Joining IBJ in 2007, Ouk Vandeth is currently the IBJ Fellow and Country Director of the program in Cambodia. Vandeth is responsible for the operation, coordination and success of IBJ’s legal aid services, Street Law activities, Roundtable forums and Lawyer Training. Vandeth is also responsible for strengthening relationships to both local and foreign governments as well as private funders to ensure IBJ’s growth in Cambodia. Vandeth survived the Khmer Rouge, and served as the Police Commander at refugee site two camp. He was a Police Official from 1985 to 1994, a time when it was socially acceptable for the police to obtain confessions by means of torture. After this experience, he was trained by Karen Tse and became one of Cambodia’s first public defenders. Vandeth was also one of IBJs first Fellows. In 1996, Vandeth was named Head of Kandal Provincial Legal Aid Office, the first Legal Aid office of Cambodia reconstructed after the Khmer Rouge. In 2004 he then became the Director of Legal Aid of Cambodia. He is now nationally recognized as one of the leading public defenders in Cambodia and currently sits on the board of Development and Partnership Action in Cambodia. Vandeth joined IBJ to facilitate change both attitude and culture of the Cambodian civil and judicial society towards legal rights and the use of torture as an investigative tool. His extensive legal aid experience means he understands the needs of the accused and more importantly the strategies required to successfully defend peoples’ basic human rights. He accepts that early intervention by a lawyer, citizen legal education and justice community discussions have positive impacts on preventing torture, excessive pre-trial detention and disproportionate sentencing practices. Mr Vandeth has therefore resolved to devote attention to preventing these injustices in Cambodia.
At 6 p.m. on November 10, 2007, seventeen-year-old Sopaea finally lost his patience and stepped outside of his family’s apartment to confront his thirty-five-year-old neighbor, Karona, who had been taunting him loudly from the courtyard for the past half hour. Karona was angry because Sopaea’s dog had bitten his young son a few days before. The child was rushed to the hospital and would be fine, but his father, having passed through the phase of instinctual paternal dread for an injured child, now seethed with anger and chose to take it out on Sopaea. Of course, Sopaea and his family were sorry that their dog had bitten the little boy, even though they believed that the child had provoked their dog. They offered to pay for the child’s hospital bills, but refused to pay Karona’s counteroffer of $500 in order to avoid a civil suit. Tempers on both sides were high: the neighbors feeling uncompensated for their suffering; Sopaea’s family feeling extorted over an unfortunate accident. The pressure of pent-up emotions popped when Sopaea opened the door. Immediately he and Karona were exchanging blows and, soon after, both were in the hospital with injuries from their cathartic brawl.
In the hospital, Karona decided that he was more certain to get retribution by initiating a civil complaint against Sopaea for battery than by filing a complaint about the dog bite. He sent one complaint directly to the local prosecutor’s office and a separate complaint to the local police chief’s office. Both complaints were identical in every way except that the date of the incident stated on the prosecutor’s copy was November 10, the correct date, and the date on the police chief’s copy was November 11, a careless copying error. Due to a breakdown in communications, the police were unaware that the prosecutor was processing an identical complaint and vice-versa. The prosecutor’s version of the complaint was the first to reach a judge’s desk at the Phnom Penh Court of First Instance. The judge summonsed both parties to a trial on August 15, 2008 where, unfortunately for neighbor, this judge determined that both sides were nearly equally at fault and gave both men suspended prison sentences with no civil compensation: Sopaea received eight months, Karona, six months.
Unsatisfied with the minor victory of a lesser suspended sentence, Karona waited a few months and then secretly pushed his second, “November 11th,” complaint through the police processing procedure, as if his first complaint had never been filed and resolved. Karona could have appealed the Court of First Instance’s decision, but he did not expect a favorable result in the Court of Appeal and, by this time, the appeal period had long since expired. Luckily for him, the November 11th complaint ended up on the desks of a different deputy prosecutor and a different judge at the Phnom Penh Court of First Instance. Even though the judge has been informed by Sopaea’s former lawyer about the first verdict, he decided to trial it again. This court held a trial on November 10, 2010, but Sopaea did not show up because he never received the summons for the second trial. Since he did not appear in court, however, the judge only heard the neighbor’s side of the story and only recorded into evidence his hospital records. Unsurprisingly, he gave Sopaea a three-year sentence in absentia. Moreover, since the court had summonsed Sopaea in accordance with the code of criminal procedure, this verdict counted as a non-default judgment, meaning that Sopaea’s only recourse was to the Court of Appeal; he could not petition the Court of First Instance to rehear the case with him presenting his own side of the story.
The court issued an arrest warrant for Sopaea, but the police only had his old address. Almost a year before this verdict, his father, a soldier, was assigned to a different military barracks in Phnom Penh and the family moved to a new apartment complex to stay close to him. With bigger fish to fry than a young man convicted of assault, the police did not put much effort into finding him. Thus, Sopaea had no idea that he had been convicted and was shocked, to say the least, when police finally caught up with him in April, 2012. They tore him out of his mother’s arms and took him away to serve his three year sentence.
