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7.1 Existing norms and rules concerning detention (issues under article 11)
At no stage has Cambodia issued clear instructions to the police, military or prison authorities with a view to preventing torture or to provide redress to the victims of torture. The rudimentary instructions found in the UNTAC Code also do not provide any such guidelines.
A tacit policy exists that torture during criminal investigation is necessary. A report by Licadho indicates the following reasons:
- The practice of arresting someone and then seeking evidence against them, rather than vice-versa; and the corresponding police emphasis on securing confessions from criminal suspects, with a lack of willingness or ability to use other criminal investigation techniques.
- The police’s failure to abide by lawful arrest and detention procedures; and the lack of legal representation (or other assistance) for detainees in police custody, to observe and challenge any unlawful treatment of them.
- The judiciary’s general willingness to accept forced confessions as evidence of an accused’s guilt; and its related failure to hold the police accountable to the law, particularly with regard to unlawful arrest, detention, torture and forced confession.
- The failure of government officials, police chiefs and other national or provincial authorities to actively deter the use of torture, and to protect and promote the judiciary’s independence, jurisdiction and responsibility to address torture cases.[3]
7.1.1 Control over the legality of detention, and right to appeal
There is no way to challenge the legality of detention in Cambodia. A victim of torture must continue through the courts until proved innocent the same as any other accused.
Criminal procedure in Cambodia has not developed to allow courts to make interim orders in cases pending trial. It is presumed that if a person has been arrested there is enough evidence to find them guilty. The right to appeal against detention is linked with the power of the courts. Both of these matters need to be addressed simultaneously, in clear legislation. However, at present the prospect of developing such laws is very slight.
There are no avenues to challenge the legality of detention either in the Court of Appeal or the Supreme Court. Appeals are understood conceptually as retrials. There are no interim remedies through appeals on orders of detention pending trial. The powers of appellate courts are unclear, and they lack distinct procedures.
7.1.2 Access to a lawyer, and restrictions on the right to representation by a lawyer
The right to representation is now a part of Cambodian law. In this regard Cambodia has progressed within the last 10 years, partly due to the legal aid provided by some NGOs and by foreign contributions. The state has not itself developed any legal aid scheme. It has not yet acknowledged this obligation.
However, there is much to be desired when it comes to what a lawyer can actually do to represent a client. As procedures of detention and trial are inadequately developed, it is not possible for lawyers to claim the right to represent their clients at all stages. Actual trial practices also do not provide for proper cross-examination of witnesses. Lawyers also have limited opportunities for intervention during the pretrial stages.
7.2 Education
In Cambodia, education on human rights in general and torture in particular is hampered by the limitations of laws and practical obstacles to persons seeking redress. Much education on human rights has been abstract, dealing with general notions of human rights. This is of little use when the actual possibilities for the realisation of rights are extremely limited.
The same applies to legal and judicial education. When legal provisions and procedures do not exist for lawyers and judges to act upon, their abstract knowledge of UN conventions and other international laws is not of much use. Cambodia is an example of how an enormous gulf can exist between awareness and implementation of human rights standards.
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[3] Jason Barber, Less than human: Torture in Cambodia, Licadho, June 2000, pp. 30–1.
Posted on 2005-03-21
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