Interview with a prosecutor of the Takeo Provincial Court
Taken by Jodi Erickson
March 25, 2008
A Prosecutor of the Takeo Provincial Court gave a candid interview about the state of the criminal justice system in Cambodia, but asked to remain anonymous should any of this material be made public.
1. What is the general situation of defendants without defense lawyers in your court?
|
When defendants come before me as a prosecutor, I find the best way to treat them, as innocent people. I ask questions simply so they understand. I do not force them to answer questions. I say, “You have the right to ask for a lawyer. You don’t have to answer now.” When no defense lawyer is present in the pretrial phase, it is difficult. The accused’s rights are affected – they are violated. They often do not understand legal terms.As deputy prosecutor, I can ask the investigating judge to collect evidence. I can ask him to do more investigation. Many times, I dismiss cases for lack of evidence. But then, the accused has already been in temporary detention for four to six months. It is a real violation of people’s rights. Here in Cambodia, temporary detention is the same as prison, not a different facility. |
But at the same time, we have no choice but to keep them in temporary detention during the pretrial phase. Sometimes I want to release them, but they will run away. Cambodia is not like other countries, where you must show identification to go somewhere or do things. It is impossible to find them and bring them back to court. Petrol is very expensive, so police cannot go to find people and chase after them. So they must stay in temporary detention. It violates the accused’s rights, but we have no choice.
2. Why are there no defense lawyers in Takeo?
Takeo is a poor province, so there is no money to be made here by private lawyers. They are all living in Phnom Penh. For felony cases, the court writes to the bar association to get lawyers for defendants.
Under our civil law system, there is no provision for permanent defense lawyers appointed by the government. The judges and prosecutors are appointed by the king. But if the case is a felony, the law requires that the accused has a defense lawyer.
3. How does the lack of a defense lawyer affect detainees? What are the consequences of not having a defense lawyer for detainees?
The detainee’s rights are violated. Lack of a defense lawyer provokes delay of the cases. The accused stays in temporary detention for a long time. If the case is a felony, we must wait until the court can appoint a lawyer for the accused. If the case is not a felony, the court will adjourn the case for one to two months at a time.
4. How do you feel prosecuting a case when there is no lawyer to represent the defendant?
In fact I am not the best prosecutor! I am lucky to have gone abroad and studied different legal systems. I try to treat my people as innocent people, to facilitate them. Some prosecutors, when asking defendants questions, use very bad words. It is harmful to the presumption of innocence. They are cruel and disrespectful. They act like the defendant is not a human being. They are threatening, “If you don’t answer my questions, you will stay in jail!” I never ask like that. Maybe this comes from my background as a lawyer, my local and abroad experience. I always want them to have a lawyer.
5. Why do you think it is important to have lawyers represent defendants?
It is better for them to have a lawyer. Better for the accused’s rights, better for everybody – even me. At trial, the defendant’s lawyer can be an eyewitness to how I asked the questions. The defendant cannot change his answers or later lie to a judge and say that I forced him to answer. It is good for the record on appeal. It is good for the whole system.
6. When you met with IBJ in August 2007, you urged IBJ to open an office in Takeo and have a defense lawyer stationed there? Why?
Takeo needs a defense lawyer. The whole court does. According to the criminal procedure code, we must ask a lawyer to represent the accused in a felony case, even during the investigatory judge phase. Both prosecutor and defense attorney should be present during that proceeding.
7. IBJ has been taking a number of cases in Takeo, especially of those detained awaiting trial. What difference has IBJ made in those cases?
I observed one or two cases where the accused was represented by Ouk Vandeth for IBJ. The proceedings go more smoothly. The rights of the accused are protected. There is no pressure on the accused by the court or the prosecutor. The proceedings go quickly. There are no long delays in cases.
8. How do you like your work as a prosecutor?
I don’t like it. I trained to be a judge, but the year I graduated there was a certain number of judge posts and a certain number for prosecutors. I had an unlucky draw, so I became a prosecutor. But this is my duty. I perform my job legally. I always protect people’s rights. I always perform the work legally – when there is something I cannot decide, I check the law books, in order that my decision comply with what is prescribed by the law. If there is no evidence – not only in the investigating judge period but also in the trial period – I always ask the judge to acquit. Other prosecutors, maybe they consider if the defendant has money.
The system would be better if there were independence of the judiciary from the other two branches of government (executive and legislative). Judges and prosecutors, we are afraid to lose their jobs. We worry about our security.
9. How do you define a fair trial in relation to the Cambodian justice system?
When the judge and prosecutor use the law effectively and respect people’s rights. When all the main principles of human rights are respected by the judge: presumption of innocence, right to counsel, rights of a minor defendant to be prosecuted without public participation if the lawyer requests it. And most importantly: that the punishment is consistent with the seriousness of the crime.
[Do you as a prosecutor have discretion in sentencing recommendations?]
No. In principle, the prosecutor asks the judge to impose a certain sentence [within a given range, for example, the law mandates a sentence of 5-10 years for robbery]. But the judge is not obligated to follow the prosecutor’s recommendation. I normally do not make a recommendation unless the defendant has never confessed even when there was a lot of evidence – this shows lack of remorse. But I normally want light punishment for a minor crime. Sometimes the judge takes into account mitigating circumstances – for example a judge gave a 2.5 year sentence to a minor convicted of robbery. As a prosecutor I was obligated to appeal because it was below the minimum, but I did not want to.
In my work, when I make my conclusions about an accused’s guilt, I imagine the prison. The prisons in Cambodia are very bad. In Takeo there are 370 prisoners right now. They are over one hundred in one room with one toilet. I ask aid agencies for help with the prison, but there is no help for Takeo.
I always think about the situation in prison. Defendants are just like us. We want to live in liberty, eat good food, spend time with our families. They want this too. It is unfair for them. I hope this message gets out. We need to build better prisons and improve the standard of living in prison. But living conditions for everyone in Takeo are bad. People earn 50 cents or maybe one dollar a day. The food is not clean, and prices are going up. I want Cambodia to be a democratic country. I do not know how long it will take to change.
Since then, IBJ has opened an office in theprovince of Takeo which was inaugurated in January 2009. This structure hopes to bring early defense counsel to all prisoners in this province, guaranteeing a speedy and fair trial for every accused.
To reach our goals, we have recruit a provincial lawyer, Po Vannophea, a provincial investigator, Ouk Kalyan, and a provincial office assistant, Chhom Borey.
We would to welcome them all to the IBJ Family!