# 20 Do LICADHO and ADHOC believe David Fletcher is entitled to a fair trial?

Dear LICADHO and ADHOC

Do you believe that David Fletcher is entitled to a fair trial?

Do you believe that the 2011 trial held in secret, with Fletcher unrepresented legally and unable to attend and present evidence in his defense, was fair? In accordance with the Cambodian Code of Criminal Procedure?

Tomorrow’s hearing in the Phnom Penh Municipal Court (27^th Oct) may well be Mr Fletcher’s last opportunity to defend himself in court. He has spent four and a half years in jail so far for a crime that it would have been virtually impossible for him to commit - given the intact hymen of the alleged victim, Yang Dany AFTER the alleged rapes.

With less than 24 hours before his court appearance, Yang Dany’s APLE lawyers are, according to Yang Dany, instructing her to press on with her rape charges so that she can get $5,000 in compensation from Mr Fletcher. I have told Yang Dany that Mr Fletcher does not have $5,000 and that even if he did he would not give it to her.

APLE knows that Yang Dany will never get her $5,000. By holding out the prospect of a $5,000 windfall, it seems, APLE is hoping that Yang Dany does not admit in court tomorrow, what has admitted twice to me and once to two journalists – namely  that she was not raped.

APLE’s lawyers will have a problem to address if the hearing is open to the public, as it should be in accordance with Cambodian law: the medical report indicating that Yang Dany remained a virgin after the rape. How will APLE deal with this in court tomorrow if Yang Dany is cross-examined?

One way would be to see to it that Yang Dany is not cross-examined; that her rape allegations go unchallenged by the defense; that no reference is made to the doctor’s ‘virginity report’. For this to occur, without raising a Pandora’s Box of questions, the court proceedings would need to be held ‘in camera’ so that no journalists were be on hand to report on the case. The judges could then, as they did after the original trial, wait a week and issue a press release stating that Mr Fletcher’s appeal to be allowed a fair trial (euphemistically referred to as a ‘re-trial’) has failed and that he must serve his full 10 year sentence for rape. The media will report this, briefly. End of story. The illusion that justice has been done will be maintained. Back to business as usual.

I believe, in the interests of Mr Fletcher’s legal and human rights, that it would be appropriate for both LICADHO and ADHOC to enquire of APLE if the NGO intends to oppose Mr Fletcher’s request for a re-trial. And if so, on what grounds.  And I believe it would be appropriate for both LICADHO and ADHOC (and representatives of the media) to seek an assurance from the Phnom Penh Municipal Court, early on Monday morning, that Mr Fletcher’s hearing will be open to journalists, representatives of human rights organizations and members of the public.Mr Fletcher’s right to a public hearing is enshrined in Article 136 of the Cambodian Code of Criminal Procedure:

Article 316. Public Nature of Trial Hearing and Confidentiality

Trial hearings shall be conducted in public.

However, the court may order a complete or partial in-camera hearing, if it considers that a public hearing will cause a significant danger to the public order or morality.

It is difficult to see how this hearing, held in public, could possibly cause a significant danger to the public order or morality.

Whilst Mr Fletcher is clearly entitled to a fair trial, the issues at stake here have little to do with Mr Fletcher but with the right of all accused (Khmer and non-Khmer) to receive a fair trial.

This is not a time for LICADHO and ADHOC to remain silent.

best wishes

James Ricketson