J. Salomé

After a two hour drive from Ratanakiri we arrive in Stung Treng, a small provincial city in the North East of Cambodia close to the Lao border. We go off the main road and follow a path going under a bridge, a red-track shadowed by trees with small village houses on each side. We stop the car in front of a fence, go beneath it and walk in a property. At the end of the garden, on the left side, there is a traditional wooden house on stilts. Next to it, a small, simple concrete house is standing with a pediment reading that the house was donated to the family to support them.

A young man is waiting for us in front of the small ladder leading to the wooden platform of the house. His name is Ly[1], and he was defended by the IBJ lawyer a few months ago. We settle on a mat on the platform to listen to his story while a very old woman comes towards us, looks at us attentively, and sits down next to us. Ly explains that she is his grandmother and that she does not speak Khmer, but Lao. He seemed quite impressed to meet again his lawyer, the person who got him out of jail a few months ago. But one could also see a hint of sadness in his eyes, as a now permanent mark of his experience in detention.

On 11th September 2013, Ly was sitting in a café when one of his acquaintances walked up to him and gave him two sets of clothes before rushing out of the place. A little confused, Ly went back home and pursued his daily routine. However, two weeks later, the police came to his home to accuse him of having stolen these clothes. They took him to the police station, where he stayed a few days before being transferred to the prison in Stung Treng in pretrial detention. The friend who had given him the clothes was arrested as well.

Ly had spent a total of 3 months and 23 days in pretrial detention. He was 17 years old at that time. His case was referred to Mao Sary, the IBJ lawyer working in Ratanakiri and Stung Treng provinces, by ADHOC, the human rights NGO. Ly and Sary met the day of the trial, on 23 January 2014. Ly knew from his father that a lawyer could defend and protect him. In his plea, Sary carefully analyzed the facts and highlighted that his client had only witnessed the whole situation. His friend, the actual perpetrator, was trying to get rid of the evidence. He underlined in his defense strategy that the police were not present at the crime scene and that his client was not in possession of the object of the offense. He also stressed that Ly had been consistent in all his statements, denying the charges all the way throughout the procedure. Over the course of the trial, Sary realized that the prosecutor was still reluctant to listen to the defendant’s version of the facts. The prosecutor claimed that Ly was an accomplice to the theft. So Sary decided to interrogate the victim whose statement matched the version of the facts alleged by Ly in order to make a powerful argument in favor of his client. Despite the prosecutor’s unwillingness to drop the charges against Ly, the judge decided to acquit and release him the same day.

When Ly was awaiting his trial in Stung Treng prison, he was struck by the unjust character of what was happening to him. As a juvenile, he was kept separate from the adults. The prison conditions were not easy: he had only two meals a day and drinking water was scarce. He became stressed and could not sleep well in jail. As he was evoking and reviving these painful memories with us, his look became more evasive and tainted with sadness. He told us that he had missed his family a lot and written many letters to them while he was in prison.

One afternoon, when Vanni nearly reached his father’s boat to fish, he was arrested by the police. At that time, the police was regularly monitoring the area as Prek Phsout was a hot crime spot for illegal fishing. In Kampong Chhnang, there are some areas where fishing is prohibited by the Ministry of Agriculture in order to protect the wildlife. The “Prek Phsout” area has many fishes so many go there with the intention of catching a lot. As a result, the police can arrest people violating the fishery law. However,in reality, it can be difficult to identify the limits of these prohibited areas as they are not clearly marked.

Vanni did not reach his father’s boat. He claimed that he was alone in another boat at the moment of the arrest. As it seemed he was related to the alleged offense committed by his father and relatives, the police told him that they would just bring him to the police station for one day. But this one day turned out to be nearly one year: from the day of arrest, he had been temporarily detained for 10 months and 8 days. When the police questioned him as to what happened, he did not answer as he was at a different place in the moment his father and relatives were allegedly using illegal electrical fishing equipment. In the police custody, Vanni claims he was not subjected to torture. However, police officers failed to inform him about his right to have a lawyer. When his detention was getting longer, Vanni felt frightened as he was expecting to go home in 1 or 2 days.

