Cambodian Freedom Fighters (CFF) Cases: A Report on Application of Fair Trial Standards

[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

---

[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

 

Over the last one and half year, many trial courts of Cambodia heard and decided a number of high profile criminal cases involving an allegedly US based Cambodian organisation called Cambodian Freedom Fighters (CFF).[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

---

[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

Over the last one and half year, many trial courts of Cambodia heard and decided a number of high profile criminal cases involving an allegedly US based Cambodian organisation called Cambodian Freedom Fighters (CFF).[1] These cases caught the attention of many human rights activists and organizations for a variety of reasons.  

Firstly, these cases concerned people who had a proclaimed political mission and challenged the legitimate or established political authority of Cambodia to achieve their mission by violent means, and whose organisation had a foreign origin. Secondly, the initial response of the Royal Government of Cambodia to their operations had also been heavy from the very beginning giving a strong image that the human rights concerns of these activists were under intense threat. As the number of those apprehended and arrested people grew, there were further doubts on the integrity of the law enforcement machinery, and concerns were expressed from different quarters that the Royal Government was using the CFF incidents also to arrest and prosecute its political opponents, other than the CFF. Thirdly, the courts which heard and decided these high profile criminal cases also seemed to be under intense pressure of the government which generally manifested a poor record of accomplishment in honoring judicial independence.  

The Cambodia Office of the High Commissioner for Human Rights (COHCHR) monitored most of these trials at the trial courts of Phnom Penh and other different provinces of Cambodia. Taking these cases as test cases, the objectives of monitoring these trials were – to monitor the fair trial standards in action in Cambodia, estimate the accomplishments of Cambodian judiciary in this matter, study the loopholes in the justice process, and present them to the actors in Cambodia’s judicial reform process. This report gives a summary account of the trial observation and monitoring exercises in general terms and our analysis and general conclusion about the issues before hand.  

First, the report gives a synopsis of imputed facts. Then it deals with charges against the accused persons, available evidences against them, the necessary elements of crime to be established, and the international fair trial standards, which are in principle already internalized by the Constitution and other laws. A number of sample cases involving a variety of suspects with different age and background has then been discussed which explain the realities of the situation in the background of the charges made against these suspects.[2] The stage then is ready for the detailed analysis of the pretrial rights and the rights at trial. The report concludes that, while Cambodia has improved its judicial procedures in very many senses, it does not score much in the application of fair trial standards. There are still many shortcomings in the justice process both in the application of pretrial rights and the rights at trial. These shortcomings are not only infrastrucural but attitudinal also.   

1.    Imputed Facts  

On the night of 23-24 November 2000, some 50-strong force of alleged anti-government insurgents attacked several government buildings housing Council of Ministers, Ministry of Defence and Military Base E70 using B-40 rockets, grenades and AK-47s leaving at least four dead and 18 police officers injured. One civilian was reportedly killed in heavy gunfire. Municipal officials identified the attackers as members of CFF which, they claimed, launched the attack to undermine the government’s hold on security in Phnom Penh. Chun Yasith, 43, a Cambodian American living in California, was said to have made the entire plan for the attack including determination of the main targets to be destroyed. Government arrested an alleged ringleader, Richard Kiri Kim, a Cambodian-American member of CFF who freely admitted directing the raid. The anti-communist organisation Cambodian Freedom Fighters admitted plans to overthrow the government. The CFF press release of 24 November, which the UNCOHCHR received only a few days later, claimed that the purpose for the attack were threefold: firstly to test the strength of the Cambodian government, to stop the planned visit by the Vietnamese President and to stop the ‘Vietnamisation’ of Cambodian society.  

In 2001 three separate incidents took place: bombings at the Vietnamese Embassy on April 13, blast outside the Ministry of Foreign Affairs on July 5, and the attack on Funcinpec Party Headquarters August 8.  Hand grenades were used on these attacks, one person was injured in the attack at Funcinpec headquarters, but there were no casualties anywhere. All these incidents were attributed to CFF fighters. Apart from them, various other activities of the suspected CFF members or activists were also made the subject of investigation and prosecutions.  

2.    Charges  

There were generally two charges against the accused in all CFF cases namely the charge of terrorism and the charge of participation in an illegal armed group.  

The Law on Punishment of the Acts of Terrorism 1992 defines acts of terrorism as “those acts of violence which are committed by one sole individual or one or many groups of persons which create panic amongst the mass of the people aiming at causing strong turmoil to the public order and security and affect the political stability.”[3] The Law contemplates two types of punishment for the acts of terrorism. Firstly, offences like kidnapping or detaining people with a view to subversion, extortion of money, revenge, taking of hostage for selling, and other acts of terrorism are subjected to punishment to imprisonment from ten to twenty years. In case if such kidnapping or illegal detention of the person(s) or such act of terrorism was made on a minor person or which caused any victim to death, such offender shall be subjected to life imprisonment regardless of any attenuating circumstances.[4] Secondly, any one who attempts to kill or kills people with prepared intention in the purpose of conducting terrorism shall be punished to life imprisonment regardless of any attenuating circumstances.  

The charge of illegal participation in a group is based on Article 36 of UNTAC Law.[5] This Article states that “any individual, who has taken part in a formal or informal association set up for the purpose of planning one or more crimes or misdemeanors against person or property, if specific acts of preparation of these offenses have taken place, shall be liable to a term of imprisonment from three to fifteen years.”[6]  

In a few cases, the charge of complicity under Article 69 of UNTAC Law [7] was also made. Similarly, illegal possession of weapons was also prosecuted. But the basic issues in all these cases were terrorism and organized crime.  

3.    Trial  

In June 2001, the first trial of 32 persons suspected of involvement with the CFF and the 23-24 November 2000 attack, was held at Phnom Penh. Two persons were acquitted, while others were sentenced to prison terms ranging from 3 years to life imprisonment for conspiring terrorism and/or organized crime. Chhun Yasith, 43, the leader and Thoang Samean, 50, were tried and convicted in absentia. Most of the convicts appealed against the conviction.  

The Phnom Penh Municipal Court tried a second group of 28 CFF suspects in October and November 2001. The trial was held, as before, at the Supreme Court building due to the large number of suspects and the limited infrastructural capacity of the Phnom Penh Municipal court. Two persons were acquitted and others were convicted to imprisonment ranging from 3 to 15 years. All convicted prisoners moved appeal to the Court of Appeal through the Phnom Penh Municipal Court.   

The third round of trial of 23 accused persons, three of which were tried in absentia, was held in February 2002. They were said to be taking part or involved with the bombings at the Vietnamese Embassy, Funcinpec Party Headquarters and the blast outside the Ministry of Foreign Affairs. The trial was held at Phnom Penh Court building itself. The court convicted 19 suspects including one who was tried in absentia. It ordered reinvestigation of three of the suspects including two of the suspects who were tried in absentia as the trial judge thought that the investigations of the charge against them were not complete. Among those who were convicted, one person was subjected to life imprisonment, four persons were sentenced to a term of 20 years, and the rest were sentenced for terms, which ranged from 8 years to 15 years. Only one of the three suspects whose cases were subjected to reinvestigation was released on finding innocent.    

Trials were also held in Battambang, Siem Reap, Banteay Meanchey and Kampong Cham provincial courts of smaller number of suspects locally arrested. Among the trials held outside Phnom Penh, the Battambang trial was the biggest one involving 18 suspects, none of which were found innocent. By the end of April 2002, the number of those who were prosecuted crossed 100.  

4.    Evidences  

Various types of objects were produced at the court as evidences by the prosecutor to prove the charge. At the first round of trial, they included 43 AK 47 rifles with 740 bullets, 1 B40 Barrel, 20 hand grenades, 10 AK magazines, 1 Compaq Computer, and other materials like hand phones, CFF flags, badges, medals, CFF documents and IDs etc. Evidence produced in the court during the second and third round of trial in Phnom Penh included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries.  

The sort of the evidence presented during all the CFF trials held in the provincial courts was not different in any sense. All these materials were presented during the hearing. There was a general problem of relating these objects with the accused and how they proved the suspects gui1lty. In some cases, there was no linking of these evidences with the involvement of the suspects in the case.  The prosecutor was relying not only on the evidential value of various pieces of evidence, like ID’s, pictures seized from CFF leaders and documents seized from the Computer of a CFF leader, but also on written statements given by the suspects before the police, prosecutor or investigating judge. Most of these written statements were not confirmed during the trial. A general type of inadequacy was thus seen in proving the elements of crime as suggested above.  

5.    Elements of Crime to be established  

The charge of terrorism will be reasonably proved when all the following elements are present and it is proved that the accused are involved in all the elements which are following:  

·       There must be evidence to show that the accused attempted to kill people or did in fact kill people. It must be proved that the accused did an act or participated in an act that led to the death of one or more persons. It must also be proved that the accused had the intention to kill. An attempt exists when the accused has committed acts which go beyond preparatory acts with the intent of committing an offence but fails in his venture owing to circumstances beyond his control in that he did not himself put a stop to his venture.  

·        The accused must have had the intention and purpose of conducting terrorism. It is not sufficient for the accused to have attempted to kill people or actually kill people. It must also be shown that the accused did the killing or attempted to kill with the intention and purpose of conducting terrorism. In order to find out what is terrorism Article 1 must be referred to.  

·    Terrorism consists of acts of violence. It must be proved that the accused committed in that they participated actively in the commission of these acts of violence. What amounts to acts of violence is for the judge to decide on the facts of the case.  

·      Acts of violence consists in creating panic amongst the mass of the people and are aimed at causing strong turmoil to public order and security and affect political stability. Once the judge is satisfied that the acts of violence were perpetrated he must go on and find out whether from the evidence it can be said conclusively that these acts of violence created panic amongst the mass of the people and aimed at causing strong turmoil to public order and security and affected the political stability of the country.  

·        All these elements of the offence must carefully be analysed and the evidence in support of each of these elements must be determined. If there is no evidence to prove one or more of these elements then the accused must be acquitted.  

