I’ve been working for the past few weeks on eLearning Cambodia, part of the JusticeMakers project.  It’s been an interesting and informative project — I have had to read the entire Code of Criminal Procedure several times, as well as arrange interviews with criminal defense attorneys in Phnom Penh.  I need to write a culturally appropriate and accurate hypothetical which addresses the major legal issues in criminal defense in Cambodia, and I also need to make a video of the hypothetical to more visceral.

The video is one of the more challenging aspects of the project.  I need to somehow try to capture images of people committing crimes, being arrested, interrogated, detained, at trial, and so on.  This can be difficult for several reasons: first, it is hard to capture these sorts of events on camera.  How often does one really see a crime being committed, much less see it with a camera ready to snap photos?  Second, it could be dangerous to take photos of these events.  Third, even if I had pictures of moments from each stage of the criminal process, it would be impossible to have pictures of the same suspect, so the story in photographic form would be disjointed, with many different people meant to portray the accused.  As a solution, a photographer will take staged pictures, so that we can make a coherent story with the photographs as well as the written hypo.

I’ve learned some interesting facts as I have progressed with writing the hypothetical.  For example, it is illegal in Cambodia to arrest someone between the hours of 6:00 p.m. and 6:00 a.m., unless they are arrested during or immediately after the commission of the crime (known as a “flagrant offense”).  In addition, interrogation of a suspect or charged person is prohibited between the hours of 6:00 p.m. and 6:00 a.m.  Another amazing fact is that there are no affirmative defenses in Cambodia.  A defendant cannot say, “yes, I committed the crime, but it was in self-defense and therefore I am not guilty.” The fact that the act was committed in self-defense merely goes toward mitigation of the sentence.

It is also interesting to listen to an experienced attorney such as Ouk Vandeth speak about the practical advice he would give to novice defense attorneys.  For example, when going to visit a client in the detention facility, always bring a letter of permission from the investigating judge, stating that you are the attorney of prisoner X.  This will lessen some of the bureaucratic difficulties someone might face when trying to enter a detention facility.

On Thursday, July 9, 2009, Ouk Vandeth from IBJ and Sok Kung from Cambodia Defender’s Project (link) co-lead a radio outreach program in Phnom Penh.  The program was broadcast throughout the country, with people calling from Phnom Penh, Kandal Province, Kampong Thom Province, and Kampong Chhnang Province, among others.  The topic was the investigation stage of the criminal procedure.

Vandeth and Sok Kung answered each question with an in-depth discussion of the issue.  They took care to define the vocabulary that they were using, so that listeners would understand the procedure exactly.  For instance, the first question pertained to what exactly is the meaning of a “charged person.”  They explained that a suspect is someone under investigating by the police.  A charged person is under investigation by the prosecutor, and an accused person is someone who will be taken to trial for the alleged offense.

Another question concerned the meaning of an “investigating judge.”  Vandeth and Sok Kung explained that an investigating judge collects evidence in the case.  They emphasized throughout the program that investigating judges have an obligation to investigate both inculpatory and exculpatory evidence.  The investigating judge makes the final decision as to whether there is enough evidence to send a case to trial, where a trial judge will hear it.  Investigating judges can also be trial judges, but not for the same case.  This can lead to problems in provinces where there are very few judges, because felonies must be heard by three judges sitting en banc. What are they to do when there are not enough judges available?

Vandeth and Sok Kung also explained all the powers and abilities of an investigating judge.  They discussed the differences between a subpoena, which summons a person, and an order to bring, which summons a suspect who has refused to present himself to the court, and an arrest warrant, issued if the suspect flees.  In addition the investigating judge’s duties, they pointed out that the accused has certain rights, such as the right to know what charged are being brought against him, the right to a lawyer, the right to an interpreter or translator, and the right to request release from detention.

