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Logo of Phnom Penh Post newspaper Phnom Penh Post - Courts respond to defenders

Courts respond to defenders

IT might not always seem like it, but there are signs that the rule of law is gradually

being embraced in Cambodia, according to one NGO.

The Cambodian Defenders Project (CDP) is delighted, if surprised, by an analysis

of the results of court cases involving its legal defenders.

Contrary to a popular vision of the Cambodian justice system seething with corruption,

political bias, general incompetence and an inability to understand the concept of

legal rights - let alone the word acquittal - the CDP says the reality is more promising.

In the past 16 months, CDP public advocates have secured acquittals or dismissals

in 37 per cent of criminal court cases where they represented the accused.

For murder cases, the acquittal or dismissal rate was 48 per cent; for fraud cases,

45 per cent.

While the statistical base is low - a total of 259 cases which have reached a final

verdict, out of 501 cases taken on - CDP says it represents the most solid data produced

so far on the use of public defenders in the courts.

"It was something of a surprise to us," said CDP director Linda Kremer,

a criminal defense lawyer with 19 years' experience in the United States.

"For a public defender in the US, if you win 5 percent of your cases, that's

a significant rate. These kinds of rates [in Cambodia] are very high, phenomenal.

"It's an affirmation of the rule of law....this is data that contradicts the

international press reports that the only thing going on in Cambodian courts is corruption.

"It's a corrupt system, probably, but we do seem to be winning. We win with

arguments, not money."

Procedural abuses, such as a defendant being detained without trial for six months

or more, were key rea-sons for dismissals. Acquittals, meanwhile, reflected the low

standard of evidence in many prosecutions.

"That may reflect some police practices - it probably does - but the judges

are applying the correct standards of evidence in hearing cases," said Kremer.

Earlier this year, the Court of Appeal, apparently for the first time, used the phrase

"insufficient evidence to meet the burden of proof" when overturning a

theft conviction.

Kremer hopes that such results will eventually get the message through to the police

that they need substantial evidence to charge someone.

Similarly, the use of coercion or torture to get confessions from suspects was a

common issue. CDP had had some successes in getting judges to ignore such confessions,

or to accept evidence from other witnesses - such as alibis - which contradicted

what suspects had confessed.

Sok Sam Oeun, CDP's public advocates' chief, said that as well as ac-quittals, there

were partial victories.

Sometimes, judges want to find "a middle way" - a sentence which does not

anger the police, prosecutor or government - while still freeing the accused person.

Defendants could given a suspended sentence, or be sentenced to the prison time they

had already served while awaiting trial.

Sok Sam Oeun said he knew of no cases which CDP had lost because someone else had

bribed the judge to convict. "All the courts know that we are clean... For the

cases we handle, I do not think a judges would dare [to accept bribes to convict]."

Kremer said CDP did not always argue a defendant's innocence. Sometimes, judges would

take into account mitigating circumstances for a crime, such as self-defense - which

does not formally exist as a legal defense - and convict but also release them.

She said that CDP, whose services are free, investigated all its cases before going

to trial to work out the best approach to each case.

"We don't just go in on the day of trial and help the judge make the person

guilty....we really believe that our role is much more important than just standing

there."

A key issue for Kremer is - given CDP's acquittal rates - how many of Cambodia's

3000-3500 prison inmates may have been wrongly convicted. Another issue is how many

have yet to face trial - one of CDP's 'victories' was the release of a teenage boy

held without trial for 14 months on a charge of stealing property worth $1.

There are five NGOs offering defenders' services but they are involved in only a

fraction of total court cases.

A recent Court Training Project survey in five northern provinces found that 95 percent

of unrepresented defendants were convicted, she said.

Defenders' groups - including the CDP, which lost staff to a breakaway group, the

Legal Aid of Cambodia, after internal problems last year - have had a troubled history.

Initially, the government opposed the use of defenders in the courts. Under the new

Bar Statute, only qualified lawyers - which most defenders are not - will be able

to represent clients in court from next year.

Defenders' groups argue that Cambodia's few qualified lawyers tend to go into business

law, and criminal defendants - particularly those who are poor - rely on defenders.

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