The office and function of the investigating judge is an impediment to the Cambodian

justice system. It creates too many obstacles and miscarriages of justice and should

therefore be abolished.

This was one of the recommendations of a three day long workshop on due process in

Cambodia, organized by the Cambodian Defenders Project. Among the participants in

the workshop that took place in Siem Reap Jan 22-24, were five senior officials from

the Ministry of Interior's judicial departments.

The recommendation to abolish the investigating judge comes at a crucial time, when

the draft law for a forthcoming tribunal against former Khmer Rouge leaders is pending

debate in the National Assembly.

One of the key elements in the tribunal law is the function of investigating judge.

Prime Minister Hun Sen recently announced that as a gift to visiting Japanese Prime

Minister Keizo Obuchi, he would allow not only a Cambodian, but also a foreign investigating

judge.

But according to the workshop, the investigating judge system makes no positive contribution

to the administration of justice. In stead it results in continuing dysfunction and

unnecessary dual work.

Also, it is in conflict with the constitution that only recognizes the office of

the prosecutor but not the investigating judge.

Director of the Cambodian Defenders Project, Sok Sam Oeun, explains:

"The judges of any given court take turns as trial judges and investigating

judges. Therefore the trial judges often lose their independence. One of their colleagues

- the investigating judge - has already reviewed and approved the case and this can

have an impact on the judgment of the trial judges."

Also, the investigating judge system means that the prosecutor is not thoroughly

involved in the investigation of the case. Simply speaking, after arresting a suspect

the police and the prosecutor have 48 hours to conduct an investigation and review

the case before it has to be handed over to the court and the investigating judge.

The investigating judge then has a maximum of six months to conduct his own investigation

before the suspect has to be brought to trial. But often the case is not given back

to the prosecutor until a very short time before the trial begins, sometimes giving

the prosecutor as little as three hours to prepare his arguments.

In those cases where the suspect's dossier is handed back to the prosecutor in good

time, the prosecutor goes through the exact same documents and testimonies that the

investigating judges has already reviewed.

More importantly, the investigating judge has little possibility of doing much more

than confirming the evidence that came up in the police investigation. Not because

he wants to, but simply because the workload is too immense.

In Phnom Penh alone, a police force counting thousands is bringing in cases to be

reviewed by something like a dozen judges. They in turn have no authority to request

further assistance by the police, let alone money or means to conduct a thorough

investigation on their own.

"This obviously creates a bottleneck, and it means that many real offenders

get away with their crimes unpunished," says Oeun.

In connection with a KR tribunal, Oeun expects that the function of the investigating

judge will result in much the same complications and unnecessary dual work by investigating

judges and prosecutors.

"But what worries me most is what will happen if the tribunal law is passed

and implemented before the function of the investigating judge is abolished from

the justice system in general. A KR tribunal with an investigating judge will create

a strong precedent and make the function of investigating judge much more difficult

to remove in the future," says Oeun.

The recommendations from the workshop have been sent to the Co-ministers of the Interior,

Sar Kheng and You Hockry. Oeun is currently awaiting their reaction.