If
the Appeal Court acts tomorrow in accordance with the Cambodian Code of
Criminal Procedure, Mr Fletcher should be granted the right to appeal the 10
year jail sentence handed down by judges who had not met Mr Fletcher and whose
testimony they had not heard.
Below
is a list of the many braches of this Code. Mr Fletcher would have argued these
points in the Phnom Penh Municipal Court last November if the judges had not
refused to allow him to address the court, call witnesses or present evidence
in his defense.
David Fletcher’s statement to
the court of 20th Nov 2014 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.
I'm not positive that this is true, but I've heard that there are over 200 papers in Cambodia that are called monthly. The vast majority of them do not publish because they are paid not to publish. They gather information and the people that they have information on, pay them not to publish. Is someone paying the English language papers not to publish about David Fletcher's case?? Hoe can a newspaper ignore the facts and injustice in this case and not expose the court for their actions??
ReplyDeleteAnonymous 5.54
DeleteI am not sure that there are 200 newspapers but there is certainly lots of anecdotal evidence to suggest that journalists can make more money NOT publishing articles than publishing them.
However, I have no reason to believe that this applies to the decision, on the part of the Cambodia Daily, the Phnom Penh Post and the Khmer Times to pretty much ignore the David Fletcher case. Given Mr Fletcher's conviction in 1998 for having sex with a 15 year old, I can more or less understand why they might wish to ignore his case - even if I disagree with this decision. What I do not understand is why all three newspapers ignore the fact that James Mc Cabe had sex with a 15 year old and now runs a Child Protection Unit. Or did he? Maybe he didn't. Maybe this story is but scuttlebutt, but have any journalists from these three newspapers bothered to ask Mc Cabe, Neeson or the the CCF board if this story is true? Have any journalists from these three newspapers asked if the story about the death of the teenage girl is true? Perhaps they have and have decided, on the basis of the answers they received, that there is no story here.
OK, but what about the houses 'gifted' to poor people in Steung Meanchy that are in fact being 'gifted' to CCF? Any questions? It seems not! Neeson, CCF and the world they have created are not to be investigated by the 4th Estate.
Of course, a time will come when a 'smoking gun' will emerge that is much too obvious to ignore. At this point the media will, vulture like, swoop from the skies to tear the flesh from Neeson's bones. My guess is that it will not be this blog but some very pissed off young Khmer man or woman who has been through CCF, is smart enough to discern the difference between spin and actuality and who is courageous enough to challenge Neeson in public. When this happens, and when others see that this whistle-blower is not (and cannot be) intimidated into silence, others will come forward with their stories. The House of Cards will collapse quite quickly - at which point the Cambodian English language media will report on it. C'est la Vie!
How can Cambodia call it a justice system, when they violate so many of their own rules and where is the press on this??
DeleteMy wishes for David Fletcher to walk out of jail as a free and most
ReplyDeleteimportantly "innocent to the charges" man hopefully will be heard by the
judge.
Cambodia is a country in progress and so is the judicial enviroment.
There are judges that can see through scams and are NOT corrupt. I have
seen several cases were the judge used common sense and dismissed
outrages charges from NGO Scammers.
Cambodia's credibility will see a boost once Fletcher walks free. The
media will have to bite their toe nails but have no choice other to
report on the issue. The British FCO will pull all available strings to
avoid Fletcher from walking free. Too much negative publicity for those
Gov. Clerks that deny justice with stroke of a pen.
If i were Fletcher i would sue both Neeson and Thierry
Darnaudet/Samleang Seila of APLE both which helped to set Fletcher up.
As far as Peter Hogan of Khmer440 is concerned, he got his punishment
already.
Tom Selig - luckily you are not representing Fletcher. Your English and grammar inyour comments clearly shows that you have the intelligence of a coconut.
ReplyDelete