CAMBODIA: Suspicious custodial death underlines need for protection of suspects’ rights

On August 21, 2007 at 6 a.m. a wealthy and well-connected businessman named Oum Chhay, who had been arrested on suspicion of drug-trafficking, was found lying dead on his back on the ground beneath the balcony of the office of the Anti-Drug Department in Phnom Penh. The police immediately said that the suspect had committed suicide by jumping from a first floor window when he went to the toilet. The police claimed that he had already attempted to kill himself twice during detention. They set up a committee to investigate this death and have reportedly taken measures to prevent its repetition. They also said that they had taken action against officers guarding Oum Chhay for failing in their duties.

For three days, the police did not provide much information concerning Oum Chhay’s detention and death, which were shrouded in mysteries. Journalists and human rights activists were not allowed to see his body at the Anti-Drug Department and were given very little information about the results of the autopsy that had been conducted by the police’s forensic officials and a doctor at Preah Monivong Hospital in Phnom Penh, a few hours after the discovery of the dead body. The police simply said that Oum Chhay had injuries to the back of his head and that his death resulted from a fractured skull. The public and the suspect’s family were sceptical about the police’s version of events concerning Oun Chhay’s death. To some people it is reportedly thought unlikely that a fall was the real cause of Oum Chhay’s death, and they do not believe that such a wealthy man would so easily abandon all his wealth and commit suicide. Others have suspected that, considering his status and connections, Oum Chhay’s death may have been meant to stall and obstruct police investigations into the possible involvement of people in high places. Though nobody has openly expressed it, due to fear of recriminations, privately many feel that foul play concerning this death cannot be ruled out.

Oum Chhay, 51, was an army general and a prominent businessman, and had the title of Lord (Oknha).  He owned Chhay Chay Investment Company, whose main business is located in the thriving Poipet Special Economic Zone on the Cambodian-Thai border in the north-west of the country. He was also the Chairman of the Chamber of Commerce of the Province of Beantay Meanchey, where Poipet is located, as well as being named as Advisor to Heng Samrin, the Honorary Chairman of the ruling Cambodian People’s Party and President of the National Assembly. Oum Chhay was a wealthy man, known to have some US$ 50 million in banks in Cambodia and abroad, as well as being the owner of hotels, villas and land in different provinces, especially in development zones in different parts of the country.

The police finally announced in a press conference held in the afternoon of August 24 the findings of the investigation committee led by the prosecutor of the Phnom Penh court, with the participation of police forensic officials, a doctor, and Oum Chhay’s wife. Without indicating the date and time of the investigation,  the police presented the findings of the committee which showed  Oum Chhay’s finger prints on a window frame, his footprint on a balcony rail, blood oozing out of his hears, injuries in his head, and bruises on the palms of his hands. The committee concluded that Oum Chhay had committed suicide by jumping from the afore-mentioned window. In the same press conference the police revealed that there had altogether been 15 police officers on guard during Oum Chhay’s detention, including three staying with him in the detention room. But, in contrast to what they had claimed earlier, they only mentioned one attempted suicide in the early hours of August 20, when Oum Chhay allegedly attempted to electrocute himself but was prevented in doing so by the guards.

Whether this inquiry was meant simply to confirm what the police had said earlier on, and whether it succeeded in ending suspicion of foul play, remains debatable. The Asian Human Rights Commission (AHRC) is gravely concerned not only about the cause of Oum Chhay’s death, but is also concerned by issues relating to the criminal procedure, particularly at the stage of police investigations. It believes that the failure to comply with this procedure as well as its intrinsic flaws were instrumental in his death.

In April 2007 the police raided an amphetamine production laboratory in Kompong Speu province, which is located south-west of Phnom Penh, and arrested 18 men. Together with another raid in Phnom Penh, the police seized nearly six tons of the drug, which they destroyed by fire on August 16, 2007. Police investigations then led to the arrest of Oum Chhay on August 15, 2007 in Poipet, upon his return from Thailand, for alleged involvement in the transportation of more than four tons of amphetamine precursor-chemicals to the laboratory in Kompong Speu province.

