William and Mary Law School

Judicial Interrogations

            Over the past couple of weeks I conducted client interviews, wrote more success stories, conducted research on the law, edited reports, attended meetings, and observed trials.  I was able to participate in a workshop with Legal Aid for Cambodia (LAC), one of IBJ’s partner NGO’s.  The purpose of the workshop was to teach villagers how to register land under the new land law.  I conducted some research to help prepare for the workshop and participated in some group discussions.

I also sat in on two judicial interrogations, which were conducted by investigating judges according to Cambodia’s France-like civil law system.  Under the new Criminal Procedure Code there are many provisions concerning interrogations of the accused. This interrogation seemed to fulfill most of the requirements in the Code, some of the provisions of which you more lawyerly-types might be interested to read below.  One of the interrogations concerned a rape and murder case, and the other was a murder case.  The rape/murder case is quite graphic so I think I’ll recount the other case instead.  Everything that was said during the interrogation is already on the court record and is being used by the investigating judge and attorneys, so it’s safe to share the general story, but I’ve changed/left out some details to protect the identities of the individuals involved.

This case involved two defendants.  The first man was from Vietnam and it was difficult for him to understand some of the questions.  He said that he did not need an interpreter though (the judge did ask him if he wanted one).  He was quite clueless about the murder.  His wife is the murderer’s sister and she convinced her husband to hide the murder weapon, an AK-47.  He was arrested for conspiring with his brother-in-law, but swears he did not know why his wife wanted him to hide the gun.  The interrogation of the second man was much longer and more intense.  The man used to transport illegal wood down the river, a dangerous but lucrative occupation.  Many nights “police officers” would stop him and force him to pay 100 dollars in order to continue.  One night a police officer stopped him and demanded 600 dollars.  He refused, angrily paid the typical 100 dollar bribe, and continued onward.  The first officer then called a second officer to provide back-up and they again confronted the man to demand an additional 500 dollars.  After they threatened serious violence he finally paid them and continued on his course, enraged.  When the man returned home he began to formulate a plan to get his money back.  He knew where both of the “officers” lived and bought an AK-47.  He eventually went to the officers’ house by night, tried to get his money back, it became violent and he shot them both.

            Now to the procedure.  From my limited Khmer, I don’t think the men took any oaths, because the judge immediately dove into asking their names, occupations, places of residence, etc.  As the defendants answered the clerk attempted to hand-write the answers.  After a defendant answered, the judge would then repeat the defendant’s answer in her own words and the clerk would continue to scribble.  Then the clerk would read aloud what he had just written.  Sometimes the IBJ lawyer would interject and remind the defendants about their rights or clarify confusing questions.  At the end of the interrogation the clerk read aloud everything he had written for the defendants and lawyer’s benefit.  The defendants approved the documents and fingerprinted each page.

Overall the process seemed fair.  According to the law, interrogations must take place with a lawyer present.  This provision of the law was followed here (although defendants more often go interrogations alone since they don’t have attorneys). I was a bit disconcerted when the judge repeated back the answers in her own words for the clerk to write down.  The written testimony is read aloud during the trial and incorrect phrasing or misinformation could blur the line between guilt and innocence.  Although perhaps disturbing, however, the transcription method is not surprising in a court where the clerks write everything by hand.  Further at the end of the interrogation the defendant was read aloud the entire written testimony and given an opportunity to object.  This seems to mitigate the problems the transcription method could potentially cause.  I left the interrogations generally satisfied by the fulfillment of the rule of law, even though the defendants’ stories occurred amidst a background of numerous other problems.  These mostly lawful interrogations gave me hope that things are moving in the right direction.

Aside from work, I have been busy taking trips around the region to Laos, Stung Treng, Vonsai, Vietnam, and several villages around Banlung.  Otherwise I’ve just tried to immerse myself in Cambodian life as much as possible.  A lot of that involves eating the local food.  The more strange things I've eaten include frog, deer, wild boar, dog, cricket, grasshopper, snake and lizard.  My work threw me a smashing going away party this week which involved a lot of karaoke; I may or may not have sung Britney Spears.  I am finally starting to get a handle on the language but unfortunately I don’t have much time left with my plethora of Khmer teachers!  I will go to Phnom Penh in a few days, spend some time in the IBJ Phnom Penh office to wrap up some work, and then fly out of Bangkok in only one week.  I am not looking forward to leaving behind my work at IBJ, new friends, and my language studies, but hopefully I will be back here soon enough!

