Insufficient Evidence Presented in Politically Motivated Trials
June 1, 2014
“The release of 25 people jailed for political reasons is welcome, but their convictions should be quashed along with their criminal records. These politically motivated convictions should not be allowed to stand and provide a false legal pretext for restricting their basic rights.”
Brad Adams, Asia director

(New York) – The Cambodian government should quash the convictions of 25 human rights activists, factory workers, and others for lack of evidence, Human Rights Watch said today. On May 30, 2014, the Phnom Penh municipal court convicted the defendants in three cases of committing violence during recent demonstrations and imposed suspended sentences of up to four-and-a-half years. While none received prison time, their convictions incur penalties such as a prohibition on serving as union leaders.

“The release of 25 people jailed for political reasons is welcome, but their convictions should be quashed along with their criminal records,” said Brad Adams, Asia director at Human Rights Watch. “These politically motivated convictions should not be allowed to stand and provide a false legal pretext for restricting their basic rights.”

Cambodia’s donors should publicly denounce the convictions and call for the defendants to be exonerated. Donors should together demand an end to the ruling Cambodian People’s Party control of the police and courts.

The authorities had charged the accused with instigating, inciting, or directly committing violent acts resulting in injuries to security forces and damage to property during strikes, demonstrations, and riots in Phnom Penh in November 2013 and January 2014.

However, the trials appeared to be part of a systematic effort by the government of Prime Minister Hun Sen to cover up the security forces’ use of excessive force that resulted in the deaths of seven people and injuries to many more. The government used the courts to unfairly convict activists and people randomly apprehended during the unrest, falsely blaming them for all violence – while taking no legal action against any member of the security forces for the illegal use of force.

The three trials involved: a young man and a boy arrested after police blocked a march by striking workers in Phnom Penh’s Steung Meanchey neighborhood on November 12, 2013; 10 people, including four labor and land activists, arrested by Brigade 911 during its suppression of worker protests at the Yakjin garment factory on January 2, 2014; and 13 workers and others arrested by police and gendarmes deployed to break up demonstrations on industrial Veng Sreng Street on January 2 and 3.

Human Rights Watch previously analyzed the Steung Meanchey trial, concluding that a young man charged with committing aggravated intentional violence and damage on November 12, 2013, was wrongly identified by the police as being responsible for violence, and that the other defendant, a child with an intellectual disability who admitted throwing some stones, should not be sentenced to prison.

In the Yakjin case, while protesters and security forces threw stones at each other near the factory, there was no investigation into whether Brigade 911 troops, armed with assault rifles, steel bars, truncheons, knives, and slingshots, instigated the violence. The court made no serious inquiry into whether any of the 10 accused were involved in violence and resulting injuries or property damage, or whether the four activists attempted to calm the situation by urging nonviolence or were merely monitoring the situation, as they asserted. All 10 accused were originally charged with aggravated violence and damage, but the charge against the four activists was later changed to inciting the worker disorder.

In the Veng Sreng case, some workers blocked roads with barricades and bonfires and attacked police and gendarmes with stones, sticks, and gasoline bottle bombs while the security forces fired teargas, smoke grenades, pistols, and assault rifles. However, almost no evidence was presented at the trial about whether any of the 13 defendants had participated in the violence and other crimes with which they were charged. The accused asserted that they were non-participants in the violence and were simply present as bystanders or local residents.

The judges in all three cases demonstrated clear bias and failed to meet their obligations under international fair trial standards set out in Cambodia’s criminal procedural code (article 325) to impartially evaluate both inculpatory and exculpatory evidence. Their favoritism toward the prosecution was displayed, for example, in their openly hostile demeanor toward the accused and the defense lawyers. Judges abandoned the neutral language of the indictments, which described the accused as “demonstrators,” “protesters,” or “workers,” instead repeating the prosecution’s constant characterization of them as “anarchists” intent on creating political and social disorder. The judges’ demeanor towards the accused and their defense lawyers was also frequently hostile and disrespectful, in contrast to their polite and even deferential attitude toward the prosecution and security force officers.

Evidence presented in the Yakjin and Veng Sreng cases pointed to arbitrary arrests, rather than the detention of specific individuals whom security forces positively identified at the time or later as committing criminal acts. This appears to apply to all or almost all of the 19 people detained near the Yakjin factory and on Veng Sreng Street. Other recent Cambodian court convictions were of people apparently arrested simply because they were in the wrong place at the wrong time.

Prominent social and political figure Vorn Peou and three other activists arrested at the Yakjin factory on January 2 appear to have been targeted due to their nonviolent political or social activities. According to members of the security forces sources who spoke to Human Rights Watch in confidence, Vorn Peou is on a blacklist of social activists, journalists, and human rights defenders the security forces have been compiling as possible targets for prosecution and imprisonment since the second half of 2013. These sources told Human Rights Watch that police and gendarmes are under instructions to build criminal cases against these people, even if they have committed no criminal offense.

