Cambodia: YORM Bopha: Submission to the Cambodia Supreme Court

Khmer version .PDF | English version .PDF  

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H.E. Dith Munty
President , Supreme Court of Cambodia
Sothearos Road
Sangkat Chaktomouk, Khan Daun Penh
Phnom Penh, Cambodia

 Amicus Brief re: YORM Bopha: Submission to the Cambodia Supreme Court

 Lawyers Rights Watch Canada (LRWC) is a committee of Canadian lawyers who promote human rights and the rule of law internationally. LRWC has conducted an analysis of some international law pertaining to the case of YORM Bopha. LRWC has also made a petition to the UN Working Group on Arbitrary Detention concerning Ms. Yorm Bopha. Accordingly, LRWC respectfully offers to the Supreme Court of Cambodia the following submissions on the occasion of the hearing of the case of Yorm Bopha scheduled for 22 November 2013.

 Background and chronology:

Ms. Yorm Bopha is a human rights defender. She is a resident of the Boeung Kak Lake community which, since 2007, has been in conflict over land with Shukaku Inc., corporation owned by Mr. Lao Meng Khin, a businessman and member of the Senate from the Cambodia People’s Party (CPP). After being involved in lawful advocacy for several years, including advocacy on behalf of a number of detained land rights activists, Yorm Bopha was arrested, prosecuted and convicted. LRWC submits that Ms Bopha was convicted of unfounded charges in proceedings in which the Municipal and Appeal Courts made serious errors of law, including failure to adhere to Cambodia’s Constitution, laws, and international law binding on Cambodia.

·        4 September, 2012: Ms. Yorm Bopha was arrested and charged with intentional violence with aggravating circumstances under Article 217 and 218 of the Cambodian Penal Code.

·        4 September 2012: The Phnom Penh Municipal Court ordered the detention of Yorm Bopha

·        7 November 2012: the Court of Appeal upheld the detention order and refused pre-trial release. There was no evidence presented of flight risk or other risks set out in Article 205 of the Code of Criminal Procedure. Evidence of Yorm Bopha’s heart and respiratory problems was presented on her behalf. The Court’s stated reason for denying release was that Yorm Bopha did not possess medical documentation to prove she has a health problem, and because her case is “too serious.”

·        26-27 December 2012: The Phnom Penh Municipal Court conducted trial proceedings.

·        27 December 2012: Yorm Bopha was convicted of assault and sentenced to three years in prison and ordered to pay 30 million riel to each of two complainants.

·        27 March 2013: The Supreme Court denied pre-trial release on the grounds that Yorm Bopha’s heart condition had not been verified officially by health authorities, that she had already been convicted and was a flight risk, and this was a “special case.” The Supreme Court supplied no reasons for determining that she is a flight risk nor any information as to the meaning of a “special case.”

·        4, 15 June 2013. The Appeal Court held a trial de novo. No facts were presented to support a charge of assault. Without previous notice, the Court, replaced the charge of assault with a charge of “conspiracy” and affirmed the conviction.  No direct evidence of a conspiracy was presented. The court reduced the sentence from three years to two years in prison, but upheld the monetary judgement.

 1. Legal duties as required by the International Covenant on Civil and Political Rights (ICCPR)^[1] and the Constitution of the Kingdom of Cambodia (Constitution).^[2]  

Cambodia’s Constitutionensures recognition of rights protected by the ICCPR and ensures that prosecutions and detentions strictly comply with the law. Article 150 provides that the Constitution is “the supreme law of the Kingdom of Cambodia” and that “all the laws and decisions of all the state institutions must be absolutely in conformity with the Constitution.”

1. Article 31 of the Constitution, states: “The Kingdom of Cambodia recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights and all the treaties and conventions related to human rights, women’s rights and children’s rights.”
2. Article 38 states: “…The prosecution, arrest, police custody or detention of any person shall not be done, except in accordance with the law… The doubt shall benefit the accused. Any accused is presumed innocent up to the final verdict of the court.”
3. Article 38 provides that “Any individual shall have the right to his/her own defense through the judicial system.”
4. Article 32 provides that “Everyone has the right to life, liberty and security of person.”
5. The ICCPR, Article 14.1 guarantees, “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Cambodia’s Constitution also guarantees an independent judiciary:

7. Article 51 states: “The Kingdom of Cambodia adopts a policy of liberal multi-party democracy… The powers shall be separated between the legislative power, the executive power and the judicial power…”
8. Article 128 provides that “The Judicial power is an independent power. The Judicial power is the guarantor of impartiality and the protector of the citizens’ rights and liberties.”

Thus, the judiciary must make all decisions strictly in accordance with the law without any influence from any members of the executive whatsoever..