On the same day, the police arrested six people in total, including his father, his relatives and him. Vanni and his relatives were all charged for using illegal equipment to fishing violating provisions of the fishery law.

After interrogating Vanni at the police station, the police pressed charges against him as his father that they had electrical equipment on their boat.  They considered Vanni as an accomplice. After investigation at the police post, they sent him to the police post at the provincial level and to the prosecutor. The prosecutor informed him about his right to choose a lawyer. Vanni did not know how he could find any of them. He was held in pre-trial detention from February 17^th 2013.

While Vanni was in pre-trial detention, his mother visited him 7 to 10 times. He has eight siblings. His mother took care of their farm to support the family as his father and relatives were imprisoned. His father and relatives received a reduced sentence of 10 months and a half instead of the 3 to 5-year scale prescribed for by the law. In the prison, Vanni shared a room with fourteen other minor people, the food was all right and he could use the water two times per day with two bowls. He was allowed to go out of his cell for about 10 to 30 minutes, twice a day. He was not guilty nor convicted, but just waiting for his trial. He was not assigned any task in the prison, apart from having to pump the water two times a day. While he was in prison, he was waiting and waiting with no hope because he knew his family was too poor to help him.

IBJ lawyer, Mr. Chantol, was assigned by the trial judge to represent Vanni in July 2013 because he was a minor. According to the Code of Criminal Procedure (Art. 301), the assistance of a lawyer is compulsory if the case involves a felony or if the accused is a minor. Mr. Chantol met Vanni two times in the prison. In most of the cases in this province, the Court assigns IBJ lawyers to represent the defendants. Sometimes the judges ask the Bar Association to provide them a free legal aid lawyer but this implies that the lawyers would come from another province, often from Phnom Penh which takes time and delays the hearing. Mr. Chantol, based in Pursat province, is the only legal aid lawyer in Kampong Chhnang.

On December 4, 2013, during the hearing of Vanni’s trial, the IBJ lawyer asked the police: “Do you know why people end up fishing in areas where it is prohibited by the law?” He followed up his question with the answer, “They are not aware of this because in the lake, the government put poles to indicate where fishing is prohibited. But the poles are not visible and some of them are missing. That’s why people get mistaken.”

During the trial, the IBJ lawyer’s arguments were that Vanni was not in the scene of the offense when it happened. Also, he did not possess any illegal electrical equipment in his boat. Secondly, he was using some bait and fishing equipment which was not illegal. His fishing gear was made of bamboo and a hook. In the Constitution of the Kingdom of Cambodia, Article 38 stipulated that “any case of doubt, it shall be resolved in favor of the accused.” By using this article, the IBJ lawyer asked the judge to release him. Previously, the IBJ lawyer had already used this article to release another client for a serious felony. Therefore, the IBJ lawyer demanded that the judges drop the charge because of lack of evidence and reasonable doubt that he has not committed the offence.

Vanni has been held in pre-trial detention for over 10 months. Although he was a minor, he was arrested with adult members of his family; the Court failed to apply legal provisions that are for juveniles in the Criminal Procedure Code. As a result, he was subjected to excessive pre-trial detention. Lawyers pay particular attention to the length of pre-trial detention, especially in juvenile cases. Accordingly, Mr. Chantol decided to pursue an effective strategy. He could have applied for the automatic release of his client, pending his trial hearing. Nonetheless, Mr Chantol decided to request the judge to set a trial date in order to avoid subsequent delays in processing the release and scheduling the trial date. His primary objective was to get Vanni released as soon as possible.

IBJ Client (Vanni) and IBJ lawyer (Mr. Roth Chantol)

After having been detained 10 months and 7 days, the Court acquitted Vanni on December 24, 2013 and he was released on the day after. Vanni came back to his family. His neighbors felt pity for him, but they did not discriminate him although he had stayed in prison. This also shows that there are changing attitudes among the community in relation to the accused persons. Vanni was not sure if he could go back to the school as his family needs may compel him to go look for work. Vanni is really thankful to the IBJ lawyer’s work. Without the IBJ lawyer, he might have stayed in prison for a much longer period without knowing when he would be released.

