FAIR TRIAL RIGHTS CLUB

Seminar 2: Pre-Trial Rights

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE

Presentation Overview

4.15 - 4.30 PM – What are pre-trial rights?

4.30 - 4.45 PM – Cambodian, International, and ECCC laws on pre-trial rights

4.45 - 5 PM – Case studies and group work

Pre-Trial Rights

• The right to remain silent

• The right not to be subjected to any form of coercion (threats or promises)

• The right to an interpreter

• The right to have legal assistance

• The right to be informed of the charges against you

• The right to have adequate time and facilities for the preparation of a defence

Pre-Trial Rights

Who has those rights?

1. Witnesses?2. Suspects?3. Charged persons?4. Detainees?

When those rights apply ?

1. Detention ?2. Investigation ?3. Trial ?4. Promptly?

Pre-Trial Rights

ICCPR – International Covenant on Civil and Political Rights

Article 9: Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Article 14: To be tried in his presence, and to defend himself in person or through legal assistance.

The Constitution of the Kingdom of Cambodia

Article 31: The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of human Rights, the covenants and conventions related to human rights, women's and children's rights.

Pre-Trial Rights

AGREEMENT BETWEEN THE UNITED NATIONS AND THE ROYAL GOVERNMENT OF CAMBODIA CONCERNING THE PROSECUTION UNDER CAMBODIAN LAW OF CRIMES COMMITTED DURING THE PERIOD OF DEMOCRATIC KAMPUCHEA

Article 13: to engage a counsel of his or her choice; to have adequate time and facilities for the preparation of his or her defence; to have counsel provided if he or she does not have sufficient means to pay for it.

Pre-Trial Rights

Article 96: Judicial police officers may remand in custody a person suspected of participating in the commission of an offense. Judicial police officers may also remand in custody individuals who may provide them with relevant facts.

Article 97: When a person is placed in police custody, the judicial police officer shall immediately notify their decision and the reasons to the detainee. Judicial police officers shall also inform the detainee about the rights provided in Article 98 (Assistance of Lawyers during Police Custody)

Article 98: After a period of twenty four hours from the beginning of the police custody has expired, the detainee may request to speak with a lawyer.

Code of Criminal Procedure - Police Custody

Pre-Trial Rights

Article 98: After a period of twenty four hours from the beginning of the police custody has expired, the detainee may request to speak with a lawyer.

Article 145: A charged person can be interrogated only in the presence of his lawyer. However, if the lawyer was properly summonsed but does not show up on the specified date and time, the investigating judge can question the charged person without the presence of his lawyer...Exceptionally, the investigating judge may interrogate the charged person without summonsing the lawyer if the charged person expressly waives his right to his lawyer’s presence…In case of urgency, the investigating judge may interrogate the charged person without summonsing the lawyer.

Code of Criminal Procedure – The Right to Counsel

Pre Trial Rights

Article 143: Inform him of the imputed act and its legal qualification, and receive his statement after informing him of the right to remain silent…If the charged person is willing to answer, the investigating judge shall take the statement immediately. The investigating judge shall inform the charged person of his rights to choose a lawyer

Article 149: The lawyer of a charged person who is in detention may freely communicate with his client in the detention center or in prison. The conversation between the lawyer and the charged person shall be confidential and shall not be listened to or recorded by others. The lawyer may read out part of the case file to his client. The lawyer may not give the copies of part of the case file to his client.

Code of Criminal Procedure – Notification of Placement Under Judicial Investigation

Pre Trial Rights

ECCC Law

Article 35 new: The accused shall…be informed promptly and in detail in a language that they understand of the nature and cause of the charge against them

Article 21: Every person suspected or prosecuted shall be presumed innocent as long as his/her guilt has not been established. Any such person has the right to be informed of any charges brought against him/her, to be defended by a lawyer of his/her choice, and at every stage of the proceedings shall be informed of his/her right to remain silent.

Article 58: A Charged Person shall only be questioned in the presence of his or her lawyer, unless the Charged Person waives the right to the presence of a lawyer.

ECCC Internal Rules

Case Study #1

Prosecutor v. Kabiligi – International Criminal Tribunal for Rwanda (ICTR)

Case Study #1

Investigator: Do you understand your right to counsel? Do you have any questions about that?

Kabiligi: Thank you. I do have one question. I am prepared to exercise my rights as soonas I understand the reasons for my arrest and the case brought against me…I would like to know the reason for my arrest. Am I indicted? By whom, and why? Have I committed any crimes? Where, when and why? And how? That’s it. I am prepared as soon as I find out the reasons for my arrest, I will be entitled to request the assistance of counsel provided by the International Tribunal.

Investigator: So, at this time, you are laying down the condition that we must first inform you of all the charges the Tribunal has against you. Is that what you are requesting?

Kabiligi: Precisely. Before exercising my rights, before requesting the assistance of counsel, I must be informed of the charges against me … At the least the offences I am accused of.

