Fair Trial Handbook - Cambodia

ជន តវេចទេនះ សថិតកនុងឃុបំេ ះ សនន េលសពីករកណំត់េ យចបប់ ។ ដូេចនះ សិទធិរបស់គត់ កនុងករទទួលបនករជនំុំជ មះក ីកនុងរយៈេពលមួយសមរមយ តវបនបពំន ។

This defendant is in pre-detention for longer than the time-limit allowed by the law, thus his right to be tried within “reasonable time” is violated.

ករេបះពុមពផ យេនះ ចដំេណ រករេទបន េ យមនករឧបតថមភេ កមជំនួយសបបុរធម៌ពី ពលរដ េមរកិ

មរយៈ ទីភន ក់ងរសហរដ េមរកិេដមបីអភិវឌ ន៍អនរជតិ (USAID) ។ ល់ខឹម រេនកនុងេស វេភេនះ ជករទទួលខុស តវរបស់ មជឈមណលអភិវឌ ន៍សងគម និង មិនឆុះបញច ំងពីទស នៈរបស់ USAID, រ ភិបលសហរដ េមរកិ ឬ EWMI េឡយ ។

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the Center for Social Development and do not necessarily reflect the views of USAID, the United States Government, or EWMI.

© រក សិទធិ េ យមជឈមណលអភិវឌ ន៍សងគម ២០០៨ Copyright © 2008 by The Center for Social Development

ņĄęņ‗Ź ŲΒķЊŷűΘĕч₤₣ðņ /The Center for Social Development

បអប់សំបុ តេលខ ១៣៤៦ /P.O. Box 1346

សយ ន ៖ ១៩ ផូវ ៥៧ /Address: 19, Street 57 បឹងេកងកង ១, ចំករមន /Boeung Keng Kang I, Chamkar Mon

កងភនំេពញ, កមពុជ /Phnom Penh, Cambodia ទូរស័ពទ ៖ (៨៥៥) ២៣ ៣៦៤ ៧៣៥ /(855) 23 364 735 ទូរ រ ៖ (៨៥៥) ២៣ ៣៦៤ ៧៣៦ /(855) 23 364 736

[email protected] www.csdcambodia.org

Program on Rights and Justice (PRAJ) km μviFIsiT§i nig yutþiFm’ (R)aCJ)

Ō Ł CONTENTS

ទំព័រ Pages

រមភកថ Preface I. ករែបងែចកអំ ច ……………............................................................................................ ១ Separation of Powers …….………………..................................................................................... 1 រចនសមព័នធតុ ករកមពុជ…………...................................................................................... ២ Cambodian Court Structure………………...................................................................................... 2 II. តួអងគសំខន់ៗ េនកនុងនីតិវធីិ ពហមទណ………................................................................. ៣ Main Actors in Criminal Proceedings………………….................................................................. 3 III. នីតិរដ និង សិទធិទទួលបនករជំនំុជ មះកីេ យយុតិធម៌ េនកមពុជ…....................... ១៤ Rule of Law and Fair Trial Rights in Cambodia…………………................................................ 14 IV. សិទធិទទួលបនករជំនំុជ មះកីេ យយុតិធម៌ េនកមពុជ……........................................ ១៨ Fair Trial Rights in Cambodia........................................................................................................... 18 V. ករព ងឹងនីតិរដ និង សិទធិករជំនំុជ មះកីេ យយុតិធម៌…............................................. ៣៣ Strengthening the Rule of Law and Fair Trial Rights……………................................................... 33

Center for Social Development

PREFACE This Fair Trial Handbook is a publication of the Court Watch Project (“CWP”), which is a program of the Legal Unit of the Center for Social Development (“CSD”). CSD is a non-profit, non-governmental organization, which seeks to promote democratic values and encourage broad participation in public affairs at both the national and local levels. The CWP monitors trials in the courts of Cambodia and reports on its findings from a human rights perspective. The Handbook has been developed from CWP internal training documents, but is aimed at all those who wish to learn about the legal process and human rights in Cambodia, including those with no prior legal knowledge. The Handbook briefly describes the Cambodian court system and its participants, and details the rights of a criminal defendant. The importance of fair trial rights and the role of CWP in monitoring those rights are explained within the context of internationally accepted minimum standards and the rule of law in Cambodia. This Fourth Edition of the Handbook is updated to accord with the recently adopted Code of Criminal Procedure (August 2007).

Fair Trial Handbook 1


I. Separation of Powers Cambodia adopts a policy of liberal democracy and pluralism (See Article 51 of the Constitution). As in many other democratic countries, the State powers are divided into three different and independent branches: the Executive, the Legislature and the Judiciary. The essential work of the State is distributed among these three separate entities. This principle of distribution of the business of State is called the “separation of powers”. The Executive is responsible for initiating, developing and implementing policy and law. It also drafts law. The Legislature debates and approves law. It passes laws proposed by the Executive or by members of Parliament (deputies). The Judiciary applies and interprets the law passed by the Legislature.