He was incarcerated in Phnom Penh’s Correction Center 1 where his mother was able to visit him often because the prison is close to the family’s home. She paid 6,000 Riels to see him through bars for thirty minutes because she could not afford the price of a “premier” visiting ticket, which would have allowed her to sit with him in an open meeting room. After three months, prison officials shifted him to Correction Center 4, in Pursat province, meant to provide a transitional environment for those convicted of less serious crimes. His mother could no longer afford to travel the distance to visit him. All she could do was send him noodles and books back with CC4 guards who had family in Phnom Penh, whenever they were in the capital visiting. His experience, however, did not measure up to the hype.
Sopaea was in CC4 for ten months and his experience there did not live up to the hype about its humanitarian, rehabilitative focus. He lived in block B2, in a 6X11 cell with fifty other convicts. He remembers often praying for rain to fill the pond adjacent to the prison yard because there was never enough water to wash with. He wanted to enroll in vocational classes offered by one of the prison NGOs, but he could not afford to pay the ten dollars which the guards—without the NGO’s knowledge—were asking as the price of admission.
Meanwhile, Sopaea’s mother was desperately asking relatives and friends how she could get her son out of prison early. One of them told her about IBJ and she called the Phnom Penh office on August 17, 2012. Mr. Vandeth, one of the longest serving defense lawyers in Cambodia and the country manager for IBJ Cambodia, accepted the case. That fall, when he traveled out to CC4 for the standard pre-trial client interview, Sopaea told him about the discrepancy between the two complaints. Mr. Vandeth knew immediately that Sopaea did not belong in prison; the second judge clearly had not done his due diligence and had flouted criminal procedure. The only difficulty he anticipated was the fact that the appeal court would only have the one-sided evidence on record from the second trial at the Court of First Instance.
Sopaea had to place blind faith in Mr. Vandeth, because he could not attend his April 25, 2013, appeal either, although he had no choice in the matter this time. The CC4 prison officials demanded a $200 transportation fee, at least twenty times the average bus ticked from Phnom Penh to Pursat and much more than Sopaea could afford. This practice of extortion is common, both on account of the guards’ impunity and the lack of funds for gasoline in most prison budgets. When convicted persons are not represented by a lawyer (an accused is not guaranteed a lawyer in cases of non-juvenile, misdemeanor offenses, which still may carry five-year penalties), the situation is even more dire because they will almost necessarily lose their appeal if they do not appear to represent themselves, even though the reason for their absence is the prison administration’s own failure. On the other side of the coin, those who are fortunate enough to find transportation from their provincial prison to Phnom Penh are often stuck there after their appeal trial without transportation back home. Indeed, if an accused person travels to Phnom Penh and loses his appeal, he may just be stuck there in a new prison environment with fewer or no opportunities to see family.
Sopaea’s mother watched the proceedings in the Court of Appeal and then went home to wait for the verdict to be issued. The Court overturned the Court of First Instance’s conviction on May 2, and Mr. Vandeth called Sopaea’s mother to tell her the good news. The next day she began a journey up to CC4 in Pursat to pick up her son and bring him home after fourteen months of being separated from him. The entire ride took her ten hours, three-quarters in a taxi and the rest on the back of a moto-dop. Even after having travelled all that way, when she arrived her ordeal was not yet over as the guards demanded a bribe that she could not afford and she was forced to spend the night sleeping on the floor of a nearby Buddhist pagoda, planning her next move. Fortunately, the guards on duty in the morning reduced their asking price to fifty dollars, which she was barely able to pay.
Needless to say, she forgot all of those obstacles once she saw her son and held him in her arms again. She took him to the pagoda where she had slept to receive a blessing from the monks there and, on returning to Phnom Penh, prayed again in the family’s usual pagoda. Of his two siblings, Sopaea’s older brother lives on his own, but his younger sister is still in school; in fact, she was out taking the grade-five exam on the day I interviewed him and his mother. The mother makes a meager living, selling sweets to exhausted factory workers at the end of their day, her husband is still employed by the military, and Sopaea works in a PepsiCo manufacturing factory. The family now lives in a small apartment on the corner of a narrow alleyway. The dog who set these events in motion has since died of natural causes, but they have nine cats, thanks to a recent generous litter. Knock on wood, no one has been scratched, yet.
A Criminal Case Hiding a Land Dispute
Back in 2006, eleven farmers in Takeo province were confronted by the head of the district who declared that he owns the land where they were farming and that it, in fact, belonged to the villagers. Takeo Court asked them to provide a deed of property to take a decision about the dispute. Vuty (not the client’s real name), a 58 years old rice farmer, brought the certificate to the court. Unfortunately, the head of the district also had a certificate stating that he was the owner of the same land.