Investigator: at some point, the Tribunal will have the obligation to disclose in full the case against you. That’s part of the standard procedure for your defence procedure. At some point during your defence, you will be entitled to examine your case file. For the moment,this interview, considered to be the first questioning.

Kabiligi: Personally, I am prepared to talk at this time. But, questioning or preliminary investigation or interview of me, but reserving the right to request the assistance of counsel and exercise the full benefit of the rights that have just been read to me, as soon as I find out the case against me, because I don’t know what it is at this time.

Investigator: So, you are saying that before you speak to us, you require that your case file be disclosed to you? That’s the condition you seem to be laying down. We are just trying to understand what you are saying. Tell us what you want. Are you saying that you will not talk to us unless your case file is disclosed to you?

Kabiligi: What I am asking is that at this time, as you explained yesterday, this is a preliminary interview. In case – once I discover the case against me, I will request the assistance of counsel. I am not insisting on having the presence of counsel during this interview, but once I discover the case against me, I must be able to exercise the full extent of the rights that have just been read to me, that I have just taken cognisance of.

Discussion

Please take a few minutes to examine the transcript of the interview between the Investigator and Kabiligi.

With your partner, discuss and be prepared to present your findings.

1. In your opinion, did Kabiligi voluntarily waive his right to counsel?

2. Should the interview be admitted as evidence?

Case Study #1

Along with the right to silence, [the right to counsel] is rooted in the concern that an individual, when detained by officials for interrogation, is often fearful, ignorant and vulnerable; that fear and ignorance can lead to false confessions by the innocent; and that vulnerability can lead to abuse of the innocent and guilty alike, particularly when a suspect is held incommunicado and in isolation.

ICTR Trial Chamber Reasoning on the Right to Counsel

To be so informed, the suspect must be informed that the right includes the right to the prompt assistance of counsel, prior to and during any questioning. Any implication that the right is conditional, or that the presence of counsel may be delayed until after the questioning, renders any waiver defective…Generally, a suspect may be taken to comprehend what a reasonable person would understand; but where there are indications that a witness is confused, steps must be taken to ensure that the suspect does actually understand the nature of his or her rights.

ICTR Trial Chamber Reasoning on the Voluntary Waiver

Case Study #1

At the beginning of his interview with the investigators, the Accused demonstrated that he did not understand that he had an immediate right to the assistance of counsel. He asked repeatedly to be informed of the charges against him, and seems to have believed that “as soon as I find out the reasons for my arrest, I will be entitled to request the assistance of counsel”, and that “before exercising my rights, before requesting the assistance of counsel, I must be informed of the charges against me”. Rather than correcting the Accused’s misperception that his right to counsel was conditional upon being informed of the case against him, the investigators responded that “standard procedure” is that disclosure would happen later. The Accused then attempted to reserve the right to request the assistance of counsel “as soon as I find out the case against me, because I don’t know what it is at this time”. This again should have demonstrated to the investigators that the Accused was still confused, and probably did not understand that he had the right to assistance of counsel immediately. Nothing in the remainder of the interview indicates that the Accused’s misunderstanding was ever corrected, and at no time did the investigators advise the Accused that he had an immediate right to the assistance of counsel during questioning. Under these circumstances, the Prosecution has not proven that there was a waiver of the right to counsel.

ICTR Trial Chamber Findings

Case Study #1

Mr. Kabiligi was acquitted and released after 11 years in detention.

Discussion

1. What does the ICTR Trial Chamber mean when it states that “the right to counsel during a custodial interrogation is closely intertwined with the exercise of the right to silence?”

2. Is the ICTR Trial Chamber correct to assert that “an individual, when detained by officials for interrogation, is often fearful, ignorant and vulnerable; that fear and ignorance can lead to false confessions by the innocent; and that vulnerability can lead to abuse of the innocent and guilty alike.”?

Please take a few minutes to review the ICTR Trial Chamber’s findings and decision.

With your partner, discuss and be prepared to present your findings.

Case Study #2 ECCC

The Accused alleges that he submitted to questioning only after he was told that the interviewer had a “UN mandate.” He contends that this emphasis on the apparent right to question him suggested an obligation to respond. Duch claimed he was not informed either of his right to silence or warned that the interview might subsequently be used in the proceedings.

Statement of Duch taken by a representative of UNCHR:

Waiver of Nuon Chea to be represented by his counsel at the initial hearing

The co-lawyers for Nuon Chea claimed that: “the CIJ should not have concluded the initial appearance and the adversarial hearing in the absence of defence counsel. They argue that this situation resulted in the violation of several of the Charged Person’s rights (right to counsel and the right to an adversarial hearing, reasonable time to prepare his defence, remain silent and equality of arms.) They assert that “Mr. Nuon’s apparent waiver of his right to counsel was involuntary, uninformed, ambiguous, and therefore ineffective."

FAIR TRIAL RIGHTS CLUB

Seminar 2: Pre-Trial Rights

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE