Monday, November 30, 2015

# 170 “Corruption is everywhere,” says Naly Pilorge, Director of LICADHO

Dear Samleang Seila

It would seem that at least one of the men who visited me in my hotel last week was an out-of-uniform policeman. The manager of my hotel recognized him.  

Why out-of-uniform policeman should be running errands for you raises certain questions.

If the second man was not a policeman, this raises further questions. Who was he?

These two men have not returned to my hotel in the past 7 days to give me the document they had in their hands.

It is possible, I suppose, that you did not send these two men to my hotel; that they were sent by someone else. If so, whatever their mission was, it seems not to have succeeded.

If, on the other hand, these two men really were sent by yourself, please feel free to email to me whatever document it is that they wished to give to me. I am now in Australia and unable to be handed it in person.

A few days ago Naly Pilorge had the following to say in a press release regarding a LICADHO report entitled “Courts Still Failing Rape Victims”:

The report is based on 762 cases of rape and attempted rape submitted to the rights group’s office in Phnom Penh as well as its offices in 12 provinces between 2012 and 2014.  

The 24-page report identifies corruption as one of the factors behind the failure of the judicial system to investigate and prosecute men suspected of raping women and children.

“Every time the victim comes into contact with a public official, it’s likely that they will have to make a corrupt payment and if the suspect has money he will probably be able to buy his freedom,” Licadho director Naly Pilorge said in a press release accompanying the release of the report. “Sometimes it seems like the authorities don’t care about justice. Instead, rape cases are just a way for them to make money.

“Corruption is everywhere,” she said.

Only a blind person could fail to acknowledge that in Cambodia “Corruption is everywhere.” In the case of Mr Fletcher, corruption manifests itself first and foremost in his being denied a fair trial in 2011. Corruption also manifests itself in Yang Dany and her mother, Sekun, being told that they stood to gain $30,000 in compensation if Mr Fletcher was found guilty of rape. This is to be found in court documents, as you know.

The $30,000 offer to Yang Dany and her mother was not only corrupt in that it played a significant role in Mr Fletcher’s being found guilty of rape. It was also corrupt in that it led an impoverished scavenger (Sekun) to believe that she could earn the equivalent of 30 years wages by simply convincing her daughter to affix her thumb print to a document accusing Mr Fletcher of rape. This abuse of Yang Dany’s human and legal rights was exacerbated when she and her mother found out, the hard way, that there would be no $30,000 but that they might get $5,000 in compensation. By then the wheels of ‘justice’ had begun to turn and there was no turning back for Yang Dany and her mother. They could not tell the truth because they could then be charged, themselves, with perjury. They had to stick with their story, no doubt reassured that in a secret trial, no-one was going to care about the actual evidence – the most important of which, as you had known since Sept 2010, was that Yang Dany survived her two hour long ‘brutal’ rapes with her hymen intact.

This would not have passed the pub laugh test in court had there been members of the public and media present. Hence the need for a trial held ‘in camera’.

Sekun is quite bitter that having played the role assigned to her and Yang Dany they have not received one cent the $5,000 they were told they would get. Nor did they receive the financial assistance that Scott Neeson said he would provide (to Andrew Drummond). With my camera running, I asked Sekun if she would be prepared to tell the truth in court in late 2014. Her reply was, “If you give me $5,000.”

Sekun will tell whatever version of ‘the truth’ is going to result in her receiving $5,000. However, Sekun is a most unguarded woman and it is not hard to get her to tell the truth. A skilled lawyer, cross-examining her in court, would have little trouble in shooting holes in whatever story Sekun chose to tell (depending on who had given her $5,000) and getting her to admit the truth.

And it is the truth, Seila, that you so desperately do not want to emerge in court. After more than 5 years of hard work on your part to portray Mr Fletcher as a man who has been found guilty in a properly constituted court, an innocent verdict would be a severe blow to APLE’s credibility. And to the credibility of all those (SISHA, CEOP, Scott Neeson and the FCO) who pursued Mr Fletcher on rape charges whilst knowing, since Sept 2010, that the alleged victim remained a virgin.

Now it is quite apparent that the medical evidence does not support the allegation that Mr Fletcher raped Yang Dany, your fallback position is that he is not entitled to a ‘re-trial’ (a misnomer, since he has had no trial at all) because he submitted certain documents to the Phnom Penh Municipal Court late. To put this another way, in the moral world you inhabit, a man deserves to spend 10 years in jail without a trial, regardless of his guilt or innocence, because he did not submit documents in time.

This is not the moral universe that a man should be living in whose job it is to protect the human rights not just of alleged victims of sex crimes but alleged perpetrators. It is morally reprehensible and you are not fit to occupy the position you do and should resign if you have any principles at all. And you should be asked to resign if APLE is to retain any credibility at all.

On the other hand, if you wish to remain in your job and cling to whatever sliver of credibility you and APLE retain, you could immediately write to the Minister for Justice and advocate Mr Fletcher’s right to a fair trial. If, despite your belief that he did not rape Yang Dany, you believe he deserves to spend 10 years in jail for the heinous crime of submitting documents late to the court, come into court and argue your case.

Sunday, November 29, 2015

# 169 No reappearance of mystery men in hotel foyer

Dear Samleang Seila

The two men purporting to be policemen, have not reappeared in the foyer of my hotel bearing a document from you.

Perhaps you did not send them at all and someone is being mischievous in attributing their arrival to yourself!

Having pretty much admitted that APLE does not believe David Fletcher raped Yang Dany, perhaps you would like to write to the Minister for Justice (as Mr Fletcher has, see below) requesting that he be provided with a trial held in accordance with the Cambodian Code of Criminal Procedure?

Yes, there is the potential for huge embarrassment for APLE (and others) if he is found to be not guilty but the alternative (a man denied a fair trail dying in jail) is not going to look good on your curriculum vitae and I would have thought not good for you either from a karmic point of view.

If you really believe that Mr Fletcher deserves 10 years in jail because he got some paperwork in late to the Phnom Penh Municipal Court, argue this in court in front of the general public and media.




Mr David John Fletcher
PJ Prison
Phnom Penh


Mr Ang Vong Vathana
Minister of Justice
Samdech Sothearos Road
Sangkat Chaktomouk
Daun Penh

20th November 2015

Dear Mr Ang Vong Vathana

I apologize that I am writing to you in English. As I am in jail it has not been possible for me to have this letter translated into Khmer.
My name is David John Fletcher. I am in PJ prison in Phnom Penh.

In 2011 I was found to guilty of rape by three judges in the Phnom Penh Municipal Court and sentenced to 10 years in prison.

Since I was arrested in Thailand in June 2010, I have never been interviewed by the Cambodian police in relation to the charges brought against me. I have never been interviewed by an investigating judge and have never had an opportunity to defend myself in court.

If I were to be found guilty of rape on the basis of evidence presented to a court, having had an opportunity to present evidence in my defense, I would accept this verdict. I have been denied the opportunity present evidence in my defense for more than five years now. The trial held in 2011, ‘in camera’ was one that I did not know was taking place until afterwards, when I was shown a press report. I was found guilty despite the fact that the young woman I had supposedly raped was found, by the Phnom Penh Municipal Court, to be a virgin.

I now wish to request of the Supreme Court that I be provide with the trial I have been asking for for 5 years now; a trial held in accordance with the Cambodian Code of Criminal Procedure. I am 71 years old and in poor health and would respectfully request that a date be set for my Supreme Court hearing as soon as possible.

Following are the reasons why I believe, in accordance with the Cambodian Code of Criminal Procedure, I am entitled to a trial at which I am present and able to present a defense:

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 have never been interviewed by an investigating judge. I was never presented with a signed and dated summary of the facts before my trial. I did not know about my trial until it was completed.
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. Nor have I ever been interviewed by an investigating judge.
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. I have never been provided with an opportunity to defend myself in court.
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.”

Prior to my 2011 trial I was never informed that I had a legal right to ask the investigating judge to interrogate me or to question witnesses in my defense.   Please excuse me for repeating myself but I did not even know that a trial was taking place.
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?  Not once, in more than five years.
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 and I had been found guilty?
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. Such an interrogation would have been difficult as I was being held in prison in Thailand at the time.
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 prior to the 2011 trial held in my absence.
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. This will be my request of  the Supreme Court.
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 more than five 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.”
Given that the young woman who claimed I had raped her was 18 years old at the time of the trial I find it difficult to understand in what way a trial open to the media and the public was 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.”
For more than five years now I have been unable to present to any Cambodian court evidence in defense of my claim that I did not rape Yang Dany in March 2009.
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 you, Minister, that there have been sufficient breaches of the Cambodian Code of Criminal Procedure to warrant that I be granted a Supreme Court hearing at the soonest possible date.
Yours respectfully
David John Fletcher