2. Violation of Fair Trial Rights under International Law and Cambodia’s Constitution

The Phnom Penh Municipal Court and the Appeal Court failed to provide a fair trial in accordance with requirements of the ICCPR and Cambodia’s Constitution Article 31. The ICCPR provides that:

1. verdicts must be based only on relevant evidence presented and tested in open court and not on the basis of unproven theories or directions given by authorities behind the scenes (ICCPR Article 14(3) (e)); and,
2. the accused must receive timely notice of the charges and of all the relevant inculpatory and exculpatory evidence, and be afforded the opportunity to present exculpatory evidence and to test all inculpatory evidence, whether given in person by witnesses or by documentary evidence (ICCPR Article 14(3) (e)); and  
3. the determination of charges must be made by an independent and impartial tribunal (ICCPR, Article 14(1)).

 The failure to adhere to these provisions constitutes errors of law. The conviction of Yorm Bopha for “an act of intentional violence with aggravated circumstances” was contrary to the evidence. A guilty verdict was entered after the Municipal Court heard undisputed evidence that neither Yorm Bopha nor her husband took part in the 7 August 2012 assault. No evidence was presented to support the prosecutor’s theory that the accused had conspired to “mastermind” the assault. The Appeal Court added a conspiracy charge that accorded with the prosecutor’s theory, even though it did not accord with the evidence.

At trial, Yorm Bopha received no notice of a charge of conspiracy, nor was she charged with conspiring to mastermind the assault at the Municipal Court trial or Appeal Court hearing. No notice of a conspiracy charge was provided prior to the appeal. The evidence provided at the Appeal Court was that Yorm Bopha accused one of the victims of stealing her car mirror and that she helped to free one of the assailants. This evidence was contested and not corroborated. Yorm Bopha remains in prison despite lack of evidence that she has done anything unlawful.

The United Nations Human Rights Committee (HR Committee), in General Comment No. 13(8), states that the notice requirement of Article 14(3) includes

8.   …the right of everyone to be informed in a language which he understands of the charge against him… Article 14 (3) (a) applies to all cases of criminal charges, including those of persons not in detention…the right to be informed of the charge “promptly” requires that information is given in the manner described as soon as the charge is first made by a competent authority… this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such…

 Yorm Bopha did not receive prompt or any notice of a conspiracy to assault charge before the trial or the appeal as required by the ICCPR, Article 14 and the Consitution Article 38.  

 3. Violation of the presumption of innocence throughout the pre-trial process, during the trial and pending appeal;  failure to adhere to the requirements of the ICCPR^[3] and the Constitution of the Kingdom of Cambodia (Constitution).^[4]  

 The Municipal Court (on 4 September 2012) and the Appeal Court (on 7 November 2012) failed to give proper consideration to the right to be presumed innocent when considering pre-trial release. The Supreme Court (on 27 March 2013) failed to give proper consideration to the presumption of innocence pending appeal.  

 The ICCPR guarantees the right of all persons to be presumed innocent (Article 14.2.). This includes the right to be at liberty “except on such grounds and in accordance with such procedure as are established by law” (ICCPR Article 9). As stated by the HR Committee in General Comment 8 (1982), pre-trial detention must be limited and used only in the exceptional circumstances provided by law.

 The HR Committee has explained, with respect to arbitrary detention that

The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. As the Committee has observed on a previous occasion, this means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.  Remand in custody must further be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.^[3]

Decisions of the Phnom Penh Municipal Court on 4 September 2012, the Appeal Court on 7 November 2012 and the Supreme Court on 27 March 2013 failed to meet the legal requirements of Cambodian and international law. The Code of Criminal Procedure in Articles 48, 203 and 205, the Constitution and the ICCPR require Cambodian courts to ensure that pre-trial detention is used only when it has been established that detention is necessary to prevent proven risks of: flight, interference with the administration of justice, or re-occurrence of the offence alleged. The court must also be satisfied on lawful grounds that there is no alternative to detention that would prevent the proven risk(s). The courts, in this case incorrectly placed the onus on Yorm Bopha to prove that her health condition required her release.

Failures by the Courts to properly apply the law protecting right to liberty and the presumption of innocence and the law regarding pre-trial release are errors of law. The repeated denial of pre-trial release without legal justification is consistent with the analysis advanced by some observers: namely that the prosecution was not for the purpose of enforcing the law, but for the improper purpose of punishing and preventing Yorm Bopha’s legitimate human rights advocacy.

4.Lack of Judicial Independence and Impartiality

The conviction of Yorm Bopha on the basis of inconsistent and uncorroborated inculpatory evidence and in the face of corroborated and uncontradicted exculpatory evidence constitutes a gross miscarriage of justice and must be set aside.

Respectfully submitted,

Gail Davidson
Executive Director
Lawyers’ Rights Watch Canada

 cc. H.E. Ang Vong Vathna
Minister of Justice
No 240, Sothearos Blvd.
Phnom Penh, Kingdom of Cambodia
Fax: 023 364119. Email: moj@cambodia.gov.kh

 cc. H.E. Chea Leang
Prosecutor General
Supreme Court of Cambodia
Sothearos Road and Road 240
Phnom Penh, Cambodia