Apart from them, there are other issues regarding the offence of “organised crime.” To confirm the charge of organised crime, the prosecution must be able to prove that the CFF is an ‘association’ as mentioned in Art 36 of UNTAC Law. In other words, it must prove that the intention was to topple the government by using violence. If CFF is not an ‘association’ as the said provision contemplates, can the group of people who took part in the (preparation of) attacks be considered as an (informal) association as mentioned in Article 36? Is membership of CFF sufficient for a conviction? Article 36 mentions ‘taking part’ in an association which requires more than just being a member. What if the perceived ‘members’ were not aware that they were members of CFF or did not know about the purpose of this association? Similarly, what is the meaning of ‘taking part’ in the offence? Does for example transportation of radio-communications or providing a meeting place for the benefit of CFF/the above (informal) association, fit in this definition? No, unless there is a knowledge of the criminal intention of CFF/above (informal) association. The same question is for ‘complicity’ to acts of terrorism.  

It is important at this stage to emphasize these elements because although, so called leaders of CFF quickly claimed responsibility for leading the attack, but it was still suggested that the attack was politically framed up. Undoubtedly, many people suspected that the government set up one of the movements and controlled the other through the infiltration of military intelligence. Insecurity situations have been created in the past to divert attention of the people, for instance, the arrest of Srun Vong Vannak by linking him to the murder of his brother in law, Kov Samuth, March 1997 grenade attack in front of the National Assembly, the July 1997 coup, grenade attack in September 1998 at his Phnom Penh residence which was used as an excuse to crackdown opposition demonstration.[8] So the argument goes that the incidents were used as a pretext to hunt down opposition activists and politicians, Funcinpec-affiliated generals, and former Khmer Rouge commanders. General Mul Roeup was responsible for putting up two lists of more than 200 suspected terrorists linking to CFF prior to the incident.   

It is thus not out of place to quote the following paragraph from the judgement of the first round of CFF cases:  

Any accused, whose name and designation are stated in the document on the organisational structure, and which bears thumbprint and acknowledgement of the mastermind, Kim Kiri Richard, should be considered by the court for imposing punishment in accordance with the law. However, those accused who were arrested by the competent authorities but whose name and designation are not available in the document on the organisational structure of the mastermind, Richard Kim Kiri, should be considered for punishment according to the law only if their involvement is supported by strongly compelling and consistent evidence which prove that they certainly have participated in the offence.   

6.    Fair Trial Standards  

The Constitution and several other laws of Cambodia guarantee all accused with both pretrial rights and rights at trial in order to accomplish what is know as fair trial. Implicit in the concept of a fair trial is the independent judiciary and the principle of equality of arms where the defence and prosecution are given equal status, equal rights and equal opportunities to present their case. The following standards are suggested as compulsory requirement in Cambodia:  

·         Pretrial rights include the right against illegal arrest or detention, the rights of the people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right to challenge the lawfulness of detention; the right to trial within a reasonable time or to release from detention; the right to adequate time and facilities to prepare a defence; rights during interrogation; and the right to human conditions of detention and freedom from torture.  

·         Rights at trial are the right to equality before the law and courts; the right to trial by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to a public hearing; the presumption of innocence; the right not to be compelled to testify or confess guilt; exclusion of evidence elicited as a result of torture or other compulsion; the prohibition of retroactive application of criminal laws and double jeopardy; the right to be tried without undue delay; the right to defend oneself or through counsel; the right to be present at trial and appeal; the right to call and examine witnesses; the right to an interpreter and to translation; the right to a public judgement, ands the right to appeal.  

·         It is important to note that the Constitution assigns the Kingdom of Cambodia to recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and Conventions related to human rights, women’s and children’s rights. Needless to say, this provision supplements the Cambodian legal regime with existing international human rights standards of fair trial as well.  

7.    Some Instances of Hearing  

By April 2002 more than one hundred alleged CFF suspects were already tried by different trial courts of Cambodia. Although the trials took place in different courts, the cases often had common patterns. There was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. Some of the sample cases are discussed here for the purpose of this report.  

In June, the first trial of 32 persons suspected of involvement with the CFF was held. The first accused who was brought before the court was Richard Kiri Kim, 37, the General Secretary of CFF. As soon as the trial judge read the charge against him, Richard complained that the court was not independent, and that he be released immediately because he was detained in excess of six months,[9] implying that failure to comply with this rule enabled the accused to apply for immediate release.[10]The trial judge rejected these contentions on the ground that it was for the investigating judge to release the prisoner on this ground. He asked instead: “Please tell us when did you create this armed gang, and what was your purpose?” In the course of proceedings, he replied: “… [M]y group is a political group, which held meetings along the border and in the Long Beach, California in 1999. These meetings were legal, and held with permission from the USA  … This is a political organisation, a legal one, not an armed group …” Richard said he was in USA during 1990-93 as an engineer, and after that for about eight years, he worked with an NGO in Cambodia, built schools and helped children. In other words, he was neither a terrorist nor he had any terrorist background.  

Richard said he was arrested without warrant. He referred that he had not to that day seen the judge who had investigated his case: “How can my lawyer reach the investigating judge? Since I have been detained, I have never seen, heard or met the investigating judge. … How can he make a decision when he has never contacted me up to this point?” There was no comment on that by the trial judge. Richard was asked about the information on the Computer confiscated from his house. Some evidence presented at the court – i. e. ‘badges’ of rank and file, brochure (pamphlets/booklets), organisation chart, etc – which the judiciary police said were printed out from the same Computer. His answer was that he cannot speak anything on this matter unless he has been allowed to see and make sure if it has the same information, or that they have been changed. The judge said: “You have no right to see the Computer.” Most of the questions which the trial judge and attending prosecutor posed at him during the hearing were directed at securing more information about CFF and its departments, military profile, hierarchy, and similar other details. At one stage the judge said: “Stop talking about evidence. Turn to terrorism of 24 November. I ask you what was your role on 24^th.” He said he was asked by Chhun Yaseth, the Commander, to be the commander for the operation just two hours before, for which he was not prepared. But later he conceded to take the charge. When the prosecutor asked if the weapons shown on the exhibit table belonged to the CFF, he said he did not know about the weapons as the responsibility for military operation was vested in Commander in Chief and other commanders.   

The newly appointed lawyer for the suspects, Puth Theavy, wanted to know the names of other six persons in the central committee of CFF apart from Chhun Yaseth and Thong Samean. Richard was upset with this question of the defence lawyer appointed by the court. He rejected to answer. Again he inquired if CFF has any relation with the movement led by It Soung of Khmer Serey (Free Khmer). Richard said there is no relationship of any sort. But as a whole, it was not clear how the defence lawyer consolidated the defence of Richard  Kiri Kim by asking these questions. Finally, the court imposed a life sentence on him.  

Chey Vandy, 39, another accused during the first round of trial, also rejected his earlier confession given to the investigating judge and said that it was done under threat. He said he did not join the CFF at all. The confused prosecutor said aloud: “On what evidence Chey Vandy was arrested? His name is not in the organisation chart. I want the authority to clarify the relationship with CFF and Chey Vandy …” The policeman who arrested him, and who was present at the court told the lawyer of the suspect:  “he was in the list of people we were to arrest.” The police assumed that since Chey Vandy had held no clear position, he must have been in the combat force of CFF. The judge asked where he was during the operation in Phnom Penh. He replied: “I was running a motto at home. During the fighting I was sleeping at home with my family.” Chey Vandy was convicted of organised crime and served with the imprisonment of 3 years.    

The case of Chhun Hourng, 46, during the first round of trial can be another sample case. On being asked at the open court why he joined CFF, Chhun said his idea was to make an association. Yum Neam, his firiend who briefed him about CFF just did it in that sense. In the confessionary statement that he gave to the investigating judge of Kampong Cham, wherefrom his case was transferred to Phnom Penh, he stated that he was in CFF since 1998. He also had said that he held a CFF position at Kampong Cham, and he had his office at his own house. He further pointed out:  “The organisation structure at the district level was not made by me; it was made by Prak Porsa who worked as a rubber plantation filed at Peak Chan. Prak Porsa said he had sent the names to Phnom Penh already. Park Porsa was my Deputy…”  

Chhun identified the document that he had signed before but said that the statement is untrue. He further said that he did not know about the movement of CFF. What he knew was that Richard Kim Kiri was in charge of the organisation which aimed at the development of Cambodia. He further said that he received no letter of appointment. Chhun Hourng was also convicted of organised crime, and was sentenced for three years.       

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial with the exception that the trial was public from the start.  

Sok Som, 23, farmer, was born in Kandal province. He was arrested on 24 November 2000 by military police. He used to work at the factory. He said he did not know about the incident.  At the time he was arrested he was in the house of Tuol Key. He did not know that the house had some weapons inside. On 23 November at 6:30pm, Phany, the house owner, had told him to bring food (two parcels of food) for 30 people at a hill in the rice field.  He told that if he did not agree he would be shot dead. He said they pointed the gun at him and he went home to sleep because they ordered not to talk. On 24 November at 7:00am, the authorities arrested him and Phany.  He took the authorities to see 30 persons and found 3 weapons. The authorities informed Sok Som was arrested at the house of Phany who is the sister-in-law of Sok Som.  “This person showed the place where ‘2 Ak 47’ were hidden.  Answering to the question of his lawyer, he pointed out that when Khoeun the person who brought him to Phnom Penh on November 23, a day before the incident, he did not tell him anything about CFF.  

The Prosecutor interrogated him with a number of questions. He concluded that Sok Som came to work as the factory worker and he was asked by Khoeun for that.  On 23 November, Khoeun brought him to Phany who later asked him to bring food to a force of 30 persons.  Although he claimed that he was threatened, it was clear that he brought the food voluntarily.  This is a pretext.  It cannot be taken into consideration. He provided food for the armed group. With these arguments, the prosecutor gave his conclusion that Sok Som was involved in the group of terrorist. He further said that the person was involved in terrorism even though he was not in the CFF ‘structure list.’ Thus he affirmed his charge of participation in illegal armed group with the intention of causing chaos, instability, and terrorism.  

