The Asian Human Rights Commission has already underlined the failures of justice in the conviction of two men accused of the January 2004 murder of Chea Vichea, a famous Cambodian labour union leader. In August 2005 Born Samnang and Sok Sam Oeun were sentenced by the Phnom Penh court to 20 years in prison for his killing. But one year later, the sole eyewitness, Var Sothy, made a notarised statement from Thailand saying that the men are innocent and calling for their release. She described the true sequence of events, and said that she had seen the real killer again after the crime, but had not told the truth to investigators because she was afraid for her life. She has now been granted asylum abroad.
With Var Sothy’s statement, if not before, all fair-minded persons will question this conviction, and with it the management of the entire Cambodian judicial system. Both accused are widely believed to be scapegoats in a politically-motivated killing, as Chea Vichea was a staunch fighter for workers’ rights, a vocal government critic and a supporter of the main opposition party. The criminal process in the case has been make-believe from start to finish. From the day after the murder, without ever having interrogated Var Sothy, the police produced photo-fit portraits of both accused, and paraded them before a press conference a week later. The police then claimed that the suspects had confessed to the crime. Born Samnang later said that he had been tortured in order to give a confession. In March 2004, Hing Thirith, the judge assigned to investigate the case for trial, was removed after he dismissed it due to lack of evidence and procedural irregularities. The Phnom Penh court also did not order prosecution witnesses and Var Sothy, the sole eyewitness, to testify. It dismissed all evidence in support of the accused, including their alibis, and announced its judgment a mere twenty minutes after the end of the hearing, suggesting that it had been prepared beforehand.
It is now beholden upon the Appeal Court, where the case is pending, to restore some credibility to the criminal justice system in Cambodia. In view of Var Sothy’s statement, the Asian Human Rights Commission calls on the court to exercise the provisions in article 192 of the Law on Criminal Procedure and assign one of its members to conduct further investigations. In ascertaining all evidence, this judge must focus on the new account of the murder and those responsible. The judge can also take advantage of article 86 in the same law, pertaining to cases of absolute necessity, and go to Var Sothy’s domicile in her new country of residence to hear and record her testimony, as due to fear for her life she cannot return to Cambodia and appear in court.
There must be no delay in ascertaining this new evidence. Born Samnang and Sok Sam Oeun have been jailed for nearly two years over a crime they most probably did not commit. Every additional day they are held is a further miscarriage of justice. The court must not hesitate to exhaust its resources in the search for the truth and use the law to compel all witnesses other than Var Sothy to come before the court and testify. If the court finds it beyond its means or capability to go to Var Sothy to hear and record her testimony in person, then it must accept her notarised statement, overturn the judgment of the Phnom Penh court and set both men free.
The Asian Human Rights Commission also urges the Cambodian government to allocate adequate resources to the Appeal Court so that it might carry out its tasks effectively, and calls upon the support of donor governments, UN agencies, international aid agencies and the international human rights community for the same, not only to protect the rights of the two wrongly accused in this case, but for the sake of all accused in all criminal cases before the courts in Cambodia.
