In an address to members of the judiciary in March last year, Justice Minister Ang Vong Vanthana called for a “transparent and effective” approach to pre-trial detention, explaining that the days of simply ticking boxes when deciding whether to incarcerate a suspect before trial were numbered.
The minister’s speech came two months after a new form, which senior judges had helped to pen, was distributed to all Cambodian courts.
The form requires judges across the country to demonstrate that they had carefully considered all of the relevant facts before sending someone to pre-trial detention in an effort to ensure that it is only used as a last resort.
But, almost a year and a half later, judges still appear to be ignoring the new procedures, and government data indicate that pre-trial detention is, in fact, on the rise.
Statistics from the Interior Ministry’s General Department of Prisons reveal that between May 2014 and the end of the year, the number of inmates in pre-trial detention increased from 24 per cent to 30 per cent of the total prison population.
But outside observers calculate that it is even more prevalent.
According to the International Centre for Prison Studies, in September 2014, pre-trial detainees constituted 63.6 per cent of the Cambodian prison population, making it the 22nd highest in the world, and the highest in Southeast Asia.
Meanwhile, overcrowding remains a significant problem in Cambodia’s prisons. According to rights group Licadho, the country’s prison population stood at 15,486 in March. As recently as last September, however, Cambodia only had the capacity to hold 8,500 inmates.
Wan-Hea Lee, country representative of the UN Office of the High Commissioner for Human Rights (OHCHR), which supported last year’s event, said OHCHR recently carried out a two-month survey in partnership with the Ministry of Justice to find out whether judges were following the new guidelines.
Preliminary results of the survey, taken in 10 provincial and municipal courts from March to May this year, “reveal that many judges in the provinces are still not familiar with the guidelines and the form”, she said.
Lee explained that the “results of the survey and the recommendations emanating from it will inform the Ministry of Justice and OHCHR-Cambodia in determining the specific actions that should be taken to familiarise judges with the new form nationwide”.
But interviews with judges and other court officials this week suggest there will be an uphill battle ahead.
A clerk at Takeo Provincial Court, who asked not to be named, said that judges were not interested in the new procedures.
“For minor cases like stealing, the judge still sends a thief to pre-trial detention. It’s his right, but it’s making the prisons crowded,” he said.
The clerk added that he had never seen a judge use the new form, but insisted that detention was being ordered “based on the criminal code procedure”.
A judge, formerly of the Phnom Penh Municipal Court, claimed that he regularly uses the new form, while simultaneously defending the widespread use of pre-trial detention.
According to the judge, who also asked to remain anonymous, pre-trial detention is necessary to keep suspects away from victims and witnesses, to keep them from reoffending, or “tampering with evidence”.
If the potential sentence for a suspect’s crime exceeds one year imprisonment, he said, “we will send the accused to pre-trial detention”.
Independent legal expert Sok Sam Oeun said the Cambodian justice system is based largely on “the presumption of guilt”, so judges believe that “any people charged by police must be guilty”.
But OHCHR, legal analysts and rights groups argue that pretrial detention should be the exception, not the rule.
“The decision to detain a person before his or her guilt of a crime is proven is a drastic measure. The person loses his or her freedom, and can also lose family, health, home, job and community ties,” said Lee of OHCHR. “This is why according to international human rights standards as well as the Cambodian code of criminal procedure, pre-trial detention should be turned to only as a last resort”.
The current use of pre-trial detention, which Licadho has said the Kingdom’s criminal justice system is “focused almost entirely on”, leads to a number of wider problems.
“Pre-trial detention has far-reaching consequences, both for the individual detained and for the criminal justice system where they are detained,” explained Harriet Lowe, communications officer at UK-based NGO Penal Reform International.
Prison overcrowding puts an increased financial burden on the justice system, and can lead to the spread of diseases that can then cause a wider public health risk when the inmates are released, Lowe said.
“The pre-trial stage of the criminal justice process is also particularly prone to corruption. Unhindered by scrutiny or accountability, police, prosecutors and judges may arrest, detain and release individuals based on their ability to pay bribes,” she added.
And, she said, people in pre-trial detention are “particularly likely to suffer violence and abuse”, sometimes as a means of coercing confessions.
Thirty-nine-year-old Tith Thong spent three months in pre-trial detention in Kandal provincial prison with her 3-year-old son after being charged earlier this year with a minor drug offence. When a round of
royal pardons for incarcerated mothers was announced, she was quickly tried, convicted and released.
However, her husband, who was arrested at the same time, has now been detained in pre-trial detention for more than four months.
In jail, Thong said she shared a small cell with more than 10 other people. “There were beds, but I was not allowed to sleep in a bed because I didn’t have money to pay.” Meanwhile, her 13-year-old son had to take up a construction job to support the rest of the family
“Pre-trial detention was not a good choice [for me], because I didn’t see any evidence against me. The police got the wrong person. But [pre-trial detention] affected my whole family’s life.”
OHCHR’s Lee said that, if followed, the new procedures would reduce the scope for such arbitrary incarceration.