Lawyer of Sok Som, Chum Sovannaly, argued that the incidence was organized by CFF and Sok Som was not involved in the acts because on 23 November at 7:00 am, he came from the lake, Ponhea Leu, Kandal.  He came to Khoeun’s house in Tuol Key, Phnom Penh.  Khoeun brought him to work as the factory security guard.  It is not strange that poor people look for employment. He rested in Khoeun’s house for a night as a relative.  At 8:00pm on the same day, Sok Som was asked to bring the food.  It was normal to do this sort of job when somebody is a guest in the house of other.  He has never known CFF. He was intimidated to confess. He was arrested on 24 November and he was brought under legal detention only in 7 December 2000, or 13 days after the arrest. This violated the procedures specified by Article 13 of UNTAC. There is no evidence which shows that he is an associate of the CFF. There is no witness to testify. He was arrested in the house where he was a guest; it was not a case of flagrant délicto. Additionally, the lawful period of pre-trial detention was exceeded. The lawyer said that he had submitted a petition for his release; there was no response from both the trial judge and investigating judge. This violated Articles 21, 22 and 14 of the UNTAC law.  

Sok Som was convicted both of organised crime and terrorism, and was sentenced to a term of five years. The decision of the court did not respond to his statement at the open court that he was told to bring food (two parcels of food) for 30 people at a hill in the rice field, and that he would be shot dead if he did not agree to comply.  

Similarly Top Chea, male, 22, construction worker and farmer, was also tried during the second round. Top Chea accepted the statement of confession that he gave to the Military Police and Investigating Judge.  He said he was told to work as a construction worker for better salary in Phnom Penh by a person called Nuon Nath. As such, he came to Phnom Penh by taxi with Chea Kim San and Nuon Nath.  He stayed in a wooden rental house. Top Chea told that there were 3 males in the house, there was no one else. The house owner and his wife were there.  “At 2:30am, I was waken up and led to the railway station. They pointed the gun at me.  If I did not take the gun I would be shot,” said Top Chea. He did not know how many other people were in the force and how many were led at gunpoint.  He was threatened and he shot on the air several times. He went out of the railway station from main entrance with a full magazine and an AK 47 rifle.  He saw yellow and red bans and he threw it away. He denied that an unknown man told him to work as a U.S. soldier to get USD 200 every month. He told that he did not know any such thing.   

The prosecutor however pleaded that Top Chea came to Phnom Penh and stayed in the railway station. Nath brought him with other associates and stayed on the same house.  The house owner made the arrangement for it.  At night, 12:00 am, his group brought weapons.  Chea Kim San and Nuon Nath received weapons and then walked out. He admitted receiving a gun and walked out of the railway to open fires 4-5 times. He was arrested at the place of incident. The prosecutor referred to the fact that Top Chea acknowledged being cheated out but he argued that he had intention to participate in the battle. If he did not have intention, he would have escaped right away. He received the weapon and fired the authorities.  This, the prosecutor argued, showed his participation in terrorism. Lawyer of Top Chea, Chhor Lithay, however, argued that Top Chea was arrested at 7:00 in the morning.  He came to Phnom Penh for a job and he did not know what CFF was.  

Top Chea was also convicted of both the offence of organised crime and terrorism, and was sentenced for ten years term of imprisonment.  

Phy Sovann, 40, businessman, was arrested on 24 November 2000. He came to Phnom Penh on 22 November with a man named Kdeing who he knew during the SOC (State of Cambodia) time as a taxi-driver.  Kdieng asked him if he wanted to come to Phnom Penh.  “I had no job to do.  [As such,] I decided to come with him,” said Phy Sovann.  At 4:00 pm, he arrived in Phnom Penh, the car got flat-tier, so he separated with Kdeing at the taxi station.  On 23 November, he walked down to Ta Khmao to get a bus.  His friend asked him to help look for a car.  “I did not ask where his residence was.  I just went with him.  I was taken to a place near Neak Van Pagoda. Some people were there. They had drink until 12:00am.  I was so sleepy and I went to bed.  At 2:00 a.m, people called me and I went with the group. If I did not carry the B-40 gun, I would be shot.” said Phy Sovann.  

The prosecutor said Phy Sovann recognized that he traveled from his house on 22 November. He stayed in the railway station on 23-24 November. After receiving top of B-40, he walked after the group.  He stopped and went to hide in the wagon.  This showed he was in the armed group because he carried out terrorism in the organized armed group. The prosecutor also pointed out that he was arrested at the place of incidence on 24 November.  

Puth Theavy, the lawyer of Phy Sovann, argued that according to the charge sheet the accused left Kampong Thmor for Phnom Penh with Pheap. On 22 November 2000, Pheap asked him to help to buy a car for him. Until night on 23 November, the purchase of the car could not be done. He went to have a drink and then went to Pheap’s house where some people were drinking local liquor. He was drunk; he was not in a good sense. He carried bayonet of B-40 because of fear. They said if he did not carry, he would be shot dead.  When he walked for 200-300 metres, another person came and took that top of B-40. Then he came back to sleep. He was arrested in the morning. He was not able to operate the armed group.  How can the client create the armed group within one night and one day? To create an armed group, they need time, plans, and weapons. He was put at the gunpoint.  

Phy Sovann was also convicted of organised crime and terrorism and was sentenced for a term of seven years.  

The third round of CFF trial in Phnom Penh has some other stories. A couple of cases may also be discussed at this stage. Seang Hay, 51, who was charged of organised crime and terrorism in the context of the failed coup of November 24 and bombings at the Vietnamese embassy and Funcipec headquarters and the blast outside the Ministry of Foreign Affairs can be taken as an example. The charge read against him at the hearing did not look specific. Evidence produced in the court included a big CFF flag (which bears on its surface a number of signatures of different unidentified persons), some small table flags, CFF membership cards, one or two military (camouflage) uniform/s and some books/diaries. Included in the files were some faxed documents from the United States which, among others, mentions the name of Seang Hay, who was being treated as the most important accused in the group. These evidences, however, were not enough to prove that he was the Commander of the CFF in Thailand as stated by the Prosecutor, and had ordered the explosions/blasts there. Additionally, he also rejected the confession given to the police and the prosecutor, but accepted some of the details including the fact that he was the second bureau chief of the CFF operations in Thailand. Seang Hay was convicted of both terrorism and organised crime, and was committed to the prison term of twenty years.  

Most of the suspects seemed to be the people without sophistication. All of them said that they were forced to confess (some even dared to say that they were beaten up at police custody, and that even the statements given to the prosecutor were taken either in the presence or in close range of police who accompanied them to the court). For example, Ek Chamroen, Ri Borann and Khieu Radoeun, who were accused of planning the attack on the Vietnamese embassy denied the charge in the beginning, but later gave admission on some of the points raised by the court. Suspects Keo Tak, Neak Salim, Cheang Sophal and Phlong Bunthouen all testified that they were not directly involved in the grenade attacks on Phnom Penh’s Funcipec Headquarters, National Assembly and Ministry of Foreign Affairs. But later, after repeated questions and answers, Keo Tak and Neak Salim came to concede that some strangers paid them some money to recruit rebels and send their names to the CFF office in Thailand. Suspect Sri Sren who flatly rejected to corroborate any statement that he gave before to the police, prosecutor or investigating judge was asked by the judge not to be ‘stubborn’ and confess right away.  

The entire thrust of the court was to insist on reconfirmation of the statement of the accused in the dossier. Except in the case of the Cambo-American accused Sao Chum Gilbert, and other two persons named Sok Thy and David Chan, all of the suspects were made to accept some part of the statement they gave to the police or to the prosecutor implicating themselves. Gilbert denied of any involvement in the CFF attack, the bombings of Funcipec Headquarters, the Ministry of Foreign Affairs and International Cooperation or the Vietnamese Embassy last year. Gilbert was arrested in September 2001. Like Gilbert, all alleged CFF members standing trial with him were arrested in September and October of 2001. That means they all were arrested after 9 or 10 months of the fighting of November 2000; and the prosecutor till the end of the trial submitted no evidence to show that they took part in the fighting. There was little direct evidence linking the current defendants with the November 24, 2000 fighting.  

Curiously enough, the judge ordered reinvestigation of the case of Sok Thy, who was one of the 20 suspects brought for trial. He also ordered reinvestigation of the cases of Peter Leng and Chhun Chhoung, and asked to trace out their background in particular. Both of them were being tried in absentia and reportedly live in the United States.  

Several cases were heard outside Phnom Penh as well. The Battambang Provincial Court heard cases of eighteen CFF suspects in March 2002. Two accused were not represented by any lawyers. Even during the trial, they were requesting the court to provide one to plead their defence. But there was no response. The material evidences like CFF flags, booklets, guns, etc were produced in the court. The guns, ammunitions and flags, etc which were confiscated and exhibited at the trial room were said to be confiscated from the accused Chan Vorn, Chea Chhoy, Chhan Chuob Sambath, Suy Bour and others. They however counter-claimed that these evidences although confiscated from their possession belonged to the local military, and were still with them, as they had not surrendered them to the military as ex military men. Only two suspects – Sin Soth and Some Bin – confessed at the court. All others denied the written statement given to the police or prosecutor. At this the judge asked the suspects to produce evidence in support of their innocence. He also said that even if it is assumed that the police forced them to confess, what forced them to repeat the confession at the office of investigating judge. The judge was seen consulting the Phnom Penh Court’s CFF judgement of February 2002. No one was released by the judge on any grounds including lack of concrete evidences. All were convicted for 13 to 18 years of imprisonment.  

On 5 April 2002, three more CFF suspects were convicted to (suspended) imprisonment sentences by Siem Reap Provincial Court. Meas Savoeun, the Siem Reap suspect, stated during the trial that the police did not tell him why he was arrested. Later, he was told that he was arrested because his name was on the CFF list. The judge replied by asking him how many times he had been interrogated. He added that he had to prepare himself to “find evidence during the trial”. Lek Bunnhean, another suspect being tried together with him, did not reply on the question about awareness. The judge did not ask about it again. Mav Srei, the third accused, had not been arrested, nor pre trial detained.