Several callers asked more specific questions, such as what to do when someone has been detained for committing a crime, when the victim swears that that person was not involved.  Vandeth and Sok Kung again emphasized the duty of the investigating judge to examine both inculpatory and exculpatory evidence.

In the end, Vandeth and Sok Kung answered questions from four on-air callers, and noted than another twenty-two persons had called in.  Unfortunately, there was not time to answer everyone’s questions in the one-hour program.  As soon as the program ended, however, their phones began ringing with people who had heard the radio program and had their own questions.

Vannophea ran a Street Law training session on June 23, 2009, in Songha Village, Praey Sloeak Commune, Trean District, Takeo Province. Unlike the previous training sessions I have been to, the majority of the participants were men, with twenty-two men attending, and seven women.  This is because most of the women in that village are farmers and did not have time to come to this session.

The topic of the training session was the new code of criminal procedure.  Vannophea gave out copies of Section 3 of the Code, which states the rules for seizing a court of first instance.  This encompasses Articles 291 through 299, regarding rules for summoning witnesses, joinder of cases, setting hearing dates, and so on.  He went through each rule in detail, explaining what it meant and answering questions as they arose.

The audience was very engaged, asking many questions with complicated scenarios.  For example, one person set up a scenario in which Person A is attacked from behind by Person B, with no witnesses.  Can Person A sue, if he does not know Person B’s identity?   Vannophea gave very practical advice – start by thinking about any enemies that Person A may have, and move on from there. The victim could also ask neighbors about anyone who may have wanted to attack him.  Another question involved a situation in which two people, getting divorced, have a dispute over restitution money.  They had agreed that in case of divorce, she would not get restitution.  Vannophea told her that while she cannot get restitution, she can get part of the property from their time together.

The audience asked many more questions along these lines for about an hour before the session finished.  At the end, several audience members stood up and thanked Vannophea and IBJ for holding these Street Law sessions and teaching them about the law.  The Chief of the Commune also thanked IBJ and asked the audience members to spread the word about what they learned of their rights.

On May 27, 2009, IBJ Cambodia ran a Street Law training program in Village II, Rorkar Knong Commune, Daun Keo City, Takeo Province.  About twenty people attended the three-hour meeting.  Most were women, with about five men attending.

Vandeth and Vannophea asked questions of the attendees rather than lecturing.  One of the most striking moments occurred when Vandeth asked if anyone knew the difference between an NGO lawyer and a private lawyer.  When no one could answer, he informed them that NGO lawyers work free of charge, while private lawyers charge a fee for their services.  This method of conducting the meeting engaged and interested the audience, who participated freely.  They asked many questions, such as: what are the details of a lawyer’s work, at what age may the police arrest someone, how soon and under what conditions can an arrested person contact his or her family, etc.

Two days later, Vannophea held a Street Law training session in Or Svay Check Village, Rorkar Knong Commune, Daun Keo City, Takeo Province.  There were thirty participants, of which twenty were women and ten were men. The attendees were particularly interested in learning their rights in case they are ever arrested.  Many were unsure of what a lawyer does, and asked for clarification.  There were five overarching topics that the participants wanted to discuss.  The first was the rights of a child when that child is accused of killing someone.  For example, how long can they be held in jail?  The second involved details about the services that IBJ can provide.  Third, many asked questions about what to do in case of domestic violence.  The fourth topic was what a family can do when a family member is being held by the police.  Last, many wanted to know whether prison guards are authorized to punish the prisoners.

At both training sessions, attendees expressed satisfaction and pride at learning about their rights by requesting more training session in the future.

Most lawyers would consider themselves lucky to hear the experiences of practiced defense attorneys in their own countries. Few, then, ever imagine that they might be able to spend a week learning with skilled defenders from five different countries. This week, IBJ’s “Fellows“-criminal defense attorneys who are spearheading IBJ’s programs- have come together from Zimbabwe, Rwanda, Burundi, Cambodia, and India for the first-ever “Fellows Summit” at Fondation Heim in Chambésy, Switzerland, to share the wisdom drawn from their diverse international experiences.

The Fellows immediately dove into the critical issues of criminal justice in their countries. During Monday’s opening session, the Fellows took turns introducing each other to the governing rules of criminal procedure in their countries. Almost immediately after Cambodia Fellow Ouk Vandeth began his summary, the other Fellows responded eagerly with questions about the procedural protections available to Cambodian defendants. The Fellows left no stone unturned with questions ranging from the right of a detainee to access a doctor to the amount of time the police can hold a detainee in prison before appearing in court. The conversation quickly turned into a symposium on comparative criminal procedure as the Fellows took on their topic with the passion that only practitioners can bring.

After Monday’s intellectually charged discussion, the focus shifted on Tuesday to a different but equally crucial element of a criminal defender’s practice. Poet and musician Antony Hequet led IBJ in a vocal exercise that taught Fellows and staff how to use the power in their voices. The halls of Fondation Heim rang with the sounds of IBJ staff and Fellows stretching their vocal chords. India Fellow Ajay Verma and Rwanda Fellow John Bosco Bugingo stood out for their vocal prowess, especially when they faced off in a grunting match toward the end of the session that left everyone laughing.

With their understanding of criminal procedure enhanced, not to mention their ability to make themselves heard, IBJ Fellows, staff, and interns are ready to continue learning from each other throughout the remaining days of the Summit.

 IBJ Zimbabwe Fellow Innocent Maja (left) and IBJ staff plan their next move

In preparing for the inauguration of IBJ’s Regional Center in Pursat, our team in Cambodia hosted a criminal justice roundtable event. On April 20th, a total of seventy two participants gathered at the Kampong Chhnang Provincial Hall to discuss practices and issues related to criminal law, making it the largest roundtable our team has held since the country program began. Among the attendants were district governors and court, prison and police officials.

The robust roundtable was presided by the Under Secretary of the Ministry of Justice, the Deputy Governor of Kampong Chhnang Province, the Chief at Court of first instance, the Prosecutor at the Court of first instance, and Ouk Vandeth, IBJ’s Country Manager.

This gathering of criminal justice stakeholders was an opportunity to raise some important legal issues. Leading authority figures discussed the difficulties of implementing the new criminal procedure code, the role of justice police, and the importance of direct legal assistance to clients during the investigation process.

As one of the country’s most experienced criminal defense lawyers, IBJ’s Senior Fellow Ouk Vandeth was given the opportunity to advise coworkers on various matters of contention related criminal law practice, and to learn about the issues which concern his coworkers.

The event concluded with words from the Deputy Governor of Kampong Chhnang, who reasserted his enthusiasm for the opening of our second DRC which will enable IBJ’s Cambodia staff to increase their caseload to assist clients from the provinces of Pursat and Kampong Chhnang.

Interview with a prosecutor of the Takeo Provincial Court

Taken by Jodi Erickson
March 25, 2008

A Prosecutor of the Takeo Provincial Court gave a candid interview about the state of the criminal justice system in Cambodia, but asked to remain anonymous should any of this material be made public.

1. What is the general situation of defendants without defense lawyers in your court?

When defendants come before me as a prosecutor, I find the best way to treat them, as innocent people. I ask questions simply so they understand. I do not force them to answer questions. I say, “You have the right to ask for a lawyer. You don’t have to answer now.” When no defense lawyer is present in the pretrial phase, it is difficult. The accused’s rights are affected - they are violated. They often do not understand legal terms.As deputy prosecutor, I can ask the investigating judge to collect evidence. I can ask him to do more investigation. Many times, I dismiss cases for lack of evidence. But then, the accused has already been in temporary detention for four to six months. It is a real violation of people’s rights. Here in Cambodia, temporary detention is the same as prison, not a different facility.

