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.