Vuty went to a local legal NGO to get some help and was represented by a lawyer as the court requested him to prove that the certificate was a fake one. They have not been able to prove it and the court declared that the head of the district was the owner of the land. The latter offered Vuty and the other farmers to continue using the land to grow rice in exchange for a ton of rice every year. It was much more than their annual harvest and they had to refuse the deal. The head of district then ordered his guards to expel Vuty, his family and the other farmers from the land. On that night, the guards had some dinner and drinks. Apparently drunk, they accidentally started a fire that burned the barn. Fearing reprisals, they said it was Vuty and the farmers who came during the night to burn the barn to avenge. They were all accused of intentional damage (arson). According to its last experience with the Takeo court, Vuty did not trust that the Cambodian justice system was fair and he escaped before the police came to arrest him.
Vuty has been tried in abstentia and sentenced to 6 years imprisonment by Takeo court. He finally got caught in July 2012, 6 years after the occurrence of the facts, and was sent to Takeo prison. He did not know that he had the right to a lawyer or the right to appeal and neither the police, nor the prison officials, informed him about it. Fortunately, his relatives knew about IBJ and told him that he should ask for a lawyer. His wife contacted IBJ and Mr. Ouk Vandeth, IBJ Cambodia country director, came to meet him in August 2012. He agreed to represent Vuty and help him to appeal.
In Cambodia, there is only one Court of Appeal located in Phnom Penh, the capital, meaning that the court is overloaded and that appellants wait months before their trial, languishing in prison.
Finally, Vuty’s appeal hearing was scheduled on December 12, 2013, a year and a half after his arrest. 18 months in a prison where the food was insufficient and where he was sharing a cell with 44 other prisoners. It was Mr. Vibol, the IBJ lawyer in charge of appeal cases, who represented Vuty at the hearing. After investigation, he found three witnesses that agreed to testify during the hearing, explaining that Vuty could not be the perpetrator as he was with them when the offence was committed. As a result, the general prosecutor also requested the court to acquit Vuty because of the lack of evidence. Ten days later, the Court issued its verdict and Vuty was acquitted. Finally, on the last day of December 2013, Vuty was released and his wife came to bring him back home. On their way back, they stopped at the IBJ office in Phnom Penh.
For Vuty, “there is no real justice system in Cambodia, at least not for the poor. I am not blaming the police or the prison administration who are only implementing the judgments, but the judges of first instance. Without a lawyer I would have stayed in prison for 6 years. I am really grateful to IBJ for the legal aid.”
And his wife, with tears in her eyes, added that she really thanks the IBJ lawyer to give him back her husband, because they would never have been able to hire a private lawyer.
Vuty has 5 children who are old enough to work and able to support his wife when he was in prison. They still have two hectares of paddy fields in Takeo province where Vuty will be able to grow rice, as a free man.
Prisoner finally released, more than a year after his acquittal in appeal
Today, on the 27th March 2013, IBJ team came to Koh Kong prison to bring great news to Sopheak1: after more than four and a half years and in prison although innocent, he is now a free man.
Sopheak case is the sad story of an innocent man forgotten by the justice system. Back in September 2008, he was arrested and detained for robbery with three of his friends because one of them accused him. He always denied it and the two others accused claimed that he did not commit the theft. The trial took place in July 2009 and the Court of first instance acquitted him. Nevertheless, the prosecutor appealed meaning that he could not be released. Indeed, under Cambodian law, when the prosecutor appeals, the prisoner has to stay in prison until his final judgment. On the 13th January 2012, the Court of Appeal trialed the case and confirm the first instance’s decision, Sopheak was acquitted for a second time. The General prosecutor in the Court of Appeal did not appeal, so the final judgment was issued and sent to Koh Kong Court. According to the procedure, once the prosecutor received the final judgment, he has to implement it, and issue a released order if the prisoner has been acquitted or has done his sentence. Apparently, the prosecutor did not perform his task as on February 2013, when Mr. Ouk Vandeth came to Koh Kong prison for the first time, Sopheak remained languishing in jail “waiting for his judgment on appeal”.
Sopheak agreed to be represented by Vandeth, IBJ Director, who investigated on his case in the Court of Appeal and found out that his final judgment has already been issued more than a year ago.
After copying the verdict, Vandeth went back to Koh Kong to show the document to the prosecutor who checked in his files and realized that he received it. He felt responsible and quite sorry for his mistake, and after verifying that the General prosecutor did not appeal to the Supreme Court, issued a released order to the prison.
Before his arrest, Sopheak was a waiter, he was married and his wife was pregnant of a little girl. Sadly, after several months in prison, his wife stopped her visits and he does not know where she is now. Life in prison was not easy, but even if he was upset to be in prison for a long time although innocent, he tried to work for the community and to follow the rules in order to have the best living conditions possible.
The announcement of his released brought out a lot of emotion in his eyes. He was very happy and impressed by IBJ’s efficiency that helps him in such a short time. Now he knows where to find legal help and he will spread the information about IBJ. Indeed, without IBJ’s intervention he would probably have stayed longer with no one to inform him of the acquittal on appeal.
Nevertheless, he is now afraid to build close relationship with others, as his friend betrayed him.
His mother came to bring him home and the first objective of Sopheak as a free man is to find his wife and daughter.
This Appeal Case was supported by UNOHCHR.