Last August Cambodia adopted a code of criminal procedure. In a section on pre-trial detention this code succinctly stipulates the presumption in favour of bail, and allows pre-trial detention in special cases subject to the custodial sentence attached to the crime and specific reasons.
Article 203 of this code says that As a general principle, the freedom of an accused person must be allowed and such a person can be temporarily detained in special cases and for the reasons specified in the same section. Pre-trial detention, says its article 204, can be applied only to criminal offences which carry a custodial sentence of one year or more.
Under its Article 205 the code lists six reasons for any of which this detention can be ordered: (1) to stop the offense or prevent the offense from happening again; (2) to prevent any harassment of witnesses or victims or prevent any agreement between the accused person and the accomplice; (3) to safeguard evidence or exhibits; (4) to guarantee the appearance of the accused in court; (5) to protect the accused; and (6) to prevent public order from being disturbed by the offense.
These provisions were meant to change the practice of deprivation of the liberty of the accused persons that had prevailed prior to the enactment of the code. However, almost a year from the enactment of the code, this presumption of bail has not sunk in, and these provisions have not as yet brought about any change to that practice.
Courts have continued to order pre-trial detention as they had done before, and people have continued to have as much fear of such imprisonment as before whenever they have been arrested or summoned to appear in court as defendants.
On 2 July 2008 a 17-year youth named Sev Tha was arrested and was put in pre-trial detention in prison on the charge of damage to property after he and other eight youths had pulled out and thrown aside a signboard of the ruling party in Rattanakiri province. That signboad cost between US$20 and 30 to make. Sevs own and his friends parents were villagers, and all could be made and accepted as surety for Sevs bail.
However, the court did not open this possibility for bail. Nor did it consider that the property was of little value for which the offence of damage is punishable by imprisonment of between two months and one year (art. 52 of the criminal law), a case in which pre-trial detention cannot be applied (art. 204 of the code of criminal procedure).
Sevs imprisonment was apparently linked to the polices reported pressure on those parents to offer bribes in exchange for their pursuit against all those youths, bribes which all those parents could not afford. Because of fears of the arrest and imprisonment, the other youths have gone into hiding.
Some ten days earlier, on 23 June, four villagers named Nhek Chantha (a woman), Vong Ma, Meou Sopheak and Noeu Kak-kada, living in Kampot province were arrested and put in pre-trial detention in prison on the charges of robbery of a mobile phone and damage to property. These four persons and other villagers, some thirty of them, on the one hand, and over 100 soldiers and other officials on the other, had a confrontation over a land dispute. In this confrontation, the villagers had grabbed a phone from an official to thwart his call for reinforcements. The same villagers had earlier pulled out land allotment signs those soldiers had planted in the land belonging to the villagers, an action which was cited as evidence of damage to property.
Apparently, as damage to property, a misdemeanor, is not a serious crime to justify any pre-trial detention in prison, those officials invoked the charge of robbery of the mobile phone, a felony, to be able to justify the detention of the four villagers. Over 20 other villagers fled their village after that confrontation for fear of the same arrest and imprisonment.
Earlier in the same month, on 8 June, Dam Sith, the editor of Moneaksekar Khmer newspaper, was arrested and remanded in custody in prison for pre-trial detention on charges of alleged defamation, insult and disinformation. Dam had been facing a criminal lawsuit filed by Foreign Minister Hor Nam Hong, after his newspaper published a remark by a Member of Parliament and opposition leader, Sam Rainsy, about Hors Khmer Rouge affiliation.
Since defamation and insult are no longer criminal offences which carry custodial sentences, disinformation, which is a criminal offence punishable by imprisonment of between six months and three years, was invoked, as had been done in similar cases before in which government critics were involved, to support the pre-trial detention and subsequent prison sentence. But when ordering this detention, the court did not hear any evidence of actual or potential disturbance of public order that is required to make that publication a criminal offence of disinformation under Article 62 of the criminal law.
However, a week later, following an intense outcry from inside and outside the country as the arrest was seen as politically motivated and an attack on press freedom, Prime Minister Hun Sen offered himself as surety to bail Dam out.
Hor also filed a criminal lawsuit against Sam Rainsy for the same offences and the court proceeded to get Sams parliamentary immunity lifted with a view to arresting and detaining him as it had done Dam Sith. As in the Dams case, there was also an intense outcry, and the lifting of Sams immunity was postponed to after this months election.
In 2007, according to ADHOC human rights NGO, some 150 villagers were arrested in land disputes between the rich and powerful on the one hand and villagers on the other, disputes known under the generic name of land grabbing. But due to pressure from various sources, including fellow villagers, some of those arrested were released on bail. However, some 50 of them were still in jail awaiting trial at the end of last year.
In the first half of 2008, despite assurances from Prime Minister Hun Sen that no one should be arrested in land disputes, still 36 villagers were arrested and 24 off them were in custody in prison for pre-trial detention, according to the same NGO. Most of those accused villagers were charged with the offence of damage to property which carries a custodial sentence ranging from between two months and one year when the damage is minor or the property is of little value to between one and three years (art. 52 off the criminal law).
As courts have continued their practice of indiscriminate pre-trial detention, people has also continued to perceive and fear they would lose their liberty once they have been arrested or received a summons to appear in court as a defendant after they have had any conflict, especially with people of superior status such as the rich and powerful. Courts together with the police are largely felt as instruments of terror against people of inferior status.
If they can afford, those accused persons would buy off their arrest and imprisonment with bribes. If not, they would seek help from human rights activists and/or public opinion to put pressure the court not to imprison them. However, success is not certain as the number of detention cases in land disputes mentioned above has shown. Many would simply go into hiding, as the youths in Rattanakiri province and the villagers in Kampot province, all mentioned above, have done.
A recent court case and the ensuing action by people themselves to prevent imprisonment are illustrative of such perception and fear. Four villagers representing 38 families in Battambang province received summonses to appear in court in a land dispute between those families and a senior army officer. 38 fellow villagers from those families volunteered to accompany the four defendants as they feared they would be detained when they appeared in court, in order to protest any such detention.
Whether their show of strength of support for the defendants and resistance to their detention had any direct impact is debatable, but the court did not order their arrest and pre-trial detention after taking their statements. Nor there was any mention of any bail either.
According to a well informed source in the legal profession, the most common reason judges have given, if at all they have, when they order pre-trial detention, is to guarantee the appearance of the accused in court and prevent defendants flight. In most cases, judges have not bothered to give any reason and have ordered the detention simply to make them available for investigation. Defendants lose their liberty for the convenience of the court.
One year after the enactment of the code of criminal procedure and the concomitant affirmation of the presumption of bail, the Cambodian Supreme Court, the Supreme Council of the Magistracy and the Ministry of Justice should ensure that this presumption is effective and is well embedded in the countrys judicial culture, and wash away the image of courts of law as instruments of terror against people of lower status.
These authorities need to develop a rule of court detailing the procedure for courts to follow and requiring them to give detailed reasons whenever they order the pre-trial detention of any accused person. This rule should determine clearly whether pre-trial detention can be applied or not to cases in which the custodial sentence ranges from less to more than one year when Article 204 of the code says it can be applied to cases where custodial sentence is one year or more.
Since damage to property is a frequent charge, especially in land disputes, the same rule of court should also determine clearly the degree of damage to property for this damage to be classified as minor, and the value of the property for this property to be classified as of little value, when this degree of damage and value of property could mean liberty or the loss of it for an accused person prior to their conviction by the court. This loss could be a prolonged one when either the prosecution or the defence could appeal a conviction by a court of first instance at the Court of Appeal and then at the Supreme Court through a lengthy procedure.