But at the same time, we have no choice but to keep them in temporary detention during the pretrial phase. Sometimes I want to release them, but they will run away. Cambodia is not like other countries, where you must show identification to go somewhere or do things. It is impossible to find them and bring them back to court. Petrol is very expensive, so police cannot go to find people and chase after them. So they must stay in temporary detention. It violates the accused’s rights, but we have no choice.

2. Why are there no defense lawyers in Takeo?

Takeo is a poor province, so there is no money to be made here by private lawyers. They are all living in Phnom Penh. For felony cases, the court writes to the bar association to get lawyers for defendants.

Under our civil law system, there is no provision for permanent defense lawyers appointed by the government. The judges and prosecutors are appointed by the king. But if the case is a felony, the law requires that the accused has a defense lawyer.

3. How does the lack of a defense lawyer affect detainees? What are the consequences of not having a defense lawyer for detainees?

The detainee’s rights are violated. Lack of a defense lawyer provokes delay of the cases. The accused stays in temporary detention for a long time. If the case is a felony, we must wait until the court can appoint a lawyer for the accused. If the case is not a felony, the court will adjourn the case for one to two months at a time.

4. How do you feel prosecuting a case when there is no lawyer to represent the defendant?

In fact I am not the best prosecutor! I am lucky to have gone abroad and studied different legal systems. I try to treat my people as innocent people, to facilitate them. Some prosecutors, when asking defendants questions, use very bad words. It is harmful to the presumption of innocence. They are cruel and disrespectful. They act like the defendant is not a human being. They are threatening, “If you don’t answer my questions, you will stay in jail!” I never ask like that. Maybe this comes from my background as a lawyer, my local and abroad experience. I always want them to have a lawyer.

5. Why do you think it is important to have lawyers represent defendants?

It is better for them to have a lawyer. Better for the accused’s rights, better for everybody - even me. At trial, the defendant’s lawyer can be an eyewitness to how I asked the questions. The defendant cannot change his answers or later lie to a judge and say that I forced him to answer. It is good for the record on appeal. It is good for the whole system.

6. When you met with IBJ in August 2007, you urged IBJ to open an office in Takeo and have a defense lawyer stationed there? Why?

Takeo needs a defense lawyer. The whole court does. According to the criminal procedure code, we must ask a lawyer to represent the accused in a felony case, even during the investigatory judge phase. Both prosecutor and defense attorney should be present during that proceeding.

7. IBJ has been taking a number of cases in Takeo, especially of those detained awaiting trial. What difference has IBJ made in those cases?

I observed one or two cases where the accused was represented by Ouk Vandeth for IBJ. The proceedings go more smoothly. The rights of the accused are protected. There is no pressure on the accused by the court or the prosecutor. The proceedings go quickly. There are no long delays in cases.

8. How do you like your work as a prosecutor?
I don’t like it. I trained to be a judge, but the year I graduated there was a certain number of judge posts and a certain number for prosecutors. I had an unlucky draw, so I became a prosecutor. But this is my duty. I perform my job legally. I always protect people’s rights. I always perform the work legally - when there is something I cannot decide, I check the law books, in order that my decision comply with what is prescribed by the law. If there is no evidence - not only in the investigating judge period but also in the trial period - I always ask the judge to acquit. Other prosecutors, maybe they consider if the defendant has money.

The system would be better if there were independence of the judiciary from the other two branches of government (executive and legislative). Judges and prosecutors, we are afraid to lose their jobs. We worry about our security.

9. How do you define a fair trial in relation to the Cambodian justice system?

When the judge and prosecutor use the law effectively and respect people’s rights. When all the main principles of human rights are respected by the judge: presumption of innocence, right to counsel, rights of a minor defendant to be prosecuted without public participation if the lawyer requests it. And most importantly: that the punishment is consistent with the seriousness of the crime.

[Do you as a prosecutor have discretion in sentencing recommendations?]

