# 5 David Fletcher's hearing on 27th Oct in the Phnom Penh Municipal Court

When David Fletcher was sentenced to 10 years in jail for rape by the Phnom Penh Municipal Court in 2011, he was not represented legally and had no opportunity to present evidence in his defence. The media were not present to report on the case. No human rights groups were present to observe. The trial was held in secret and the results announced a week later. The media published the results and asked no more questions. End of story?

Not quite.

Next week, on 27^th Oct., David Fletcher will have his first opportunity in four and a half years to address the court. At 2pm on 27^th Oct there will be a hearing to determine whether or not Mr Fletcher is entitled to a re-trial. I trust that representatives of the 4^th Estate will be there to observe, record and report on the proceedings?

David Fletcher may well be a pedophile and a rapist. Whether he is or not is up to a properly constituted court to decide based on the evidence available to it. In 2011 the only evidence available to the court was Yang Dany’s assertion that she had been raped.  There were no witnesses to the rapes that had occurred 15 months earlier, no evidence was presented that the rapes had occurred, Mr Fletcher may well not have been in Cambodia at the time of the alleged rapes and the venue in which the rapes allegedly occurred did not exist at the time.

There are many reasons to doubt the safety of Mr Fletcher’s conviction.

Mr Fletcher is entitled to the presumption of innocence until such time as the evidence overwhelmingly suggests that he is guilty as charged. For Mr Fletcher’s guilt to be determined, beyond reasonable doubt, certain legal procedures must be adhered to in accordance with the Cambodian Code of Criminal Procedure. This has not occurred to date.

I am hopeful, for reasons that will become apparent in blog entries over the next week, that NGOs concerned with human rights, along with members of the media (both Khmer and English speaking), will take an interest in these proceedings and make their own assessments as to whether or not Mr Fletcher is entitled to a re-trial.

It is not just the fate of one man that is at stake here but Cambodia's judicial system. Can it, should it be allowed, to flout the Cambodian Code of Criminal Procedure with impunity whilst the international donor community does nothing other than express its 'concern'?

What follows is a brief summary of those parts of the Cambodian Code of Criminal Procedure relevant to Mr Fletcher’s legal and human rights. I have asked a few of the questions I hope the media and human rights NGOs might also be asking in the lead-up to the 27^th October hearing.

Article 44. Opening of Judicial Investigation

“In the case of a felony, the Prosecutor shall open a judicial investigation. The judicial investigation shall be based upon the initial submission provided to the investigating judge.”

Questions:

On what date was an judicial investigation ‘opened’?

Has a copy of the ‘initial submission provided to the investigating judge’ been given to the accused, David Fletcher?

“The initial submission (to be prepared by the Prosecutor) includes: A summary of the facts…. 
The initial submission shall be dated and signed.
 These formalities shall be strictly complied with or the initial submission shall be void.”

Was Mr Fletcher been provided with a signed and dated summary of the facts before his trial?

The answer to this question is ‘no’. The ‘initial submission’ should be ‘void’. On this point alone, Mr Fletcher is entitled to a re-trial.

Article 93. Interrogation Records

“For each interrogation, a written record shall be established. The written record shall be an accurate account of the interrogated person’s responses. The interrogated person shall sign or affix his finger-print to each page of the written record.”

Was Mr Fletcher provided with copies of signed statements by Yang Dany and her mother Kheang Sekun?

The answer is ‘no’.

Article 121. Confidentiality of Judicial Investigation

“The judicial investigation is confidential….Persons who participate in the judicial investigation, especially prosecutors, judges, lawyers, court clerks, judicial police and military police officers, civil servants, experts, interpreters/translators, medical doctors and other persons mentioned in Article 95 (Technical or Scientific Examination) of this Code, shall maintain professional confidentiality… A breach of confidentiality regarding a judicial investigation is a misdemeanor punishable under the Criminal Law in force.”

If the investigation was confidential how and why did Peter Hogan, owner of the Khmer440 social media blog, know about it and comment on it in a public forum?