អគរទីសីករគណៈរដម នី Council of Ministers

អគររដសភNational Assembly

អគរ ឧទធរណ៍ និង កសួងយុតិធម៌ Appeals Court and Ministry of Justice

The Council of Ministers: Prime Minister,

Deputy Prime Ministers, Senior Ministers, Ministers,

Secretaries of State

National Assembly

Executive Legislature Judiciary

Senate Supreme Court

Appeals Court

Municipal/Provincial Courts and Military Court



Cambodian Court Structure

Appeals Court

Supreme Court Full bench 5 Judges

Full bench 3 Judges

Full bench 9 Judges

1st Cassation (1 st appeal before the Supreme Court).

Jurisdiction throughout Cambodia

Jurisdiction throughout Cambodia

2nd Cassation (2nd appeal before the Supreme Court).

Court of first instance

3 Judges for felony case, other only 1

Prosecutor

1 military court

Municipal/Provincial Courts

21 municipal/provincial courts

others business criminal administrative case labor dispute civil case

Military Court

Military offenses: • Committed by members of the

Army and • Involve military discipline or • Harm the propety of the

Military.

Judicial police officers Victims others

Constitutional Council decides on the constitutionality of laws. All courts shall follow the Council’s decisions.

Supreme Council of Magistracy: - Ensures independence and

impartiality of the judiciary. - Is a disciplinary body and appoints

judges at all judicial levels. - BUT does not have power of judicial

review.



II. Main Actors in Criminal Proceeding The Cambodian Code of Criminal Procedure (CCP), which was approved in 2007, sets out the roles and responsibilities of various parties to a criminal proceeding. The main actors are:

1. Judicial Police 2. Prosecutor 3. Investigating Judge 4. Trial Judge 5. Court Clerk 6. Lawyer 7. Criminal defendants: Suspect, Charged Person, Accused Person, and Civilly Responsible

Person 8. Victim 9. Civil party 10. Witness



Judicial Police

According to the CCP, Article 57, those who may fill the role of Judicial Police include:

1. Judicial Police Officer such as: - National police officer - Military police officer - Governor, deputy governor of

municipality and district - Commune chief - Head and deputy head of various

departments etc. 2. Judicial Police Agent, including other police

and military police officers who do not have the capacity of Judicial Police Officer.

3. Civil servant and other public agents authorized by separate law to investigate offenses in their territorial responsibility.

The activities of Judicial Police are directed and coordinated by the Prosecutor. However when enforcing a rogatory order (a written order of the Investigating Judge to judicial police officer asking him/her to undertake a specific investigative act), Judicial Police Officer is placed under the power of the Investigating Judge. The General Prosecutor of the Appeals Court supervises, controls, and takes disciplinary actions against Judicial Police.



What Does Judicial Police Do? Judicial Police is charged with the tasks of discovering the crime, identifying and arresting perpetrator, and gathering evidence. According to CCP, the duties and missions of Judicial Police Officer are to:

1. Receive complaints or denunciations. 2. Record the complaints. 3. Take further action after receiving the complaints such as investigation or referring the

record of the complaints to the Prosecutor. Before investigating, the Judicial Police Officer can request advice from the Prosecutor.

4. Conduct investigation into flagrante delicto (a crime in a course of being committed or which has just been committed etc.), conduct a preliminary investigation, and execute rogatory orders. Judicial Police Officers make report on the investigation.

When conducting the investigation, Judicial Police Officers can:

1. Inquire into and examine offenses

2. Conduct searches 3. Interview any persons with

information regarding the case

4. Call experts for technical and scientific examination

5. Place suspects in custody Judicial Police Agents, civil servants, and other public agents can only examine some offenses, make reports, and assist Judicial Police Officer in the performance of his/her duties



Public Prosecutor

1. Only the Department of the Public Prosecutor has the right to bring criminal action on behalf of the public interest (Constitution, Article 131 (new) and CCP, Article 4).

2. The Prosecutor must attend all hearings of the criminal trial.

3. The Department of the Public Prosecutor initiates the prosecution, ensures enforcement of court orders in criminal cases, and looks after the diffusion of arrest warrants (CCP, Article 27).

4. Institutions/Prosecutors (CCP, Article 28):

Court of first

instance Appeals Court Supreme Court

Prosecutor General Prosecutor

General Prosecutor

Deputy Prosecutors Deputy General Prosecutors

Deputy General Prosecutors

Prosecutors Prosecutors

5. The duties and authorities of Prosecutor at the court of first instance:

- S/he has all powers that the CCP gives to the Judicial Police Officer for the

investigation. - S/he decides whether or not to process the complaints. - S/he can process the criminal prosecution through an investigation, a direct citation,

and an immediate hearing. - S/he presents evidence in court at trial. - S/he conducts the appeals.

