Monday, 14 December 2009

20th Anniversary of the UN Convention on the Rights of the Child

This blog was contributed by Aekje Teeuwen, Legal Consultant based in Phnom Penh, Cambodia
A juvenile defendant, aged 17 was arrested, charged with robbery and placed in pre-trial detention for two months and 26 days. The court of first instance sentenced the defendant for five years in prison. The defendant appealed this decision and waited in custody for two years and ten months for his appeal trial. Although, the lawyer was present during appeal trial, the defendant was tried in absentia. The appeal court reduced the sentence to three years and six months.

As of today, a total number of 851 minors, between 14 and 18 years of age, of whom 826 are male and 25 female, are detained in Cambodian prisons. In many cases these children are denied their basic legal rights, resulting in excessive periods held in pre-trial detention, as well as prolonged detention during the appeal process. Further, a lack of legal representation and being tried in absentia compounds the denial of their basic rights.

In Cambodia there are no children’s courts nor Judges and Prosecutors specialized in the area of juvenile justice and the application of the rights of the child. As a result, children are often subjected to the same judicial procedures and processes as adults. The extreme vulnerability of these children is further exacerbated as a result of them not being housed in separate sections of the prison to the adults, as well as inadequate food, healthcare and access to educational & rehabilitation programs.

During 2007, a Cambodian non-governmental organization called The Center for Social Development (CSD) monitored 22 appeal trials in which 26 juveniles were involved. 61.5 % of the juvenile defendants were held in custody pending appeal trial. Of these 61.5 %,
12.5 % of juvenile defendants waited in custody less than one year (8 months). 56.25 % of the defendants waited for more than one year and 31.25 % of the juvenile defendants had to wait more than two years. In the beginning of 2008, a case was monitored in which a juvenile defendant waited for four years and three months before an appeal trial date was set.

It is outlined in the Cambodian Criminal Procedure Code Article 387 that the Court of Appeal must decide the appeal trial date within a reasonable period of time. Despite this excessive periods of time pass before appeals are heard. These excessive 'waiting-periods' for appeal trial are a great cause for concern, in particular in cases where the defendant is in custody and/or which involve children and considers waiting for years for an appeal trial 'beyond a reasonable time'. Also it does not comply with article 37 of the UN Convention on the Rights of the Child, which stipulates that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. This issue has been specifically highlighted in this article because up to this date there is very little attention given to this particular matter in Cambodia.

In addition, it was noted that amongst the 26 juvenile defendants 23 % did not have access to defense counsel during their appeal trial. As well, 65 % were tried in their absence. It is clearly outlined in national and international laws that every citizen has the right to be tried in his presence and enjoys the right to judicial counsel. The UNCRC recognizes the importance of a child’s access to legal representation in Article 37 (d): “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance”.
We are celebrating the 20th anniversary of the UN Convention on the Rights of the Child. This is a great opportunity to promote and highlight the rights concerning children in conflict with the law throughout the whole criminal process, from the commencement of the judicial proceedings until final judgment is rendered. Therefore, it is urged to the Government of Cambodia, in accordance with the UNCRC to which Cambodia has made a solemn commitment in 1992 to uphold, to act in the best interests of Cambodian children, and to specifically require Judges and Court officials to fast-track juvenile appeals and to give them the highest priority and to ensure the shortest possible period of time prior to adjudication.

Finally, this is an issue not only for Cambodia, but for all judicial systems throughout the world to comply with their national and international laws and conventions regarding the rights of the child, and to always take into account and respect the particularly special position children hold in our societies.

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Monday, 30 March 2009

First Khmer Rouge Trial finally underway

The international media is full of news reports today announcing that the first Khmer Rouge trial is finally underway. After years of controversy and corruption scandals prosecutors at the ECCC have today started their case against Kaing Guek Eav, known as Comrade Duch. As I have previously blogged here Duch ran the notorious Toul Sleng prison camp in Phnom Penh where many thousands of Cambodians were tortured and executed.