Article 124. Introductory Submissions

“In compliance with Article 44 (Commencement of Judicial Investigation) of this Code, a judicial investigation is opened by the introductory submission of the Royal Prosecutor….An investigating judge may not conduct any investigative acts in the absence of an introductory submission.”

Was Mr Fletcher’s provided with a copy of this ‘introductory submission’? If there was no ‘introductory submission’, no investigation could have taken place in accordance with Cambodian law.

Yet another ground upon which Mr Fletcher is entitled, in accordance with Cambodian law, to a re-trial.

Article 127. Investigation of Inculpatory and Exculpatory Evidence

“An investigating judge, in accordance with the law, performs all investigations that he deems useful to ascertaining the truth. An investigating judge has the obligation to collect inculpatory as well as exculpatory evidence.”

Did the investigating judge make any attempt to collect exculpatory evidence? That is, evidence in support of Mr Fletcher’s insistence that he was not guilty?

The answer is ‘no’. At no stage in the lead-up to the trial did anyone seek from Mr Fletcher ‘exculpatory evidence’.

Article 133. Investigative Actions Requested by Charged Persons

”At any time during a judicial investigation, the charged person may ask the investigating judge to interrogate him, question a civil party or witness, conduct a confrontation or visit a site. The request shall be in writing with a statement of reasons. If the investigating judge does not grant the request, he shall issue a rejection order within one month after receiving the request. This order shall state the reasons. The Prosecutor and the charged person shall be notified of the order without delay.”

Was Mr Fletcher ever told that he had a legal right to ask the investigating judge to interrogate him? This would have been difficult, of course, given that he was in jail in Thailand.

Article 143. Notification of Placement under Judicial Investigation

“When a charged person appears for the first time, the investigating judge shall check his identity, inform him of the imputed act and its legal qualification, and receive his statement after informing him of the right to remain silent. This notification shall be mentioned in the written record of the first appearance.”

Was Mr Fletcher ever informed of his right to remain silent? Has he ever appeared before an investigating judge to answer questions? Is there any written record of Mr Fletcher’s first appearance or why it is that he did not appear?

The answer to these questions is ‘no’.

Article 126. Placing Suspect under Judicial Investigation

“The investigating judge shall inform the charged person of his rights to choose a lawyer or to have a lawyer appointed according to the Law on the Bar.”  

Was Mr Fletcher ever informed by an investigating judge of his right to either choose a lawyer or have one appointed? Was he even aware that a trial was taking place until after it had been completed?

Article 145. Presence of Lawyer during  Interrogation

“When a charged person has a lawyer, the investigating judge shall summons the lawyer at least five days before the interrogation takes place. During that period, the lawyer may examine the case file. A charged person can be interrogated only in the presence of his lawyer.”   

Did the investigating judge summon Mr Fletcher’s lawyer 5 days before an interrogation? The answer to this is no because (a) Mr Fletcher did not have a lawyer and (b) no interrogation has ever taken place.

How many breaches on the Cambodian Code of Criminal Procedure need to be made before the Phnom Penh Municipal Court acknowledges his right to a re-trial?

Article 197. Arrest Warrant and Opinion of Prosecutor

“Before issuing an arrest warrant, the investigating judge shall ask for the opinion of the Royal Prosecutor. The investigating judge shall issue the arrest warrant with reasons which he shall specify after obtaining the opinion of the Royal Prosecutor.”

Has Mr Fletcher ever been provided a copy of an arrest warrant? If so, on what date was it signed?

Article 206. Statement of Charged Persons and Reasons for Provisional Detention

“Where an investigating judge, either at his initiative or after a request by the Royal Prosecutor, envisages to provisionally detain a charged person, he shall inform the charged person accordingly and ask for his observations.”

Did the investigating judge ever ask Mr Fletcher for ‘his observations’?

No!

Article 206. Statement of Charged Persons and Reasons for Provisional Detention

“The investigating judge who orders the provisional detention of a charged person shall issue an order containing reasons. The investigating judge’s reasons in the order shall be based on the provisions of Article 205 (Reasons for Provisional Detention) of this Code. The Royal Prosecutor and the charged person shall be immediately notified of the decision.”  

Has Mr Fletcher ever been notified of the reasons why he was charged?

