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Report cites judicial injustice

Photo by: Pha Lina

Surya Subedi arrives Tuesday at Phnom Penh International Airport.

MORE than one-third of defendants in Cambodian courts are tried and convicted in absentia, according to a study released this week designed to show what its authors describe as the failure of the judicial system to ensure equality of arms.

The study, published by the Centre for Justice and Reconciliation, catalogs the experiences of 799 defendants in 484 public trials held in five courts: the Municipal, Appeal and Supreme courts in Phnom Penh, as well as the provincial courts in Kandal and Battambang.

“In a criminal case, the prosecutor is the government and has all the resources of the state to bring a case against a defendant who may not even understand the charges against them,” said Daravuth Seng, the CJR’s international co-director of justice programmes.

The report states that in order to “balance this inequality”, judicial officials must place a higher premium on equality of arms, a legal principle that encompasses the right to be tried in person, the right to defence counsel and the right to examine and cross-examine witnesses.

At the Appeal Court, 69 percent of defendants included in the study were tried in absentia. The problem at the appeal level was also documented in a study released last month by the rights group Licadho, which found that hundreds of prisoners nationwide are being denied their right to appeal due to a lack of infrastructure and an inefficient bureaucracy.

The CJR report states that witnesses were examined by judges in only 18 percent of trials monitored, and that only 6 percent of trials were conducted with both victims and witnesses present.

Figures for the total number of defendants tried without counsel are not given in the report, but 94 percent of the 467 defendants facing felony charges – those who would be subjected to the most serious punishments – were represented by counsel.

Although this is a large proportion, the report calls for court officials to ensure that all defendants are informed of their right to counsel, and that free representation is provided to people who cannot afford it.

“International standards require that 100 percent of defendants are represented by counsel, should they choose to have representation,” Daravuth Seng said.

Of the defendants tried in absentia, only 43 percent were represented by defence counsel, a figure that the report says underscores “the glaring abuse of the equality of arms principle, because there was no one to challenge the prosecution’s assertions”.

Sea Tong, inspector of court affairs at the Justice Ministry, on Tuesday acknowledged that prisoners are often unable to attend their own appeals.
“It is difficult for us. We lack the budget, and some prisons are too far from the court. Therefore, the transportation is a problem for us,” he said.

Tith Sothea, a member of the Press and Quick Reaction Unit at the Council of Ministers, also said that some improvements need to be made to the judicial system, but that the government has clear strategies in place to enact them.

“We are in the process of making judicial system and court reforms, and we respect the independence of the court and decisions of the court,” he said.

“We believe that every trial proceeds in accordance with all aspects of the law.”

The release of the report coincides with a visit from Surya Prasad Subedi, the UN’s special human rights rapporteur to Cambodia, who is set to assess the judicial system during his third mission here.

Im Sophea, CJR’s national co-director of reconciliation programmes, said the report was not released to coincide with Subedi’s visit, but described the timing as a “fortunate coincidence”.

“We will meet him tomorrow, and we will present the report and discuss these issues,” he said.

Subedi is scheduled to meet with King Norodom Sihamoni and Prime Minister Hun Sen as well as civil society representatives and judicial officials before leaving Cambodia next Thursday.

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