have access to written judgments, duly reasoned, for all instances of appeal, and that such access is necessary in the Cambodian context so that the accused have the possibility of appeal to the Supreme Court.
It said that in two-thirds of the cases it monitored, the defendants were found guilty, and in “a significant number of cases,” the Court of Appeal upheld the decisions of the Courts of First Instances.
“This, taken together with the lack of reading the reasoned decision, creates cause for concern as to whether the accused’s fair trial rights were respected,” CCHR said.
“In nearly all the cases, the judges failed to justify their ruling. They failed to state the provisions of the law and the evidence which they relied upon in their verdict. Instead, the judges only read and announced the ruling.”
In May, after deliberating for two minutes, Judge Plang Samnang said Cambodia’s Court of Appeal “decided to uphold the Phnom Penh Municipal Court’s verdict” of 2015 that found 11 CNRP members guilty of “insurrection” and ordered their continued detention, without providing a reason for the ruling.
CCHR said it also found that the rights of juvenile defendants, who should be given special protection under international human rights law and in Cambodian law, “are often ignored.”
“No specific measures are put into place to protect the rights of juveniles, and all but two of the 35 juveniles whose cases were monitored by CCHR had been held in pre‐trial detention,” the report said.
Call for protections
In a statement, CCHR’s Fair Trial Rights Project coordinator Hun Seang Hak expressed hope that the data presented in the report “will help facilitate an increased respect for fair trial rights in Cambodia.”
“We also urge the authorities to promptly take all appropriate steps to ensure that fair trial rights, and particularly the presumption of innocence, the right to a reasoned judgment, and the protection of juvenile’s privacy, are vigorously protected,” he added.
CCHR called on the Ministry of Justice to organize regular trainings on the implementation of fair trial rights for the judges of the Court of Appeal, based on local and international standards, and suggested that the court follow the best practices of the Extraordinary Chambers in the Courts of Cambodia (ECCC)—the United Nations tribunal that has investigated Khmer Rouge era atrocities since 2006.
The group also urged all courts to adopt a standard form that includes the offense with which the defendant is charged and the relevant laws; the date, time, and location of the alleged offense and relevant parties, and the fair trial rights to which the defendant is entitled—in particular their right to be presumed innocent until a final judgment is rendered, and the fact that the burden of proof is on the prosecutor.
It also called on judges to ask defendants directly whether they understand the charges and their rights.
Failure to provide the case information at the beginning of a trial should constitute grounds to appeal a conviction, the group added.
Several CNRP officials and activists have fled Cambodia since the party was banned in November last year and are currently living in self-imposed exile to avoid facing cases widely seen as politically motivated and tried in a court system beholden to Prime Minister Hun Sen’s ruling Cambodian People’s Party (CPP).
The opposition has suggested that the country’s judicial system, “especially the courts, are institutions under Hun Sen’s power” and lack independence from the ruling party, and those living outside of the country routinely refuse to attend hearings in their cases.