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Positive and negative implications of Cambodian broadcaster's appeal hearing

Hundreds of people from various provinces joined a demonstration outside the Appeal Court in support of activist Mam Sonando, 6 March 2013
Hundreds of people from various provinces joined a demonstration outside the Appeal Court in support of activist Mam Sonando, 6 March 2013

Erika Pineros/Demotix

(CCHR/IFEX) - CCHR highlights some positive and negative implications for due process from Mam Sonando's appeal hearing, and reiterates its call for the journalist's immediate release.

After two days of monitoring journalist and human rights defender Mam Sonando's hearing at the Court of Appeal, the Cambodian Center for Human Rights ("CCHR") has observed several legal and judicial developments - some positive, some negative - that have strong implications for due process in the Cambodian courts and which deserve to be highlighted.

First, while CCHR unreservedly welcomes the Prosecution's suggestion to drop some of the most serious charges against Mam Sonando, namely those prohibiting insurrection (Articles 456 and 457 of the Penal Code 2009) and incitement to take up arms against the state authority (Article 464), it strongly urges the Court of Appeal to drop the remaining charges against Mam Sonando - Article 504, which prohibits the obstruction of public officials with aggravating circumstances, and Article 609, which prohibits unlawful interference in the discharge of public functions, both of which are brought by virtue of Article 28, which establishes criminal liability for the instigation of a felony or misdemeanor under Cambodian law. As CCHR stated in its recently released Legal Analysis, there is no evidence connecting Mam Sonando with any of the events in Pro Ma village in the first half of 2012, and so he should be acquitted of all charges and released immediately. The same applies to the two forgotten defendants - Kann Sovann and Touch Ream - innocents who have become pawns in this political game.

Second, CCHR was shocked and surprised to hear the Prosecution introduce a new charge to the court - namely Article 97(6) of the Forestry Law 2002, which prohibits the clearing or occupation of forestry land and carries a sentence of five to ten years in prison. While Article 399 of the Criminal Procedure Code 2007 allows for the court to re-qualify offenses on appeal, introducing new charges at such a late stage flouts Mam Sonando's rights "to be informed promptly and in detail [ . . . ] of the nature and cause of the charges against him" under Article 14(3)(a) of the International Covenant on Civil and Political Rights (the "ICCPR") and "to have adequate time and facilities for the preparation of his defense [ . . . ]" under Article 14(3)(b) of the ICCPR. Also, the Court of Appeal is not the correct forum for the Prosecution to introduce new charges given that the Defense has filed the appeal.

Third, on both days of the appeal hearing, the Defense requested that important witnesses - co-defendants of Mam Sonando at the first instance hearing in September 2012 who testified against him and received suspended sentences - appear in court so that they can be cross-examined by the Defense lawyers. The Presiding Judge stated that the witnesses had indeed been summonsed to appear, but that there was nothing that the court could do if witnesses chose not to appear. On the contrary - Article 315 of the Criminal Procedure Code states quite clearly that witnesses are obliged to appear before the court if summonsed and that "the court may use public forces in order to force the witness to appear". There is an expectation that the sources of such important testimony will be obliged to deliver their testimony in person and under oath - they were not placed under oath during the first instance trial as they were co-defendants at the time - and be subjected to proper cross-examination. Article 14(3)(3) of the ICCPR states that a defendant has the right to "examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses [ . . . ]". In the end, the lack of evidence connecting Mam Sonando to the secession and incitement charges was so flagrantly obvious that the written witness statements seem to have been discredited anyway, with the Defense happy for the appeal hearing to proceed without the witnesses. Such a decision was, however, a significant blow for due process.

Finally, on a positive note, CCHR commends the Court of Appeal for officially accepting an Amicus Brief that raises important points in relation to the right to freedom of expression of Mam Sonando and for reading it out in court. The Amicus Brief was submitted by CCHR to the President of the Court of Appeal on 26 February 2013 on behalf of Media Legal Defence Initiative and Media Defence Southeast Asia. This Amicus Brief is the first of its kind to be submitted in the domestic courts in Cambodia, and its official acceptance therefore sets an important and positive precedent for the Cambodian judiciary to follow in future. Furthermore, the Court of Appeal officially accepted CCHR's Legal Analysis Summary on 4 March 2013, and CCHR hopes that it has been taking CCHR's conclusions into consideration during the course of the appeal hearing.

CCHR President Ou Virak comments:

"These last two days have been a mixed bag as far as due process is concerned. We are very happy that the court officially accepted the Amicus Brief and Legal Analysis we submitted, as it sets a precedent for future cases, and I encourage other independent voices to contribute to the strengthening of Cambodia's judicial system in this way. However, this new forestry charge was a bolt from the blue, and leaves the Defense no opportunity to defend it. If the court wants to charge Sonando with this forestry crime, then there needs to be a retrial. However, as with all the other charges - some of which we are very pleased to see have been dropped - the total lack of evidence leaves the court no option but to acquit and release him and the other defendants immediately. We are seeing glimmers of hope as regards the court system but there is still a long way to go."

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