Mr Ang Vong Vathana
Minister of Justice
Samdech Sothearos Road
Sangkat Chaktomouk
Daun Penh
1st Dec. 2014
Dear Mr Ang Vong Vathana
re David John Fletcher
Following on from my letter of 24th Nov.
Mr Fletcher has one, perhaps two weeks to live.
Whilst the decision to die has been made by David Fletcher himself, the
circumstances that have led to his giving up all hope for the future are not of
his making. Judges in the Phnom Penh Municipal Court have failed to adhere to
the basic principles outlined in the Cambodian Code of Criminal Procedure. I
have attached a document revealing the ways in which the judges have, on more
than one occasion now, failed to provide Mr Fletcher with even the semblance of
a fair trial. This is in the form of a statement to the judges that they
refused to allow him to read. (see attached ‘David Fletcher statement for court
20.11.14’)
I have posted online two interviews I conducted
with the alleged rape victim, Yang Dany, and her mother Kheang Sekun. In these
interviews both mother and daughter make it clear that Mr Fletcher did not rape
Yang Dany. Their statements to this effect are backed up by the doctor’s report
prepared for the Phnom Penh Municipal Court in Sept 2010 that declared Yang
Dany to be a virgin still, despite her allegations of having been ‘brutally
raped’ in March the previous year - 2009.
In addition to the doctor’s report and the
confessions of Yang Dany and Kheang Sekun there is the fact that David Fletcher
was not in Cambodia on 15th and 22nd March 2009 – the
dates upon which he allegedly raped Yang Dany.
On 20th Nov the three judges of the
Phnom Penh Municipal Court refused to consider this or any other evidence that
Mr Fletcher had prepared for his defense. Indeed, at one point Mr Fletcher
handed his evidence up to the judges and they handed it back to him. They had
already made up their mind not to grant him the re-trial they had promised him
three weeks earlier. This was made apparent when, after a 15 minute break, the
main judge came back and read a 5 page summary of the reasons why Mr Fletcher
was being denied a re-trial. This document had clearly been written before the
court proceedings had begun that morning. The reasoning behind the decision to
refuse a re-trial had nothing to do with facts, evidence or the truth. They had
purely and simply to do with the fact that Mr Fletcher had not lodged
particular documents with the court in time. This was not Mr Fletcher’s fault –
as acknowledged by the director of the prison in which he is incarcerated.
There has been a gross miscarriage of justice here
and you are the only person, now, who can step in, override the judges’ unfair
decision to disallow a re-trial and insist that Mr Fletcher be provided with a trial
in accordance with the Cambodian Code of Criminal Procedure. I ask that you do
so Mr Ang Vong Vathana before Mr
Fletcher dies.
If, in an open court, able to defend himself, to
call witnesses, Mr Fletcher is found guilty on the basis of evidence that has
been tested by the court, he will willingly accept his punishment. If he is
found to be ‘not guilty’ there should be an investigation into how it came to
be that he was falsely charged in the first place. Such an investigation would
have to focus on the modus operandi of Actions Pour les Enfants – the NGO that
has known, since Sept 2010, that Yang Dany was a virgin and could not have been
raped. Despite this knowledge, APLE has relentlessly pursued Mr Fletcher in its
attempt (successful) to see an innocent man jailed.
The interviews with Yang Dany and Kheang Sekun can
be found at:
https://www.youtube.com/watch?v=eqHpFO0cauc
and
https://www.youtube.com/watch?v=DU9zpkYMCEo
If, after viewing these essentially uncut videos,
you have any doubts at all, Mr Ang Vong
Vathana, about the decision to refuse Mr Fletcher a re-trial, I trust that you
will do all within your power to insist that the judges grant him a re-trial.
I should point out at this point, lest there be any
confusion, that Mr Fletcher has never appeared before a court that adhered to
the Cambodian Code of Criminal Procedure.
yours sincerely
James Ricketson
David Fletcher’s statement to
the court of 20th Nov that the judges refused to allow him to
present to the court.
Your Honours
I apologize that this document
is written and spoken in English but owing to my being jail it has not been
possible for me to have it translated into Khmer.
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. 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.”
I was not provided with a signed and
dated summary of the facts before my 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.”
I was not provided with copies of signed statements by Yang
Dany and her mother Kheang Sekun?
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.”
I was not 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.
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.”
No investigating or trial judge, no policeman, no member of
the Anti-Human Trafficking unit has ever asked me to present exculpatory
evidence in support of my insistence that I am not guilty
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.”
I have never been informed that I had a legal right to ask the
investigating judge to interrogate me. This would have been difficult, of
course because I 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.”
I have never been informed of my right to remain silent? I
have never appeared before an investigating judge to answer questions?
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.”
I was never informed by an investigating judge of my right to
either choose a lawyer or have one appointed? I was not 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.”
As I had no lawyer it was not possible for the investigating
judge summon him 5 days before an interrogation. No interrogation has ever
taken place.
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.”
I was not notified of the reasons why I 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.”
I have never been provided with an order that states the facts
relating to the charges made against me.
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.”
I believe that many violations of the Cambodian Code of
Criminal Procedure have occurred and that I am entitled, in accordance with
Cambodian law, to a re-trial.
• 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.”
I have been in jail for four and a half years now, unable to unable
to present a defense to the Phnom Penh Municipal court.
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 thePhnom Penh Municipal 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?
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.”
As I was not in court on the day of the trial I did not have
free exercise of my right to a defense.
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 me (rape) allowed to be introduced by NGOs?
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.”
At no time did the presiding judge inform me of the charges
that had been laid against me. At no
time did the presiding judge question me. I was in jail in Thailand at the time
of the trial.
I submit to the
court that there have been sufficient breaches of the Cambodian Code of
Criminal Procedure to render the original verdict of ‘guilty’ to be null and
void.
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