After his arrest, Oum Chhay was sent to the Anti-Drug Department in Phnom Penh for interrogation. Excluding one day for transportation, Oum Chhay was in police custody for six days, far exceeding the period of 48 hours that Article 66 of the Drug Control Law of 1996 allows. The police have claimed that they had received an authorisation from the prosecutor of the court of Phnom Penh to extend Oun Chhay’s detention for further interrogation. An extension is possible under Article 96 of the Code of Criminal Procedure, which was promulgated just days before Oum Chhay’s arrest; however, this extension cannot exceed 24 hours. Furthermore, this Code only came into force on August 20, meaning that an extension to Oum Chhay’s detention could not have been made immediately following his initial 48 hours of detention, making the legality of this extension questionable. As a result, Oum Chhay was detained illegally for at least three of the six days he was held by the police. There is a chance that Oum Chhay’s death could have been prevented if he had only been detained for the 48 or at most 72 hours the allowed under the law. Oum Chhay’s detention for six days before his death was in breach of both the Drug Control Law and the Code of Criminal Procedure, and is an important factor in his death. This breach is a violation of the suspect’s rights and is punishable by one to five year imprisonment under Articles 22 and 57 of the UNTAC Law.

The Drug Control Law and the Code of Criminal Procedure have flaws that may also well have contributed to Oum Chhay’s death, as they do not fully recognise and protect the rights of suspects who are in police custody. The Drug Control Law is silent on the right of custodial legal counsel. The Code allows an arrested person to talk to a lawyer or any other person of that person’s choosing (except persons involved in the same offence) for 30 minutes following the first 24 hours of their detention. It also makes it mandatory for the custodial officer to inform arrested persons of this right. However, it fails to guarantee the right to the presence of a lawyer during the police’s interrogation of suspects.

In Oum Chay’s case, there is no indication that he had been informed of his right to talk to a lawyer or a person of his choice after he had been detained for more than 24 hours. Had he been informed of this, such a wealthy man could not have failed to seek legal counsel or to at least talk to a member of his family. There is no indication that a lawyer was present when the police were interrogating him. Any person in such contact with Oum Chay would have at least noted his mental and physical state and alerted the police about it, if indeed he was appearing imbalanced or suicidal. This omission is also a violation of the suspect’s rights and is punishable under Article 57 of the UNTAC Law.

Furthermore, if suspects in police custody were guaranteed the right to undergo examination by a doctor, Oum Chhay’s death could also potentially have been avoided. However, both the Drug Control Law and the Code do not recognize and protect this right. They provide for medical examinations, but their provisions are drafted in such a way that suspects depend on the mercy of the custodial officer, the prosecutor or the investigating judge in order to have such medical examinations. Article 66 of the Drug Control Law stipulates that “from the beginning of the arrest, if the arrested person has so requested to the prosecutor or the investigating judge, and if such a file case has already reached him/her, the prosecutor or the investigating judge shall order a doctor to go down to examine the arrested person every 24 hours.” For its part, Article 99 of the Code says that “a prosecutor or judicial police officer may ask a doctor to examine an arrested person at any time.” However, both pieces of legislation fail to make such medical examination a straightforward right and to make it mandatory for the custodial officer to inform suspects of this right.

Had he been informed of the right to be examined by a doctor, Oum Chhay may not have failed to make such a request, as he could well afford it – financially well-off suspects have to pay for such medical examinations under the Drug Control Law. If there had been compliance with both pieces of legislation, a doctor would have examined him. His or her visit every twenty four hours as stipulated in Article 66 of the Drug Control Law would have given Oum Chhay some comfort. The doctor would have been able to monitor his physical and mental state while in detention and, if something was wrong, would have been able to report it to the police, the prosecutor or the investigating judge, enabling them to take appropriate action. He or she would have learned about the alleged attempts by Oum Chhay to commit suicide, and would have been able to report this to the custodial officer, the prosecutor or the investigating judge. Oum Chhay’s death could have well been avoided if the law recognized and protected the right of suspects to medical treatment and made it mandatory for custodial officers to inform suspects of this right at the beginning of their detention.

The Asian Human Rights Commission deeply regrets that the recently promulgated Code of Criminal Procedure fails to recognize the rights of suspects in police custody to legal counsel, to visits by family members, to the presence of a lawyer during police interrogation and to medical examination from the beginning of their detention, in conformity with the international human rights standards and norms that Cambodia has adhered to. The death of Oum Chhay in police custody should force the Cambodian government to honour its international human rights obligations and amend the Code in order to incorporate the guarantee and protection of these rights. The AHRC strongly urges that government to make such amendments in order to prevent torture and suspicious custodial deaths of persons being detained by the police. These amendments should also make it mandatory for custodial officers to inform such persons of these rights. Any failure by the police to inform suspects in their custody of these rights must render inadmissible any evidence that the police obtains from them.