Article 247. Closing Order

“If the judge considers that the facts constitute a felony, a misdemeanor or a petty offense, he shall decide to indict the charged person before the trial court. The order shall state the facts being charged and their legal qualifications.”

 Did the investigating judge ever issue an order stating the facts? If so, has Mr Fletcher been provided with a copy of this document?.

Article 252. Mandatory Rules

“128 (Assistance of Court Clerks) of this Code. 
Proceedings shall also be null and void if the violation of any substantial rule or procedure stated in the Code or any provisions concerning criminal procedure affects the interests of the concerned party. Especially, rules and procedures which intend to guarantee the rights of the defense have a substantial nature.”

Given the sheer volume of violations of the Cambodian Code of Criminal Procedure, why was the verdict of the court not rendered null and void?

Have Mr Fletcher’s ‘rights of the defense’ been respected from ther time of his arrest until the present day – a period of four and a half years?

•  Article 305. Appearance of Accused upon Indictment

“According to Article 249 (Provisions of Closing Orders in Relation to Provisional Detention and Judicial Supervision) of this Code, the order to keep the accused in provisional detention will expire after four months. If the accused has not been brought before the court within this period, the accused shall be automatically released. A judgment on the merits of the case shall be made within a reasonable time period.”  

Does four and a half years constitute a ‘reasonable time’? During this time not only has Mr Fletcher been unable to present a defense in court, he has not even been interviewed by the Anti-Human Trafficking unit, by any police officers or by the Investigating judge.

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.”

Did the court order an in-camera hearing because it believed that the facts of this case were likely to cause a significant danger to the public order or morality? If not, did the court provide any reason at all for the in-camera hearing?

Will the Phnom Penh Municipal Court attempt to hold the 27^th Oct hearing ‘in camera’? If so, why? If so, will representatives of the media and human rights NGOs ask on what grounds the hearing will not be open to public scrutiny, as stipulated by the Cambodian Code of Criminal Procedure

Article 318. Establishment of Order in Hearing

“The presiding judge shall conduct and lead the trial hearing. The presiding judge shall guarantee the free exercise of the right to defense.”

Did the presiding judge provide Mr Fletcher with the free exercise of his right to a defense.

No, Mr Fletcher was being held in jail at the time of the trial.

Article 321. Evidence Evaluation by Court

“Unless it is provided otherwise by law, in criminal cases all evidence is admissible. The court has to consider the value of the evidence submitted for its examination, following the judge’s intimate conviction….The judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing.”

Why was evidence that had no bearing at all on the charges that had been laid against Mr Fletcher (rape) allowed to be introduced by NGOs?

Why has Mr Fletcher never been allowed to present any evidence in his own defense?

Will the Phnom Penh Municipal Court allow Mr Fletcher, on 27^th Oct, to present evidence in support of the proposition that he is entitled to a re-trial?

Article 325. Interrogation of Accused

“The presiding judge shall inform the accused of the charges that he is accused of and conduct the questioning of the accused. The presiding judge shall ask any questions which he believes to be conducive to ascertaining the truth. The presiding judge has a duty to ask the accused both inculpatory and exculpatory questions.”

Did the presiding judge, at any time, inform Mr Fletcher of the charges that had been laid against him?  Did the presiding judge ever question the accused? The answer to both of these questions is no. Mr Fletcher was in jail in Thailand at the time of the trial.

Article 436. Decisions on Questions of Law

“The Supreme Court shall make a decision on the questions of law which were raised by the requester and described in his briefs.”

Have these ‘questions of law’ been raised with the Supreme Court? Have they been raised in any court? Will they be raised on 27^th October?

The Cambodian Code of Criminal Procedure has been breached in so many ways as to raise serious doubts about the safety of Mr Fletcher’s conviction. David Fletcher is entitled to a fair trial in accordance with the Cambodian Code of Criminal Procedure.

I trust that all those in receipt of this email will take an interest in this matter and have representatives present in court of 27^th Oct. Having researched the case thoroughly I can assure you that there are some surprises in store - if, that is, the court allows all relevant evidence to be introduced in the proceedings.