Prosecutor started to accuse all these three suspects together during the trial. On August 10, 1998, Lek Bunnhean would have been recruited by CFF in order to disturb the government. Lek Bunnhean is a former police official and is currently a brothel owner in Osmach. In 1997, a Khmer/US citizen would have approached him in Osmach in order to join the CFF. In 1999, Lek Bunnhean would have stayed in the house of MS in Siem Reap, who also would have been involved in CFF. On September 23, 2000, Lek Bunnhean would have been in Phnom Penh, where he got some money from the government. Meas Savoeun would have been working as a military official in RCAF Region 4 (around 1000 subordinates) in Siem Reap, as a cover or a mean for CFF activities. He would have been complaining about a lack of salary towards his military commander around that time. Meas Savoeun eventually got salary from Chhun Yasith in 2000. Chhun Yasith would have said to him: strengthen your forces; you will get money from me. Mav Srei joined the CFF as secretary of Chhun Yasith. In 2000, Meas Savoeun got money from CY. He would have get respectively 1000, 500, 200, and 200 US $ from Chhun Yasith. Also, a gun has been found in the house of Meas Savoeun (against art. 36 UNTAC). There was a gun lying on a table in the courtroom. The judge stated that Meas Savoeun would have gained the gun by/for the purpose of CFF. Mav Srei (Mav Srei) would have obtained 650 US$ and 300 Bath from Chhun Yasith. 
 

Lek Bunnhean asked the Judge that in 1997, a US person called Hok Srey, asked him to set up an organization. He said he agreed as he had nothing else to do, and he was under the impression that it was an appropriate plan. Yes, he did sometimes come to Siem Reap to see Meas Savoeun; the latter was involved in the development of the organization as well. Lek Bunnhean was aware about the plan of Meas Savoeunto send forces to Kratie. He did not know why. Lek Bunnhean said that he did not see Chhun Yaseth in Thailand; he phoned with Chhun Yaseth sometimes. Lek Bunnhean did not reply on the question from the judge whether he received weapons from Chhun Yaseth.   

Judge asked Meas Savoeun whether he met Chhun Yasith in Thailand; why he was appointed as a military official for Region 4 and what he did with US $ 1000 US he got from Chhun Yaseth. He said only “no” on the first question.  

Mav Srei stated to the judge that she has been in touch with Chhun Yaseth by phone a few times. Lek Bunnhean knew nothing about these contacts. The judge said: “so later you realized that your activities were not good and you confessed to the government…”. She confirmed this statement. The judge stated (but no evidence presented) that Mav Srei received money in August and September 2000 (total US $ 450). Also, the judge said that Meas Savoeun received about 27 phone calls from Chhun Yasith.  

Meas Savoeun stated that he got the gun from the former governor of Siem Reap and that it had nothing to do with CFF. There was no evidence provided linking the gun to the case. He stated to the judge that he never met Chhun Yaseth in Thailand. The Judge asked why he had been appointed as a military official and involved in CFF. He also asked what he did with the money he got from Chhun Yasith. There was no reply from Meas Savoeun on this. The Judge stated to Meas Savoeun that he received 27 phone calls. But no evidence was presented at trial about this. Similarly, there was no evidence about the transfer of money, and the shopkeeper or his concerned staff was not present at the trial.   

Mav Srei and Lek Bunnhean admitted that they were involved in CFF initially, but that as soon as they realized that they were involved in illegal activities, they stopped collaborating with the CFF people. They said they did not realize that it was illegal at that time; they just thought that they were doing some business/building up an NGO. They had transported some phones, or had made some plans for doing this. They were not clear when they stopped doing it. Later during the trial they said that they stopped their involvement in 2000). Mav Srei stated that she never received money from Chhun Yaseth, but she agreed that she was in touch with him (temporarily).  

The prosecutor said that it was hard to find evidence in her case, but because she was accused of being involved in acts of terrorism, it was easier to find evidence. So, if her name was on the list, she was already assumed to be involved. Other CFF suspects/convicted informed the court about her involvement, but they were not present at the trail. If she was not involved with CFF, then why did she contact Chhun Yasith?  

Lek Bunnhean stated that Meas Savoeun never came to Osmach. He said that he met Mav Srei there one time, but that he did not know that she was the wife of Lek Bunnhean.  But Prosecutor stated that Meas Savoeun came many times in the brothel of Lek Bunnhean and that Mav Srei went to Thailand at least 20 times, 2 times accompanied by Meas Savoeun. Again there was no evidence or witnesses.  

Lek Bunnhean and Mav Srei agreed again that they joined CFF, but that they did not realize it was CFF of this sort. As soon as they realized they stopped their involvement with it. The judge said that Lek Bunnhean and Mav Srei accused Meas Savoeun from persuading them to join CFF. Only Mav Srei stated during the trial that Meas Savoeun came to Osmach to persuade her to join. Lek Bunnhean did not reply on this (he only said during the trial that he met Meas Savoeun in Siem Reap). Meas Savoeun denied everything. He said to have never been involved in CFF activities. He said that he did not know Lek Bunnhean and Mav Srei and that he admitted the crimes because of torture/intimidation committed by police and investigating judge.   

The court clerk read aloud some statements during the trial. They included statement of several co-suspects from Phnom Penh and shop owners of shops to which money was transferred and also reports on interrogations of the three suspects. Witnesses were absent. This prevented the accused from presenting proper defense on the contents of these statements, credibility of witnesses and the way in which the statements were obtained. Only Lek Bunnhean, Meas Savoeun and Mav Srei were, as being suspects, were present in the trial room. They accused each other in the statements they gave.  

Meas Savoeun stated that Lek Bunnhean persuaded him to join CFF, but they did not clearly persist in their statements during the trial (apart may be from Mav Srei). Prosecutor stressed that Lek Bunnhean and Mav Srei later realized that they were acting inappropriately. Prosecutor also states that Meas Savoeun was on the CFF list from the beginning. Lek Bunnhean and Mav Srei were not, so initially they were not prosecuted. Later, the court changed its mind, because they might continue illegal activities if not prosecuted.  

Lawyers had questioning of their clients and other suspects during the trial. In their pleas, they mentioned some procedural irregularities but stressed the lack of evidence in particular. They emphasized that the involvement with CFF is only found out from the statements of Lek Bunnthean and Mav Srei, which were vaguely confirmed during the trial. Meanwhile, the judge seemed indifferent about their arguments. He was busy adding something on the pre-written verdict with a red pen. He did not seem to listen to the lawyers. The three suspects got the last word in the trial. The judge did not take time to think or further make up his mind. Obviously, the verdicts were pre-written and sentences were decided before he started hearing.  

The case of Im Yoeu tried by Kampong Cham Court is yet another example. Im Yoeu was arrested on October 27, 2001 by Military Region – 2 which later sent him to provincial police of Kampong Cham. In the confessional statement he made to police he said he had joined CFF movement on the persuasion of two of his friends. One of the these two friends identified himself as a representative of CFF leader. He was appointed as commander of Division – 1.  

In September 2000 at Vat Than pagoda in Phnom Penh, he met with four other persons who knew him when they met each other at Funcipec office in Phnom Penh in 1998. He tried to persuade him to join CFF. There, he also met another man who identified himself as special representative of CFF leader. They all had a chat at pagoda for a while about mobilisation of forces. Im Yoeu was told that if he wished to meet the CFF leader, he would be brought to Thailand with a prior appointment made through special representative at Poi Pet. In Early September 2000 he together with two other men went to Poi Pet and met the special representative Ly Hov at a local hotel. Next morning, they were taken to a pagoda in Aranh province, Thailand, where he met the CFF leader. Before returning back to Phnom Penh, each of them was given 1,000 Baht. Back at Phnom Penh, when they met the CFF representative, he scolded them for visiting the CFF leader without taking his prior permission. Since then the representative never contacted him until the November 24 fighting in Phnom Penh. Three days after the fighting, Im Yoeu left for Chamkar Leu district and stayed there till he was arrested.  

In his statement to the investigating judge he said that the confession he made to police is not coerced. He also said he had joined CFF but had never conducted activities in connection with CFF. He denied participating in the November 24 fighting. During the trial as well he repeated the same statement. Except his first wife who was brought to the court, and had no knowledge of anything about CFF and, no other witness were called or appeared during the trial. After an argument from the lawyer that the case lacks evidence in support of the charge, the judge dropped the offence of organised crime, but convicted him of the charge of terrorism. He was convicted and sentenced for 10 years in prison. In fact, his hearing finished in about an hour in the absence of witnesses and other incriminating evidence.  

The case of Nuon Simoeun may also be discussed. Nuon Simoeun told the court that a man named Nol came to visit his house in June/July 2000. He asked Nuon Simoeun to do a job for him, and promised to give money, which Simoeun desperately needed for his treatment. Nol gave 20,000 Riel to him at that time, and lent another sum of 1000,000 after sometime. Nol visited Simoeun sometime later with another man named Phon when he was at a clinic going through treatment. After he recovered and came back to the house, Phon again visited Simoeun, and asked him to write a piece of paper that he has 375 soldiers under his command. He did not want to write such a thing. Then Phon remarked that he will get some money if he does it. Simoeun wrote a mock number of soldiers and demanded US $ 2000 and one hand phone. Because he was sick and could not travel to collect money from Phon, he asked Kosal to get the money from Phon. Kosal left the village for three nights and returned with $ 40 and gave that money to Simoeun who in turn gave five dollar to him for having done the job.  

In August 2001, Simoeun made a trip to Phnom Penh to get more money from Phon. He did not know Phon’s house but they both set a place at coffee shop to meet. Phon took Simoeun to his house, told Simoeun to write about the soldiers under him and gave US $ 400. Simoeun said when he got money from Phon he used that money to pay cost for treatment and stayed home without undertaking activities in relation to CFF. He said he had no contact with Nol and Phon until he and Kosal were arrested.      

In his separate statement, Kosal said Phon took him to meet an unknown man, told him to sit and drink coffee and gave him US $ 50. Kosal changed 10 of 50 dollar for travel expenses and gave 40 dollar to Simoeun who gave him five dollars.  

The judge read a confession Kosal gave to police that he and Phon went to Thailand, met and shook hand with a man, Ghin, who inquired about our forces. During their stay in Thailand, Kosal heard Ghin wanted to send CFF flag with Phon back to Phnom Penh, but denied knowing that whether the flag would be sent upon return from Thailand. During the trial Kosal did not talk how and with whom he came back from Thailand, but said he received US 50 dollars from Phon.  

The lawyer presented the prescription of Simoeun’s physician as an evidence that he was in the hospital and not able to undertake activities related with CFF or mobilisation of combatants under his command in the past. He also argued that there was no strong evidence and no witness testified that he was involved with CFF. All that the prosecutor had was the confession made to police and gendarmes. He also said that his client had never had any contact with the provincial military of Kampong Cham. No arms were found with the accused and there was no evidence that they used any arms. The lawyer also argued that the amount of money his clients received cannot be used to mobilise or prepare armed forces. The whole objective of his client was to find some money for his treatment so that he could live longer. The two names were not in the computerised list seized by the police.  