In both trials the judges abused archaic provisions within Cambodia’s legal system according to which evidence does not need to be introduced in hearings in order to be considered in a judgment. As a result, many members of the security forces, who had made key statements to the police and investigating judges prior to the hearings as civil parties or victims alleging they suffered harm from violence instigated or perpetrated by the accused, were not present at trial. Over defense objections that this did not allow their allegations to be challenged, the trial judges allowed their statements simply to be read out by the court clerk.

The verdicts in these trials come a week after the Cambodian government pushed through the National Assembly new laws on the organization of the courts and its oversight body, the Supreme Council of Magistracy. The laws provide the government formal control over the courts, in violation of international law and contrary to Cambodia’s constitution, which calls for separation of powers and an independent judiciary.

“These trials show the extent to which Prime Minister Hun Sen’s intensely partisan security forces and government-controlled courts are cynically flaunting their power and misusing the law,” Adams said. “Cambodia’s donors should publicly denounce these convictions and work together to demand amendment of recent laws that strengthen government control over the courts.”

Background
The three trials for which sentences where handed down on June 30, 2014, raised several serious fair trial concerns.

Untested or Absent Identification Evidence
The Yakjin and Veng Streng trial judges’ apparently heavy reliance on untested pre-trial security force statements to convict the accused in these cases violated their fundamental right to an adversarial hearing and thus the Cambodian judiciary’s obligation under international law to act independently and impartially. Under the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party, defendants have the right “[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” In judgments in 1990 and 1993, the European Court of Human Rights rejected the use of such pre-trial statements in France. As a result, French law was amended to ensure conformity with international standards.

Such statements included those by gendarmes in the Veng Sreng case in which they suggested they had identified the 10 defendants from a post-arrest group mug shot. They indicated that these gendarmes had not followed any of the kinds of standard procedures necessary in order to establish a positive and thus reliable identification of the suspects.

Other than these gendarme statements, no evidence was presented in either the Yakjin or Veng Sreng cases positively identifying any defendant as directly participating in any act of violence or causing damage. The only evidence linking any accused in either case to the direct perpetration of violence was the admission by one defendant in the Veng Sreng trial that he was carrying a bottle filled with gasoline on his motorbike when he was arrested; although he claimed he intended not to throw it but to use it to refuel the bike. No evidence was presented that he attempted, carried out, or caused any damage. The evidence against Vorn Peou and others in the Yakjin case charged with instigation generally sustained their assertions that they were either in fact urging nonviolence or simply observing.

Defective Limitation of Scope
The trial judges in the Yakjin and Veng Sreng cases determined that since only the 23 people charged with violence against the security forces and other crimes were on trial, evidence that the security forces had instigated or were the main or most serious perpetrators of violence was outside the scope of the proceedings and thus inadmissible. This denied the defense the opportunity to adduce evidence to argue that the prosecution was misrepresenting facts in order to convict individuals wrongfully arrested to blame them for all the violence that occurred. The judge in the Yakjing case even admonished defendants not to testify that security forces had planted evidence against them, suggesting that such allegations were also outside the scope of proceedings. The judge also blocked development of evidence that some of the damage to property attributed to demonstrators was in fact inflicted by Brigade 911 troops, some of whom were allegedly operating in civilian clothes as provocateurs.

The court’s one-sided approach relies on the persistent refusal of the authorities and the judiciary to seriously investigate and bring to trial members of the security forces responsible for the deaths and injuries resulting from excessive use of force on November 12, 2013, and January 2-3, 2014, and at other times. The prosecution and judges could have held two parallel trials with separate, but related scopes, to prosecute both members of the security forces and ordinary civilians implicated in acts of violence.

Preference for Inculpatory Over Exculpatory Evidence
The judges in the Yakjin and Veng Sreng cases also displayed a greater readiness to allow presentation of inculpatory rather than exculpatory evidence in the scope of the trial, including new evidence not included in the pre-trial case file produced by the prosecution and investigating judges. For example, at the Yakjin trial, an official of the Ministry of Religion and Cults declared that Buddhist monks whom were expected to provide exculpatory evidence to the effect that the activist defendants had opposed worker violence would not be allowed to testify, asserting that to do so would be contrary to monastic discipline. The trial judge agreed, and the monks did not appear.

Similarly, late in the Yakjin proceedings, this judge himself introduced video evidence upon which the prosecution relied to inculpate the accused. Although under Cambodian law, a trial judge “may order that exhibits be presented” during a hearing, doing so – as in this case – in a manner that gives the defense no time to prepare or present a response undermines the rights of the accused.

This facilitated the prosecution in making a last minute request to increase the charges of incitement against Vorn Peou and one of his fellow activists to the more serious one of instigation. The judge immediately took this request under consideration, again without giving the defense a proper opportunity to reply, and upheld it in his judgment.

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