By Da-Eun Seok

Her journey from factory employee to criminal defense attorney was not always easy. But, she tells IBJ staff, along the way she learned to be “very serious, brave, and perseverant.” Despite challenges, her career of helping the needy brings her great fulfillment. Looking back on it all now, Wu does not regret her choice and advises young lawyers to remember “social responsibility should outweigh financial interests.”

This past summer, Wu became involved in IBJ’s early access to counsel project. For her first IBJ case, she handled robbery charges against an indigent, physically disabled defendant. The client had been involved in a business deal, but his partner had not paid him. He and a friend sought payment from the partner and detained the partner for several hours. The partner reported the incident to police and the client then voluntarily surrendered himself. The client was charged with robbery, which carries a maximum penalty of ten years in prison. Wu became involved in his case at the early police investigation stage. Not content to simply accept the charges as filed, she conducted her own investigation including several thorough client interviews. This led her to realize the facts supported only the reduced charge of illegal detention, not robbery, because the money in question lawfully belonged to her client. She pointed out these facts, and also argued for a mitigated sentence based on her client’s voluntary surrender. As a result of her diligent defense, her client was given a sentence of just six months for the lesser charge. This beneficially impacted not only her client, but his family, who relied on his financial support. On his release, the client, his wife, his son, and his sister visited Wu’s law office to display a silk banner showing their gratitude and praising her efforts. Without her, he would still be in jail for robbery, a crime he didn’t commit. Instead, he told her he had recently purchased a small motorbike in order to earn a stable living. He told Wu that because of her help, he now had hope for the future.

IBJ supports defenders by holding roundtable events for legal professionals, such as this lawyers salon attended by Ms. Wu in September 2013. As of Oct. 31st, 2013, over 2,696 justice sector professionals have attended IBJ lawyers’ salons and roundtables across China.

Wu realized the power of her client’s story – the power to illustrate the profound difference a lawyer can make in the lives of a defendant and his family – and decided to share it (with identifying details omitted) with young lawyers participating in an IBJ Lawyer’s Salon. During the event, she also explained the practical and ethical lessons she had learned through her career in defense. She instructed young lawyers to first, be responsible and reliable. In doing criminal legal aid cases, lawyers should aim at providing quality representation for clients by preparing for and presenting the case to the best of the defender’s ability. Second, focus on details. Lawyers should pay attention to any detail that may affect the crime and sentence. Lawyers should also pay attention to any valid and true argument or fact that could strengthen a client’s case. And lawyers should render a thorough and competent defense of the client regardless of personal opinions about the client’s guilt or innocence. Third, lawyers should be active in every stage of the case, especially in legal aid cases when the client is often too disadvantaged to protect themselves against a neglectful lawyer who mishandles the case. Wu emphasized to the young lawyers that they are not working for the government in legal aid cases. Instead they should remember they are working for the client, the one who truly needs legal aid.

These young lawyers were greatly affected. One wrote in a survey response, “Before I did not want to do criminal cases, because I cannot earn much money from doing criminal cases and will spend a great deal of time. But I may have ignored the happiness of really saving a defendant’s life and changing his life, especially in legal aid cases.” The young lawyers also told IBJ staff that this event increased their sense of identity, not just as lawyers, but as defense lawyers. These responses motivated Wu to pursue even more opportunities to reach out to young lawyers.

In September, Wu attended a week-long Training of Trainers event held by IBJ in Beijing. She and sixteen other senior legal professionals were selected as IBJ’s new DES trainers. At the event, experienced trainers, international experts, and IBJ staff trained Wu and others to plan and present their own effective training events for defense lawyers. They learned the IBJ method of incorporating interactive techniques which enable students to learn by doing. Wu says she “learned not only skills but also very interesting training methods,” and was “deeply impressed.” She felt “[t]he interactive training method was very inspiring” and drafted a plan to hold at least two training sessions of her own in the coming year.

Each year, IBJ trains experienced practitioners and legal professionals, such as Ms. Wu, to host their own interactive training events. This past fall, IBJ welcomed another 12 trainers to the team at our third annual DES Training of Trainers event in Beijing

Never one to delay, Wu led her first training as an IBJ DES trainer just a few weeks later. Over 50 lawyers from 13 different law firms attended. A majority of attendees were young lawyers, and almost half lacked any experience with criminal defense cases. Wu led a lecture on client interviewing techniques and then facilitated participants in a moot court activity to practice their new skills. Although it was Wu’s first IBJ training, every single attending lawyer rated her session “good” or “excellent” on training content, training style, and relevance of learned skills to their future practice. In addition to learning practical skills, many lawyers told IBJ staff they were moved by Wu’s dedication to her clients. In response to Wu’s training, one lawyer reconsidered his treatment of legal aid defendants and told IBJ staff he would strive to be patient and kind with his clients in the future.

With support from IBJ, Wu has exceeded her goal of earning the respect of her clients, her students, and the legal community; she has motivated others to improve their own lives. This fall, the local Bureau of Justice recognized her accomplishments and honored her with the award for “Best Legal Aid Lawyer.”

Wu says even though she has little money, she feels rich in her heart.

Twenty-six year old Lian is an indigent farmer from a rural village in Sichuan Province. His wife recently delivered a son, whom Lian must support, not an easy task with his junior high school education. Given his young family and the seriousness of the charges, his arrest was nothing short of calamitous.

In addition, although the law permits legal aid, more than 80% of China’s criminally accused have no help from a lawyer. This is in part because attorneys are concentrated in major cities; lawyers in rural areas are scarce. It is also because many indigent defendants cannot afford to pay a lawyer; free legal aid is even scarcer.

Lian did his best to cooperate. He underwent mandatory detoxification to get sober. He confessed to possessing the methamphetamine. But without a legal advocate by his side, his chances of getting a fair trial were bleak.

Lian was fortunate. Earlier that year, IBJ orchestrated an agreement through which the prosecutor would refer indigent criminal defendants to a local law firm. Law firm attorneys trained by IBJ agreed to take these cases without charging the client. Under this program, Attorney Xi, whose name has been altered to protect her privacy, agreed to handle Lian’s case at no charge to Lian.

IBJ also hosts Lawyer’s Salons and roundtable discussion groups to enable defense lawyers like Xi to share best practices, brainstorm case strategies, and learn from one another. By Oct. 31st, 2013, over 2,696 justice sector professionals had participated in IBJ-China salon and roundtable events.

Using case investigation and advocacy skills taught at IBJ training events, Xi scoured the case file to make sure she understood all facts thoroughly. She realized the evidence was lacking. The crime of trafficking required intent to sell. No facts in the case showed such intent. She argued to the prosecutor that based on the evidence, Lian could not be charged with trafficking, but merely with possession, a much less serious charge. Lian had been an addict who needed help, yes, but nothing supported the accusation that he was a smuggler or dealer. The prosecutor took a second look, a closer look, at the case and realized she was right. He sent the case back to the police for further investigation. Later, the police re-submitted the case to the prosecutor with the lesser charge of narcotics possession.

Already, Xi’s advocacy had had a major impact on Lian’s life, but she wasn’t done yet. At the sentencing hearing for the possession charge, Xi argued there were several mitigating factors concerning the case, and about Lian as a person. Under Chinese law, the crime of drug possession for one’s own consumption is categorizes as a low societal impact crime, as compared to other offenses such as trafficking or crimes of serious violence. Moreover, Lian is a hard worker. He takes his social and financial responsibilities to his family seriously. Furthermore, he is a first time offender. These factors, she argued, required a reduced sentence under Chinese law. Again Xi’s no-nonsense, fact -based advocacy earned results. The judge adopted her opinion and sentenced Lian to a mitigated sentence of three years in jail.

Three years is a long time, but compared to the high stakes, and the might-have-beens without Attorney Xi by his side, Lian says he is very grateful to his lawyer for her help. Because of her, he received a fair trial. He faced only those charges which the facts genuinely supported, and no more. His situation was fully described to the court. His lawyer successfully conveyed he is a person, who has made mistakes, but who has a future. A lesser sentence resulted. Now Lian knows when his young son is three or four years old, he will be there for him. Because of Attorney Xi, and the support of IBJ, he has a second chance to go home and be a father.