In February 2013, Vanni (client’s name changed), a sixteen-year-old boy in Grade 6, his father and some of his relatives were fishing in lake Prek Phsout, Kampong Chhnang province. Before going fishing, they bought some electrical fishing equipment from some people who claimed they had invented it. However, this electrical equipment composed of a battery that was illegal. According to the fishery law, using this kind of electrical material for fishing can be subjected to a sentence of three to five years of imprisonment.
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 17th 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