In 2005, the Phnom Penh Court convicted and sentenced two men — Born Samnang and Sok Sam Oeun — to 20 years in prison for the murder of renowned labour union leader Chea Vichea in 2004. In April 2007, the Court of Appeals upheld their sentences. Both judgments have been severely criticised as they were primarily based on the confession that Born Samnang had made to the police, prosecutor and investigating judge; a confession that Born Samnang emphatically retracted when interrogated for the second time by the same investigating judge, on the grounds it had been made under threats and promises during his initial interrogation by the police.
Cambodian courts readily admit confession evidence, pay scant regards to the accused person’s claims to have made confessions under torture or ill-treatment, and do not insist upon having corroborative evidence in their conviction of defendants. The Centre for Social Development (CSD) in Phnom Penh has found that 289 or 17% of 1,703 defendants whose cases it had observed at the Phnom Penh Court over the period of 12 months, from October 2005 to September 2006, had claimed to have been “tortured” into making confessions, and that 91% of those defendants were convicted. The CSD has also found that, during the same period, at the Court of Kandal province, 30 or 11% of 268 defendants claimed that police officers had used “physical or psychological pressure” on them, and that 93% of those defendants were convicted.
Torture or ill-treatment of suspects in the investigative phase and the courts’ admission of confession evidence that results from such practices, run parallel to the pervasive presumption of guilt in the investigative phase. These practices are widely condoned, regardless of whether suspects have the constitutional right to the presumption of innocence and freedom from torture and other forms of ill-treatment, and the fact that confessions made under torture are legally not admissible in court. All these defective practices result mainly from inadequacies in the law on criminal procedures, especially concerning the initial investigative phase. In this phase, suspects detained by the police have no right to access to counsel and to have counsel present during their interrogation by the police in practice. The criminal law of 1992 (UNTAC law) in its article 10(1) does guarantee the right of access to counsel for “any person accused of misdemeanor or felony.” However, in the following paragraph of the same article, ambiguity is created concerning the application of this right when a person is being detained in police custody and interrogated before being brought before court, as this paragraph only says that: “no one may be detained on Cambodian territory more than 48 hours without access to assistance of counsel, an attorney, or another representative authorized by the present text, no matter what the alleged offense may be.”
In fact, the police cannot detain any suspect for longer than 48 hours. Because of this ambiguity, suspects cannot have immediate access to legal counsel when they are in police custody following their arrest. Born Samnang and Sok Sam Oeun did not have access to any counsel while in police custody, or any counsel present when the police and the prosecutor interrogated them. A lawyer was, however, present during their interrogation by the investigating judge.
This is not the only right that is being denied to suspects in practice. The fact that there are no rules and procedures on the questioning of suspects and the taking of statements to instruct police officers on how to interrogate suspects means that other rights – such as the right to have relatives informed of the place of their detention, the right to have access to a physician, and the right not to incriminate themselves, that is, not to answer any question if they do not wish to do so – are effectively being denied in practice.
The absence of all these rights has several negative consequences for suspects. It opens the way for torture and other forms of inhuman treatment to extort confessions, and engenders other abuses, such as getting suspects to sign or put their thumbprints on blank sheets of paper or on statements that they are not allowed to read or are not read to them. When a suspect is brought before a prosecutor, the latter has no mandatory duty to check his or her physical or psychological state to see whether the person has been subjected to ill-treatment or torture. As the prosecutor rarely conducts any further investigation, he or she normally relies on the police’s work. The suspect’s statement that is recorded by the police has a heavy bearing on the way in which the person is judged, inducing the prosecutor to presume the person’s guilt, ascertain the culpability and lay charges against the suspect. The prosecutor then gets an investigating judge to conduct a thorough investigation of the case according to the procedures that are in force.
The police record and the prosecutor’s charges in turn have a heavy bearing on the investigating judge and develop in him or her the same presumption of the guilt of the accused. This judge does not start from a blank sheet, but instead conducts his or her investigation based on these records. However, because of limitations concerning expertise or resources, the investigating judge tends to rely on the same police officers to get witnesses’ statements and/or to conduct further investigations on his or her behalf in order to complement his or her own investigations.
Sometimes investigations conducted by the investigating judge and by the police yield no further evidence. As a result, when tried, the suspect could be convicted based solely on his or her first statement, as recorded by the police, if there is no evidence to the contrary. The current law on criminal procedures of 1993 admits such police records as being “authentic evidence” for the conviction of the accused, when it says in its articles 41 and 42 that, although a police record normally serves as a piece of information, it nevertheless “shall be considered as authentic evidence” and “judges shall consider the essence of the record truthful and accurate as long as no contradictory evidence is brought up.” In Born Samnang and Sok Sam Oeun’s trials, the judges at both the lower and the higher courts ignored the exculpating testimonies and Born Samnang’s retraction of his confession to the police, prosecutor and investigating judge, and based their respective judgments on this confession as recorded by the police, the prosecutor and the investigating judge. Sok Sam Oeun protested his innocence but Born Samnang named him as his accomplice in his confession.
If Born Samnang had the right of access to counsel after his arrest and during his interrogation by the police, there would not have been any controversy over the validity of his confession and his claim of the use of torture by the police to extort it. A major and crucial flaw in the trials of both men would not have existed, and the trials would have been more fair and credible, and would have created less controversies and criticism. This conclusion also applies to the trials of the 289 defendants tried at the Phnom Penh Court and the 30 others tried at the Court of Kandal province mentioned above, and also to all past or future trials in the country of such defendants.
The Asian Human Rights Commission (AHRC) urges the Cambodian government and parliament to honour their country’s human rights obligations and adopt a new code of criminal procedures, a draft of which is currently before parliament, in order to protect the rights of suspects in the first investigative phase of the criminal process, in conformity with articles 9 and 14 of the International Covenant on Civil and Political Rights, to which Cambodia is a party. This law must stipulate effective guarantees and protection of the rights of suspects to have access to legal counsel of their choosing immediately from the time of their arrest, to have the presence of counsel during their interrogation by the police, and not to incriminate themselves by having the right not to answer any questions if they do not wish to do so. Suspects must also have the right to inform their family of their arrest and place of detention, and to have their family visit them. They must further have the right to undergo medical examinations while in police detention. The code must make it mandatory for the detaining police officer to inform them of all these rights, and any failure to do so must render the police records of suspects’ statements inadmissible in court. The police must put up posters concerning all these rights in visible places to inform suspects in police custody and also inform them of these rights in person.
The code must make it mandatory for prosecutors and investigating judges to examine the physical and psychological state of suspects or accused persons when the police bring these persons before them. The prosecutors and judges must investigate any claim of torture or upon suspicion of such torture, call on medical expertise to conduct investigations, and prosecute the authors of torture. The same code must, in addition, lay down the rules and procedures for the questioning of suspects and the taking of statements, including the investigator’s obligation to inform suspects of their rights, and to caution them that what they say may be used as evidence in court. These rules and procedures must also include the mandatory tape recording of the interrogation and ensure that the suspects or their legal counsel have the right to have a copy of this recording. To ensure that all these measures are complied with, the code must further make it mandatory for prosecutors to make regular visits to places of detention within their respective jurisdictions.
