Tuesday, February 07, 2006

FAIR TRIALS MEAN JUSTICE FOR ALL

Mutch Chantha


Background

The Government of Democratic Kampuchea, known as the Khmer Rouge, took power in Cambodia in 1975. During its three-year, nine-month reign (1975-1979), this government committed the most serious violations of human rights in the post-World War II world. When the regime fell, some three million Cambodian people had died from forced labor, starvation, and execution.

Twenty five years later, those responsible for organizing, instigating and carrying out those crimes against humanity remain free. The legacy of the crimes has created a culture of impunity and has continued to haunt Cambodia today. The nature of the crimes committed was the most horrific in Cambodia’s history and has been classified as jus cogens. Impunity in the face of genocide and crimes against humanity is unacceptable. Therefore, by bringing those responsible for crimes of jus cogens is essential in delivering justice to Cambodians and in closing this chapter of the country’s history. Justice is a critical element for repairing the damage done to Cambodian society and for promoting national reconciliation. On the one hand, accountability for such heinous crimes can be an important preventive measure in Cambodia by demonstrating that those responsible for these offenses will have to face punishment, and on the other, it will promote awareness among the people about the meaning of justice and the rule of law.

A tribunal meeting international standards should have been created many years ago. But after Democratic Kampuchea (DK) was ousted from power by Vietnam in 1979, the United States and China led an international effort to call for the withdrawal of Vietnamese forces from Cambodia and to continue to recognize the DK as the legitimate government of Cambodia. Even though the nature of the genocide was known, the United States led a successful effort for the DK to maintain Cambodia’s seat at the United Nations, which it held in a coalition with others who fought against foreign occupation until 1991.

It is sad that the 1991 Paris Peace Agreement failed to stress the importance of bringing those responsible for DK’s gross human rights abuses to justice. In addition, the Communist Party of Kampuchea was given legitimate status in the National Supreme Council until it withdrew from the peace process and 1993 elections.

In a letter dated 21 June 1997 from the then-First Prime Minister Prince Norodom Ranariddh and the then-Second Prime Minister Hun Sen, Cambodia requested resources and expertise from the United Nations to try former Khmer Rouge. The UN Secretary-General responded in July 1998 (in July 1997, a coup against Prince Ranariddh put Cambodia in a state of extreme political instability) by appointing a group of experts to offer suggestions about how to proceed.

Several rounds of negotiation were conducted between the Royal Government of Cambodia’s Task Force (led by Senior Minister Sok An) and the United Nations team (led by Chief Legal Counsel, Undersecretary-General Hans Correll). On February 8, 2002, the United Nations unilaterally announced that it was withdrawing from the negotiation process. Its principal reasons were that the government was not negotiating in good faith, and the future tribunal, if created, would lack international standards of justice.

Six member states reportedly met with the United Nations Secretary-General and the Undersecretary-General for Legal Affairs and put pressure on the United Nations to return to the negotiating table with Cambodia.

A Fair Trial

It is generally recognized that the right to a fair trial is a norm of international human rights law that was designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent to which is a person’s right to life and liberty. This right is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair trial and public hearing by a competent, independent and impartial tribunal established by law.” The right to a fair trial is applicable to both the determination of an individual’s rights and duties in a suit at law and to the determination of any criminal charges against him or her. The term “suit at law” refers to various types of court proceedings, including administrative proceedings.

Certain standards were designed to assess a fair trial, but they are complex and constantly evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But they may be also found in documents (even non-binding documents) that can be taken to express the direction in which the law is developing. A fair trial can be evaluated based on the laws of the country in which the trial is being held; the human rights treaties to which that state is a party, and norms of customary international law. A minimum list for evaluating a fair trial would comprise: i) a state’s constitution, especially its provisions on human rights and the judicial system; ii) its Criminal Code and Code of Criminal Procedure; statutes on the establishment and jurisdiction of the courts and on the public prosecutor’s office, and iii) landmark court decisions pertaining to human rights.

Right to Legal Counsel under Cambodian Laws

The Cambodian legal profession was totally decimated by the Khmer Rouge, leaving the country with as few as ten professionally trained judges and lawyers by the time the Vietnamese invaded in 1979. While efforts were made by the government during the PRK and SOC years to reconstruct the legal system along the lines of Soviet principles imported from Vietnam, as recently as 1993, there were reportedly only five trained legal professionals in the entire country, aside from the cadre of untrained and highly-politicized CPP-appointed judges presiding over the people’s courts.

