Monday, March 30, 2015

# 105 David Fletcher alive, if not well!


Phillip Hammond
Foreign Secretary
Parliamentary House of Commons
London
SW1A                                                                                                            

27th. March 2015

Dear Mr Hammond

Against the odds and contrary to doctor’s expectations, Mr Fletcher remains alive, though not well.

Working on the presumption that Mr Fletcher will live, I have arranged for a lawyer’s letter to be delivered to the offices of the Minister of Justice. A sum of money had to be paid by the lawyer, to the Minister’s staff, in order to guarantee that they would pass the letter on to him! This is the first time, in 20 years of coming to Cambodia, that I have (albeit unwittingly) paid a bribe to any official in this country.

I have redacted the name of the lawyer because I do not wish any third party to interfere with the new process that has been set in motion to secure for Mr Fletcher a fair trial – a fair trial that many, including the Foreign & Commonwealth office, have gone to great lengths to prevent from occurring.

The following translation of the lawyers letter is far from perfect but will suffice.

Law Office of XXX
Attorney at Law and Business, Consultant

Letter of Intervention Request

I, XXX, am a member of Council of Bar Association of the Kingdom of Cambodia, in the 7th term, and a lawyer who represents an accused, David John Fletcher, in a criminal case N­0 33 dated on January 12th, 2015 of the appeal court.

To

H.E. Ang Vongvathna, Minister of Justice

Objective: request for intervention on the appeal court to recognize and accept the appeal complaint of my client, David John Fletcher, male, 70 years old, British, dated on December 10th, 2014, which is his legal right, and take the case for retrial of criminal case N0 33 dated on January 12th, 2015 of the appeal court.

References:

-  Letter of lawyer representation dated on February 11th, 2015 of Mr. David John Fletcher.
-  Appeal complaint dated on December 10th, 2014 of Mr. David John Fletcher.
-  A judgment without presence of the accused N0 44 Kr1 dated on May 9th, 2011 of the Phnom Penh First Instant Court.
-  A warrant N0 25 Kr.3.C dated on May 16th, 2014 of the appeal court.
-  A judgment N0 236 Kr3 N P.P.BR.T dated on November 20th, 2014 of the Phnom Penh First Instant Court.
-  Article 301 of code of criminal procedure of the Kingdom of Cambodia in 2007 on lawyer representation.
-  Articles 65, 376, and 377 of code of criminal procedure of the Kingdom of Cambodia 2007.

As above-mentioned in the objective and references, I am pleased to inform H.E. Minister that my client, Mr. David John Fletcher, male, 70 years old, British, was extradited by the Thai government to Cambodia on September 30th, 2013 and put in jail in Phnom Penh prison (PJ).

Respectfully, H.E. Minister, I would like to clarify that while my client was detained in Thailand, my client was also accused by a prosecutor of the Phnom Penh First Instant Court on sexual rape in a criminal case N0 1551 dated on July 15th, 2010 made at a closed hearing by the Phnom Penh First Instant Court without my client’s presence and sentenced to 10 years in prison by a closed judgment N0 44 Kr1 dated on May 9th, 2011 of the Phnom Penh First Instant Court.

Respectfully, H.E. Minister, following my client extradition of Thai government to Cambodia, on October 17th, 2013, prison officers of PJ sent my client to Phnom Penh First Instant Court to inform him about the closed judgment N0 44 Kr1 dated on May 9th, 2011. In the judgment, the court decided to sentence my client 10 years in prison without my client presence or knowledge of the proceedings. At that time, my client absolutely refused the closed criminal judgment.

A prosecutor told my client to submit a complaint for retrial or appeal. My client responded that he did not have a lawyer and asked for one week duration to think about making a complaint to the Phnom Penh First Instant Court for retrial or appeal. He also asked the prosecutor to bring him to the court again on October 24th, 2013 to find a lawyer to represent him and a Khmer interpreter.

A week later, on October 24th, 2013, the prosecutor did not inform the PJ prison officer to take my client to the Phnom Penh First Instant Court as requested, which resulted in my client losing his right to apply for retrial or appeal.

My client is a foreigner who could not speak the Khmer language, did not have a Khmer interpreter, and did not understand the legal procedure in Cambodia and was not able to obtain a lawyer for legal representation.

Respectfully, H.E. Minister, without being present at the court, as requested, my  client submitted a complaint to the Phnom Penh First Instant Court for retrial his case on November 9th, 2013 but in return did not get any information at all. On December 24th, 2013 a prison officer told my client that the court did not accept my client’s complaint due to the noncompliance of administrative procedure.