The opening of today's substantive proceedings has been welcomed by all, including the many critics of the ECCC. It is of course hard to be opposed to the prosecution of those alleged to have committed crime against humanity and war crimes. However, even as those welcomes come, the criticisms and general concern about the operation of the ECCC continue. Brittis Edman, Amnesty International's Cambodia researcher reflected this tension in the organisations press statement on the hearing: "The Cambodian people will finally see one of the most notorious Khmer Rouge leaders face trial. But many more need to face the court to really deliver justice to the millions of victims of these horrific crimes."

The decision of the ECCC to prosecute only five suspects has been widely criticised. Yet when Robert Petit, the international Co-Prosecutor wanted to send six additional names to the investigating judges for further examination his Cambodian counterpart, Chea Leang, objected on the grounds that the stability of the country might be affected. No action has since been taken on those six names.

Whilst the Cambodian officials may claim that further prosecutions would not be beneficial to the country, a recent survey carried out by the Documentation Center of Cambodia found in fact that a small majority of Cambodians polled felt that the court should look at further suspects. Overall 56.8% were in favour, whilst amongst the younger people asked 67.5% supported further investigations.

In the meantime, the delays in progressing the other prosecutions clearly raises a concern that Comrade Duch may end up being the only trial the ECCC ever actually completes. The three defendants in the second case Noun Chea, Khieu Samphan and Ieng Thirithis are all suffering from health problems and may never make it to court.

So the excitement being generated in the international media is for a trial where the defendant has already confessed his guilt and expressed his remorse for his actions. According to his lawyer Francois Roux "Duch wishes to ask forgiveness from the victims but also from the Cambodian people. He will do so publicly. This is the very least he owes the victims."

Ultimately what can be expected from this first test of the ECCC? Clearly Duch's evidence will provide a valuable public record of the operation of Toul Sleng, and many are hoping that his evidence will provide some answers to the questions concerning what the Khmer Rouge did to their compatriots and why. His evidence may also provide some powerful testimony in relation to the other defendants due to be prosecuted by the ECCC. Cambodians certainly are aware of the moment of history and powerful potential the trial offers, as many queued to attend the first day of hearings.
Links to some of the coverage:
AP, BBC, Guardian, Irish Times, Reuters

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Friday, 27 March 2009

Nepalese professor appointed as Human Rights envoy for Cambodia

The UN Human Rights Council has announced the appointment of Professor Surya Prasad Subedi as the next UN Special Rapporteur for human rights in Cambodia.
Dr Subedi is Professor of International and Human Rights Law at the University of Leeds in England. He is a Barrister in England and an Advocate in Nepal. Professor Subedi said of his appointment:
“I am delighted and honoured by the trust and confidence placed in me by such a high level UN body in recognition of my work in the field of international and human rights law.”
The Cambodian ambassador to the UN, Sun Suon, welcomed the appointment. He expressed both the willingness of his government to cooperate with Professor Subedi and also hoped that he would discharge his responsibilities as an independent human rights law expert in “a spirit of cooperation and good partnership”.

Whilst the Cambodian government may publicly state that they will cooperate with the Rapporteur and the permanent Office of the high Commissioner for Human Rights Commissioner (OHCHR) Phnom Penh the experience of previous envoys to Cambodia has typically been challenging. Indeed, the last envoy, Kenyan lawyer Yash Ghai, was publicly attacked by the Cambodian officials, including the Prime Minister. He resigned from his office in September 2008 leaving with strong criticisms of the commitment of the Cambodian authorities to human rights.

Human rights activists and observers within Cambodia will wait to see how Professor Subedi is treated once he takes up his position. There are ongoing concerns about the overall cooperation with the OHCHR which plays an important role in monitoring day-to-day human rights violations within the country; and a general view that the messages of cooperation and dialogue that come from the government are in fact not real.