The number of licensed lawyers in the country had risen to 260 as of early June 1999. Approximately 40 of them currently work in the executive or legislative branches of government. Because government work is deemed incompatible with the autonomy required of a lawyer, these 40 are not considered to be practicing lawyers, leaving approximately 220 practicing lawyer in the country. With somewhere between 75 to 80 lawyers practicing with a legal aid organization or an NGO, there are fewer than 150 private lawyers in all of Cambodia; most of them practice alone or in small firms.

Since October 1995, the practice of law in Cambodia has been regulated by the Bar Association of the Kingdom of Cambodia and its governing Bar Council. The Bar Council has prepared a Code of Conduct governing lawyers and is responsible for maintaining compliance. The Bar Association is currently presided over by newly elected Suon Visal, a well-respected lawyer who previously served as Technical Director for the Cambodian Defenders’ Project of the country’s NGO that provides legal services to the poor.

The right to counsel in the pre-trial stages of a criminal trial is clearly linked to the right to a defense during the trial as set out in Article 14 (3) (d) of the ICCPR. The provision states that everyone shall be entitled in the determination of any criminal charge against him/her “to be tried in presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case.” This provision provides specific rights, including the right to be tried in one’s presence, to defend oneself in person, to choose one’s own counsel, to be informed of the right to counsel, and to receive free legal assistance.

The right to legal counsel was in fact guaranteed under the Constitution, and Criminal Code and Code of Criminal Procedure. Article 38 (8) of the Cambodian Constitution provides that “every citizen shall enjoy the right to a defender through judicial recourse.” Under the 1993 SOC Law on Criminal Procedures, Article 75 states: “When the accused person appears for the first time, the investigating judge shall inform him or her of the imputed act, receive his or her statement after informing him or her of the right to answer or not to answer without the assistance of a lawyer or defender chosen by him or her or appointed automatically.” Article 76: “If the accused tells the judge that she or he chooses a lawyer or requests that a lawyer shall be automatically appointed by the government for his or her defense, then the investigating judge shall suspend the interrogation and call the counsel shortly in order to interrogate the accused in the presence of counsel.”

The right to counsel is provided with even greater specificity by Article 10 of the UNTAC Law, which provides that “the right to assistance of an attorney or counsel is assured for any person accused of a misdemeanor or crime. No one may be detained on Cambodian territory more than 48 hours, now amended to 72 hours, without access to assistance of counsel, an attorney or another representative authorized by the present text, no matter what the alleged offense may be.”

It should be noted that Cambodia is also a signatory to major international human rights instruments. The 1993 Constitution recognized the Universal Declaration of Human Rights of 1948 and other international human rights instruments. Cambodia just signed the Additional Protocol to the ICCPR, which makes individual citizens subject to international law, inter alia United Nations Human Rights Committee. However, Cambodia does not strictly abide by its treaty obligations.

Despite the laws specifying the importance of having legal representation at all stages of criminal proceedings, Cambodian authorities have often failed to offer adequate legal assistance to those who are arrested and detained. The right to legal counsel of one’s own choice – when he lacks the financial means, he has the right to have a court-appointed defense counsel at no cost, because this is necessary in the administration of justice – has not been ensured when an accused cannot afford one.

This is of great concern to the future Extraordinary Chambers. Below, I state how this right to legal counsel is implemented and guaranteed during the proceedings, and address a few foreseeable problems.

Legal language regarding the “assistance of counsel of their own choosing.” Based on my analysis, this phrase means that all persons are entitled to call for the assistance of a lawyer, who is qualified and competent, of their choice to protect and establish their rights and to defend them at all stages of criminal proceedings. If the accused cannot afford his or her own counsel, the authorities must provide a lawyer free of charge if the interests of justice so require. Whether or not the interests of justice require such an appointment depend primarily on the seriousness of the offense and the severity of the potential penalty.

However, it still creates room for different interpretations. “Assistance of counsel of their own choosing” is not likely guaranteed under Cambodian law. According to Article 5 of the Law on the Bar of Kingdom of Cambodia, only Cambodian lawyers can represent their clients in court. Based on this article the “assistance of counsel of one’s own choice” was unlikely to be ensured because the accused cannot access qualified, competent, reliable, and impartial counsel. Furthermore, the accused may not want to choose a Cambodian counsel, if he or she believes that his or her interests will not be served. This creates a conflict of law. When it arises, the interests of justice of the accused will be affected and the principle of a fair trial will not be guaranteed. It should be noted that “everyone charged with a criminal offense has a primary, unrestricted right, including the right to defend himself.” Thus, he is entitled to access to any competent lawyer. This right will not be respected and protected unless the inconsistency between the Law on the Bar and Law on the Extraordinary Chambers is rectified.

Lack of international experience and exposure. Not many Cambodian lawyers have been trained in international law and important binding treaties, conventions, and covenants that would be frequently referred to during the tribunal. The majority of Cambodian lawyers do not have experience in representing cases or the conduct of judicial proceedings in international tribunals, although the Law on Extraordinary Chambers dictates that existing laws and procedures will be applicable. Training alone is not sufficient to enable them to provide adequate criminal defense for those accused of high-profile international crimes. Experience and familiarity with international court proceedings is valuable for the accused. Despite the fact that foreign lawyers are allowed to practice with a Khmer lawyer, a gap still exists when it comes to communication and understanding, and the defense process. On the other hand, Cambodian lawyers still face challenges before a panel of mixed judges during the trial process when they present their legal arguments. Flexibility is required if one intends to make a strong defense. I would suggest that the Law on the Bar should be amended to accommodate foreign lawyers to represent clients in the Extraordinary Chambers and where possible, a position of “co-lawyer” be established, since the Law has already established “Co-Investigating Judge and Co-Prosecutor”. I suggest that such an exception be considered only for the Extraordinary Chambers, in order to avoid the concern of job-stealing from well qualified and experienced foreign lawyers. The Bar Association of Cambodia made it clear that it does not want to recruit more lawyers because it intends to create job for the current lawyers.

Independence and impartiality of counsels. The independence and impartiality of Cambodian lawyers is strongly questioned by many, in particular, the accused. At least one out of two lawyers would probably count themselves as victims of the Democratic Kampuchea regime. This could lead one to question whether a lawyer would sincerely defend a client whom he knows committed a murder or caused the death of his or her relatives through forced labor or starvation. When a defense lawyer has his independence or impartiality questioned, a conflict of interest will emerge. The interests of justice of the accused will also be jeopardized. Even the accused person is provided with the right to change his or her defense counsel if he or she thinks that the said lawyer does not serve his/her interests of justice. But the change itself does not help much because the accused may feel strongly that he will never have an independent and impartial defense or be well represented. But he may opt to have one rather than nothing. This does not mean that I don’t have confidence in Cambodian lawyers, but this is a special court for special cases. How can the Extraordinary Chambers and Bar Association, in particular the Bar Disciplinary Council, ensure the independence and impartiality of a lawyer? How can the Code of Ethics be enforced?

Language. The right to an interpreter is critical to ensure a fair trial. In the determination of any criminal charges against him/her, every person is entitled to have the free assistance of an interpreter if he cannot understand or speak the language being used in the court, as stated in Article 14 (3) (f) of the ICCPR. The official working languages of the Extraordinary Chambers are Khmer, English, and French, as stated in Article 45 of the Law on Extraordinary Chambers and Article 26, paragraph 2 of the Agreement. The main issue raised by this provision is what interpretation should be given to the words “used in court.” While it could obviously be said to refer to oral proceedings, this needs to be clarified. Nevertheless, the right to translations of written documents (documentary evidence and testimony) is not expressly stated. Written translations of such documents will be costly and the authenticity of the translation can be called into question. The question in this regard is who will be responsible for the cost of translations and their authenticity? It is important that the Extraordinary Chambers recruit qualified interpreters and translators who were trained in law and have knowledge of legal terminology. There are not many interpreters and translators in Cambodia who were trained in law and understand court proceedings, and who can provide simultaneous interpretation that is not limited to the court proceedings. Language will be one of many challenges that the Extraordinary Chambers will face. It will have to establish rules for interpretation: whether it requires simultaneous or consecutive interpretation, and the exact words used in court or oral proceedings. It may be recommended that future interpreters and translators should be trained in legal terminology and in court procedures before they are assigned to their job.


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