William and Mary Law School

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      On July 15, I took a minivan up to Battambang province again, this time just with Dalis, IBJ's office coordinator in Phnom Penh, to translate for me. Ms. Poeung Kalyan, the IBJ lawyer in Battambang, had arranged an interview with two clients who were recently acquitted after having spent fifteen months in pre-trial detention. It is fortunate whenever IBJ lawyers have new, stand-out success stories to report because donors want to be kept up to date on IBJ's work, but many of the better stories we have collected are months old. Here is the story I wrote:  

        Moeun and Sao have been neighbors their whole lives and, despite being nine years apart in age—Moeun is thirty-two and Sao is twenty-three—they are as close as brothers. Around 4 PM on April 18, 2012, the two were eating together in an outdoor restaurant in their village. All of a sudden, three men at a nearby table began fighting each other. Moeun and Sao recognized them as Thy, Art, and Meng, three men whom they had seen around the village. They walked over to get a closer look at the commotion.

        Thy landed a punch that badly wounded Art’s left eye and the latter squinted in pain as he flailed his fists wildly, hoping to strike Thy in spite of that handicap. Meng circled the two of them waiting for his best opportunity to jump into the scrum. The three men were obviously drunk, but after a few minutes of fighting, when some of the other patrons tried to restrain them until the police could arrive, they sobered up enough to attempt an escape from the scene.

        Art and Meng, evidently on the same side of the dispute, ran into the woods together as Thy hopped on his motorbike. He tried to speed out of the parking lot, but Moeun found himself unintentionally standing in his path. Thy kicked Moeun out of his way at the same time as he pulled back on the throttle and, in his state of inebriation, the force of the kick was enough to send him caroming off Moeun, down an embankment, and through a thicket of trees. He desperately tried to regain control of the bike as he swerved around the trees, but an unseen rock sent him flying face-down into a creek.

        Through the trees from their position in the parking lot, Moeun and Sao could vaguely make out what happened next. Art and Meng stopped running when they saw Thy crash and then cautiously approached his motionless body. Having contented themselves that the injured man would not retaliate, they each picked up one end of a heavy log and slammed it down on Thy’s head before sprinting out of sight. Moeun and Sao walked home, shaken by what they had seen, while other villagers picked up Thy’s unconscious body and saw him off to the hospital in an ambulance.

        The police arrived at Moeun’s and Sao’s houses the next day. Apparently, upon regaining consciousness the night before, Thy recounted to them the events that led to his hospitalization; only, according to his version, Moeun and Sao played the parts of the actual perpetrators, Art and Meng. At first, Moeun and Sao were shocked to be accused, but they soon fit the pieces together: Art and Meng had successfully evaded the village police, likely by travelling to another province overnight, and Thy, the victim in the eyes of the law, would only receive civil compensation in court if he could finger a perpetrator. They also knew that the police were eager to hold someone accountable for such a public crime. As the police escorted them to the district post, the two friends were hopeful that the truth would soon be uncovered because there were so many witnesses who could set the record straight.  

        But their interrogator  was not interested in rounding up and interviewing witnesses. He was convinced that he had his culprits in front of him and threatened them severely to scare up a confession. Under the pressure, Sao, the younger of the two, became so afraid that he half-heartedly confessed by repeating after the interrogator, “I grabbed Thy’s collar and started a fight with him.” At least that is what Ms. Poeung Kalyan, the IBJ lawyer who would subsequently represent the two men, told him he had said after she uncovered the transcript of the interview; for, truthfully, he cannot remember what he said when he was sitting in the crosshairs of the policeman’s menacing stare.

        With Sao’s coerced confession, the men’s predicament spiraled towards disaster and their hope that some witness would come forward to settle the mess all but evaporated as the district police sent them to the provincial police post, farther away from the scene of the crime. Whatever wisp of optimism was left vanished entirely the next day when they found themselves in the Battambang court prosecutor’s office. He told them that they would be charged with aggravated intentional violence, due to their alleged cooperative criminal action and use of a weapon (the log), then sent them to pre-trial detention in Battambang prison where they would stay for more than a year.

        Although article 208 of the Code of Criminal Procedure of the Kingdom of Cambodia prescribes a six-month maximum pre-trial detention period for a person accused of a felony, the same article also grants an investigating judge the prerogative to extend the accused’s detention for two additional six-month periods. Thus, a person accused of a felony may lawfully be detained for as long as eighteen months. Because Cambodian courts are overloaded with cases, the judges' decisions to extend the detentions of individual accused persons are just as often, if not more often, based on their docket vacancies and case priority, rather than the exclusively six circumstances in which article 205 authorizes a judge to order provisional detention: “to stop the offense or prevent the offense from happening again; to prevent any harassment of witnesses or victims or prevent any collusion between the charged person and accomplices; to preserve evidence or exhibits; to guarantee the presence of the charged person during the proceedings against him; to protect the security of the charged person; or to preserve the public order from any trouble caused by the offense.” Of course, every judge, in his or her written order to extend a detention, appeals to one or more of these reasons, but everyone involved in the justice system seems to understand that that the judge's stated reasons are usually pretext for buying time to decide pending cases without having to investigate the merits of every detention order. Thus, without an advocate on the outside pushing court clerks to set reasonable trial dates, many innocent accused persons who do not pose a threat to society or the criminal process, end up serving the equivalent of year-long, or longer, prison sentences. 