The prosecutor argued that the paper showing the numbers of soldiers and request for money and hand phone prove that they organised a group of people intended to be against the government. One of the two (Kosal) went to Thailand, met with CFF involved people, and received money and if they did just for money, why they did not confess to authority after they got money.  

The judge decided to sentence Nuon Simoeun for two years in prison and Soeung Kosal for five years in prison under Art 36 of UNTAC Law.  

These sample cases generally represent the sort of CFF cases tried in different courts as of today. In addition to these sample cases, mention must be made of people tried in absentia. Chhun Yaseth, who was believed to be the President of CFF, and Thong Samean, General Secretary, were tried in absentia.  According to the judgment of the first round of cases, Chhun set up the overall principles and plan in order to overthrow the legitimate government of Cambodia and the throne. He carried out the propaganda activities to persuade and mobilize forces and associates of the lower ranks to carry out acts of subversion. He organised the network, persuaded the people to serve the armed group of CFF, and bestowed medals to the associates. He collected and provided fund, arms and equipments. According to the judgement, this accused is the one who drew up the itinerary plan to attack Phnom Penh together with other associates of the lower rank including determining the main targets to be destroyed. The court said that he gave the order to attack on November 23-24 from Thailand on telephone. He was convicted of organised crime and complicity in terrorism with the life sentence.  

The activities and commission of offences carried out by Thong Samean were described by the court as similar to those carried out by Chhun Yaseth. Therefore, the offence with which he was charged was changed from terrorism to conspiracy to pursue terrorism and organisation of armed group leading to the attack of November 23-24. Thong Samean was also convicted in absentia of organised crime and complicity in terrorism with the life sentence during the first round of cases.     

Many other cases could also be added to the preceding discussion. Suffice it to say for our purpose that  there was limited focus on most critical elements of criminal liability – i. e., an act was not wrongful unless accompanied by a wrongful state of mind, or as a general proposition, one cannot be convicted for mere criminal thoughts; one must normally do something towards bringing those thoughts to fruition. The comment is not on the output of trial, but on the requirements of the trial.  

8.    Reinvestigation or Acquittal  

Most of the CFF cases, including those discussed above as sample, demonstrated one thing straight: there was a sort of doubt on the motive of prosecution and adequacy of proof. The existing law maintains that any doubt as to guilt shall be construed in favour of the accused.[11] That did not generally happen. Again, if the court so wished it could have asked the prosecutor or investigating judge to further investigate the case, instead of acquitting the suspects, if it had strong grounds for it. Generally, it did not like to go for this option too.[12]

After all the CFF trials,[13] only a few suspects were found innocent. During the first round of trial of 32 persons, for example, the court found Bun Mony, 47 and Sokh Samith, 41, innocent on both counts of participation in armed group and act of terrorism. Their release was immediately ordered. Some observers expected from the beginning that one or two persons will be declared innocent to demonstrate that there was a full-fledged trial. Some suspects were found guilty only of one of these two counts. The court had found 9 other suspects not involved in terrorism. In other words, they were convicted only for organised crime. The court found Chhun Yaseth and Thong Samean (both of whom were convicted in absentia), Richard Kim Kiri, Nou Sarun, Chhan Yean, Nuon Nath, Veng Sothy, and Kol Sarath who were tried during the first round of trial in Phnom Penh guilty of complicity in terrorism as well. Only a few were ordered with reinvestigation of their cases.

Mention must be made, for example, of the third round of trial at Phnom Penh in which the trial judge ordered reinvestigation of the case of one suspect named Sok Thy.[14] Later, he was released due to the lack of evidence.

9.    Pretrial Rights

These few instances of hearing must be understood in the light of pretrial rights of the suspects. The risk of human rights abuses started at the first moment with the officials raising suspicions against the persons known to be involved with CFF since its establishment. The right to liberty was under threat because several arrests were made without warrant, and many of those arrested were detained in military or police stations, or Ministry of Interior over 48 hours, and pretrial detention over six months. Most of those who were arrested were not given immediate information about the reasons of arrest. Access by lawyers to their clients in prison was denied or regularly restricted in several cases. Similarly, in several cases the lawyer was not enabled to meet in private with his client. The right of detainees to have access to the outside world was also impaired. Visits by family members had been denied or irregularly restricted. The right to be brought promptly before a judge or other judicial officer was ignored in several cases. Above all, the provision of law that any accused person, whether or not in detention, must be judged no later than six months after arrest was also violated in many cases.

In November 1998, at least 16 persons were arrested in Malai, believed to be CFF members, who were accused of organised crime and were detained for several months in Battambang Provincial Prison. Whereas those arrested claimed that they had gathered with a large group of people in order to go to the Thai border in order to receive rice from an American organisation based in Thailand, and carried guns to protect themselves from robbery, the government claimed that the group was organising rebel activity and had been incited by the CFF to stand up against the Prime Minister, and to receive rice in exchange for their struggle. Accusations were made against the group that it confiscated weapons from government authorities as well as civilians. The CFF repeatedly faxed reports to the press claiming that it had organised an opposition demonstration. It criticised the excessive use of force by the authorities during the arrest of its supporters. No trial was held in any of the cases; some of the suspects were released because of lack of evidence; others were released reportedly after influencing the court.  

Again in April 1999, five people accused of being CFF members were arrested in Phnom Penh and charged with terrorism/sabotaging to destroy Cambodian economy. They were suspected of planning to attack a Sokimex petrol stock station in Prek Pnov, near Phnom Penh. Shortly after the arrests, CFF issues a press release, in which it fiercely criticised the government for the grenade attack, the coup d’état, election fraud and immunities given to Khmer Rouge leaders. It did mention the alleged plan of attack on the Sokimex station. All of them were (former) Funcinpec members, two of whom claimed to have contact with Chhun Yasith.  

During mid-end 2000, the COHCHR received several reports that the CFF was carrying out propaganda activities calling for the overthrow of the government by handing out leaflets in at least two provinces in Cambodia. Three people were arrested in Kampong Thom and Kandal Province, and were released shortly after.  In August 2000, one of the leaders of the CFF visited the COHCHR twice and reported about his fear of arrests of members of the CFF. His fear was prompted by speech given by Prime Minister on 24 August, in which the Prime Minister called for the arrest of the leaders of both the CFF and the Khmer Serei movement.[15] Arrests of the members of the CFF started well before the 24 November attack in Phnom Penh. In the beginning of October 2000, three soldiers were illegally arrested and detained for 3 months at the Provincial Military Headquarters in Battambang. They were interrogated about their CFF activities. Again on 17 November, three men were arrested in Siem Reap. On 19 November, a woman who transported equipment for the CFF was arrested in Banteay Meanchey Province.  

Then on the early hours of 24 November 2000, CFF conducted an operation in which it attacked three governmental positions: Council of Ministers, Ministry of Defence and Military Base F70. This attack gave the green light for indiscriminate arrests. Several arrests were made in the wake of the day.  An investigation conducted into the arbitrary arrest and killing of persons allegedly involved in the November 24 attack  showed that arrest without warrants were made on the basis of a list of 50 persons whose pictures were included in the list. Arrests were also made on the basis of another list of 291 names of persons compiled by the military intelligence. Most of these arrests were made in the first few weeks after 24 November. None of these arrests were made with proper warrants of arrests issued by the courts according to law. Most of the suspects were held at the Phnom Penh Municipal Gendarmerie headquarters. Some had been transferred from the province to the National Gendarmerie, others to the Phnom Penh Municipal Police. Some of the suspects who appeared to have been high risk like Richard Kiri Kim [included as a sample case above] and some high ranking police officers like Nourn Nam , Nou Saron, Ma Soben, etc were detained at the Ministry of Interior. Prime Minister Hun Sen asked NGOs to stay out of its investigation adding that the government will arrest human rights workers who were hiding alleged terrorists.    

An unidentified number of suspects were released after interviews conducted at their initial place of detention, for lack of evidence linking them to the attack. Almost all of those arrested who were later sent to the prison were not brought before the court within the maximum period of 24 hours. The court reported to the Office that it was not able, considering their human resources, to deal with in a short period of time with the large numbers of arrested persons. In January, two monks were arrested for alleged involvement with the CFF; in both cases proper arrest warrants had been issued and the monks were brought before the court within 48 hours. As of the beginning of February, 73 persons had been taken to the Phnom Penh Municipal Court. Warrants of detention were issued and charges of terrorism and organised crime were laid against 54 of them. Warrants of release were issued for 19 persons. While all persons arrested in the provinces were transferred to Phnom Penh, one suspect, who is a journalist for Agence Khmer Presses, was in detention in Kompong Cham Province for unclear reasons.  

Arrests of persons believed to be related to the CFF continued in Phnom Penh as well as in the provinces, most of them carried out without issuance of proper warrants. In one instance in Banteay Meanchey Province, a man arrested on suspicion of involvement with the CFF was beaten up seriously. He was released after intervention by the COHCHR Provincial Office and provided assistance for medical treatment. The Office was able to conduct interviews with several suspects while they were brought to the Phnom Penh Municipal Court. The Municipal Court had approved a request by the Office to continue conducting interviews with the suspects, who are awaiting trial in a prison on the outskirts of Phnom Penh. The Ministry of Interior, in disrespect of the competency of the Phnom Penh Court, prevented access by staff of the Office to the prison. The COHCHR did not receive any response to a written request to the Ministry of Interior to allow staff to meet with suspects in the prison.  

Whereas in general, persons interviewed by human rights groups reported that they had been treated upon arrest and during detention according to the law, twelve out of 73 persons brought before the court in Phnom Penh reported they had been beaten or kicked during arrest by gendarmerie or police, and during detention at the gendermerie headquarters.  

The COHCHR, with the good cooperation of the Phnom Penh Court, was able to ensure that most of the detainees, who were brought before the court, were assisted by lawyers from legal aid NGOs or the Cambodian Bar Association. However, since the suspects were detained in the Phnom Penh Prison, lawyers had faced difficulties in getting access to their clients, despite the fact that the lawyers were all officially appointed by the court. The prison director reported to have received instructions from his superiors (and it is not clear from what level), not to allow anyone in without permission from the Ministry of Interior. As of mid-February, a few lawyers had been able to meet their clients, but only after approval given by Ministry of Interior. The Cambodian Bar association and Cambodian Defenders Project complained about the unlawful requirements made by the Ministry. The COHCHR on 14 February requested the urgent intervention from the Co-Minister of Interior to ensure that lawyers are given full access to their clients without the need for prior authorisation.  

Despite approval by the Phnom Penh court which was given in accordance with the prison procedures, relatives of suspected members of CFF still encountered difficulties in visiting their families in the Phnom Penh prison. The Ministry of Interior instructed the prison director to allow access only after approval by the anti-terrorism committee which was set up shortly after the 24 November incident. At the same time, the prison director had refused lawyers who were officially appointed by the Phnom Penh Court access to their clients accused of involvement with the CFF.  The Office also requested the Co-Minister to guarantee relatives’ access to the detainees, in accordance with prison procedures.  

Whereas six persons suspected of involvement with CFF were sent to military prison (and the three in Battambang kept at the military base), all others were brought before the civil court. After intervention by the Office with the military court, the six were transferred to the civil court.  

Many leaders of the attack, and recruiters for the CFF were Funcinpec members. It seemed that many of those who carried out the attack were not politically affiliated. Several of those who were arrested after the attack, and who did not participate in the attack, were also affiliated to Funcinpec. One person was known to be a former Son Sann Party member. All of those who were arrested from Pailin were former Khmer Rouge and current Sam Rainsy Party members or supporters. Many of those who ‘surrendered’ to the authorities were Funcinpec members or supporters. In Svay Rieng Province, some of them, used to be affiliated to Funcinpec but shifted allegiance to a party loyal to the CPP after the coup d’état in 1997. The Government stated that persons from the CPP had also been arrested. The COHCHR only received information about the surrender of two CPP members in Prey Veng, and the surrender of former high ranking CPP member and former Vice President of the National Assembly (’82-93), Nou Beng.  

Three round ups of large numbers of people in Kampong Som and Phnom Penh, related to the incident, led to the arrest of another approximately 400 persons, who were released after short periods of detention. In Kampong Som, authorities conducted late night arrests of young men, since many of those involved in the 24 November attack were young men. In Phnom Penh people were arrested in two instances, in the area around the railway station, wherefrom the 24 November attack started, because they had not registered their residency in the area with the local authorities.   

The Phnom Penh Municipal Court tried a second group of 28 suspects in October 2001. Many of the same concerns were reported for this second round of trial. Since most of the suspects had been arrested together with those tried in June, they had been in excessive pre-trial detention even longer than the first group. Difficulties for the lawyers and relatives to visit the suspects remained. When the suspects appeared before the court, it was clearly visible that several of them were not able to walk or stand up properly and suffered from beri beri. This is due to Vitamin B deficiency, and is due to the poor diet in the prisons. The fact that several of the suspects come from the provinces and therefore could not be frequently visited by relatives upon whom prisoners in general rely for additional food supplies could have caused the beri beri. However, it is likely that the fact that it was difficult for relatives to get access, as a result of the Ministry of Interior’s requirement to obtain prior approval could have contributed to prisoners contracting the disease.    

While sporadic arrests have been made since the beginning of the year 2001, September saw a third wave of arrests of CFF suspects, in particular in Battambang province. Arrests continued in October as well as November. As of 14 November, the Office had received reports that 62 newly arrested were in pre-trial detention in Phnom Penh, Battambang, Banteay Meanchey, Siem Reap and Kampong Cham provinces.

The first arrests were made in early September. The Office received credible information that the CFF had planned to carry out some attacks in September, around the Festival of the Dead (end September) and possibly the water Festival (November).

Most of the new arrests were carried out without warrants. At least nine of those arrested were prospective commune council candidates for Funcinpec or the Sam Rainsy party in Battambang province. Five of them were released and were still able to register as candidates. The Office tried to verify the basis of the arrests and detention of those who remained in prison as it was concerned that these persons might have been targeted because of their legal political activities. So far, the Office was reported that the arrests were based on a testimony of a CFF suspect, who used to be a Funcinpec member, but left the party disgruntled. Moreover, during house searches, which were conducted without warrants, explosives and some weapons were found. These suspects, however, came from former Khmer Rouge areas, where possession of arms remains common.  

In Battambang, the President of the Court refused to appoint lawyers for the suspects, claiming he first wanted to finish interrogations; relatives were also not allowed to visit the suspects in prison. After intervention by the Office, these issues were solved. In the context of April 2002 trial in Siem Reap, it is noted that COHCHR and NGOs were not allowed to enter Siem Reap provincial prison (prosecutor Siem Reap did not give approval) to interview the suspects preceding the trial.

At the end of September/beginning of October of 2001, the Ministry of Interior wrote to the Phnom Penh Court requesting them to get prior approval to meeting suspects in prison. The Prison Director had earlier told the court that security concerns prevented prison officials from transporting suspects to the Phnom Penh Court. The investigating judge refused to request permission from the Ministry. His staffs were able to conduct interrogations. He requested the Office not to raise this concern with the authorities.  

The patterns of the violation of pretrial rights are similar in most of the cases whether decided by the Phnom Penh Court or by the trial courts in the provinces.  

10. Rights at Trial  

The focus hereunder is on the rights at trial. In fairness to the CFF trials, one must say that the courts, which decided CFF cases, were the courts with all jurisdictional competence to hear these cases. There was no retroactive application of criminal laws and double jeopardy. Similarly, any suspect invoking the right to an interpreter and to translation was not noted. In the rest of the cases, generally speaking, the performance of the court in the context of the rights at trial was also very poor.  

In 11 June 2001, when the first trial of 32 persons suspected of involvement with the CFF had begun, it was not public.[16] Several media and representatives of human rights organisations were not allowed to observe the trial. The security guards outside the court asked for authorisation letters from the court in case of NGOs and the Ministry of Information in case of media persons. Lawyers too did not have enough sitting arrangements for them. A lawyer spoke to the court that the wife of his client (suspect) was not allowed to come and listen to the trial. Another lawyer complained to the trial judge that he was not allowed by the guards to come to the hearing room. The third lawyer then commented: “On behalf of the lawyers, [I protest that] this is not really a public hearing. The organisation of the trial is not according to the procedure. [I} requests for a public trial. This hearing is not held publicly.” Several other lawyers also boycotted the proceedings. Ang Eng Thong, President of the Cambodian Bar Association, and Soun Visal of the Cambodian Defenders Project were both denied access to the trial on the morning of June 11.

However, the trial judge did not delay the hearing, and appointed two new lawyers for the clients whose lawyers boycotted the courtroom. They defended the clients they had never met. The presence of a large number of security forces in the courtroom, creating an intimidating environment, threatened the right to a public trial.

During the trial of second group of 28 suspects in October-November 2001, the trial judge denied a request made by a lawyer of one of the suspects to summon one of the leaders of the CFF already convicted, and who had currently been in prison, to the court. Written evidence provided by this convict, stating that many of those on trial were his subordinates, was however used by the judge against the suspects, in spite of the latter’s’ consistent testimonies that they had been lured to Phnom Penh from the provinces, with promises of money. Most of them claimed not to know about the CFF, and thereby denying that they had any intention to conduct terrorism (one of the elements of the offence of terrorism). Most of them were however convicted of terrorism (as well as organized crime). Another request by a lawyer to summon two other witnesses was also denied by the judge during the trial.

Many of the suspects retracted confessions made in front of the investigating judge in the early stages of the pre-trial detention. They claimed that they feared reprisals if they would not answer consistently with the interrogation made by the Military Police, since after their appearance before the court, they were brought back to military police detention. The judge did not take this defense seriously. None of the military police interrogators were present during the trial, or were called so that they could be examined.  

One of the suspects claimed to have been recruited by the military intelligence in order to provide the government with information on the CFF. He had been provided with documents to that effect, but these were allegedly confiscated during arrest. They could not be found in the court’s file, which did include a letter from a senior officer of the military intelligence, Mr. Hour Sareth, denying the allegation. The trial judge summoned the commander to the court, but he failed to appear, according to the Ministry of Defense, Mr. Hour Sareth was on mission. Despite his failure to appear the judge upheld Mr. Hour Sareth’s argument and considered the claim by the suspects as untrue, and convicted him to 15 years.  

Despite the appearance that the reasoning on which the judgement was based was more substantial than during the first trial, serious concerns remained leading to the conclusion that the suspects did not get a fair trial. Interestingly, one of the suspects was convicted to 7 years imprisonment, despite guarantees of immunity from prosecution given to him, through Om Yentieng and Mul Roeup, head of the military intelligence by the Prime Minister. Several months after his return to Cambodia, and on the first date of the first trial he was arrested. One of the judges, who requested anonymity, reported that he had been called several times to one of the Ministries in order to discuss his decision concerning one of the suspects. He feared that he could be dismissed, possibly by the Supreme Council of Magistracy which has legal powers in this regard.  

The third round of CFF trial in Phnom Penh had some other stories. At the beginning of the trial of 23 suspects, the trial judge told the lawyers as well as suspects that they can request for additional lawyers if they think that there are conflicting interests, and the lawyers appointed at the moment cannot represent all these interests together. He also told that additional lawyers are ready if they are requested for. Nobody had any specific request on that point. Dy Borima and Puth Theavy, who were acting as the court appointed lawyers for the 2+18 accused persons being prosecuted, also did not comment on that. The judge also briefed the accused persons at the beginning of the trial on all fair trial issues that were brought to the attention of him in COHCHR’s meeting with him on February 15, 2002. The right to consult lawyer and get clarified from the judge if the suspects did not understand questions posed to them was also included.  

The court appointed lawyers in the third round of cases were not defending the interests of their clients to a desirable level. The two lawyers representing 20 (i.e., 2 + 18) clients had difficulties to meaningfully prepare the defence of their clients not only because of the gravity of charge against them, but also due to the possibility of conflict of interest between the accused persons, and impossibility of defending every suspect equally and meaningfully. It was also not possible to understand what they had in mind when, in addition to the questions asked by the prosecutor, they were asking further questions to the suspects, making their position more complicated. One of the lawyers was given a hint, for example, during the hearing of Seang Hay, that faxed documents do not prove anything until the prosecution proves that Seang Hay acted on the advice given by the sender of the fax, or responded it in appropriate ways. There was no comment on that from the defence lawyers. There were so far no comments on the paucity of evidence.  

Some irrelevant questions were also asked by the Prosecutor and the trial judge. [This is true of all CFF trials held throughout the country]. The impartiality of the trial judge in conducting the trial might be questioned. Most of the questions that should have been asked by the Prosecutor were asked by the trial judge himself. The courtroom appeared more as a room of the investigating judge than a trial room because most of the time was spent on further interrogation, than asking the prosecutor and defence lawyers to take up or defend their case. The prosecutor did not call any witness to testify; his whole approach was to focus on the confessionary statements made by the suspects in the police or prosecution office.  

The court seemed keen on using the statement given by one suspect against another. There is no law in Cambodia which requires that the statement of a co-accused can only be taken as evidence against another accused on oath and subject to the process of cross examination at the trial. The statements of some convicts, serving their prison sentence following the CFF trials held last year, were also being used against some of the present suspects. But these convicts were not called on to give their testimony in the open court, thus depriving the attending lawyers an opportunity to examine or cross-examine their implicating statements. Apparently, the prosecution was consolidating its position on the statements of the co-accused and former CFF convicts in the absence of other substantially incriminating evidence. From the statements given by the suspects to the court, and further clarifications, it appears that some of them may be technically involved with CFF without knowing much about the organisation and its purpose. In this background, the challenge before the court was to find the required intent under both these provisions, and that seemingly was not proved.   

On 5 April 2002, three more CFF suspects were sentenced by Siem Reap Provincial Court. One of the three suspects was convicted to 10 years imprisonment, but the sentences of two others were suspended. Again, the convictions were not based on substantive evidence, and the trial suffered from several procedural irregularities. One of the suspects was not provided with a defense lawyer. Sequence of trial events was as such performed reasonably well as in the case of Phnom Penh trials (opening of the trial, accused questioned as to background, prosecutor reads charges, questioning by judge, reply of accused, questioning by lawyers, reply of accused, pleas of lawyers, closing arguments, last reply of accused, judgments including sentences). But the judge did not keep off from asking some leading questions. He seemed to act as a prosecutor at times. Both the judge and prosecutor stressed the opportunity for the accused to prove their innocence, rather than explaining them about their rights (including the right to silence). Defense lawyers did not object to the continuance of the trial without the presence of witnesses (whose statements were read aloud by the clerk), to leading questions from the judge, and to not inform the suspects of their rights and asking them to come up with evidence about their innocence. Note that the reference here is to the cases of Lek Bunnhean, May Srei and Meas Savoeun, which have already been described above as sample cases.  

The judgements of CFF cases generally don’t focus on the elements of crime that we discussed above in relation to the fact and evidences presented at the court. Conclusions are made without referring to the arguments made by lawyers. Very limited references are given on the statement of the suspect at the open court. They all show that the judgment that these judges have rendered are inadequate. A more objective assessment of the rights at trial may be made with specific reference to the following standard principles:  

·         Presence of the Accused  

All the accused were present at the trial with the exception of those who apparently had not been traced. The people like Chhun Yaseth and Thong Samean who are said to be the leaders of the CFF were convicted in absentia. The lack of presence of such important figures of CFF in the trial means that even those who were present were not sufficiently understood in the absence of the statement of the prime suspects. There were other problems also. In the second and third round of cases in Phnom Penh, for example, the court appointed lawyers had not argued anything in favour of the absentee suspects. Trial in absentia, though acceptable in exceptional cases, is a current feature of the Cambodian justice system. At any rate the rights of the accused will still be protected under Cambodian law since an accused who has been tried in absentia can lodge an opposition to the judgement.[17]   

·         Equality of Arms  

All the CFF lawyers did have access to the files containing the evidence relied on by the prosecution. Since many of the court appointed lawyers expected the copy of all these files supplied to them free of cost, but that was not done. In the third round of cases, at the Phnom Penh Court, for example, the case files supplied to the lawyers did not contain statements of the accused persons at the police station. To maintain equality of arms a fair balance is expected to struck between the parties in the case. The disclosure should cover all materials for or against the accused and it should include the relevant testimony of the accused at the police custody.

During the second round of CFF cases at Phnom Penh, for example, at no time did the prosecution show any willingness to assist in providing the necessary information to one accused, Tep Simoly, in respect of a key witness, Hour Sareth, who was a senior military intelligence officer. The accused alleged that Hour Sareth had asked him to infiltrate the CFF organisation and act as a spy for the State. Though the judge did request that the witness should be present, the witness never turned up and the only official reason was that he was on mission. The judge did not pursue the matter further. The lawyer of the accused insisted on the presence of that witness but her efforts fell on deaf ears. The prosecutor simply submitted at the end of the case that Hour Sareth had denied the version of the accused. A letter allegedly written by Hour Sareth and remitted to the accused was never produced; the prosecution remaining content in saying that there never was such a letter as Hour Sareth had no right to issue it. In the absence of Hour Sareth this important fact could not be verified. It is a matter of grave concern that, on the state of the evidence and, given that this witness did not attend court, accused Tep Simoly was convicted and sentenced to 15 years imprisonment.

Impartiality and Independence

Under Cambodian law the trial judge has the right to question the accused. This should obviously be done in the strict respect of the rights of the accused, more particularly his right to silence and self-incrimination. The questioning of the accused in all CFF trials seems to have been conducted with a view to compel them to confess to the alleged offenses. In many cases in Phnom Penh or the outside provincial courts, the accused persons were confronted with the list of the names of the alleged CFF activists and the impression was that, since their names appeared there, they could have no plausible explanation to give by way of a defence. The defence of the accused was that they had been tricked to come to Phnom Penh to get a job and that they were forced to carry rifle and follow the group. This defense was simply dismissed as ridiculous during the questioning. A glimpse of the cases that have been reported above as sample cases explain the realities.

In the second round of cases in Phnom Penh, at one stage in the course of trial one lawyer requested that three witnesses be summoned to court for questioning. The judge simply ignored this request and the lawyer did not pursue the matter further. As pointed out above, one important witness who was a high ranking military intelligence officer did not attend court in spite of a request by the judge that he should attend. In fact, that witness, Hour Sareth could have helped in determining whether the defence of the accused that he was an under cover agent was genuine or not. The judge was not unduly concerned by this absence and the explanation of that accused was simply rejected.

Presumption of Innocence

The overall impression during all CFF trials in Phnom Penh and outside was that this principle was not really respected. In fact the whole atmosphere in the course of the trial, with police officers in uniform filming the proceedings from the bench and the picture of each accused being taken during interrogation, was rather intimidating. The judge, at times, and the prosecutor, all through the trial, in the course of his interrogation of the accused, visibly treated them as guilty persons.

On the first day of the second round of trial at Phnom Penh, the accused were brought to court in handcuffs. They were removed subsequently and were not used on the following days.  

During the third round of trial in Phnom Penh, the trial judge shouted at the suspects at times. He even threatened one accused not to be ‘stubborn’ and accept the guilt. The observers expected the trial judge to ask the prosecutor to prove his charge, or request the court to drop it in the absence of incriminating evidence. He never did it. An aggressive course of interrogation was a challenge to the guarantee of the presumption of innocence.

Right to be informed of the charge

The charges were read out to the accused. All of them presumably understood what they had to face. But it cannot be assumed that they understood the legal characterisation of the acts allegedly committed by them. In fact, the elements of the offences of terrorism and taking part in organised crime are quite complex for a layman or even for a lawyer to understand. All the accused simply stated that they were not guilty of the offences. One accused, during the second round of trial at Phnom Penh, had some difficulty to understand what the charge was and he kept saying that he did not understand why he was in court as he had done nothing wrong.

Times and facilities for the preparation of defense

All the accused, except those tried in absentia, were represented by lawyers during the first and second round of trials at Phnom Penh. During the second round of trial at Phnom Penh, a lawyer was appointed during the trial in the case of those accused who were not represented or who wanted a change of lawyers. None of the lawyers who were so appointed made any request to be given some time to talk to their respective clients. Since the main line of defence of most of the accused was that they had been forced to join the CFF group and that they had been beaten up by the police to confess, it would have been better for the lawyers to ask for some time to prepare the defence on those lines. The judge also did not make any observation on this. The interesting point is whether the lawyer would have been granted an adjournment. In fairness to the judge, however, it must be said that he really acceded to the requests of the lawyers to allow them to communicate with their clients whenever required. On some occasions, the lawyers were even allowed to talk to their clients before answering questions from the bench. But during the third round of trial in Phnom Penh, and many other trials in the provinces, there were neither times nor facilities for the preparation of defense.  

Trial delay

The accused in the CFF case of the first and second round were arrested in November 2000 and have been tried almost a year after. Article 21(1) of UNTAC Law provides that a person whether or not in detention must be judged not later than six months after arrest. Lawyers always invoke this article to secure the release of those persons who are tried more than six months following their arrest. Article 22 of UNTAC Law provides that where there has been no compliance in the procedure set out in articles 10 to 21, and this includes the right to be tried within six months from the date of arrest, the person must be released if the non compliance has seriously interfered with the rights of the defence. That did not happen.

Legal representation

As already stated all the accused were represented during the first and second round of trials in Phnom Penh. Some of the accused were represented by two or more lawyers who took turn in questioning the accused. At times, it was apparent that this strategy confused the accused. When the same questions were put by the different lawyers the situation became worse. It is not clear whether these lawyers had had time to meet and discuss among themselves before hand. The lawyers who were appointed in court had no time to consult the accused in such a situation.

The main line of the defence of the accused was that they were tricked into coming to Phnom Penh to get a job and that they had been acting under duress if at all they participated in the armed group. Hardly any questioning was done on this aspect except for statements made by the accused parties. None of the police officers present was questioned on this issue nor did the lawyers make any request that this be done. Yet this was an important line of defence. In the context of third round of trial in Phnom Penh , one should also quickly add that the court appointed only two lawyers to represent 20 suspects. There were apparent conflict of interest between these suspects, and the lawyers could not plead the defense of all these suspects reasonably. The role of the lawyers in relation to these 20 suspects was in fact largely ceremonial. The office had cautioned the trial judge about this fact some days before the trial. Two accused in Battambang were not represented by any defense lawyers.