6. The Public Prosecutor at the court of first instance directs and coordinates the

operations of the Judicial Police Officer in his investigation to ensure the effectiveness of the prosecution. S/he acts under the control of the General Prosecutor of the Appeals Court.



Investigating Judge

1. In each court, the Investigating Judge is responsible for the investigation into the alleged criminal offense. The Investigating Judge must be neutral and investigates both the charges and discharges (CCP, Article 127).

2. The Investigating Judge conducts the inquiry only after receiving the investigative request from the Department of the Public Prosecutor through an Introductory Submission (CCP, Article 124).

3. The investigation is confidential.

However, such confidentiality cannot jeopardize the right to defense (CCP, Article 121).

4. After receiving an Introductory Submission, the Investigating Judge may conduct an

inquiry into the offense by questioning witness, interrogating charged person, assigning expert and visiting the crime scene to collect evidence etc.

5. The Investigating Judge informs the charged person of his right to counsel.

6. In performing his/her work, the Investigating Judge may issue orders such as a subpoena, a summons, and an arrest warrant. If detention is necessary, s/he can issue a detention order (CCP, Article 205).

7. In addition to the above-mentioned warrants, the Investigating Judge can issue an order

to place a charged person under the “judicial supervision” (a written order of the Investigating Judge to charged person who is not in pre-trial detention to comply with a set of obligations as stated in Article 223 of CCP).

8. All evidences collected must be included in the case file. The case file is not to be made

available to the public, but the defense counsel can access and copy it.

9. In any circumstance, the Investigating Judge shall not act as Trial Judge of a case that s/he had previously acted in the capacity of Investigating Judge (CCP, Article 54).



Trial Judge

1. A judge cannot be the Trial Judge in a criminal case where s/he has been the Prosecutor, Deputy Prosecutor, or Investigating Judge (CCP, Article 288).

2. The Presiding Judge

conducts the proceedings and maintains order in court etc.

3. The role of the Trial Judge

is to decide on the guilt or innocence of the accused person, based on evidence (exhibits and witnesses) included in the case file or presented at trial. The Trial Judges also determine the sentence if the accused person is found guilty.

4. The Trial Judge is obliged to respect international standard of fair trial rights and

particularly to ensure the free exercise of defense right.

5. Numbers of Trial Judges appointed to hear a case:

Misdemeanor Felony

Court of first instance 1 judge 3 judges

Appeals Court 3 judges 3 judges

1st cassation 2nd cassation

Supreme Court 5 judges 9 judges



Court Clerk Court Clerks:

1. Assist Judge and Prosecutor in judicial affairs.

2. Assist the Trial Judge in preparing the

dossier for the trial.

3. Deliver subpoena and court orders to relevant parties to the case (accused person, victim, civil party, witness, etc.)

4. Deal with other administrative issues during

the hearing, such as:

- Lead parties in taking the oath. - Confirm presence of accused person,

civil party, civilly responsible person, victim, witness, and expert, and verify their identity at the opening of the hearing.

- Read out loud the court rules to the parties.

- Draft hearing reports on topic including process of the hearing and the questions asked to the accused person, civil party, civilly responsible person, victim, witness, and expert.



Lawyer

1. Adequate protection of human rights and fundamental freedoms to which all persons are entitled requires that all persons charged or accused of committing criminal act have access to effective legal services provided by an independent legal professional.

2. Before the court, lawyer

represents/defends different parties to the case. There are lawyers who represent the victim (hereafter referred to as victim counsel) and lawyers who defend the accused person (hereafter referred to as defense counsel).

3. In criminal proceedings, lawyer plays

an important role in defending the rights of defendant at all stages of the proceedings, as well as preparing and presenting the case.

4. The basic duties of a lawyer are to:

- Advise client as to his legal rights and obligations; - Take all appropriate legal actions to protect the client’s interests; - During the investigation, take an active role by challenging prosecution witness, ask

the Investigation Judge to search for specific evidence in support of the defense and present evidence for consideration;

- Prepare the defense case; - During the trial, test the prosecution evidence and present the defense case.

5. In Cambodia, lawyers providing the aforementioned services must be members of the

Bar Association of the Kingdom of Cambodia (BAKC).



Suspect, Charged Person, Accused Person and Civilly Responsible Person

1. Suspect refers to a person whom the Prosecutor or the Investigating Judge believes may have committed a crime, but has not yet been officially charged.

2. Charged Person refers to a

person who is subject to prosecution in a particular case during the period between Introductory Submission and Indictment or dismissal of the case.

3. Accused Person refers to a

person whom the Prosecutor summons to appear before the court of first instance in accordance with the procedure of direct citation or immediate hearing, or who has been indicted by the Investigating Judge, at the end of the investigation.