On December 26th, 2013, a lawyer, Mr. YYY, received the right to represent my client to make appeal for the closed judgment N0 44 Kr1 dated on May 9th, 2011 of the Phnom Penh Court based on appeal complaint N0 915 dated on December 26th, 2013, but the appeal court decided refuse the appeal complaint of Lawyer, YYY, for trial based on a warrant N0 25 Kr. 3. C. dated on May 16th, 2014 of the appeal court.

On May 30th, 2014, my client, Mr. David John Fletcher, submitted a complaint for retrial against the closed judgment N0 44 Kr1 dated on May 9th, 2011 of the Phnom Penh Court. The Phnom Penh court accepted my client’s complaint and opened a hearing of my client’s complaint on November 20th, 2014. The court eventually decided to drop the complaint of my client dated on May 30th, 2014 by citing that the complaint was over the set duration for retrial complaint based on a judgment N0 236 Kr3. N. P.P.Pr.T dated on November 20th, 2014 of the Phnom Penh court.
  
Respectfully H.E. Minister, based on the judgment N0 236, dated on November 20th, 2014, of Phnom Penh Court, my client did make a complaint for appeal on December 10th, 2014. Concerning  the closed judgment N0 44 Kr1 dated on May 9th, 2011 of the Phnom Penh court, which sentenced my client10 years in prison, I submit that this is unjust for my client, that made my client could not accept the judgment because my client did not commit the offense as prosecuted by the prosecutor. The court did not comply with the legal procedure and decided to open a hearing without my client’s presence. And my client was denied the interrogation procedure outlined in th4e Cambodian Code of Criminal Procedure at the judicial police stage, the prosecutor stage, and the investigating judge stage whilst he was detained in Thailand.

In reference to the medical check on sexual rape of Phnom Penh municipal hospital N067/10 dated on September 8th, 2010, of the victim, Yan Dany, called Ny, Female, was born on July 6th, 1992, concluded and recommended that no mark was noticed on the victim’s body and the victim’s sex organ was not injured. The conclusion and recommendation of the Phnom Penh municipal hospital certified that my client did not rape the victim.
  
The judgment N0 236 Kr. N. P. P. Pr. T dated on November 20th, 2014 of the Phnom Penh court decided to drop my client’s complaint for retrial dated on May 30th, 2014, citing that the complaint was over the set duration, is that the court did not study on the statement of my client’s interrogation report, Mr. David John Fletcher, answered before the prosecutor of Phnom Penh court on October 17th, 2013, at 9 A.M.

Furthermore, my client did not thumbprint  the notice letter of the closed judgment which means that if my client thumb printed on the notice of the closed judgment counting from the date of receiving the notice, he had right to complaint for retrial 15 days and 1 months for appeal. If the set duration passed, my client did not make complaint for retrial or appeal; my client would lose right to the complaint. But in this case my client did not thumbprint the notice letter of the closed judgment, therefore means that my client still has right to the retrial and appeal.

Respectful H.E. Minister, related to the decision of the Phnom Penh court to drop my clients’ retrial complaint and the appeal court’s refusal to accept my client’s complaint for appeal by citing that beyond the limit time, this is not appropriate because my client is a foreigner who could not speak Khmer language and did not have a lawyer for legal representation and the prosecutor of the Phnom Penh court did not inform him the right to and duration of complaint for retrial and appeal which made my client lose his right of complaint for retrial and appeal, and my client did not understand the law and criminal procedure of Cambodia.

Therefore, as it is my purpose to access justice for my client, I would like to request H.E. Minister for intervention to the appeal court on recognition and acceptance of my client’s complaint for appeal, Mr. David John Fletcher, Male, 70 years old, British, dated on December 10th, 2014, which is suitable to the law, and take the criminal case N0 33 dated on January 12th, 2015, of the appeal court to retrial as appropriate.

Respectful H.E. Minister, please accept my highest respect.

What this boils down to is what the Foreign & Commonwealth Office has known for years:

- Mr Fletcher was denied a fair trial at the outset when one was held without his knowledge or presence to present a defense.

- Mr Fletcher’s right to a retrial or appeal have both been denied to him on purely procedural grounds – namely that he did not submit certain documents to the court within a certain time frame.

- Yang Dany, Mr Fletcher’s alleged victim, was not raped according to the doctor’s report submitted to the court. And she had denied that she was raped.

Why is it too much to ask of yourself Mr Hammond, as Foreign Secretary, that you request of the Cambodian Minister of Justice that Mr Fletcher be accorded the right to a fair trial? This is not ‘interfering’ with the internal affairs of a sovereign nation. It is merely a request that a British citizen accused of a crime be tried in accordance with the Cambodian Code of Criminal Procedure.

best wishes

James Ricketson

No comments:

Post a Comment