In absentia appeals are becoming “normal” for detainees languishing in provincial prisons because the justice system lacks the vehicles, fuel and staff to take them to the country’s only court of appeal in Phnom Penh, according to a Licadho report released today.
Prisoners have turned to bribing guards to ensure they get their day in court and almost 800 provincial inmates are at risk of not receiving a fair hearing, according to In Absentia 2012: An Update on Cambodia’s Inmate Transportation Crisis and the Right to Appeal.
“The Code of Criminal Procedure requires that a prisoner with a pending appeal ‘shall be transferred without delay . . . to the nearest prison or detention centre to the seat of the Court of Appeal’,” the report states.
This has not been happening, Licadho says, even after the human rights group conducted a similar study in 2010 that prompted the Ministry of Interior’s General Department of Prisons to admit there was a problem.
“As was the case [then], the [GDP] still has no means to transport these prisoners to their appeal hearings in Phnom Penh,” the 2012 report says.
“The prison system lacks the vehicles, gasoline, staffing and funding necessary for a comprehensive long-distance inmate transportation network.”
Licadho surveyed 11 provincial prisons in February and found about 800 prisoners were waiting for appeal hearings.
The report also cites a prison system source who says there could be as many as 1,500 appellants in Cambodian prisons and a 2010 study that estimated defendants were absent in almost 70 per cent of appeal hearings.
“Like virtually everything else in Cambodian prisons”, trial rights have become a commodity securable only by way of a bribe, which few can afford, the report says.
“Thus, their hearings go forward in absentia and their chance at a fair appeal is lost," the report says.
Licadho president Dr Pung Chhiv Kek said this situation was “putting a price tag on fundamental rights”, while Licadho director Naly Pilorge said the situation was a “clear violation” of fundamental trial rights, yet was becoming “normalised”.
“Cambodian law is explicit about both prisoners’ right to attend their appeal hearings and the importance of their attendance,” Naly Pilorge said.
According to Licadho’s data, Siem Reap, Kampong Thom, Koh Kong, Kampong Chhang and Pursat prisons as well as CC3 prison in Kampong Cham had more prisoners in February who were waiting for appeals hearings than in January 2010.
“Prison directors interviewed by Licadho since our 2010 report stated they continue to lack the ability to transport inmates to appeal hearings. Some had vehicles, but none had money for fuel or staff for overtime and expenses,” the 2012 report states.
This was a claim consistent with prison officials and guards the Post interviewed.
Chhaem Savuth, chief of Siem Reap Provincial Prison, where 123 prisoners were waiting for an appeal hearing in February, said only 12 appellants had been sent to Phnom Penh in the past year.
“We have no petrol to use for transportation and no money to pay for prisoners’ food [on the journey],” he said.
Kang Saren, chief of Battambang provincial prison, said his prison had experienced similar financial restrictions, but denied guards were being bribed.
“The prisoners who want to appeal against the provincial court’s verdicts have to appeal it [by filing paperwork with] prison guard officers,” he said.
Pen Phal, a guard at Prey Sar Prison’s Correctional Center II in Phnom Penh, said he received only about three or four appellants per month from the provinces. “This is because of a lack of transportation.
But it is also related to security issues during their travels,” he said.
Pheng Heng, a lawyer for CLA Law in Phnom Penh, said he had defended two clients from Kampong Speu and Battambang provinces last year after they had lodged appeals in 2010.
Both defendants’ guilty verdicts were upheld in absentia.
“This was not fair and just for them,” Pheng Heng said. “I would like to appeal to the Ministry of Justice and the courts to transport all prisoners to the Court of Appeal.”
The Licadho report repeats recommendations made in 2010 – that inmates not be transferred from Phnom Penh to provincial jails before their appeals are complete and that GDP expand its inmate transportation network.
Given the “lack of progress” in the past two years, Licadho also suggests grouping appeals so multiple inmates can be transferred together, setting up regional and mobile appeal courts and adopting video conferencing technology.
Phil Robertson, deputy director of Human Rights Watch’s Asia division, said the government needs to take urgent action to fix “this basic prisoner transport problem”.
“Once again, it’s clear the central operating principle of Cambodia’s prison system is ‘money talks, but justice walks’,” he said.
Cambodian Center for Human Rights president Ou Virak said the notion of innocent until proven guilty wasn’t being adhered to.
“There needs to be an understanding that these sorts of things compromise the trial rights of all involved,” he said.
Sorn Keo, a spokesman for the GDP, disputed the report’s findings.
“We accept that some inmates are not brought to the Appeal Court, but not as many as they say.”
With assistance from May Titthara