As promised, here are some of the more relevant provisions concerning interrogations in the Cambodian Criminal Procedure Code:

Article 93 Interrogation Records
Judicial police officers may order to appear or bring any person who is suspected of committing an offense to their offices. Judicial police officers shall interrogate any such person. For each interrogation, a written record shall be established. The written record shall be an accurate account of the interrogated person’s responses. If it is necessary, judicial police officers may use an interpreter/translator who shall take an oath according to his own religion or beliefs. The interpreter/translator shall not be chosen from among the police or military police or any person with a connection to the case. The interrogated person shall sign or affix his finger-print to each page of the written record.
Before signing or affixing the finger-print on the written record, the interrogated person shall re-read the record. If necessary, a judicial police officer shall read the record aloud. Judicial police officers may call for an interpreter/translator. If the interrogated person refuses to sign or affix his finger-print on the written record, the judicial police officer shall so note on the written record.

Article 115 Record of Interrogation – Preliminary Inquiry
A written record shall be established for every interrogation. The record shall accurately reflect the responses of the relevant person. If necessary, the judicial police officer may call for an interpreter/translator who shall swear under his religion or beliefs to interpret the responses as accurately as possible. In any case, the interpreter/translator shall not be selected from the police, military police, or any person who is involved in the case.

Article 145 Presence of Lawyer during Interrogation
When a charged person has a lawyer, the investigating judge shall summons the lawyer at least five days before the interrogation takes place. During that period, the lawyer may examine the case file. A charged person can be interrogated only in the presence of his lawyer. However, if the lawyer was properly summonsed but does not show up on the specified date and time, the investigating judge can question the charged person without the presence of his lawyer. The absence of the lawyer shall be noted in the written record of the charged person’s interrogation. Exceptionally, the investigating judge may interrogate the charged person without summonsing the lawyer if the charged person expressly waives his right to his lawyer’s presence. This waiver shall be noted in a separate written record of the charged person’s interrogation and shall be signed by the charged person. In case of urgency, the investigating judge may interrogate the charged person without summonsing the lawyer. This urgency situation can only be caused by danger of death or by a risk of losing evidence. The type of urgency shall be written in the report. The investigating judge may call on an interpreter/translator as provided in Article 144 (Assistance of Interpreter/Translator) of this Code.

Article 146 Questioning with Authorisation of Investigating Judge
During interrogations of a charged person, the Royal Prosecutor and the lawyers may ask questions with the authorization of the investigating judge. In cases where authorization is refused, this shall be noted in the written record.

Article 148 Right to Interrogation
If a four month period calculating from the first appearance of a charged person has elapsed, and the charged person has not been interrogated or had a confrontation, the investigating judge shall take the statement of the charged person if the charged person so requests. If the investigating judge does not call the charged person within one month after the request, the charged person may directly seize the Investigation Chamber who shall then take the charged person’s statement. The written record of the statement shall then be sent to the investigating judge.

Article 242 Rules for Establishment of Written Records
For each interrogation, interview or confrontation a written record shall be established. The written record shall accurately state the questions, answers and spontaneous statements. The charged person and, if applicable, the interpreter/translator shall sign every page of the written record of any interrogation of the charged person. A civil party and, if applicable, the interpreter/translator, shall sign every page of the written record of any interview of the civil party. A witness and, if applicable, the interpreter/translator shall sign every page of the record of interview of the witness. All persons attending a confrontation and, if applicable, the interpreter/translator shall sign every page of the written record of confrontation. Before signing the written record, the charged person, civil party and witnesses shall read through the written record. If a person is unable to read, the court clerk shall read the record aloud. The interpreter/translator interprets such statement as read. If the concerned person refuses to sign the record, the investigating judge shall note the refusal in the record.