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
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
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.