An example of excessive pre-trial is the case of a young man aged 17
when he was arrested on March 30, 2000 and charged with robbery. The
investigating judge concluded his investigation and sent the case to be
assigned to a trial judge on October 9, 2000, yet the man was not brought to
trial by Phnom Penh Municipal court until September 24, 2001, nearly 18
months after his date of arrest. This is in strict violation of Cambodian Prison
Procedure 34.2, Section 5, which states that minors 13-18 years of age should
not be held in pre-trial detention for more than one month, or two months if
the minor is charged with a crime.
When the investigating judge and the trial judge were asked why the
case took so long they both spoke in general terms and did not specifically talk
about this case. They both mentioned a very heavy workload and lack of
funds to bring prisoners to trial as the main reasons for excessive pre-trial
detention; the prisons ask the court to pay $20 per pre-trial detainee that is sent
to court. This is particularly so in CC1, CC2 and PJ, when inmates were
transferred to trial in Phnom Penh Appeal Court and Supreme Court.
The trial judge stressed that pre-trial detainees often required several
trips to court – to be interviewed by a prosecutor, investigating judge and then
to appear at trial – and that the courts can not pay for the transportation pretrial
detainees have to wait for someone to pay; which in many cases would be
the family of the accused.
The trial judge further said that if no one can pay for the transportation
pre-trial detainees are tried in absentia. The investigating judge said that
because of the heavy workload at the court it is often the case where one of the
parties [or both] comes to discuss their case with the judge that is prioritized
and solved first.
The question of who has the duty of transporting prisoners to their Court hearings is at
times disputed. Prison directors sometimes state that this is not the responsibility of
prison staff (who are under the Ministry of Interior), but of the courts (under the
Ministry of Justice). However, at least one senior Ministry of Interior official has
confirmed that it is the duty of his staff to transport prisoners to court. In reality, court
officials do not transport prisoners, and the illegal practice of prison staff charging
prisoners for their own transportation continues. If the prisoner does not have money
to pay for his transportation, the Court will hear his/her case in absentia. This is in
violation of rights enshrined in Cambodian and international law for accused persons
to be present at court proceedings and to present a defense. Cambodian criminal
procedure states at Article 10, Section 1:
"The right to assistance of an attorney or counsel is assured for any
person accused of a misdemeanour or crime."
Accused persons whose rights have already been breached by unlawfully long pretrial
detention are therefore subjected to further violations if they are not allowed to
attend their trials. When LICADHO staff interviewed judges about excessive pre-trial
detention in CC1 and CC2, they offered three reasons: 1) lack of vehicle to transport
prisoners; 2) scarcity of judges to hear cases; and 3) the particular nature of some
cases – requiring complex criminal investigations. In Banteay Meanchey, judges cited
scarcity of judges as the primary source of excessive detention.