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Logo of Phnom Penh Post newspaper Phnom Penh Post - Cops nab scores - courts sidelined

Cops nab scores - courts sidelined

There are fears that recent widespread intervention in the Courts by the Government

will channel more power and bribes to the police forces and at the same time undermine

the concept of Judicial independence.

Prime Minister Hun Sen's order to re-arrest 195 suspects released by the Phnom Penh

municipal court and the suspension of court chief Oum Sarith and prosecutor Kan Chhoeun

was done in the name of ridding the courts of corrupt officials.

However, it has failed to address the problem of perpetrators who bribe their way

out of police custody. And at the same time it gives the police greater authority

to over rule or dictate court proceedings, thus turning the courts into a mere rubber

stamp for police actions.

"There is already a lack of cooperation between the courts and the police. This

latest move tips the balance towards strengthening the police and making the courts

more irrelevant," says Sara Colm of Human Rights Watch.

Eva Galabru of human rights organization Licadho adds:

"It will not stamp out corruption. It will only mean a shift in who gets the

money. If the police turn you over to the courts, you are basically already found

guilty. Like it was in the 1980's when the courts were only a window-dressing device

to determine the length of the sentence".

When visited by the Post, municipal court officials explained that they would now

cease to issue arrest warrants on their own initiative.

"We are not going to issue arrest warrants anymore because we are afraid that

the police will not respect our order. We will process the court cases if new suspects

are arrested by the police," said one prosecutor who wished to remain anonymous.

Both the prosecutor and deputy court chief, judge Nob Siphon, downplayed the suspensions

of Sarith and Chhoeun. Siphon called the matter a "kind of democracy game"

played by the country's leaders, but refused to explain the meaning.

According to human rights organizations, tens of cases throughout the country prove

that violence and bribery at police level is not uncommon.

In October last year a woman was arrested by police from Prampil Makara district

- one of the police units now re-arresting former suspects. The woman was accused

of robbery or accessory to robbery and severely tortured during custody, ostensibly

to obtain a confession. During the beatings, police officers offered to release her

if she paid a large amount of money.

And less than one month ago, Kong Vanna, a deputy commander in Hun Sen's bodyguard

unit with the rank of colonel was arrested by military police for shooting and killing

his brother-in-law. After negotiations at the station, no charges were pressed and

Vanna was released.

Also, one human rights worker who has interviewed several re-arrested suspects and

their families found that relatives often said that the court never asked them for

bribes, but the police did.

"The police complain - and rightly so - that they risk their lives arresting

suspects and then the courts release them again, sometimes because of lack of evidence,

sometimes because of bribery," explains Colm.

"But at the same time judges and prosecutors have pointed out that the police

is also part of the problem. They ignore the power of the courts and show a lack

of respect for judicial processes. Proper judicial reform has to involve both courts

and police".

Meanwhile, the current wave of re-arrests only targets former suspects who were released

from Phnom Penh prisons T3 and PJ after the municipal court had investigated or processed

their cases.

One prominent name is however missing from the list of 195 former suspects: Hun Pisei,

the nephew of Prime Minister Hun Sen who was held in pretrial detention for one month

and released from PJ prison in August. Hun Pisei was arrested after discharging a

gun and injuring two people outside a nightclub in Phnom Penh.

The Prime Minister's order to re-arrest released suspects came immediately under

fire from both legal and human rights experts. They criticize Hun Sen for interfering

with the country's justice system, which is a violation of the Constitution.

"We see this as a regression that undermines any progress made towards the rule

of law. It clearly shows how susceptible and vulnerable the judiciary is to political

pressure and orders," says Colm.

Demelza Stubbings of Amnesty International agrees:

"This is very depressing. In the short term it may be a popular solution. But

on a medium and long term basis, the consequences for the rule of law are shocking".

"We have been trying to encourage the judges to move away from giving in to

political pressure. Now that is completely gone. And so is the principle that you

are innocent until proven guilty. Show me a judge who will now dare to examine the

evidence of a case and dismiss it".

UN Special Representative for Human Rights in Cambodia, Thomas Hammarberg expressed

the same concerns in a written statement earlier this week:

"The arrest and detention of suspected offenders is solely under the jurisdiction

of the judicial power, vested in the Courts of Cambodia. No other branch may order

the arrest and detention of persons. Neither may decisions of the courts be overruled

by a non-judicial body," Hammarberg wrote.

Hammarberg and other human rights workers point out that Cambodia already has a body

that is designated to deal with complaints over individuals in the justice system

and corrupt court rulings, namely the Supreme Council of Magistracy.

"All these cases should absolutely go before the Supreme Council of Magistracy,

since corruption could be involved. Unfortunately the Council is not working because

there has been no political support or will to let it work," says Galabru.

And the current handling of the 195 cases of former suspects who were released during

the past year, make their proposed retrial a highly dubious affair.

At least 27 of the former suspects were previously held in pretrial detention for

more than six months, which alone is sufficient grounds to dismiss a case.

This time around, police have had no warrants to base the re-arrests on - some of

which have taken place in the middle of the night. Also, on the detention warrants

that police following an arrest obtain from the courts, officials have no charges

to state on the document. Instead they write that the suspect has been charged according

to the orders of the Prime Minister.

Among the 48 former suspects that have so far been arrested again, the whereabouts

of ten are still unaccounted for.

On Dec 8, the newspaper New Liberty News alleged that six of the suspects were killed

in order to silence them. The paper, citing information from a policeman, claimed

that the six were initially released from Phnom Penh prisons after interference from

high government officials from the Ministry of Defense and the Ministry of Interior.

Among the re-arrested who have been located and contacted by human rights groups

are at least seven who were acquitted in a court hearing. Others were released on

bail or because the charges against them were dropped.

Two former suspects, now re-arrested, were released by the Supreme Court and one

by the Court of Appeals. One suffers from mental health problems.

Also among the re-arrests are at least five minors, one of whom - a 14-year-old boy

- received a suspended sentence for participating in a gang robbery. His uncle claims

that there were no weapons involved in the crime. The boy has now left the gang environment

and before his second arrest he was studying at a private school.

Nevertheless, four re-arrested suspects have already been released again. This applies

to two former suspects of rape, one former suspect of murder and one former suspect

of human trafficking. One of the former rape suspects is believed to be the son of

one of Senate President Chea Sim's bodyguards.

When questioned about the releases, Daun Penh Police claimed that these crimes were

not mentioned in the Prime Minister's re-arrest order. Hun Sen's letter only lists

armed robberies, kidnap-pings and drug trafficking.

On the other hand, at least one former murder suspect and two suspected human traffickers

are still detained in other police districts and the original list of the 195 former

suspects contains several such offenses.

"This is not a very consistent policy," remarked one human rights worker.

The inconsistencies don't stop there. To begin with the Ministry of Justice's suspension

of Sarith and Chhoeun is illegal. The Constitution clearly states that only the Supreme

Council of Magistracy can suspend judges and prosecutors.

Sarith is in fact himself a member of the Supreme Council.

And in an article from Rasmei Kampuchea on Dec 6, a Ministry of Justice official

disclosed a list of 11 prosecutors and 17 judges whose work will be investigated

by the Supreme Council. Neither Sarith nor Chhoeun appear on the list that was submitted

to the Supreme Council in early December.

Phnom Penh Governor, Chea Sophara, and Minister of Justice, Uk Vithun, could not

be reached for comments before Post deadline.

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