To be presumed innocent until proven guilty is a basic human right that ought to

be afforded to anyone charged of a criminal offense and made available at every stage

of his/her criminal proceedings.

Notwithstanding this, many of us often refer to former Khmer Rouge leaders as being

guilty, even though they have not been officially charged of any offense.

This raises several questions: Are the KR leaders entitled to the presumption of

innocence? Should they be? What is the effect of our belief that they are guilty

and is this different from comments from public officials, the press and other authorities

publicly suggesting that they are?

The Presumption of Innocence - A Fundamental Legal Principle

Let us first consider what this principle is and whether it ought to be preserved

in the context of the Khmer Rouge trials.

The presumption of innocence is a time-honored principle that is codified in several

international conventions pertaining to human rights and fair trial standards.

For instance, Article 11 of the Universal Declaration of Human Rights (1948) states

that "everyone charged with a penal offense has the right to be presumed innocent

until proved guilty according to law in a public trial at which he has had all the

guarantees necessary for his defense."

In Cambodia, the presumption finds expression in Article 38 of the Constitution,

which states "accused persons shall be considered innocent until the court has

finally decided upon the case."

The presumption of innocence is essentially about fairness. Put simply, it means

that no one should be prematurely deemed guilty without a trial.

According to this principle, every accused person charged with a criminal offense

should be presumed innocent, and treated as such, until and unless s/he is convicted

according to law and due process standards.

Some legal scholars even feel that the presumption of innocence applies even to suspects

who have not been charged as yet (as in the case of certain former Khmer Rouge leaders),

lest "...irreparable prejudice could be done to the rights of the individual...

any subsequent protection would prove ineffective" (Professor Zappala, University

of Florence).

Importance of the Presumption of Innocence

It is hard to quarrel with the logic behind the presumption of innocence. But understanding

it is not enough. This principle should be treated as immutable, and not be ignored

for the sake of convenience or to pacify public sentiment.

Making an exception in the case of the Khmer Rouge trials would have serious consequences

that would extend far beyond these trials. Our criminal justice system depends on

our ability to observe its fundamental principles, including the presumption of innocence.

To set this principle aside in one case, however justifiable it may seem, could lead

to a situation where we blithely continue to make similar exceptions according to

our own assessments rather than what the law has to say. Very soon, we would find

that there would be little respect for the rule of law.

If we value our own freedom, we must place our faith in the law which balances the

need to respect the rights of accused persons with the need to punish those who are

found guilty of committing a crime. After all, we do not want to take the risk of

letting a guilty man escape with impunity or, even worse, punishing an innocent man.

It follows that unless an accused person is proven guilty at the end of a trial,

his rights must be preserved to the extent permissible under the law.

The purpose of the presumption is not to shield those guilty of crimes from being

brought to justice. Rather, it requires that before a person is deprived of his liberty,

he be proven guilty through a dispassionate assessment of the facts before a court

in accordance with the law. No one should be found guilty of a crime unless and until

there has been an adjudication of guilt by an authority legally competent to make

it.

Put differently, the presumption of innocence is a legal safeguard that, with other

guarantees of due process, protects all of us from having to prove our innocence

in the face of false accusations. The importance of this principle can best be understood

if we were to imagine its absence. Suppose you have been arbitrarily arrested and

you are presumed guilty before any hint of a trial. Suppose the press condemns you

for a crime that you did not commit and that public officials openly comment on your

guilt. In these circumstances, the entire criminal justice system would be nothing

more than a sham to you. After all, the stigma that would attach from being pre-judged

in this manner would, in my view, mean that your life would never be the same again

even if you were ultimately acquitted at trial.

Further, ignoring the presumption of innocence would undermine other rights and fundamental

principles that are critical to ensuring that an accused person has a fair and just

trial and result. It would, for example, unfairly shift the burden of proving that

the accused is guilty onto the accused, even though this fundamentally rests with

the prosecution. It would lay the accused person open to irrelevant or unnecessary

cross-examination where s/he could have remained silent under the law. It would also

make it unnecessary to ensure that the court be convinced of his/her guilt beyond

a requisite standard of proof based on credible evidence. It would make a mockery

of the appeal process, which is premised on the principle that a person is not guilty

till the appeals court delivers a final decision.

Distinction - Legal vs. Moral Indictments

There is one important distinction that must be drawn between what the word "guilt"

means in a legal as opposed to a non-legal context. When the Cambodian public (of

which I am a part) speaks of the guilt of the Khmer Rouge leaders, we are referring

to the moral guilt of these individuals. The word "guilt" therefore does

not, and indeed cannot, have a legal connotation. It is a moral indictment that is

based on our informed opinions and personal experiences before and/or during the

last 30 years. When we say that Mr. Khieu Samphan, for example, is guilty, we mean

that he is morally guilty based on undisputed facts that have come to light in the

public sphere. We mean that as one of the senior Khmer Rouge leaders, he bears a

moral responsibility to the people to account. Ours is a moral, and not a legal,

pronouncement.

But, regardless of our views (which I would not for a moment forsake) of the moral

guilt of the Khmer Rouge, public officials, the press and other authorities should

refrain from making any public statement on the supposed guilt of a suspect. They

should not interfere with this process or seek to pre-empt a verdict. That is a legal

pronouncement that the ECCC alone can make.

It bears mentioning that many countries consider it inappropriate for persons to

publish comments on cases sub judice (latin for "under judgment") and treat

the making of such public statements as contempt of court, an offense punishable

by imprisonment. This is particularly true in criminal cases, where publicly discussing

cases sub judice may constitute interference with due process.

It follows that Duch should be presumed innocent of the charge of crimes against

humanity until and unless the ECCC adjudicates his case and finds him guilty. Regardless

of how severely he may be condemned by the people in the court of public opinion,

in a court of law, the presumption of innocence must prevail. Regardless of the atrocities

attributed to the Khmer Rouge as a whole, the Khmer Rouge trials cannot be made an

exception to this fundamental rule of our criminal justice system.

The "Extraordinary" Nature of the KRT

The Khmer Rouge Tribunal is extraordinary because many of the facts pertaining to

the cases are already in the public sphere. Based on this information, and, in many

cases, our personal experiences, the Cambodian public has chosen to indict certain

Khmer Rouge leaders. But ours is a moral indictment from the court of public opinion.

The specific charges have yet to be decided and until the ECCC passes its verdict

in accordance with the law, public officials, the press and other authorities should

not pre-judge any issues or cases, lest the presumption of innocence be violated.

Theary C. Seng

Executive Director

With editing by Mahdev Mohan, Pro Bono Attorney