CAMBODIA: Unjust conviction of two men by the appeal court in the murder of Chea Vichea

[NOTICE: The AHRC have developed a new automatic letter-sending system using the “button” below. However, in this appeal, we could not include e-mail addresses of some of the Cambodian authorities. We encourage you to send your appeal letters via fax or post to those people. Fax numbers and postal addresses of the Cambodian authorities are attached below with this appeal. Thank you.]

Dear friends,

The Asian Human Rights Commission (AHRC) condemns the unjust and politically biased conviction of two men in the murder of a prominent union leader Chea Vichea by the Court of Appeals yesterday. In its final verdict, the Court of Appeals upheld the Municipal court’s verdict of August 2005, in which the two accused had been sentenced 20 years imprisonment. According to our observer, the Court hurried to announce the final verdict before even 7:30am in the morning and the hearings was not fair and reasonable.  Born Samnang and Sok Samoeun were arrested just one week after the murder of Chea Vichea, and rights groups and lawyers have been criticizing their prosecution and unfair trial in the Municipal court, despite a lack of evidence and witnesses. Chea Vichea was gunned down in 2004.

DETAILS OF COURT PROCEEDINGS:

On 6 April 2007, the Court of Appeals held a hearing in the murder case of Chea Vichea.  The two accused men, Born Samnang, 25, and Sok Sam Oeun, 38, appeared before the Appeals Court. After the cross-examining the two men and witnesses, the Appeal Court prosecutor Pan Kim Heng requested Judge Saly Thearato order a re-investigation into Chea Vichea’s murder due to a serious procedural lapse caused by the incompetent previous police investigation. The appeal judge Saly Theara then delayed the sentencing until April 12 and announced that the final hearing would begin at 7:30am. However, suspicions arose that the Court deliberately chose April 12 for sentencing to minimise reactions to its verdict when Cambodians are busy celebrating their new year.

On April 12, not surprisingly, the Appeals Court began its final hearing at 7:20am even before the posted time of 7:30am. The final hearing was also conducted in the absence of the two defendants and their defense lawyers. Judge Saly Theara took only moments to uphold the August 2005 sentence against Born Samnang, and Sok Sam Oeun, for the January 2004 shooting death of Chea Vichea.

Fewer people from the media and human rights groups were present at the hearing as it was held too early and finished quickly by 7:40 in the morning. The Appeals Court has never conducted a hearing at such early time before or in such a rushed manner.

The AHRC has learned that appeal judge Saly Theara rejected all of the defend witnesses as well as the appeal court prosecutor’s request for re-investigation. The appeal judge Saly Theara said in the hearing that evidence given by the Sok Sam Oeun’s witnesses lacks relevant facts. He also rejected the evidence given by Meng Hourt because he is not an official witness as he did not vow before court.

According to the report from our observer, who closely monitored the appeal court hearing, during the hearing, the appeal court did not bring the prosecution witnesses for the hearing at all. Also, the Phnom Penh police officers allegedly asked for Born Samnang’s photo from his sister, named Bon Srey Na, before his arrest and during the appeal hearing on 6 April 2007, Born Samnang raised the issue of being tortured at the police station to force him to confess.

The appeal court also did not bring Mr. Heng Pov who is the ex-Phnom Penh police chief and the police officer named Ly Rasy who worked under supervision of Heng Pov and allegedly tortured Bon Samnang and Sok Sam Oeun despite the fact that there are very important to the case.

The appeal judge did not also accept Ms. Va Sothy’s statement issued on 10 August 2006 from Thailand, who was an eyewitness and who saw the perpetrators very clearly because she also had not taken a vow before the court. The appeal judge ignored the appeal court prosecutor’s request for reinvestigation in order to seek out the real perpetrators. It is believed that the decision of the judge was politically motivated.

According to Chom Sovannaly who is Born Samnang’s lawyer, it was procedurally wrong that the appeal should have been decided in the absence of the defendants who had the right to be present.

The AHRC strongly urge the Cambodian authorities as well as international community to immediately intervene into this matter to bring independent and effective re-investigation into the murder of Chea Vichea so that the real murderers are brought to justice. Born Samnang and Sok Sam Oeun should be given a chance for re-trial and released without delay, unless there is sufficient evidence to bring charges against them.

ADDITIONAL COMMENTS:

The Appeal Court’s verdict did not come as a surprise when the court had chosen 12 April for its announcement and its hurry to make it before even 7.30 in the morning. This was a deliberate calculation to minimise reactions to its verdict when Cambodians are busy celebrating their new year.

It did not come as a surprise either when the practices in Cambodian courts are bent on the accused’s confessions, the presumption of guilt of the accused and the defence’s burden of proof to the contrary, and not on factual evidence to prove that the accused are guilty beyond reasonable. A court of law that “protects the rights and freedoms of the citizens”, as one of its constitutional duties is, would summon all witnesses to testify and be cross-examined in court and get the prosecutor and the investigating judge to submit sufficient evidence to prove that the accused had committed the crime as charged. As far as we confirmed, at both trial hearings, at the Phnom Penh Municipal Court and at the Appeals Court, none of the prosecution witnesses came to testify and be cross-examined. The artist of the sketches of the alleged offenders was not at court. Both courts have relied on police reports, prosecution witnesses’ statements before the police and the investigating judge, and Born Samnang’s confessions. There is a lot of doubt about all this ‘evidence’.

We think the Appeals Court made such decision because any acquittal of these two men would create two serious problems to the Cambodian government. One would be for the police: their investigation would be seen as seriously flawed. Good governance would call for an inquiry into police investigation to identify flaws and shortcomings. The other would be for the Supreme Council of the Magistracy (SCM): Investigating judge Hing Thirith at the Phnom Penh Municipal Court was right in dropping the charge against the accused in 2004 and the SCM was wrong in disciplining him soon after. Further, both the President and the Prosecutor-General of the Appeals Court are ex-officio members of the SCM.

Now Born Samnang and Sok Sam Oeun will be held in prison for 20 years for the crime these two men in all probability have not committed. In all probability too this is a huge miscarriage of justice.

BACKGROUND OF INFORMATION

Chea Vichea was an outspoken activist against Prime Minister Hun Sen’s government. He was also the president of the Free Trade Union for Kingdom of Cambodia. Chea Vichea was assassinated on 22 January 2004 and within one week, the Phnom Penh police chief Heng Pov arrest Born Samnang and Sok Sam Oeun as suspects on 28 January 2004. The police then allegedly tortured the two men to extract the forced confession.

On 19 March 2004, Phnom Penh Municipal investigating Judge Heng Thirith dismissed the case against the two men for lack of evidence. The judge Heng Thirit was then removed from his position and later on transferred to Stung Treng province. After Heng Thirit was transferred to Stung Treng province, the appeal court presiding judge Thou Mony overturned Judge Heng Thirit’s decision and ordered that the murder charges be reinstated. On 1 August 2005, Born Samnang and Sok Sam Oeun were convicted and sentenced to 20 years in jail by Judge Kong Seth in Phnom Penh municipal court.

Born Samnang and Sok Sam Oeun have maintained their innocence in the 2004 shooting death of Chea Vichea, who headed Cambodia’s Free Trade Union of Workers. Cambodian and international human rights groups have campaigned for the two convicted men’s freedom, saying Cambodian authorities have ignored evidence proving their innocence and made them scapegoats to conceal the real killer.

SUGGESTED ACTION:
Please immediately write to the relevant authorities listed below and demand an independent and effective re-investigation into the murder of Chea Vichea and grant re-trial to Born Samnang and Sok Sam Oeun.

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