Detainees waiting outside the Phnom Penh municipal court for their hearings in 2019. Heng Chivoan
Minister of Justice Koeut Rith once again advised municipal and provincial court administrators, judges and prosecutors to speed up the investigating stage of prosecutions for misdemeanours and minor offences to reduce overcrowding in prisons – especially in light of the Covid-19 pandemic.
In May, the justice ministry launched a campaign to clear the backlog of criminal cases throughout the country, especially in the capital, in order to reduce prison overcrowding. The campaign succeeded in reducing overcrowding to some extent and it finished on June 17, 2021.
The ministry said it had come to their attention that some prosecutors in the capital and provincial courts were not holding direct proceedings on appearances for misdemeanour cases and were instead entering into an investigation phase prior to charging the suspect, which was unnecessary in most cases and causing a bottleneck in the judicial process.
To clear the backlog of cases currently in the investigating stage, the ministry advised all municipal and provincial court prosecutors to decide on the charges for misdemeanour cases immediately with a priority on holding direct appearances and trials to quickly resolve these lesser charges in the interests of both the court and the defendants themselves. It explained that the accused do not want to sit in jail while the prosecutors investigate a relatively minor offence that they may be willing to plead guilty to.
In general, the ministry said too many judges were exerting their discretionary authority too often by placing the accused in pre-trial detention in order to facilitate the investigating process and ensure their appearances at court hearings, and this was inflating the prisoner population significantly.
Therefore, the ministry advised that judges speed up their investigative procedures and be mindful of the overcrowding situation when exercising their discretion under Article 203 of the Criminal Procedure when deciding whether a suspect should enter into pre-trial or provisional detention.
The ministry emphasised that when deciding matters related to pre-trial detention, judges shall respect the principle of presumption of innocence for the defendant and show respect for their individual freedom when issuing their rulings because this accorded with the spirit of Cambodia’s laws as well as the letter of them.
“Provisional detention should be used only for crimes or misdemeanours that are aggravated or of a serious nature as stated in the Criminal Procedure, which states particularly that it should only be used for cases in which detention is the only and necessary means available to ensure the integrity of the investigating process and the defendant’s appearance in court,” the instructions said.
The ministry suggested that investigating judges use other methods like supervised release under court supervision and other compliance measures – especially for misdemeanours that are uncomplicated or minor offences –instead of placing the defendants in provisional detention automatically.
The ministry advised that the courts focus on expediting hearings and issuing verdicts as soon it is possible to do so responsibly and in accordance with the spirit and letter of the laws on Criminal Procedure.
The ministry also suggested an increased use of suspended sentences, especially for simple misdemeanours and for defendants who are first-time offenders or without any known history of serious criminal activity.
Am Sam Ath, deputy director for rights group Licadho, said these explicit instructions from the justice ministry to respect the rights of defendants and those in custody were a positive step forward and that all judges should heed these instructions at all times.
“The release of those who are in pre-trial detention – especially vulnerable people such as pregnant women, women with children, juveniles and those with illnesses and perhaps also human rights defenders, environmentalists and social activists – would greatly contribute to a reduction in prison overcrowding,” he said.
Justice ministry spokesman Chin Malin said on October 27 that vulnerable people are already on their priority list for early release including the elderly, the chronically ill, juveniles, people with disabilities and pregnant women, but the courts shall follow the required procedures.
“In principle, we don’t distinguish whether they are human rights defenders or not. If they are in a vulnerable group and early release is permitted by law and all of the procedures are followed, then it may be granted.
“If they have been convicted of a serious crime which affected national security and now they are asking for clemency but with no clear legal basis for their request, that doesn’t work generally.
“But overall it depends somewhat upon the judges’ discretionary powers as defined by statute and the specifics of each case as it relates to humanitarian principles,” Malin said.
