Who is responsible for excessive pretrial detention?

June 1 is International Children’s Day. On that day many accused children are awaiting their trials at the CC2 Prison in Phnom Penh and other prisons throughout the country. Most of them are being held beyond the legal limits of pre-trial detention and they often wonder who is responsible for their excessive pretrial detention.

Every day their lawyers ask themselves the same question: Who is responsible for excessive pre-trial detention of their clients? The very same question is so often posed by legal aid lawyers in Cambodia.

Pre-trial detention is the holding of a defendant before trial on criminal charges either because the established bail could not be deposited or because release was denied. The legal limits of pre-trial detention for juvenile cases are one month for a misdemeanor offence and two months for a felony offence [Article 14, UNTAC LAW]. Unfortunately, these legal limits are in practice regularly violated and there is no penalty on excess pre-trial detention.

To this date, LAC’s juvenile lawyers have been representing a great numbers of juvenile cases. The juveniles are between 13 to 18 years old on the date of the accused crime. Nearly all of their clients are held in pre-trial detention in various provincial prisons and CC2 Prison. The excessive pre-trial detention period regarding these cases, range from 15 days up to 70 days or more. This can be considered as a broad violation of children’s rights and leads to the situation that these juveniles are being deprived of receiving education, living with their families and enjoying social events even before it has been decided whether they are guilty or not.

Article 14 of the aforementioned law allows the investigating judge, if so petitioned by the prosecutor, to keep an accused in pre-trial detention. According to this article, it is clear that the investigating judge has absolute power to keep an accused in pre-trial detention and that he/she is the one who knows when the legal pre-trial detention period will expire. He/she has the duty to finish his/her investigating task and forward the case to the trial judge as soon as possible.

The investigating judges however indicate that they are only responsible for the investigation period of the case and they do not have the authority to set a timely trial date, which is the duty of the trial judge.

Most trial judges anonymously informed LAC lawyers that they usually receive the cases too late and therefore need to stay the trial date beyond legal pre-trial detention limits. Furthermore, article 21.2 of UNTAC Law states that “Counsel of accused must be informed at least fifteen days prior to the date of the trial of his or her clients.” It implies that the trial judge needs to receive the case at least 15 days before the trial date. If he receives the case too late, he may extend the time for the trial so as to meet with the procedural requirement.

Asked whether the prison officials have any responsibility concerning the excessive pre-trial detention, one senior prison official said that he knew some laws concerning the duration of pre-trial detention; he knew when pre-trial detention would expire; but he had no authority to deal with the issue. In the meantime the current Prison Manual, issued by the Ministry of Interior, does not stipulate any provision regarding prison officials’ responsibility for excessive pre-trial detention, thus prison officials cannot be held responsible.

There are many other reasons, such as high caseload, few judges and insufficient court facilities, which lead to excessive pretrial detention.

In conclusion, our daily repeated question seems simple, but it is in fact very complicated. The investigating judge and the trial judge blame each other and ultimately it is the child who has to forfeit its life in prison until the answer can be given.

If you have any further questions concerning this press release, please contact – Mrs. Peung Yok Hiep, director of Legal Aid of Cambodia, +855 12 823 745 or lacdirector@online.com.kh or – Mr. Kao Dyna, the CC2 Project Manager, +855 12 887 442 or cc2@lac.org.kh