No. In principle, the prosecutor asks the judge to impose a certain sentence [within a given range, for example, the law mandates a sentence of 5-10 years for robbery]. But the judge is not obligated to follow the prosecutor’s recommendation. I normally do not make a recommendation unless the defendant has never confessed even when there was a lot of evidence - this shows lack of remorse. But I normally want light punishment for a minor crime. Sometimes the judge takes into account mitigating circumstances - for example a judge gave a 2.5 year sentence to a minor convicted of robbery. As a prosecutor I was obligated to appeal because it was below the minimum, but I did not want to.

In my work, when I make my conclusions about an accused’s guilt, I imagine the prison. The prisons in Cambodia are very bad. In Takeo there are 370 prisoners right now. They are over one hundred in one room with one toilet. I ask aid agencies for help with the prison, but there is no help for Takeo.

I always think about the situation in prison. Defendants are just like us. We want to live in liberty, eat good food, spend time with our families. They want this too. It is unfair for them. I hope this message gets out. We need to build better prisons and improve the standard of living in prison. But living conditions for everyone in Takeo are bad. People earn 50 cents or maybe one dollar a day. The food is not clean, and prices are going up. I want Cambodia to be a democratic country. I do not know how long it will take to change.

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Since then, IBJ has opened an office in theprovince of Takeo which was inaugurated in January 2009. This structure hopes to bring early defense counsel to all prisoners in this province, guaranteeing a speedy and fair trial for every accused.

To reach our goals, we have recruit a provincial lawyer, Po Vannophea, a provincial investigator, Ouk Kalyan, and a provincial office assistant, Chhom Borey.

 We would to welcome them all to the IBJ Family!

IBJ is pleased to announce the opening of two new offices in Cambodia, a head office in Phnom Penh and a Defense Ressource Center in Takeo. We would like to let members of the Phnom Penh Head office who will be assisting IBJ’s first Senior Fellow Ouk Vandeth, introduce themselves.

As IBJ’s Cambodia Program Coordinator, Chantouch is responsible for IBJ’s Cambodia country program budgets and logistical planning. Chandyna is responsible for the day-to-day administrative tasks at IBJ’s Phnom Pehn office.
We would like to welcome both them to the IBJ’s Family!

Khay Chantouch
Program Coordinator
(IBJ in Cambodia-Phnom Penh)

My name is Khay Chantouch and I am 29 years old. I was born in Kyork village, in the Porpus commune of Prey Veng district and Prey Veng Province. I have two daughters. My parents lived with my grandmother in the village for several years and moved to live at Svay Orntour commune in Prey Veng province. In 1988, 52 houses in the area burned down including my family’s house. My parents were only able to retrieve a few belongings from the house and afterwards, their property was seized by the authorities and they were banned to live there. How could my family live? Where is the justice? Why didn’t the government pity homeless people like my family? So my parents didn’t have anything more and were forced to move to Phnom Penh city to live with my grand-aunt.
In Phnom Penh, my parents struggled and tried their best to live from hand to mouth and overcame all difficulties and obstacles here. However, they didn’t make me hopeless and sent me to school to study. I studied at Santhor Mouk Primary and Secondary School. Until 1997, I finished high school there also. Then I began my studies at Norton University to get a BBA degree in accounting. During my studies, I worked part time at CCI Group Co. Ltd. to get experience and money to support my studies. After graduating in 2001, I worked for O.D Paints Co. Ltd. In 2002, I started an MBA program at Norton University and finished in 2004. In 2008, I worked for Cambodia Delta Trading Co. Ltd. as an Accounting Officer.
After working in the private sector for many years, I realized that I was working only for a small part of society instead of the whole of society. I want to live in a society of peace, democracy and justice. I won’t have a peaceful moment if Cambodian people still cannot get justice. Working at an NGO has been my main desire since I was young but there was no chance for me until now. It is the best opportunity for me to work with IBJ because working at an international organization can help common and poor people who can not afford justice know their rights and not be abused and tortured in justice system. Particularly, I want to strengthen and update my skills, knowledge and awareness about law and the justice system in my country. Anyway, I want to spread legal rights awareness for all people in Cambodia.

