Kosal at Home with His Family in Kandal Province

Cambodian IBJ Lawyer Defends Falsely Accused 19-year Old

Kosal at Home with His Family in Kandal Province

Around 9 PM on November 24, 2012, Kosal, a nineteen-year-old motordup driver, was happy to receive a call on his cell phone from a man named Dara who was looking for a ride. Kosal thought that he would earn some extra cash that night, but instead, the ride would cost him the next five months in Kandal prison’s pre-trial detention.

Kosal had only driven Dara two times before that night. As all motordup drivers do, he had given him his phone number in order to secure his future patronage. Unfortunately, Kosal neither knew that Dara was a drug dealer, nor that on that night he was calling for a ride to pick up cocaine.  Kosal drove to a bridge where Dara got off and told him to wait for an hour. When Dara came back, they continued driving and passed a group of policemen parked at a gas station. Evidently, one policeman recognized Dara as a prior drug suspect and demanded to search their belongings. He found the cocaine in Dara’s bag and arrested both driver and passenger.

The police interrogated Kosal at the station for two days. They did not physically abuse him, but they intimidated him by threateningly turning an electro-shock device on and off. Kosal maintained his innocence throughout; nevertheless, the police sent him to pre-trial detention in Kandal prison.

Since the death of his parents when he was a child, Kosal has lived in a small hut with his grandmother, aunt, and sister. When he did not return that night his family was very concerned. In fact, an entire week passed before the family was officially informed about Kosal’s whereabouts. He was locked up in a five-by-six meter cell with thirty-four other prisoners. The guards were kind to him, but the living conditions were difficult to bear. The prosecutor charged Kosal as an accomplice in drug distribution, which was a frightening accusation because, under Article 29 of Cambodia’s Criminal Code, anyone charged as an accomplice in a crime faces an equally severe penalty as the true perpetrator. Thus, despite the fact that Kosal was not in possession of any drugs and persistently asserted his innocence, he would serve the same sentence, if convicted, as his drug-peddling passenger.

Kosal waited three months without knowing the status of his case. Although some of the prison officials and other prisoners told him that IBJ could offer him free legal representation, he did not know how to contact a lawyer. Worse, no one in authority could tell him when he would have his day in court. Every day passed in loneliness and uncertainty. Bi-monthly visits from his family, who brought him whatever extra food they could afford, were his only comfort.  On February 20, 2013, Ms. Hok Meng Eam, one of the four IBJ lawyers in Phnom Penh, traveled the twelve kilometers outside of Cambodia’s capital to visit Kandal Prison and the guards told her about Kosal. She offered him free legal representation and he gratefully accepted.

Each IBJ lawyer takes on about ten cases per month. Around half of those cases come from community referrals, which is why an essential part of IBJ’s mission is to simply spread the word among Cambodians about the services it offers. Other cases are referred by court officials and partner NGOs. Occasionally, as in Kosal’s case, IBJ lawyers find new clients on routine visits to the prisons in their territory. Each of the IBJ lawyers in Phnom Penh lawyers visits one of the three nearby prisons at least twice a month and asks the prison officials to show them the accused who want a lawyer, but cannot afford one. The lawyers try to offer their services to every accused person in need of free counsel, but they depend on the prison officials to be forthcoming; also, pragmatically, they cannot take on as many cases as they would like. Waiting in jail without a lawyer is agonizing, especially for prisoners who, like Kosal, are falsely accused and impatient to return to their ordinary life. Kosal’s family also depended heavily on his income.

According to a recent internal survey across all nine Defender Resource Centers in Cambodia, 12% of IBJ’s clients  are acquitted, or the charges against them are dismissed before trial. In other words, prior to meeting their lawyer, 12% of IBJ’s clients had been waiting in jail on charges that would at least prove legally unsound, if not entirely unfounded. Without an IBJ lawyer to press the court officials for an early trial date and prepare a compelling defense, many of those clients would undoubtedly have been detained much longer than they were, and probably convicted of crimes they did not commit. Kosal, himself, is certain that if Ms. Eam had not represented him, he would have waited much longer just to get in front of a judge.

Kosal’s trial finally took place on May 2, 2013. Ms. Eam presented a strong case that he was not guilty. The police had found no drugs on him, and, even more compelling, Dara confessed that Kosal had been completely unaware of his involvement in drug trafficking. Although the judge was suspicious that Dara was only trying to protect Kosal, Ms. Eam proved that the two men had been separated during their detention and could not have communicated with each other. Furthermore, she emphasized Kosal’s lack of criminal record, calm temperament, and faithful support of his family. For one hour, Kosal waited nervously while the judge listened to the lawyers’ arguments. His family members, watching the trial from the back of the courtroom, were just as anxious. Finally, the judge acquitted Kosal and he was released from the prison that day.

Obviously, his family was delighted to have him home and they threw rice out on the front steps of their house to welcome him, a traditional Cambodian thanksgiving ritual. Today, Kosal earns fifteen thousand riels per day transporting textile material. He and his uncle, who works in a neighboring province, provide the only source of income for the family. Unfortunately, some people in his village discriminate against him because he spent time in prison. They consider him a stereotypical troubled orphan. But, these naysayers are the minority of villagers, and even they were surprised that he was released from prison in what (unfortunately for the accused in Cambodia) was a comparatively short time. When other villagers inquire about the brevity of his detention, Kosal and his aunt enthusiastically spread the word about IBJ lawyers, so that others who might be accused in the future will not be in the same position as Kosal before his arrest: knowing nothing about his rights under the law or the assistance offered by IBJ. Although the police whisked Kosal out of the courtroom before he had a chance to thank Ms. Eam, he was adamant that I express his gratitude at the end of his story.

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