4. To help ensure that only those who committed criminal act get convicted, suspect, charged person, and accused person are entitled to some rights. They are specifically protected by the Constitution and the International Covenant on Civil and Political Rights (ICCPR) (see Sections III and IV).

5. If found guilty, the convicted is responsible for the damages resulting from his/her actions. In some cases, third parties are responsible for compensation (A civilly responsible person).

6. A civilly responsible person is:

- A person who is liable for the civil consequences of the offenses committed by the

criminal defendant. - For example, the parents of a 16 year old defendant may be liable to pay the damages

resulting from an offense committed by their child.



Civil Party and Victim

1. Victim is a person harmed by a crime. 2. Civil Party can be:

- Victim - Legal representative of juvenile

victim - Legal representative of victim

under legal guardianship - Representative (ayant droit) of

death victim - Individual or association

recognized by law as civil party

3. In criminal proceeding, victim or civil party can bring a civil action to criminal chamber or civil chamber of the court.

4. The purpose of the civil action is to seek compensation from the criminal defendant or the civilly responsible person.



Witness

1. A witness of fact is a person who sees, hears, or knows something about the crime and who is invited to testify, either in person or by written deposition.

2. Expert witness is people with particular expertise (such as scientists and medical doctors) who may be called to testify in order to help the court understand complex issues.

3. Witness shall appear in court when

called. The court can hear witness brought to the court by parties even though the court did not summons them (CCP, Article 315 and 324).

4. The court can use public forces to have

witness appeared in court.

5. Witness and expert must tell the truth.

6. Both parties can cross-examine witness and expert brought in by their opponent.



III. Rule of Law and Fair Trial Rights

A. What is the Rule of Law?

1. The “rule of law” refers to the principle that every member of a society, even its ruler, must follow the law.

2. It also implies that the law is dominant over all other interests – the law takes primacy over money, power, politics, etc., and nobody is above the law.

3. The rule of law means that every person, from the poorest to the richest, is bound by the same rules, and must be treated as equal before the courts. State institutions must also act in accordance with the law.

4. The rule of law is essential to freedom and democracy – it acts as a safeguard against arbitrary governance.

5. It means that nobody can be punished unless a court has decided that a law has been breached.

6. To ensure the rule of law, citizen’s rights must be laid down in laws that are: - Publicly known; - Easy to understand; - In accordance with human rights principles; - Equally applied and non-discriminatory; and - Effectively enforced.

7. To effectively enforce the law, the State must establish institutions safeguarding the legal

system (e.g. police, courts), which are bound by human rights guarantees, such as fair trial rights.



B. What is a Fair Trial?

1. Everyone charged with a criminal offense has the right to a fair trial.

2. The right to a fair trial involves a series of individual rights that begin from the moment a

suspect is arrested, and continues throughout the legal process until the final appeal has taken place such as:

- the right not to be compelled to testify against oneself or to confess guilt - the right to remain silent - the right to be tried within reasonable time - the presumption of innocence - the right to be tried by competent, independent and impartial tribunal established by

law - the right to fair and public hearing - the right to be equally treated before the court - the right to defense counsel - the right to defend - the right to appeal etc.

3. Fair trial rights benefit everyone in society. They protect the innocent, safeguard the individual against abuse by the State, and ensure that the guilty are punished, regardless of their status.

4. Fair trial guarantees help:

- To contribute to feelings of personal security, by limiting arbitrary arrest and prosecution;

- To ensure that the police do not abuse their power, by reviewing their actions through an impartial tribunal;

- To ensure that only guilty people are convicted, by having strong standards for reviewing the evidence;

- To maintain the integrity of the legal system, by having open and public hearings; - To lower crime rates and corruption, by supporting a strong judicial system.

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D. How Are Fair Trial Rights Protected

Under International Law?

1. The Cambodian Constitution explicitly recognizes human rights as stipulated in international covenants and conventions.

2. The Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly in 1948 recognizes fair trial rights for all those charged of committing a crime.

3. The International Covenant on Civil and Political Rights (ICCPR) adopted by the UN

General Assembly in 1966 is one of the key UN instruments codifying civil and political rights, including the right to a fair trial. Since then, regional human rights acts incorporate this right.

4. Cambodia is a member State of the United Nations and ratified the ICCPR in 1992. 5. Accordingly, the ICCPR is officially part of the laws in Cambodia, and Cambodia has an

international obligation to uphold and apply the norms set forth in the ICCPR.



IV. Fair Trial Rights in Cambodia A. Rights Related to Arrest

1. Fair trial rights begin at the early stage of proceedings. In general, they begin at the moment of the arrest.

2. Recognizing that everyone is

free from arbitrary arrest, the authorities, particularly the Judicial Police, must have reasonable grounds to believe that a suspect has committed a crime.

3. At the time of the arrest, Judicial

Police must inform suspect of the reason for the arrest (ICCPR, Article 9 and CCP, Article 97).

4. Furthermore, Judicial Police

must inform the suspect promptly and in detail of the nature and the reason of the charge against him (ICCPR, Article 14).

5. Arrested and detained suspect must be brought before a judicial authority promptly:

- In Cambodia, the maximum time allowed for the police custody is up to 48 hours.

The period starts from the moment when the suspect arrives at the police or military police station. A minor under 14 years old of age cannot be placed in police custody (CCP, Article 96).

- By the time of the expiration of the time allowed for police custody, Judicial Police shall hand over the detainee to a Prosecutor or release him (CCP, Article 103).

6. Anyone arrested or detained shall be entitled to take his case before a court, in order that

the court may decide on the lawfulness of his detention (ICCPR, Article 9).

7. Everyone subject to unlawful arrest or detention shall have the right to compensation (ICCPR, Article 9).



B. Rights during Interrogation

1. The right to be informed of the reason of any charges against him and the name of

offense as stipulated by law. 2. The right not to be compelled to testify against oneself or to confess guilt:

- To protect the suspect and charged person from coercion, the law provides the right

not to be compelled to testify against oneself or to confess guilt. Article 38 of the Cambodian Constitution provides that “Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited.”

- In addition, any confession that has been obtained by physical or mental force is not admissible as evidence of guilt (Constitution, Article 38 and CCP, Article 321).

3. The right to remain silent: in addition to the right not to be compelled to testify against

oneself or to confess guilt and in order to advoid using cocercion to extract information during the interrogation, the Investigating Judge must inform the charged person that s/he has the right to freely answer or to remain silent (CCP, Article 143).

4. The right to defense counsel:

- The right to defense counsel begins at the earliest stage of proceedings: after a period

of 24 hours from the time of arrest (CCP, Article 98). - The Judicial Police and Investigating Judge must inform suspect and charged person

promptly of the right to counsel (CCP, Article 97 and 143). - They can choose or have counsel appointed by court. However, a juvenile charged

person must have counsel (CCP, Article 143). - To effectively exercise this right, suspect and charged person must have opportunity

and enough facilities to do so: enough time and appropriate place for discussion in a confidential manner and enough time to study the dossier etc. (CCP, Article 98 and 145).



C. Right to Be Tried Within Reasonable Time

In this picture, the defendant is in pre-detention for longer than the time-limit allowed by the

law, thus his right to be tried within “reasonable time” is violated.

1. Every person accused of a crime has the right to a trial without undue delay (ICCPR, Article 14).

2. What is “reasonable time” to wait for trial may depend on the complexity of the case. 3. The court of first instance shall announce the judgment on the merits of the case within

2 weeks of the accused person’s appearance in court in immediate appearance proceedings (CCP, Article 303 and 304).

4. In cases where the Prosecutor orders the investigation, CCP does not set forth the time

limit for the judgment on the merits but stipulates that its announcement shall be made within a “reasonable time period” (CCP, Article 305).



D. The Presumption of Innocence

1. The accused person is

considered innocent until the court has made its final judgment on the case (Constitution, Article 38).

2. Based on this principle:

- The Prosecutor has an obligation known as “burden of proof” to prove the guilt of the accused person and it is not to the accused person to prove that s/he is innocent.

- The accused person has the right not to be compelled to confess or to testify against oneself.

- The defendant has the right to remain silent.

- The court shall not consider this silence in the determination of guilt.

In this picture, the Trial Judge must not ask the accused person to prove that he is innocent. On the contrary, he should ask the prosecutor to present the evidence to support the accusation.

- Any case of doubt shall be resolved in favor of the accused person means that if the Prosecutor

fails to provide adequate evidence of the accused person’s guilt, the court must acquit the accused person.

3. Public officials must refrain from influencing the case by making public statement on the

guilt of suspect, charged person, or accused person until the court has reached its final decision.



E. The Right to an Independent and Impartial Tribunal

1. Everyone is entitled to a fair and

public hearing by a competent, independent, and impartial tribunal established by law (ICCPR, article14). - The court or tribunal is a

body which exercises judicial functions, established by law to hear the case and make decisions within its jurisdiction, on the basis of Rule of Law and in accordance with legal proceedings.

- A competent judge is one who is well-trained and has good knowledge of the law.

- An independent judge is one who is not influenced by any outside person or political influence, and is free to make judgments without any expectations of favors or fear of consequences. In this picture, the principle of impartiality of tribunal is violated

because the Trial Judge is influenced by outside person.

- An impartial judge is one who does not favor either the defense or prosecution, and makes his/her judgments based on the evidence rather than personal connections or feelings.

2. Judicial power shall be an independent power (Constitution, Article 128 new). This power must be separate from political power. The King shall be the guarantor of the independence of the judiciary. The Supreme Council of Magistracy shall assist the King in this matter (Constitution, Article 132 new). - If judges can be removed by political powers, they may not be independent. - If judges and court clerks are paid low living wages, they may not act independently.

3. Judges make decision on the basis of the evidence presented at trial.

- Judges must not make their decisions based on outside threats, bribes, personal bias

etc. - If a judge has financial interest in a case, or is a personal friend of one of the parties,

s/he may not be impartial.



F. Right to a Public Hearing

In this picture, the right to a public hearing is violated because the Trial Judge does not allow

the public, including observer and media to attend the trial hearing.

1. The accused person has the right to be tried in public. This means that the trial must be open for observation by families and the community, including the public and press.

2. This helps ensure a fair trial and builds public confidence in the judiciary.

3. Information on the time and place of the hearing must be made public by the courts.

4. There must be an oral hearing on the merits of the case.

5. However, the public may be excluded for reasons of public morals, public order, national security, or the privacy of relevant parties.

6. The right to a public hearing is violated when the court excludes public from hearing

session without any of the grounds mentioned above.

7. In every case, the judgment must be made in public.



G. Equality before the Court

This picture represents the breach of the equality of arms. The Trial Judge wrongly discusses the case with the Prosecutor while in the final stage of making a decision on the case.

1. There must be an “equality of arms”.

2. The defense counsel and the Prosecutor should have equal status before the court.

3. Both parties must have an equal opportunity to present evidence and argument before

the court.

4. Neither party should benefit from a substantial advantage over the other.

- The arrangement of the court room should reflect this equality. For example, the Prosecutor should not sit at a desk that is situated next to the Trial Judges or on the platform above the desk for the defense counsel.

- The Trial Judges give equal time to the Prosecutor and the defense to submit their arguments.

- When the Trial Judges withdraw to deliberating room to discuss the case, they must not receive any further submissions or requests from either party.



H. Right to Be Present

1. A trial that is held without the presence of the accused person violates the “right to

defense through judicial recourse” provided in Article 38 of the Constitution.

2. An accused person must be present to defend himself against the charge against him.

3. The court should inform the accused person (and defense counsel) of the date and the venue of trial in an adequate time so that they can prepare for and be present at the trial.

4. The adequate time for the accused person to appear in court depends on where the

accused person lives (CCP, Article 457 and 466):

- 15 days if the accused person lives in the territorial jurisdiction of the court of first instance.

- 20 days if the accused person lives in other places of national territory. - 2 months if the accused person lives in a country bordering the Kingdom of

Cambodia. - 3 months if the accused person lives in other places. - If the accused person is in detention, no duration of time is required.



I. Right to Defense Counsel

This picture shows the breach of the right to defense counsel. Any defendants,

especially the juvenile defendant, have the right to counsel.

1. In the determination of any criminal charges against him, everyone shall be entitled to … defend himself … through legal assistant (ICCPR, article 14).

2. The assistance from lawyer is required in criminal case and when the accused person is a juvenile.

3. The suspect, charged person, or accused person have the right to choose a lawyer or to

have a lawyer appointed by court if s/he cannot pay lawyer’s fee.

4. The authorities are obliged to inform the suspect, charged person, and accused person of this right.

5. The right to counsel begins at the earliest stage of the proceedings and continued

throughout the process: the suspect can consult with his lawyer after the expiration of the period of 24 hours after the arrest (CCP, Article 98).

6. The suspect, charged person, and accused person also have the right to adequate time

and facilities to prepare the defense and to communicate in confidence with his counsel.



J. Right to Call and Examine Witnesses

1. The right to call and examine witnesses is related to the right to present a defense.

2. Everyone shall be entitled … to examine, or have examined the witnesses against him and to obtain the attendance and the examination of witnesses on his behalf, under the same conditions as witnesses against him (ICCPR, Article 14). In this sense:

- The defense must have

enough opportunity and time to examine his own witnesses (defense witnesses) to support his case.

- The defense must have enough opportunity and time to cross-examine witnesses against him (prosecution witnesses), including Police Officers and victims.

- The defense is entitled to challenge all evidence presented at trial.

3. In Cambodia, the Prosecutor summons the witnesses. However, the defense may also

present to the hearing any witnesses who were not summoned by the Prosecutor and may request that the court hear them in the capacity of witnesses (CCP, Article 298 and 324).



K. Right to an Interpreter

In the picture, even though the accused person is represented by a lawyer, he

has to be assisted by an interpreter because he does not understand the language used in court (Khmer).

1. Everyone shall be entitled … to the free assistance of an interpreter if he cannot understand or speak the

language used in court (ICCPR, Article 14).

2. This right to an interpreter applies from the very beginning of the proceedings and throughout the entire proceedings.

3. This is related to the right of the accused persons to understand the nature of the charges

against them and the right to defend themselves against those charges.



L. Juvenile

1. In Cambodia, anyone under the age of 18 is legally considered a “juvenile”.

2. In the cases of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation (ICCPR, Article 14).

3. These safeguards have been

developed to protect the interests of juveniles who came into contact with the criminal justice system, to try to avoid the harmful impacts of imprisonment as well as to enable rehabilitation wherever possible.

4. These specific safeguards

include:

- The juveniles under the age of 14 can never be put in provisional detention. According to the law, the duration of provisional detention for juveniles between the age of 14 and 16 differs from the duration applicable to juveniles between the age of 16 and 18 (CCP, Articles 208, 209, 212, 213, and 214):

Maximum allowed time-limed for provisional detention

Felonies Misdemeanors

From 16 to under 18 6 months 4 months

From 14 to under 16 4 months 2 months

Under 14 No No

- Right to mandatory defense lawyer in all case (CCP, Article 143). - The sentencing practice: judges shall consider the defendant’s youth when deciding

on the penalty after finding him guilty.



M. Non-Retroactivity of New Laws

1. No one can be found guilty of a crime which was not forbidden at the time of the act (ICCPR, Article 15).

2. No heavier penalty can be imposed than that which was applicable at the time of the criminal offense.

3. However, the accused person should benefit from a lighter penalty if one has been

provided for by law, subsequent to the commission of the act.



N. No One Shall Be Tried More Than Once For the Same Crime

1. No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted … (ICCPR, Article 14). Putting a person on trial more than once for the same crime is known as “double jeopardy”.

2. The prohibition against the double jeopardy protects the defendant from being punished multiple times for the same offense.

3. A case is closed once the final appeal has been decided, and there are no appeals

pending.

4. This finality benefits society as a whole, as the public can know who is guilty and innocent of a particular crime. It also protects the limited resources of the court, which can turn its attention to other pending cases.

5. In exceptional cases, if after the conviction there is evidence to prove the innocence of a

convicted person, the Supreme Court can revise the case through a motion for review (CCP, Article 445).



O. Right to Appeal

The Supreme Court/ តុ ករកំពូល

1. Everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher

tribunal (ICCPR, Article 14).

2. The Appeals Chamber of the Appeals Court has the authority to decide on the appeal against the judgment of the court of first instance of its jurisdiction for criminal cases (CCP, Article 373).

3. If any of the following parties are not satisfied by the judgment of the court of first

instance they can appeal within (CCP, Article 381 and 382):

- One (1) month from the pronouncement of the judgment (adversarial judgment) or from the service of the judgment (judgment deemed adversarial) when that party is Prosecutor of the court of first instance, accused person, civil plaintiff, or persons civilly responsible.

- Three (3) months from the pronouncement of judgment when that party is the General Prosecutor of the Appeals Court.

4. If the accused person is the appellant, the Appeals Court cannot increase the penalty imposed by the court of first instance. The Appeals Court can only revise the judgment in the interest of the accused person or uphold that judgment.

5. If any party to the case is not satisfied with the judgment of the Appeals Court, s/he can appeal to the Supreme Court. The Supreme Court is the highest court in the country and the place of the last and final appeal.



V. Strengthening the Rule of Law and Fair Trial Rights

A. How Can They Be Strengthened in Cambodia?

1. Three important steps can be taken to bolster the rule of law and fair trial rights: - Revise existing laws to ensure compliance with the rule of law and international

human rights standards. - Strengthen State institutions, especially law and Judiciary. - Ensure State activities’ compliance with the laws and international standards,

especially the independence of the Judiciary.

2. The legal and judicial reform process can only be effective if reliable information is available about the current situation in the courts and what changes need to be made. Trial monitoring provides impartial and crucial information to feed into that process.



B. How Can the Court Watch Project Benefit Legal and Judicial Reform?

1. CWP acts as an impartial monitor of the court system.

2. Each year, CWP publishes four issues of Court Watch Bulletin and an Annual Report, which highlight concerns regarding the rule of law and fair trial rights, and provide recommendations for the above-mentioned reform.

3. These recommendations may include:

- A change or improvement of practice by Judges, Prosecutors, Court Clerks, Police

Officers, Lawyers, and other court officers; - An amendment to the law; and - Additional training in specific areas.

4. These reports help those involved in the process of legal and judicial reform by

identifying areas that require the greatest attention.

5. Lawyers, Prosecutors, Judges also benefit from information about judicial proceedings and practices of other jurisdictions, including national, international, and ad hoc tribunal.

ĮЊĕЊĳŏ, Ū⅜ŷŪďŷ ĕЊ₣ ЮģйĮНņį

ករ វ ជវ និង ចង កងេស វេភសីពីករជំនំុជ មះកីេ យយុតិធម៌ (ករេបះពុមពផ យេលកទីបួន) េនះ តវបនេធេឡង ជចំបងេ យបុគគលិករបស់អងគភពចបប់ រមួមន ៖ • ែប៉ន ៉ នី ៖ បធនអងគភពចបប់ • ជូ វនិថ ៖ បធនកមមវធីិសេងកតករណ៍តុ ករ • តុង េហង ៖ អនុ បធនកមមវធីិសេងកតករណ៍

តុ ករ និង ជម នីវភិគទិននន័យ • អនកសេងកតករណ៍តុ ករ ៖ ជ ន - េចង

រសមីេសរវីង - ឈូក គីមេម៉ - ហង ចរយិ - លី សំបូរ - េ សហឺុ - ែម៉ន ផលីន - េព ច័នទសុភ័កកនី - ែសន សុផល - េសង ធី - សិុន សង - ែវន៉ លន់ និង វង កុសល ។

ករជួយេ ជមែ ជងបែនថមេទ ត តវបនផល់េ យ ៖ • េសង ធរ ី៖ នយិក បតិបតិ, និពនធនយក • េអគី េថវនិ ៖ ទី បឹក ចបប់ • េដវដិ វលីឃីនសុន៖ កមមសិក ករែីផនកចបប់ • ខែលប នីលី ៖ កមមសិក ករែីផនកចបប់ • យ សំរទិធ ៖ កមមសិក ករែីផនកចបប់ • សំ ៉ ត ៖ វចិិ តករ

EDITING, RESEARCH AND PUBLICATION

The research and drafting of this 4th Edition of Fair Trial Handbook were undertaken primarily by the staff members of the Legal Unit:

• PEN Rany, Head of the Legal Unit • CHOU Vineath, Manager of the Court Watch

Project • TONG Heng, Deputy Manager of the Court

Watch Project, Database Analyst • Court Monitors: CHEA San, CHENG

Reaksmey Sereyvong, CHHOUK Kimmao, HANG Charya, LIK Sambo, LOR Saheur, MEN Phalin, PEOU Chansopheakny, SEN Sophal, SENG Thida, SIN Sangha, VEN Lonn, and VONG Kosal.

Additional assistance was provided by:

• Theary C. SENG, Executive Director, Editor-in-Chief

• Aekje TEEUWEN, Legal Consultant • David WILKINSON, Legal Intern • Kaleb MCNeely, Legal Intern • Samreth LAY, Legal Intern • SAM Sarath, Cartoonist

ņĄęņ‗Ź ŲΒķЊŷűΘĕч₤₣ðņ

មជឈមណលអភិវឌ ន៍សងគម (“ម.អ.ស.”) ជអងគករមិនែមនរ ភិបល, មិនែសងរកកៃ ម, តវបនបេងកតេឡងកនុងឆន ំ ១៩៩៥ និង ែសងរកេលកកមពស់តៃមលទធិ បជធិបេតយយ ពមទំងេលកសទួយក មិតជីវភព បជពលរដកមពុជ ។ ម.អ.ស. មនេបសកកមម ជំរញុេលកទឹកចិតឲយមនករចូលរមួយ៉ងទូលំទូ យ េនកនុងកិចចករ ធរណៈ (ទំងេនថន ក់ជតិ និង ថន ក់តំបន់), បេងកនករេគរពសិទធិមនុស និង នីតិរដ, េលកកមពស់តមភព និង ករអនុវតភពទទួលខុស តវ ធរណៈ គប់លំ ប់ថន ក់, េលកេឡងពីករយល់ដឹងអំពីបញននជំុវញិកងល់ជតិ, េនកនុងចំេ មបញដៃទេទ ត ។ CENTER FOR SOCIAL DEVELOPMENT

The Center for Social Development (CSD) was established as a non-profit, non-governmental organization in 1995 and seeks to promote democratic values and improve the quality of life of the Cambodian people. The mission of CSD is to encourage broad participation (at both national and local levels) in the public affairs, develop a respect for human rights and the rule of law, enhance transparency and accountability in the public sphere, raise awareness of issues of national concern, among others. េបះពុមពេលកទី ១ ៖ ែខកុមភៈ ឆន ំ ២០០៧ First Edition: February 2007 ២០០០ ចបប់ 2,000 copies េបះពុមពេលកទី ២ ៖ ែខមីន ឆន ំ ២០០៧ Second Edition: March 2007 ៣០០០ ចបប់ 3,000 copies េបះពុមពេលកទី ៣ ៖ ែខកកក ឆន ំ ២០០៧ Third Edition: July 2007 ២៥០០ ចបប់ 2,500 copies េបះពុមពេលកទី ៤ ៖ ែខសី ឆន ំ ២០០៨ Fourth Edition: August 2008 ១៥ ០០០ ចបប់ 15,000 copies

Documents

Fair Trial Handbook - Cambodia