Ouk Chandyna
Office Assistant
(IBJ in Cambodia-Phnom Penh)

My name is Ouk Chandyna and I am 32 years old. I was originally born in Battambong province. I have five sisters and one brother and I am the oldest. My parents then moved to the Norng Chan Border in 1980 and then in Side 2 Camp in 1982. I finished high school in 1991 and after my family returned to Battambang province. In 1993, my parents moved to Takmao district in Kandal province.
In Kandal province I couldn’t study at university to get a bachelor’s degree but I had studied other skills including English and Thai languages. In 1996, I worked as a police officer for two years. Then I worked as a secretary at H.E Vibol for the Election Committee for one year. I married in 1999 and have two daughters and one son. I worked for Legal Aid of Cambodia as a receptionist and assistant lawyer until 2007.
I left my work there and joined IBJ to get new experience here. Working for IBJ means helping the poor get a lawyer and protect them in the court. IBJ also helps poor Cambodians know about the law and to protect themselves.

IBJ is pleased to announce that it is the recipient of a substantial grant from the European Union. The European Union is financing the Cambodia, Burundi and Zimbabwe Criminal Defender Programs for a three-year period starting from December 2008. With that crucial support, IBJ will significantly contribute to the eradication of the practice of torture and other cruel and inhumane treatment against accused persons through the effective access to competent and timely legal representation for these countries’ most vulnerable groups. With the support of the European Union, IBJ will foster an enduring respect for human rights culture in crisis-torn Zimbabwe and post-genocide Cambodia and Burundi where early signs of progress and recovery are challenged by the weak rule of law prevailing on a daily basis.

Under its criminal defenders programs funded by the European Union, IBJ seeks to build the in-country leadership of the national criminal justice movements, strengthen the capacity of criminal defenders, judges, police and prison officials. Furthermore, sparking dialogue and collaboration among them has potential to effectively implement the criminal legislation, improve ordinary people’s awareness of their legal rights and provide effective direct case support to the most vulnerable.

“The European Union is made up of 25 Member States who have decided to gradually link together their know-how, resources and destinies. Together, during a period of enlargement of 50 years, they have built a zone of stability, democracy and sustainable development whilst maintaining cultural diversity, tolerance and individual freedoms. The European Union is committed to sharing its achievements and its values with countries and peoples beyond its borders.”

The European Commission is the EU’s executive body.

The IBJ Fellow in Cambodia, Ouk Vandeth, recently conducted a training session for criminal defenders. The training was originally planned to accommodate for 15 participants. However, owing to an overwhelming amount of interest in the subject a total of 26 participants were allowed to attend.The subject of the training was the role of the investigating judge and the role of the defender during pre-trial detention. The materials presented focused on the procedures of pre-trial detention, the process for inquiry into the alleged crimes of the accused, the requirement to obtain an arrest warrant, the methods criminal defenders may adopt to request bail on the behalf of their clients and the rights of the accused to appeal the grounds of their detention when the crime they are accused of is not part of the law. All these issues were covered to provide the participants with an important understanding of how to better protect and represent their clients while awaiting trial.

The participants responded very enthusiastically to the training. All the participants found the training very helpful and recognised their need for such training to further carry out their duties. Many indicated at the end of the training that they we would to participate in further IBJ training session because they believed that there was still a lot they could learn about how to represent persons accused of crimes.

Ouk Vandeth has been an IBJ Fellow in Cambodia since 2006. He has many years experience working as a criminal defender in Cambodia and most recently served as the Director of Legal Aid Cambodia. Vandeth was a graduate of one of the earliest law classes in Cambodia aimed at legal defence. Prior to obtaining his law degree, Vandeth served as a police officer in Cambodia working closely with prosecutors and other department officials.