Chheang Makara is a lawyer at IBJ”s office in Mondulkiri. He started working IBJ in October 2010. He is currently the only permanent legal aid lawyer in Mondulkiri, a province in the remote and mountainous west of Cambodia. Makara was motivated to work for IBJ because it is an organization that will help him to develop his skills and knowledge as a legal practitioner and to provide a valuable legal service to society. Prior to working for IBJ, he worked as an intern lawyer at Gold Service Law Firm for one year as part of his qualification to practice. Makara studied at the Lawyer Training Center from 2008 to 2009. He worked as a Lawyer Assistant for Avocats Sans Frontières from 2006 to 2008. Makara graduated with a Bachelors of Law from Build Bright University in Phnom Penh in 2005.
Supporting Makara’s work, Ben Sokchea is the IBJ’s lawyer assistant in Mondulkiri. Former legal intern in the organization, he was recruited to work for IBJ in DRC 5 in October 2014.
Mentally-ill Criminals Need Special Treatments
Mentally-ill criminals fall under a specific regime in criminal law. They can raise a defense of “insanity,” and are entitled to be sent to a special institution for mental treatment. However, Cambodia lacks of these special institutions for mentally-ill criminals. They are detained in prison with others. In this case, Ben Boran (all names are changed) was charged with rape and sentenced five years in prison, while he is suffering from a mental problem.
On September 22, 2013, in Kratie province, Boran had a sexual intercourse with Vy Sophy. Both were under the influence of alcohol. Sophy had initiated the physical relation. However, while they were having sex, Boran started to choke her neck between his hands. When she tried to free herself, Boran stopped her and bit her neck. Frightened by him, she ran away. On September 24, 2013, the police arrested him.
During the police custody, the police hit several times on Boran’s head, and Boran confessed that he raped Sophy. He was charged with rape, and sent to prison for pretrial detention. He was detained for 16 months before his trial was scheduled on January 28, 2015. The IBJ lawyer received Boran’s case after the court assigned him to represent Boran for the trial hearing.
In order to gather the necessary certificates to prove Boran’s mental illness, the IBJ lawyer asked the judge to issue an interlocutory judgment three times. In the certificate that the lawyer obtained, it was stated that Boran had a mental problem since he was born. Strong of this piece of evidence, the lawyer tried to convince the judge to take Boran’s mental problem into account when issuing a final judgment under the articles 31 and 108 of the Cambodian Criminal Code.
According to the article 31, “A person who, at the time he or she committed an offence, was suffering from a mental disorder which destroyed his or her capacity to reason, shall not be criminally responsible. A person who, at the time he or she committed an offence, was suffering from a mental disorder which diminished his or her capacity to reason, shall still be criminally responsible. However, the court shall take this into account when it decides the penalty. […]”.
And according to the article 108, “the court may suspend part of a sentence of imprisonment for such period of time as it may determine […].”
Based on the articles, the lawyer strongly argued that his client should be sentenced to the minimum penalty as provided by the law. The lawyer also added that Boran did not have an aggressive character. The IBJ lawyer brought a prison officer to testify that Boran was showing a good behavior during his pretrial detention. Considering the circumstances and the law, the judge finally sentenced Boran five years in prison, but suspended three years, and the judge ordered Boran to pay 3,000,000 Riels ($700) to Sophy as a compensation.
Boran used to live with his family, and to work in his parents’ farm. When he was arrested, he was very frightened, because he could not see his family anymore. Now, Boran is serving his term in Kratie Prison. He said that he really wants to be reunited with his family. With the help of the IBJ lawyer Boran could get a suspension of three years of his prison term. Without a lawyer to represent him at trial, he could not have proven his mental disability and would have spent 3 more years in a prison system not adapted to his specific situation and needs.
On 21 July 2011, Samnang (name changed) was getting ready in his bathroom when he heard his phone ringing in the living room. He heard his wife picking up, getting angry and going outside where he understood that she was talking to one of his friends. But apparently his friend who had called his wife out of the house was not alone: the police were there as well. Samnang heard all of them leaving and rushed to the police station himself, where he was arrested as well. All were charged with drug trafficking. Samnang was kept one day in police custody, before being transferred to the prison of Mondulkiri, in pretrial detention.
Chheang Makara, the IBJ lawyer based in Mondulkiri, received the case immediately at the police stage. According to Cambodia’s Criminal Procedure Code, the person arrested has the right to talk to a lawyer after a period of 24 hours in police custody has expired (Article 98, Code of Criminal Procedure of the Kingdom of Cambodia). Initially, Samnang was charged under article 33 of the Law on Drug Control which punishes anyone involved in drug trafficking or consumption by 10 to 20 years of imprisonment and by a fine penalty from 10 to 50 million riels ($2,500 to $12,500). Samnang explained to his lawyer that he was indeed involved in drug trafficking… Yet, he was actually used as a citizen undercover working for the police who was trying to dismantle drug trafficking networks in the area. According to the law in Cambodia, the police may involve citizens to infiltrate drug trafficking networks and report then to the authorities. The police had convinced him to play this role. However, he never obtained a written evidence of this agreement nor did he receive money from the police in exchange for his help.
After more than 8 months spent in pretrial detention, Samnang and his wife were tried on 9th April 2012. The IBJ lawyer requested to change the charges brought against his client to the offense of hiding leads with the purpose of creating obstacles to finding facts, punishable by 1 to 3 years of imprisonment and a fine from 2 to 6 million riels ($500 to $1,500). He also underlined that initially, the police had arrested 3 persons: Samnang, his wife and his friend. But the later had been released while the same allegations were brought against him. Makara requested the police to investigate equally if the three persons were charged with the same offense. He also underlined that his client had confessed the commission of the acts from the police stage. The police did not believe him and did not further investigate into his allegations. So Makara recalled to the court the background of his client, coming from a poor family with a wife that had just miscarried and who was not in proper health condition to stay in prison. The lawyer used this circumstance to request a reduced sentence to the court. The IBJ lawyer’s defense strategy proved to be efficient: the court re-characterized the facts and sentenced Samnang and his wife to 1,5 years in prison and to a fine of 10 million riels ($2,500). Both had already spent more than 8 months in pretrial detention and were released in December 2012.
1,5 years in a 2x2 m cell, with 8 or 9 other persons. In prison, there was enough food every day but the taste was insipid. Samnang’s family came often to visit. However, he was not able to meet his wife, even if they were detained in the same prison. Men and women are kept separate and they had only the chance to glimpse at each other in the prison’s yard, without being able to talk properly. Every day, he was allowed to go outside of his cell for 30 minutes to exercise, and had only 15 minutes for bath. His personal, mental strengths were challenged during detention. Sickened by the unfairness of his situation, he could not help releasing his anger in prison. One day, he hit loudly the prison door in an access of indignation… and was harshly punished by the prison authorities who beat him and use electric shocks on him. He was so desperate that he was to commit suicide, if it was not for the other prisoners to prevent him from doing so.
After he had been released, the Chief of the Department Anti-Drug contacted him again to request him to reintegrate his role, which he of course refused. He took up his former occupation again, working in the forest to find bees and sell them. He and his wife were happy to go back to their previous, normal life even if they are still bearing the prison stigma in the eyes of their neighbors. The IBJ lawyer helped him from the earliest stage of the proceedings, until the end of the trial. Samnang acknowledged that his lawyer did the best to help him, even if he did not manage to convince the judges on an acquittal. Once out of prison, Samnang made himself a voice in favor of free legal services for the accused people trying to convince those who think that it is not possible to win a case without money…