Critics point to the fact that when the United States State Department’s 2008 annual rights report found that Cambodia’s human rights record “remained poor” the Cambodian Ministry of Foreign Affairs attacked the report as ‘hypocritical and politically motivated’. The report raised concerns about a number of key areas including the abuse of detainees, land disputes and forced evictions, endemic corruption, the remaining problem of a weak judiciary and the denial of the right to a fair trial.

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Thursday, 22 January 2009

5 years on and Chea Vichea’s murder continues to highlight the lack of justice in Cambodia

On 22nd January 2004 the leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) was assassinated in broad daylight whilst reading a newspaper at a busy street kiosk in Phnom Penh. Chea Vichea had been an outspoken critic of the government and was at the time the best known union activist in Cambodia’s large garment sector. Shortly before his death he had received death threats and had requested police protection which had been denied to him.

Following his murder two men were arrested. Borng Samnang initially admitted to the killing but later retracted his confession claiming it was made under duress; Sok Sam Oeun denied his involvement. Almost immediately doubts began to emerge that they were in any way involved; both had strong alibis, with many witnesses stating that they could not have been the killers. Despite concerns about the evidence, and flawed prosecution, both men were convicted and sentenced to 20 years in prison.

Both the criminal investigation and the trial were condemned by the then Special Representative of the United Nations' Secretary General for Human Rights in Cambodia, Peter Leuprecht, as lacking any credibility. International and local human rights organizations were united in highlighting the fact that the detention and trial of the two men were plagued with human rights violations, including torture or other ill-treatment. The police had failed to conduct a thorough and impartial investigation and deeply flawed court proceedings relied on unfounded and inadmissible evidence. Despite all this, and a growing campaign to free the men, the Appeal Court upheld the conviction on 6 April 2007, even after the prosecutor acknowledged that there was insufficient evidence. Indeed, the appeal hearing was criticised by the international community as being politically-motivated and failing to take into account new evidence.

The campaign against the men’s convictions continued both nationally and internationally and good news finally arrived for Borng Samnang and Sok Sam Oeun at the end of 2008 when, after 1799 days in prison they were released on bail by the Supreme Court. The Court of Appeal has been ordered to reinvestigate the case. Cleary, a retrial of Born Samnang and Sok Sam Oeun by the Appeal Court presents an opportunity for the Cambodian judiciary to show a clear commitment to international standards of fair legal proceedings and independence from the government. It will come at a time when International attention is focused on the upcoming Khmer Rouge trials. However, a just and fair decision by the Court of appeal in Chea Vichea case may do more for the Cambodian people’s confidence in the judiciary than the ECCC’s hearings into their painful and bloody history.

Five years after Chea Vichea’s murder the Court of Appeal has an opportunity to right one of the most serious miscarriages of justice perpetrated in Cambodia in recent years as well as to conduct an effective reinvestigation into the killing that could present evidence that will finally bring those really responsible for his death to justice. If they can do this, then ordinary people may start to have a little faith in their justice system. For the moment, most rights groups are happy to see the men free but remain cautious as whether the Court of Appeal can ultimately ‘do the right thing’ and show that the Supreme Court decision was not simply an anomaly made only after years of campaign and pressure.

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Tuesday, 20 January 2009

Khmer Rouge trial date announced

The first trial of a Khmer Rouge leader is due to start 17th February 2009. Kaing Guek Eav, better known as Comrade Duch is facing charges of crimes against humanity and war crimes. He was in charge of the infamous Toul Sleng prison where detainees were tortured and killed and is the first of five detainees to be sent for trial.

It is reported by officials that Duch, who has been detained since 1999 and has previously admitted his guilt, has been cooperating with prosecutors and is willing to testify in court. The testimony may well reveal significant information about how the Khmer Rouge leadership made their decisions during their time in power.

For the Extraordinary Chambers in the Courts of Cambodia (ECCC), this will be first real move towards prosecuting Khmer Rouge leadership. Whilst the trial may finally draw some attention away from corruption scandals and delays that have dogged the Court it is likely that the trial process will face further delays as the court takes it first steps towards its real work.

The hearing in February will simply examine the lists of witnesses and rule the important question of the extent to which “civil parties” can participate in the trial. The question of how far the victims of the Khmer Rouge will be able to have their voices heard in this and future trials is important and still to be fully resolved. In a decision in March last year the pre-trial chamber of the ECCC ruled that victims should be allowed to participate in court proceedings. However, in subsequent rulings the ECCC appeared to limit the right finding that civil parties could not speak in person in pre-trial appeals.

The ECCC has now launched a media campaign to encourage victims to participate in the upcoming proceedings. Thus civil parties have been given until the 2nd February to come forward. So far 28 people have been officially recognised as civil parties and 70 are being processed.

The trial of Duch is scheduled to begin in March. It is thought that the trials of the other four detainees will not start before 2010.

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Wednesday, 10 December 2008

International Human Rights Day - thoughts from Ireland to Cambodia

Today, 10th December, is International Human Rights Day. And it also marks 60 years since adoption of the Universal Declaration of Human Rights by the United Nations.

In Ireland, the Equality and Rights Alliance is calling on TDs and Senators to ‘stand up for human rights and equality. Amnesty International Ireland made the point as it launches its report Human Rights: The Sustainable Future that this meant not only speaking out against human rights abuses abroad, but also at home. The message is an important one. Ireland, like many developed nations, does little to mark International Human Rights Day, and the role of international human rights treaties tends to be limited to a rhetorical one. At the same time, the government encourages and expects developing nations to ‘live up to’ their international human rights obligations.

Minister for Foreign Affairs Micheál Martin writing in the Irish Times today, states that “The 60th anniversary of the Universal Declaration of Human Rights offers us an opportunity to renew our commitment to securing the declaration's promise of dignity and justice for all.” In practice this renewal of commitment must include both human rights protection at home and abroad. For the Universal Declaration provides the promise of dignity and justice for everyone. And in the current financial climate, the impact of budget cuts on key human rights bodies in Ireland - Equality Authority facing a 43% cut and the Irish Human Rights Commission a 24% cut – are significant. At the very least such cutbacks send out a message that domestic human rights bodies are a luxury – something the government would not suggest to the developing nations they provide development aid to.

International Human Rights Day does however, provide me with an opportunity to highlight significant concerns regarding human rights violations that are being systematically carried out in a country I know well – Cambodia. The country has dropped off the international news agenda in recent times, even as it is gearing up to begin trials of people accused of crimes against humanity arising for atrocities committed during the Pol Pot era. However, whilst Cambodia has been consolidating its rebuilding process following those terrible years of violence and occupation and although its economy has grown dramatically, human rights abuses are widespread. Ironically many of the abuses arise out of years of strong economic growth as the rich consolidate their power and wealth.

Land theft and community evictions are at record levels and represent one of the most significant areas of human rights abuses in the country. According to Amnesty International in 2008 some 150,000 Cambodians were estimated to live at risk of forced eviction and tens of thousands have already been forcibly evicted in recent years: Cambodia: A Risky Business –Defending the Right to Housing. These actions leave people homeless or relocated to inadequate resettlement sites with poor infrastructure and limited access to work opportunities. The Cambodian authorities fail to protect the population against forced evictions and in fact many with political and/or economic power are allowed to act with impunity in arbitrarily expropriating land – Cambodia: Rights razed: Forced Evictions in Cambodia. The basic rights to land and housing, access to sanitation, amenities and the possibility of work, are crucial in a country where so many of the population are simply struggling to survive on a day-to-day basis. It is not surprising therefore that many of the countries civil society organisations took to the streets today to celebrate the 60th anniversary of the Universal Declaration of Human Rights.

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