The submissions made by the lawyers at the end covered mostly the law relating to the rights of the accused and the articles of the law creating the offences. There was no in-depth analysis of the offences and the evidence or lack of evidence in relation to each element of the offences.

Many of the lawyers turned up late in court and some of them just left because the questioning of their clients was over. One lawyer who was representing one accused left and disappeared after the questioning of his client was over and did not attend the court to make his submissions at the end. It is believed he is a CDP lawyer. The judge stated he would accept written submissions from him. 

In general the lawyers both in Phnom Penh and provinces were given full latitude to defend the interest of their clients and the court cannot be blamed for their shortcomings. This is a matter that should be taken with the Cambodian Bar Association so that remedial action is taken to improve the quality of the profession. There is an emerging jurisprudence in human rights on incompetence of lawyers and its effect on the rights of an accused and the lawyers need to be aware of this.

The right to call and examine witnesses

This right was impaired in most of the cases. Many necessary witnesses were not called to the court. During the third round of trial, what the trial judge did was to pit one suspect against another, or use the statement of the already convicted CFF prisoner to establish the guilt of the present suspect. As mentioned already, during the second round of trial, a key witness for the prosecution, who could have shed light on the defence of one accused, Tep Simoly, was never present in court. It is clear that this particular accused had suffered an immense prejudice in the conduct of his defence and of his basic rights as an accused. None of the police officers who recorded the alleged confessions of the accused was present. A request by a lawyer to have three police witnesses present had no follow up. It is surprising that the lawyers themselves did not insist strongly enough on the presence of these witnesses or ask for a clear ruling from the court on this aspect. An Mao is one of the accused who has been convicted in the first CFF trial. A list given under his hands and containing the photographs and names of the accused was produced in court. An Mao was never called to be examined. His absence has deprived the accused of a legitimate opportunity to question An Mao on the circumstances in which the photographs found their way on a list already prepared by him.

Right against self-incrimination

The main evidence against the accused was their confession. Most of the accused stated that the police had subjected them to physical violence. When they were asked to explain why they confessed before the investigating judge in presence of their respective lawyer, they explained that they had no choice. They feared that they would be beaten up again by the police on their return to their place of detention. This line of defence went almost unnoticed. None of the police officers who had recorded the alleged confessions were present in court. The lawyers who represented the accused did not take any steps to secure their presence in court. Whenever there was an allegation of ill treatment by the accused, only one police officer who was present at the trial, stood up to deny the allegation by reading some notes. In addition the questioning by the prosecutor was to get confirmation of the confessions. It is worth noting that the judge stated in his judgement that he was not prepared on the confessions of eighteen of the accused and acted on what he believed was sufficient evidence to convict for the offence of terrorism.

11.  Positive Indications

This largely negative analysis of the report must be taken by the readers with some caution. One can dispute whether these CFF cases can speak for the hundreds of ordinary civil or criminal cases being investigated, heard and decided by Cambodian courts on almost daily basis. For a variety of reasons elaborated at the beginning, the CFF issue remains different, and the likelihood of outside influence in this case from the beginning was greater than any other cases decided in Cambodia after the promulgation of the new Constitution in 1993. One has to understand the fact of involvement of military in the investigation phase in the beginning, and also the possibility of willingness of the government to consolidate its position by using the CFF banner against its opponents. The pressure that the court might have borne on this case might not be the same when it is trying another ordinary case of the day, where nobody is personally involved except the contesting clients.  

Although violations of pretrial rights were massively reported, the authorities expressed that they know the right to liberty, and that they are committed to the procedures of arrest and detention. Once the suspects were taken to the prison, their rights to have the information about the reasons of arrest or detention were recognised in most of the cases. In most of the cases, lawyers were allowed to visit the prisons, if they wanted to consult their clients. Most of the clients were represented by lawyers, although in some cases, the quality of representation was very nominal. Most of the suspects were not tortured once they were taken to the prison.    

The observation of CFF trials gives some other indications also. Except the first day of first round of cases at Phnom Penh, all CFF trials were held in public, notwithstanding the presence of security guards outside the court. Except this first day, everybody could have access to the court without the need to have any prior authorization. Even relatives of the prisoners were granted free access to the court. In addition, at Phnom Penh, a loudspeaker was placed outside the hearing room to enable people to follow the trial in all CFF cases in all these three round of trials. 

Moreover, in all CFF cases, judges generally informed the accused person about their rights (including right to disqualify the judge. If the course of aggressive questioning is to be ignored, the trial judge had been able to show respectful attitude during most of the trial to all participants, including accused persons and lawyers. They were in control of the hearing. In most of the cases, they gave ample opportunity to lawyers to speak and to consult with their clients. In many cases, lawyers had good arguments; they were seem to have questioned about independence of the court, arrest without warrant, excessive pretrial detention, and hindrance imposed on the way of lawyers access to their clients. Ample references to the law and even to international treaties were noted at times, for example, during the second round of CFF hearing in Phnom Penh. Many of the lawyers submitted their briefs to the trial judge after their conclusive arguments were done. This is indeed a good trend. 

In spite of the many shortcomings highlighted above, some accused persons were acquitted and in the case of some, their confessions were not acted upon. If these shortcomings are current features of criminal trials in the Cambodian criminal justice system, it is high time that a rational strategy be developed to counteract these failings. Trial judges also showed some sense of sentencing. For example, during the second round of cases, with regard to the sentences meted out to the accused, on the charge of terrorism which carries a penalty of between ten to twenty years[18] six accused were sentenced to ten years, four to seven years and eight to five years imprisonment. On the charge of organized crime which carries a punishment of between three to fifteen years[19], one accused was sentenced to seven years, three to fifteen years, one to ten years, two to five years and one to three years. However, to all intents and purposes, terrorism appears to be a more serious offence than organized crime. This fact is reflected in the sentences.

Conclusions

In general, the application of fair trial standards with specific reference to CFF cases shows that Cambodia ’s judicial system remains weak in several senses and has to go long way into the future to make it strong.

If these CFF cases are taken as test cases, we find both the pretrial rights and the rights at trial still not adequately institutionalized in Cambodia . These cases are illustrative of the violation of the protection regarding arrest, detention and the presumption of release pending trial. Some cases of torture were noted. Many of the suspects were not informed immediately of the reasons of arrest or detention. Detainees had restricted access to the outside world. Right to communicate and receive visits was also restrictive. Many of these suspects were not promptly brought before the court. In many cases, the right to trial within the lawful period was not respected. In several cases, the right to defence was not adequately guaranteed. In fact, the court appointed lawyers were not serving the suspects as expected of legal professionals. A few of suspects did not have lawyers despite the right to have a legal right to that effect. Bail did not become an important concern for judges who investigated the case. Confessions were taken as principal evidence.    

The right to a fair hearing lies at the heart of the concept of fair trial. It is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, and so on. In none of the trials the CFF judges spoke about exclusion of evidence elicited as a result of torture or other compulsion. The right to be tried without undue delay was affected in more than half of CFF cases. The right to call and examine witnesses was not complied in some cases. The right to a public judgement was recognized; but the judgements were not adequately reasoned. Even the major arguments of the attending lawyers were not responded in the judgement. The cases we monitored placed several question marks on the realization of these rights. None of the trial judges thought about exclusion of evidence elicited as a result of torture or other compulsion. They show that the justice system has to go far ahead in getting these rights rooted in the judicial consciousness. They also show that the court system to grow stronger to deal with the pressures, and other challenges before it.

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[1] A press release of CFF dated 27 April 1999 reiterates that CFF is a resistant group and was born as a response to unjust situations emerging in Cambodia, especially after March 1997 when a peaceful demonstration in front of the National Assembly had been gunned down by the government forces. The organisation charges the government of corruption, human rights violations, torture, execution, grenade attack on innocent people, electoral frauds, and immunity to the former Khmer Rouge leaders who were responsible for the genocide during 1975-79. It has a plan to continue struggle until Cambodia becomes a state of law, and the government is from the people, by the people and for the people. As such, it defines itself as an anti-government, but not a terrorist organisation. The organisation is said to be registered in the United States as a non-profit organisation and is headquartered in Long Beach, CA 90804 USA.  The police investigation shows that Chhun Yaseth, an American Cambodian, is the top leader of the group since 11 October 1998.

[2] The list of CFF prisoners as at April 2002 has been attached herewith.

[3] Art 1, Law on Punishment of the Acts of Terrorism 1992

[4] Art 2, Ibid

[5] Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (United Nations Transitional Authority for Cambodia, 1992)

[6] Art 36, UNTAC Law

[7] Art 69 states: “Whoever has provided the means by which an offence is committed, ordered that the offence be committed, or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal offender.”

[8] Srun Vong Vannak, a member of the opposition Khmer Nation Party (KNP) and the party’s chief of security, was sentenced to 13 years in jail – a decision that took the judge only 10 minutes to reach.  

[9] Pretrial detention of the accused is not to exceed 4 months. It can be extended by 2 months for the purpose of investigation, but only on the order of a judge who gives reasons for extension. Article 14 (4), UNTAC Law.

[10] Article 22, UNTAC Law

[11] Art 38, The Constitution of the Kingdom of Cambodia (1993)

[12] Art 107 of SOC Law of Criminal Procedure provides that if the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation.

[13] See the Attachment – 1 of this Report

[14] If the charge referred to the court is not sufficiently clear, the court may refer the charge back to the prosecutor or investigating judge for further investigation. Art 107, SOC Law

[15] It is said to be another anti-government group and is based in the province of Kratie, and is reportedly led by two Cambodian-French, Ith Suong (former CPP official) and Nguon Soeur (former Funcinpec, who shifted allegiance to the  CPP in 1998).

[16] Arts 128-29 of  SOC Law on Criminal Procedure provides for public hearing  except when it is deemed to be dangerous to public order.

[17] Art 115, SOC Law

[18] Arts 1 & 2, Law on Terrorism

[19] Art 36, UNTAC Law

*Adhikari is a Nepalese lawyer currently working with Cambodia Office of the High Commissioner for Human Rights (UNHCHR)