        It would be unfair to pass over pessimistically the positive, progressive trends in the Cambodian justice system, especially the fact that most, if not all, courts now follow article 301 of the CCPKC and ensure that all minors and persons accused of a felony are represented by counsel at trial; yet, it must be admitted that, given how easily an accused person can find himself in pre-trial detention and how likely he is to be imprisoned for a long time once he has been ordered detained, justice would be better served if officials were required to inform the accused of his right to a lawyer earlier in the criminal process. For example, article 98 of the CCPKC could be rewritten to require police actively to inform the accused of this right after twenty-four hours in custody, rather than merely allowing him to request a lawyer after that period. Or, the qualifying phrase of Article 145, “when a charged person has a lawyer,” could be deleted; then, as the article continues, all accused persons, not merely those few who can afford to keep a lawyer on retainer, could “only be interrogated in the presence of [their] lawyer.”
        In the case of Moeun and Sao, the court officially extended their detention once for an additional six months, then unofficially for another two and a half months because one of the three judges (a felony case must be heard by a three-judge panel) in Battambang court was on maternity leave. The court probably would have extended the detention for an entire third six-month term if the IBJ lawyer had not, respectfully, hounded the clerk to set the date as early as possible. Like the vast majority of Cambodians, neither Moeun nor Sao knew these laws pertaining to detention, and the prison officials would not tell them when they could expect their trial date to be set or help them seek a lawyer’s counsel. Without the paltry benefit of having a date, or even a month to anticipate, every day felt as close and as far from vindication; every night was spent with eighteen other prisoners in a four-by-five-meter cell. The prison’s food supply was sufficient, but the water supply was not, which was doubly unfortunate because the men’s only distraction was exercise and the days were hot. On May 10, 2013, Sao’s brother heard the IBJ radio commercial in Kampong Thom province, where he works. He called his mother, Leakaena, and gave her the IBJ hotline number. She called the number and was transferred to Ms. Poeung in the Battambang office. Because Leakaena has always been like a mother to Moeun too, she asked Ms. Poeung to help both men come home.
       Ms. Poeung travelled to the prison to meet the two men in early June, then once more before their July 10th trial when, after nearly fifteen months, both were acquitted of all charges. Because Thy’s civil complaint for 1,000,000 Riels ($250) had been joined with the criminal case, it too was dismissed as a consequence of the not-guilty verdict.
        Ms. Poeung had put together a strong case. She found several witnesses who had been eating in the restaurant on the evening when the fight broke out, the same ones whom Sao and Moeun hoped the police would interview in the days after their arrest. Convincing them to speak in court was not easy because Cambodians are wary of entangling themselves in legal controversies that do not directly concern their own families; however, she persuaded three to testify and they swore that neither Moeun nor Sao was involved in the fight. She also discovered that Art and Meng are Thy’s relatives, and suggested that fact as an additional motive to explain why Thy accused Moeun and Sao instead of his true assailants. Finally, she entered into evidence a seemingly minor detail which had come up in her interviews with all the witnesses: Thy was not wearing a shirt in the restaurant that evening. This little fact poked a sizable hole in both Thy’s account of the evening’s events and in the confession that Sao had fearfully parroted after the police interrogator, since according to both the complaint and the confession Sao had grabbed Thy by the shirt collar before beating him.
        Sometimes Cambodian judges will not allow defendants to contradict their prior confessions (see Tevy's story in my blog from Banteay Meanchey), but in this case, due to the strength of witness testimony, the court allowed Moeun and Sao to give their honest accounts of that night. Without Ms. Poeung’s due diligence, however, the men admit that they would have chosen to forego the truth in order not to come across as liars and have a better chance of receiving a lenient sentence, since they faced a maximum of five years in prison.

        I interviewed Moeun and Sao just two days after their acquittal. Leakaena was also there, and we all sat in the Battambang IBJ office, inside the Battambang court complex. Towards the end of our interview, the three of them abruptly broke eye contact with me and stared over my shoulder, transfixed by something outside the office window behind me. When I turned to look for myself, I saw that the object of their attention was a young man wearing a blue prison jumpsuit being led into the courthouse with his hands cuffed behind his back. He had likely been brought to the court for his trial. I asked them how the sight made them feel and, as if synchronized, they all silently shuddered and shook their heads, then faintly smiled. Evidently, it was too soon for such a scene to evoke anything but a confused, visceral reaction of painful recall and joyful relief.

        Going forward, the men will work with Sao’s family, farming corn and rice. Sao’s father walks on a crutch, thanks to a beating he received at the hands of an overseer who found his effort in the rice fields lacking during the Khmer Rouge’s Democratic Kampuchea regime. Therefore, the entire family is relieved to have the able-bodied men back home to help with the farming. Neither Moeun nor Sao have yet suffered discrimination on account of their time in prison, but they worry constantly how other villagers view them and fear future discrimination. Because their ordeal has only recently ended, they have not yet come to terms with having lost more than a year of their life. They tell me that when they try to reflect on the experience they are overwhelmed by a sickening feeling. As for Sao’s mother, she is just thankful to the IBJ staff in Battambang for putting an end to her nightmare. She visited both men in prison ten times, whenever she saved enough money to make the trip, until July 10th proved to be the last day she would have to meet her son in his prison blues. Immediately after their acquittal, she drove the two men to the local Buddhist pagoda to receive a water blessing from the monks there and to offer prayers of thanksgiving. On arriving home, she threw handfulls of rice out her front door, a Cambodian ritual to banish bad luck, and, despite the family’s relative poverty, she burned all of her son’s old clothes and linen to inaugurate a new beginning.


        The night before the interview, after our minivan arrived around 7 pm, I walked up the Sangkae riverside to get some dinner. I was surprised by the heavy traffic, pedestrian and vehicular, because I had remembered Battambang as a relatively quiet city. I soon realized that I was swimming upstream against a tide of Cambodian People's Party supporters gathering for a political rally. (See a short video clip here). The national elections were then thirteen days away. More on the elections in the next blog!