Cambodia and the Right to be Present

CAMBODIA AND THE RIGHT TO BE PRESENT: TRIALS IN ABSENTIA IN THE DRAFT CRIMINAL
PROCEDURE CODE

By Stan Starygin and Johanna Selth

Abstract
This paper analyses Cambodia's proposed new criminal procedure laws in relation to trials in absentia. Cambodia has always allowed trials in absentia, based on its colonial past, but it is argued that recent developments in other states and in international law and practice limiting trials in absentia, should be followed by Cambodia. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. The government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are appropriate for the country. The paper also analyzes the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.

I. Introduction

Controversy over trials in absentia has arisen in many domestic and international jurisdictions, but is now raising its head in the Kingdom of Cambodia as it goes through the process of updating its criminal procedure laws. The fire of this controversy and the lack of universality of approach has been fed by the differences in tackling the issue in civil law and common law states.

Cambodia’s current law, based on its colonialist French past, is that trials in absentia are allowed and, in practice, they are conducted not infrequently. However, as Cambodia prepares its new Criminal Procedure Code ("the Draft Code"),[1] thought must be given as to whether old laws are necessarily good laws. The Draft Code pre-supposes that trials in absentia will continue to be conducted in Cambodia, without any close analysis of the prevailing international climate or constitutional obligations.

This paper analyses recent developments in trials in absentia, as well as current national and international law and practice. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. It is argued that the government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are an appropriate judicial method for the country. The paper will also analyze the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.

II. What are Trials in Absentia?

In lay terms the expression "in absentia” is Latin for "in the absence of": the legal definition is no different.[2] The term's use in English dates from the early 1800s.[3] However, there can be different circumstances giving rise to a trial in the absence of the defendant. These different circumstances cause controversy about what is and what is not to be considered a “trial in absentia” in different jurisdictions.
There appears to be at least two distinct situations where a trial is referred to as a trial in absentia. The first is when the accused had been present at least at the arraignment and indictment stages (and often the beginning of the trial as well) and then has absconded. In this scenario it can be proven that the accused was properly served and was informed about the charges brought against him or her, and had an opportunity to obtain legal advice and to contemplate his or her defense. The resulting failure to attend was a conscious decision by the accused not to be present at the trial: a prima facie waiving of the right to be present. The second situation is when the accused has never been present at any stage of the proceedings. This scenario poses questions as to whether the accused was properly served and whether there is a reason to believe that the accused knew or should have known about the fact that charges had been made against him and the nature of these charges.

Unless a clear waiver can be proved, a trial in absentia in terms of scenario two is not acceptable to the vast majority of states. It is certainly easier to legitimize cases where the accused absconded at a certain stage of the trial. Most states and even some international judicial bodies may, in the judges' discretion, allow a trial to go ahead in these circumstances. In this paper, both scenarios are categorized as trials in absentia, although it is agreed that the clearest cases of the latter scenario should not be attacked as a breach of human rights.

III. General Principles Against Trials in Absentia

The basis of arguments against trials in absentia is human rights theory. Although human rights theory has been impacting on Western European law for hundreds of years, over the last 50 or so years it has developed significantly.

In modern times, the main argument against a trial in absentia is that the right to be present at trial is an integral part of the right to defend oneself.[4] If an accused is not present at the trial he or she cannot give evidence, cannot challenge evidence put forward by the prosecution or cross examine witnesses and cannot put forward alternate versions of the truth or present mitigating circumstances. Judges recognize that when a defendant is not present, conviction is generally inevitable.[5] Thus judgments in absentia are less authoritative.

Following on from this, a further argument is that if the defendant is absent and unrepresented, there is a significant risk that a conviction will be unsafe and unreliable because of the lack of cross-examination of prosecution witnesses and evidence for the defense.[6] Where the accused is absent, the judicial process becomes vulnerable to error and abuse.[7]

There is a broad understanding that the right to be present at one’s own trial is directly linked to the guarantee to be presumed innocent until proven guilty by a court of law. It has been noted that an accused's right to be presumed innocent "might be badly tarnished by a prior conviction resulting from a trial in absentia."[8]

In certain jurisdictions, courts have been known to mete out judgment in absentia in political cases for the purposes of public condemnation. It has been argued that these “show trials” diminish the court’s authority by creating an image of a “powerless institution delivering hollow judgments”.[9] Trials in absentia are perceived as a sign of weakness, as the practice has always been a last-resort measure.[10]

A practical argument is that there is no point in having trials in absentia, as any punishment imposed cannot be effected until the defendant surrenders. Competing considerations such as preservation of evidence from victims and witnesses can be dealt with in other ways, such as preserving evidence by some form of counseling.[11]

Finally, it is argued by some that a trial in absentia removes pressure to locate and apprehend the accused – police and prosecution attention moves elsewhere, to the next crime waiting for trial.[12] This is a real issue, particularly in countries where police resources are stretched.

Amnesty International believes that the sole exceptions to the right to be present should be if the accused has deliberately absented themselves from the proceedings after they have begun or has been so disruptive that they have had to be removed from the courtroom temporarily. In such cases, video or audio links should be employed to allow the accused to follow proceedings. Amnesty International is of the view that if some countries insist on continuing with trials in absentia, if an accused is apprehended following a trial in which he or she was convicted in absentia for other than these reasons, the verdict should be automatically quashed and a completely new trial held before a different trial court.[13] This view is certainly supported by case law in common law countries.[14]
On the other hand, civil law states argue that trials in absentia are necessary for the effective and efficient running of the criminal justice system.[15] Trials in absentia may necessitate less investigatory work by police, less time for trial and less expense. Other arguments include rights of victims to have the accused brought to justice and difficulties with witnesses’ evidence if the accused is not caught within a reasonable period of time.

Proponents argue that trials in absentia at least produce a “full airing of the evidence”, and if the accused has retained or appointed counsel, then all the evidence may be tested properly in any event.[16] However, this argument is clearly flawed, as not all evidence can be aired and tested – the defendant’s own evidence may be crucial. The argument has more force if the defendant unequivocally waives his right to appear, thus invoking the right to silence and refusing to give the court the benefit of his evidence. Nonetheless, it is naive to think that a witness’s untested testimony can constitute a “full airing”.

Certainly, the development of in absentia trials in civil law states was not in contemplation of a rights-based approach to the law, like the common law, but rather “the inquisitive search for the substantial truth”.[17] This fundamental difference in approach a couple of hundred years ago has resulted in the current modern controversy over trials in absentia. It is the rights-based approach that now has the upper hand in international law and arguably this approach is more appropriate for developing legal systems.

IV. Trials in Absentia in light of Contemporary Domestic Law

Trials in absentia have had a long history in state domestic law. In comparatively recent times, however, there has been a shift against conducting a trial without the accused present, propelled by international law.

In common law countries, there is no trial in absentia in the ordinary course.[18] This has been the way for hundreds of years. It is a requirement of the common law in both the United Kingdom and Australia that the accused be present throughout his trial for a serious offence.[19] However, the right to be present is waived if, in the course of the trial and while on bail, the defendant absconds, or while in custody, the defendant escapes from custody - the judge then has a discretion as to whether to continue the trial or not.[20] If a judge does decide, in his or her discretion, to allow the trial to continue, there still must be in practical terms no unfairness to the accused apart from that brought about by his waiver.[21]

In the US, this common law position has been codified into federal constitutional guarantees of due process[22] and a constitutional right of the accused to confront witnesses.[23] This has been interpreted to mean that the defendant must be present in the courtroom at every stage of his or her trial (in a federal case).[24] Rule 43 of the Federal Rules of Criminal Procedure states, however, that a defendant waives his right to be present if he is voluntarily absent after the trial has begun.[25] On the other hand, if the accused absconds during the pre-trial phase, the trial cannot continue.[26]

The French national policy governing trials in absentia is set out in the French Code of Criminal Procedure. The Code allows for trials in absentia in felony cases, but upon capture of the suspect, he or she has the right to a retrial.[27] However, the Code also states that if an accused person is given proper notice and fails to appear, he or she can be tried as if they were present.[28]

Germany does not allow trials in absentia, its logic being that interrogations of the defendant by the judge are a central feature of civil law criminal trials.[29] But Germany is in the minority in Europe. Many other EU states, including Belgium, Italy, Spain and the Netherlands also allow trials in absentia, with similar safeguards to France. Despite the safeguards, all of these EU states except Spain have been reprimanded at least once over this issue by the European Court of Human Rights ("ECHR"), who has criticized various states' procedures as unfair, and sent the cases back for new trials.[30] Further, with the formation of the European Union and open borders, new issues of extradition of accused persons have arisen which impact upon trials in absentia. In 2000, a European Union NGO, Fair Trials Abroad, in response to a communication from the Council of Europe and the European Parliament, supported the suggestion that the European states must do away with the law and practice of trials in absentia. The communication stated that:

“We cannot understand arguments for the continued existence of trials in absentia involving European Union citizens within the European Union. With the development of fast track extradition, the procedure - which in practice almost inevitably involves abuse of ECHR [the European Convention on Human Rights] - becomes an anachronism. Currently most EU member states do not permit trials in absentia unless the trials have at least commenced in the presence of the accused.”[31]

The position in Russia has recently changed quite dramatically. On 1 July 2002, a new Russian Criminal Code came into effect which, in a complete turn around from previous law and practice, forbids any type of trial in absentia.[32] It also provides for many other rights of the accused and is intended to give Russia "a criminal procedure that corresponds to that of world standards and of civilized countries."[33] Whether this new liberal criminal procedure is actually being implemented in practice is another issue.

States that do allow trials in absentia without safeguards tend to be those that have less developed legal philosophy in terms of rights of the accused. For example, Uzbekistan, Egypt, Jordan, Lebanon and Mauritania all allow trials in absentia and have, in the recent past, convicted citizens in this way.[34]

V. Trials in Absentia in Light of Current International Law

Despite many exceptions in domestic jurisdictions, it cannot be denied that the right to be present at one’s trial is now well established at international law. It is the rights-based approach that appears now to be paramount in international law. Some of the most important international instruments implementing this principle are discussed below, as well as customary international law.

The International Covenant on Civil and Political Rights 1966 (ICCPR)

The ICCPR states in Art. 14(3) that “in determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality”, and subsection (d) states that the accused has the right to be “tried in his presence”. No preceding or subsequent article provides for an exception to this rule. Therefore, the argument that ICCPR provides for the right of the accused to be tried in his/her presence and against the authorization of trials in absentia appears unimpeachable.

The above interpretation was corroborated by the United Nations’ Secretary-General in his recommendation on the establishment of the International Criminal Tribunal for the former Yugoslavia, where he states that:

[a] trial should not commence until the accused is physically present before the international tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute [of the International Criminal Tribunal for the former Yugoslavia] as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights.[35]

However, interpretations of this article by international courts are also instructive. In Mbenge v Zaire (filed 1977, judgment delivered 1983), one of the earliest cases addressing trials in absentia, the UN Human Rights Committee stated that Article 14(3) of the ICCPR and "other requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence.”[36] The Committee acknowledged that in some cases trials in absentia are "permissible in the interest of the proper administration of justice."

Although neither the Committee nor the Secretary-General has any explicit authorization from the text of the ICCPR to interpret it, the view of the Committee would appear to be the most persuasive authority.

The Mbenge case makes it clear that trials in absentia are not “illegal” under the ICCPR. Prima facie, trials in absentia are allowed as long as the rights of the accused are not breached or the accused explicitly waives those rights.

The European Convention on Human Rights of 1950 ("European Convention")

The European Convention does not specifically state that the accused has a right to be present at his or her trial like the ICCPR. However, Article 6 of the European Convention was interpreted by the ECHR in Colozza v Italy as having this meaning. The Court stated that "the object and purpose of the Article taken as a whole" is to ensure that a person charged with a criminal offence is entitled to take part in the hearing.[37]

The ECHR has clearly stated that in order to waive the right to be present, the waiver must be established in an unequivocal manner.

"Proceedings held in an accused's absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge in respect of both law and fact. It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance".[38]

“Minimum safeguards” has been held by the ECHR to mean the court must hear the defendants lawyer if he or she has one. In Poitrimol v France, the defendant, defended by counsel, was tried in his absence. However, his appeals to the local Court of Appeal and the Court of Cassation were rejected as those courts refused to hear his lawyers. This was held by the ECHR to be a breach of article 6 of the European Convention.

C. The American Convention on Human Rights (1969)

Article 8/2/d of the American Convention states that an accused has the right to defend himself personally or to be assisted by legal counsel of his own choosing. Inherent in this right is the right to be present at trial. In 1978, the Inter-American Commission criticized a trial in Panama which proceeded when the defendant was obstructed from attending the hearing.[39]

D. International Tribunals

Historically, the first international tribunals which were created to try Nazi and Japanese war criminals and their collaborators allowed trials in absentia if the accused “has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence”.[40] International legal practice has since moved away from the International Military Tribunal’s (“IMT”) endorsement of trials in absentia. As discussed above, this is reflected in the ICCPR and other international instruments that were drafted, signed and ratified by states parties following the closure of the IMT in 1946.

Neither the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) nor the International Criminal Tribunal for Rwanda (“ICTR”) allows trials in absentia. Article 21/4/d of the Statute of the ICTY states that the accused has the right "to be tried in his presence, and to defend himself in person or through legal assistance".[41] Article 20(4/d) of the Statute of the ICTR is in identical terms.[42]

Other statutes for international tribunals, learning from experiences in Yugoslavia and Rwanda, made precise stipulations to ensure there would be very limited trials in absentia. The Special Court for Sierra Leone, for instance, incorporated a specific provision allowing two exceptions to the prohibition on trials in absentia. Rule 60 states that “An accused may not be tried in his absence” but goes on to say that if the accused has made an initial appearance and later absconds or refuses to appear, then the trial may continue in absentia. Further, if the Court is satisfied that the accused has expressly or impliedly waived his or her right to be present, then the trial may also continue in these circumstances.[43] As yet, there has been no case law on these provisions.[44]

The Rome Statute of the International Criminal Court ("Rome Statute") specifically bans trials in absentia.[45] However, the International Criminal Court's ("ICC") Rules of Procedure and Evidence[46] state that trials in absentia may be ordered by the Court and “proceed in the absence of the accused for so long as his refusal [to participate in the hearings] persists”. This provision is contingent on three prongs: (a) the accused has made his initial appearance under Rule 62; (b) the Registrar duly notified the accused that he is required to be present for trial; and (c) the interests of the accused are represented by counsel.

Thus, it can be seen that while international law in general takes a permissive approach to trials in absentia and then addresses possible violations of rights, international tribunals have taken a prohibitive approach, allowing for certain strict exceptions.

E. Customary International Law

It can be seen from the above that trials in absentia are not outlawed by international law but are disapproved of, particularly by international tribunals and courts. They are tolerated as long as sufficient safeguards exist to ensure the rights of the accused are protected.

Customary international law is made when opinio juris (state opinion) and state practice coincide in agreement by a large majority of states. Despite the fact that European civil law states that do allow trials in absentia have publicly agreed that there should be no trials in absentia at international law, they do not agree when it comes to domestic law. A vast majority of states, including France, Belgium and the Netherlands, have signed up to the Rome Statute (as at March 2005, 97 countries were States Parties to the Rome Statute and 139 states were signatories[47]), which outlaws trials in absentia except in extremely limited circumstances where the defendant persists in refusing to participate, as discussed above.

Despite this principle, it is clear that state practice does not reflect a prima facie ban on trials in absentia as set out in the Rome Statute. Therefore, it cannot be argued that there is a rule of customary international law banning such trials.

VI. Cambodian Laws on Criminal Procedure Currently in Force

In the Cambodian context, a number of cases have been decided in absentia in the past, where the accused had no knowledge of the charges brought against him or her. It is arguable that these cases violate not only the rights of the accused at international law, but also current Cambodian law.

A. The Constitution of the Kingdom of Cambodia

The Constitution states in Art. 31 that “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights”.

Although the Constitution fails to limit the “human rights related covenants and conventions” to those that Cambodia is a signatory to, it is arguable that this clause only intended that the Cambodian government should give recognition and respect to the human rights instruments Cambodia was a signatory to at the time of the adoption of the Constitution, as well as those that have been acceded to subsequently. Even using this narrower interpretation of the Constitution, there are a plethora of covenants and conventions related to human rights that the government has signed, ratified and acceded to which now impliedly bind the state.[48]

The ICCPR was signed and ratified by the Kingdom of Cambodia before the adoption of the 1993 Constitution, as was the International Covenant on Economic Social and Cultural Rights.[49] Other international human rights instruments that were signed and ratified before the Constitution came into effect were the International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women.[50] The International Covenant on the Elimination of Racial Discrimination was ratified soon after the Constitution came into force.

B. United Nations Transitional Authority in Cambodia (UNTAC) Law[51]

The UNTAC Law is Cambodia's criminal legislation drafted and implemented by the UN in 1992 when the UN Transitional Authority was in control of the country. It was always meant to be a temporary law to apply during the transitional period. Interestingly, the UNTAC Law makes it clear that trials in absentia are legal and lawful and should not be forbidden at any stage of the criminal proceedings. Article 4(4) of the UNTAC Law adds a 15 day period to the original time allotted for appeal if “judgment was pronounced in absentia”, thus pre-supposing the practice of trials in absentia. Article 5 further corroborates the legislative intent of the framers by presuming that appeals may be heard in absentia. The article reiterates the previous guarantee of an additional 15 days allowed to the accused to appeal to the Supreme Court from the Appeal Court if the judgment was pronounced in absentia. There is no provision for a retrial if the accused is apprehended after the 15 additional days, and no rules about waiver or the rights of the accused.

There would appear to be two reasons for which trials in absentia were incorporated in the UNTAC Law of 1992. One reason was the fact that the only binding legal precedent in international law in 1992 was the Nuremberg and Tokyo tribunals that specifically authorized trials in absentia. Secondly, existing practices instilled by the Vietnamese occupational forces allowed trials in absentia, and prior to that trials in absentia were also allowed by Cambodia’s former colonial ruler, France. It is not clear which of the two was the driving force behind the incorporation of the said provision in the UNTAC Law. Whatever the reason for incorporation, it is arguable that both the SOC Law and the UNTAC Law could, in certain circumstances, breach the Constitution.

The UNTAC Law was perceived by its framers as provisional and was expected to be expeditiously replaced by a new law - thus far this has not been achieved.[52] Although it could not have been expected of the framers of the UNTAC Law to draft a law that would conform to all international standards within the very short time available to them for drafting, there is a strong argument that these steps should be made now though new legislation.

F. Kram Dated February 8, 1993 on Criminal Procedure(commonly known as the State of Cambodia Law or "SOC")

The SOC law is the current criminal procedure law in Cambodia and was intended to supplement the bare bones of the UNTAC Law. Article 114 states:

Even though the accused does not appear, the court shall proceed as if the accused is present by hearing the witnesses' testimony, examining all the documents and information that may lead the court to find out the truth. The court may dismiss the absent accused when it finds that there is not enough evidence. In case of sentencing, the court may also decide to allow extenuating circumstances for the accused. In other words, the non-appearance of the accused during the hearing shall not constitute an aggravating circumstance.

Article 115 provides that when a defendant is sentenced by default (in his or her absence), the sentence shall become null and void "when the accused opposes the decision of the court within 15 days from the day of the reception of the decision notification." If the notification cannot be made in person, the law provides that "the decision may be opposed till the terms of limitation for punishment expires."

However, Article 116 states that:

If the accused no longer resides at the previously indicated location and if the judiciary police in charge of notifying cannot locate his/her new residence, the notification of the judgment by default shall be posted at the last known domicile of the accused. This notice shall also be posted at the Khum or district office of the people's committee and be announced on national radio and published in the official newspaper.

Article 119 provides that the notification shall preferably be made in person and only if the accused cannot be found after diligent effort shall measures shall be taken as provided in Article 116. However, once Article 116 has been complied with, the judgment becomes final and the 15 day time limit for filing an opposition to the decision begins to run, even though it cannot be conclusively proved that the now convicted person has had notice of the charges, the trial or the judgment. Therefore, in practice the rights of the accused are often breached.

A further obstacle to the accused receiving a new trial is that even once an opposition is filed, it may not be considered "relevant" by the court, and thus a new trial will not be granted.[53] Finally, if the accused does not attend a new trial granted to him, the previous judgment will stand.[54]

Article 178 allows for a person convicted in absentia to appeal the decision (rather than file an opposition and have a new trial). However, the appeal must be filed within 2 months after the end of the period for filing an opposition.

Therefore, currently trials in absentia are specifically allowed in Cambodia and special rules are provided. On paper, the law seems harsh, but not necessarily unfair, unless the accused has, in fact, no notice at all of the charges, trial or judgment. But in practice the remedies for a trial in absentia are rarely used and rights to a fair trial are constantly breached. For example, a recent rape case was heard in the Phnom Penh Municipal Court and the defendant did not appear. It became clear during the proceedings that the accused had fled after allegedly committing the rape and had never been arrested. The incident had occurred in July 2002, but it was not until May 2004 that the case was heard. This may well have been because the accused could not be found. In any event, a lawyer had been ordered by the court to defend the case, but he did not attend the hearing. The accused was found guilty on the testimony of the victim and a written statement from a doctor. He was sentenced to 20 years in prison.[55]

Further, anecdotal evidence from court monitors suggest that it is common for convicted persons to be absent from appeal proceedings. This is because prison officials do not bring the appellants to court. Appeals are heard in the capital city, Phnom Penh, and so appellants in provincial prisons may have a significant trip to attend the hearing. Comments by prosecutors suggest that the prisons do not have enough money to transport appellants.[56] The practical reality is that judges will adjourn the appeal a couple of times if appellants do not appear, but then eventually hear the case, citing the reason as several non-appearances by the appellant.[57] Appeals in Cambodia are full re-hearings on the merits, therefore, this sort of behavior by prison officials, and tacit acceptance by the prosecutors, judges and government, is totally unacceptable and in breach of many rights that the Cambodian government has sworn to uphold.

Clearly, there are other systemic problems with the court system that are beyond the scope of this paper; however, a close look at the practical application of current laws is certainly instructive.

G. International obligations

A further issue that can only be touched on here is international obligations binding on Cambodia. The Kingdom of Cambodia signed the Rome Statute on 23 October 2000 and ratified the same 11 April 2002. As international conventions are self-executing in Cambodia, the state is now exposed to the principle of complementarity (set out in the Rome Statute). In very basic terms, this means that Cambodia could lose jurisdiction over prosecution of its own citizens for international crimes unless it conforms its criminal procedure to comply with international standards.[58] By ratifying the Rome Statute, Cambodia impliedly agreed to conform its criminal procedure.

VII. Amending Cambodia's Law: The Draft Criminal Procedure Code

The current form of the Draft Criminal Procedure Code ("Draft Code") opens with a preamble that asserts the adherence of the Code to “the principles designated in the Constitution of the Kingdom of Cambodia adopted on 21 September 1993 and by international conventions which have effect in the territory of the Kingdom of Cambodia”.

As at the time of writing, the Draft Code has a section entitled "Determination of the Title of Judgments". This concept is important as many rights are dependent on whether a judgment is classified as a "non-default" judgment or a "default judgment". Article 338 states that if the accused does not appear at his or her trial, but there is evidence to prove that they were notified of the hearing, the trial will continue and will be classified as a non-default judgment. Article 339 then states that if there is no evidence that the accused was properly notified of the hearing date, the trial will go ahead in the absence of the accused and his or her representative but it will be classified as a default judgment. There are different time limits for appeal of default judgments, namely that the time runs from the date the accused was actually notified of the judgment (see below). Also, "objections" can be made against default judgments, whereas a non-default judgment must be appealed to a higher court.

These earlier sections are tempered by the chapter entitled "Judgments in absentia and Requests for Reconsideration", which states in Article 343:

A convicted person can make a request for reconsideration against a judgment decided in his/her absence.

Article 346 goes on to amend the time for submitting a request for reconsideration, stating that:

A request for reconsideration must be submitted within 15 days from:
- The date the notice of the judgment in absentia was given if the judgment was given to the convicted person personally, or
- The date the convicted person actually learned about the judgment if the judgment was not given to the convicted person personally.

The Draft Code goes on to allow a retrial, but only if the request for reconsideration is accepted by the court. Article 349 states that "After having examined the credibility of the request for reconsideration, the court shall decide the case once again." It is not clear what "credibility" means (there is some evidence to suggest that this word was incorrectly translated and the meaning is actually "admissibility"), and what happens if the request is not credible/admissible. Further, if a retrial is granted and the convicted person does not appear, the original judgment cannot be modified. The judgment has an absolute effect, although normal appeal procedures apply and a convicted person may be successful in an appeal if there was an error of fact or law made in the original judgment.

Therefore, there is no guaranteed retrial for a person convicted in absentia. There are 3 possible impediments - firstly, if the convicted person does not make a request for reconsideration within 15 days of finding out about the judgment; second, if the court does not accept the request for reconsideration; and thirdly, if the convicted person does not attend the first day of the retrial (but has a very good excuse for not doing so). Further, the fact that a person has been notified of the date of his or her trial and does not appear, would not appear to constitute an "unequivocal" waiver of the right to be present.

Even if these problems were overcome, it is argued that this sort of system is (a) against the spirit of international law, (b) invalid in light of the Constitution, and (c) an inappropriate system for a fledgling legal system such as Cambodia's.

A. Against the Spirit of International Law

Clearly, this sanctioning of trials in absentia as set out in the Draft Code is against the spirit of the ICCPR and the Rome Statute. Although the concept of trials in absentia is not prohibited at international law, in practice such trials often involve breaches of international law and citizen's rights (as can be seen from the many cases on this issue brought before regional and international courts). The Rome Statute indicates that the international community is turning away from trials in absentia and calls on its States Parties to follow suit via the principle of complementarity.

Although the Draft Code sets out the possibility of a retrial, such as in the French system, there are no checks and balances in the Cambodian system to ensure this right. Particularly, the French system is subject to the European Court of Human Rights, which has already expressed its disapproval of trials in absentia, and would guarantee the rights of a person unfairly convicted in absentia in France.

B. Invalidity pursuant to the Constitution

As discussed above, the Constitution requires that the Kingdom of Cambodia "recognize and respect" international human rights instruments, which undoubtedly include the ICCPR and the Rome Statute. The passing of a law that will in practical terms be contradictory to the practices and procedures set out in the ICCPR and Rome Statute is certainly not recognition and respect by the Cambodian government. Since Cambodia's Constitutional Council has never found any proposed law inconsistent with the Constitution (when clearly many current laws are, such as the recent amendments to the Constitution and parts of the SOC law) this council cannot be relied on to provide any protection to the Constitution. It will be up to the National Assembly to provide proper respect for the Constitution and amend the Draft Code to comply with it.

C. Inappropriate System

The most significant problem with Cambodia embracing a system allowing trials in absentia is the practical one. Cambodia is a fledgling democracy with an underdeveloped legal system that has very little respect for the rule of law. Impunity is common; corruption of the judiciary and police is widely reported. Further, Cambodia's courts are inundated with cases, have few resources and judges are criticized for allowing defendants to languish in detention for years on end waiting for their cases to be heard. Several arguments can be therefore be made:

· The legal system should not be wasting precious time and money prosecuting accused persons in absentia, when hundreds of other accused persons are present, living in sub-standard conditions in pre-trial detention and are eagerly awaiting trial.

· As Cambodia's judiciary is largely incompetent and many are corrupt and/or take their instructions from the government, the chances of a person convicted in absentia being granted a new trial are minimal.

· The general public in Cambodia is uneducated as to their rights. If a person was convicted in absentia, it is unlikely that they would know about, or know how to assert, their right to a new trial. This is especially so considering most accused do not have a lawyer to advise or represent them.

· If a person convicted in absentia is granted a new trial (presuming the law is followed), there is no point in having conducted the first trial in absentia. The first trial was a waste of time and money, and witnesses would have to be put through the trauma of testifying a second time.

· Trials in absentia do not bring justice to the victims. The most notable example of this is the trial in absentia of the former leader of the Khmer Rouge, “brother number one” Pol Pot in 1979 by a Cambodian/Vietnamese court. He was sentenced to life in prison but was never apprehended. The victims of his extreme policies have complained strongly that justice was never done. Further, victims cannot enforce orders for compensation against persons tried in absentia, as they are unable to be found.

· Trials in absentia can actually “close the case” on a particular crime; once guilt has been established the police are less likely to pursue the likely perpetrator with all their resources as they then move on to the next crime (as occurred with Pol Pot).

· There is no court beyond the national jurisdiction to ensure the rights of persons convicted in absentia, unlike in France and other civil law countries in Europe.

For the above reasons, the offending articles should be deleted from the Draft Code before it is submitted to the National Assembly and a new clause inserted specifically prohibiting trials in absentia. Alternatively, a new clause could be drafted allowing for a trial to continue where the accused had been present in the court for all preliminary stages of the trial and subsequently clearly waived his right to be present.

VIII. Conflict of Procedural Law in Cambodia

In addition to the arguments outlined above, if the Draft Code is adopted in its current state by the National Assembly prior to the beginning of trials in the Extraordinary Chambers for the Prosecution of the Khmer Rouge[59] ("Extraordinary Chambers"), there will be a conflict between the Criminal Procedure Law and the Law on the Extraordinary Chambers.

The Law on the Extraordinary Chambers impliedly does not allow trials in absentia. The jurisdiction of the court must be carried out in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the ICCPR.[60] However, the Law on the Extraordinary Chambers also states that Cambodian procedural law will govern proceedings in the Extraordinary Chambers. If Cambodian procedural law allows trials in absentia, there is a conflict between the two positions – arguably a former Khmer Rouge leader could be prosecuted in absentia even though the international community (who is funding the trials) never intended that this be allowed.

Further, it is likely that the specific procedural rules governing the Extraordinary Chambers will ban trials in absentia explicitly pursuant to international standards. If this occurs, there will be one law for former Khmer Rouge leaders, and a different law for everyone else. Obviously, this would be very unsatisfactory.

IX. Conclusion

If allowed when the new criminal procedure law is passed by the National Assembly, trials in absentia will deny the accused the right to be present, to defend him or her self, to confront witnesses, and to present exculpating or mitigating circumstances to the court.

In its legislative reform, it may be deemed advisable for Cambodia to follow the example of other states that are going through transition from their communist past. One of these examples is Russia which, as discussed above, adopted multiple amendments to its criminal procedure law, in particular, quashing the article that used to allow trials in absentia.

Should Cambodia pass the Draft Code in its current form, it is likely that arguments challenging the constitutionality of the articles will be raised. Cambodia will also be flouting the international trend against trials in absentia and will likely incur strong criticism from the international community and its core donors.

In any event, the passing of a new criminal procedure code is a unique opportunity for the Cambodian government to think carefully about this issue, modernize its laws and align them with its constitution. It is an opportunity that should not be wasted.
[1] Issued to the public in January 2004.
[2] Merriam-Webster Inc, Merriam-Webster Dictionary of Law (1996).
[3] Ibid.

[4] Amnesty International, Fair Trials Manual, December 1998, Para 21.1. Can be found at www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm (last visited: 21 October 2004); Susan Lamb, Point/Counterpoint: Should the Indicted War Criminals Be Tired In Absentia? The Accused Must Speak for Themselves, The Human Rights Brief, Washington College of Law, American University.
[5] R v. John Victor Hayward, Anthony William Jones, Paul Nigel Purvis [2001] EWCA Crim 168 (31st January, 2001), para 34; also Lamb, op cit. para 3.
[6] Ibid, para 3.
[7] Lamb, op cit, para 4.
[8] Lamb, op cit. para 7.
[9] Ibid, para 8.
[10] Ibid, para 8.
[11] R v Hayward, op cit, para. 3
[12] Hermann Schwartz, Point/Counterpoint: Should the Indicted War Criminals Be Tried In Absentia? Only Convictions will Produce Justice, The Human Rights Brief Vol 4, no.1 Fall 1996, Washington College of Law, American University, available at http://www.american.edu/TED/hpages/human/schwar41.htm (last visited: 21 October 2004), para. 6.
[13] Ibid, Para 21.2.
[14] E.g. Australia and the UK (R v Hayward, op cit).
[15] Stamhuis, E, In Absentia Trials and the Right to Defend: the Incorporation of a European Human Rights Principle into the Dutch Criminal System, available at www.upf.pf/recherche/IRIDIP/RJP/RJP7/08Stanhuis.doc last visited: 21 October 2004).
[16] R v Hayward, op cit, para. 3
[17] Ibid, p. 2
[18] Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[19] Lawrence v The King (1933) AC 699; Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[20] R v McHardie (1983) 2 NSWLR 733 (Australia); R v Berry (1897) 104 L.T. 110 (UK); R v Browne (1906) 70 J.P. 472 (UK).
[21] R v Hayward, op cit.
[22] 14th Amendment of the Constitution of the United States of America.
[23] 6th Amendment of the Constitution of the United States of America.
[24] Illinois v Allen (1970) 397 US 337/338; Lewis v United States (1892) 146 US 370.
[25] United States of America, Federal Rules of Criminal Procedure, Rule 43; Koerner, B. When can a defendant be tried in absentia? 19 June 2003, p.1.
[26] Crosby v United States (91-6194) 506 U.S. 255 (1993).
[27] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[28] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[29] Schwartz, op. cit., para 9.
[30] E.g. Lala v The Netherlands, Colloza v Italy, Poitrimol v France, Van Geyseghem v Belgium.
[31] Statewatch (London) Fair Trials Abroad: Mutual Recognition of final decisions in criminal matters Response To The Communication From The Commission To The Council And The European Parliament, Dated: 26.7.00 Ref: Com (2000) 495 Final, 12 September 2000, p.1. Available at www.statewatch.org/news/sept00/16ftamut.htm (last visited: 8 October 2004).
[32] Nick Paton Walsh, Russian Defector Convicted In Absentia, 25 June 2002, The Guardian, Guardian Unlimited Special Reports.
http://www.guardian.co.uk/russia/article/0,2763,744010,00.html (last visited: 21 October 2004).
[33] Stephen Lee Myers, Russia Glances to the West for its new Legal Code, New York Times, 1 July 2002.
[34] See Amnesty International's website: www.amnesty.org (last visited: 21 October 2004).

[35] Report of the Secretary-General pursuant to Para 2 of Security Council Resolution 808 (1993). UN doc: S/25704, 3 May 1993 and S/25701/Corr.1, 30 July 1993, Part V. A. at para 101.
[36] Mbenge v. Zaire, (16/1977), 5 March 1983, 2 Sel. Dec.76. para 14.1.
[37] Colozza v Italy, 22 January 1985, Case No: 7A/1983/63/97, para 27.
[38] Poitrimol v France 18 EHRR 130, para.31.
[39] Inter-American Commission, