NGO puts Appeal Court on trial

Niem Chheng | Publication date 20 June 2018 | 10:19 ICT

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Kem Sokha's lawyer Chuong Choungy walked into the Appeal Court for the Kem Sokha's bail hearing in February. Hong Menea

In its annual report released on Tuesday, the Cambodian Center for Human Rights (CCHR) said while a number of key fair trial rights were guaranteed before the Appeal Court, in virtually all the hearings it monitored, the judges failed to cite the legal provisions and evidence upon which they had relied to reach their verdict.

CCHR’s Fair Trial Rights Project Coordinator, Hun Seang Hak, said it was pleased that protections against double jeopardy, non-retroactivity, the right to understand the nature and cause of the charges, adequate time and facilities to prepare the defence, and the right to a public judgment were consistently met.

“However, despite this positive stance, judges at the Appeal Court only stated that the first instance court’s judgment was upheld or overturned, without explaining why,” he said.

Seang Hak said data for the CCHR report entitled Fair Trial Rights in Cambodia, Monitoring at the Court of Appeal were collected between November 1, 2016, and October 13, last year.

It was carried out in collaboration with President of the Court of Appeal You Bunleng, whom the CCHR praised for “his ongoing collaboration and commitment to continue improving respect for fair trial rights”.

The CCHR analysed data gathered through the daily monitoring of 340 randomly selected criminal cases at the Court of Appeal in Phnom Penh, using a specifically designed trial-monitoring checklist to assess adherence to fair trial rights as set out in international and Cambodian law.

CCHR’s monitoring showed that the presumption of innocence was not fully respected, and insufficient attention was given to allegations that a confession – which often forms the basis for convictions – was obtained under duress or violence.

This, the CCHR report said, was despite 40 defendants making such allegations before the Appeal Court. In more than 65 percent of the cases monitored, the judge also failed to inform and explain to the defendant his right to remain silent.

“Furthermore, the right to have legal representation was not always respected, as 21% of the defendants were not represented by a lawyer. Also, the lack of respect for the right to a reasoned judgment remains one of the most concerning findings in the report,” Seang Hak said.

Seang Hak said the rights of juvenile defendants, who should be given special protection under international human rights law and in Cambodian law, were often ignored.

No specific measures are put into place to protect the rights of juveniles, and all but two of the 35 whose cases were monitored by CCHR had been held in pretrial detention.

“While there have been some significant improvements regarding respect for Fair Trial Rights at the Appeal Court, some fundamental human rights are still not being respected. We hope that the data, analyses and recommendations set out in the report will help facilitate an increased respect for fair trial rights in Cambodia,” Seang Hak said.

The CCHR also urged the authorities to promptly take all appropriate steps to ensure that fair trial rights, and particularly the presumption of innocence, the right to a reasoned judgment, and the protection of juvenile’s privacy, are vigorously protected.

Lawyer Sok Samoeun declined to comment on the report itself, but said from his experience in the Court of Appeal, some things were lacking, such as cases that were pending for years.

“It just extended the accuseds’ detentions, for example on grounds that lawyers were absent. So some cases were pending conclusion for years. But we cannot say the Appeal Court was wrong on such matters because the postponements were based on law,” he said.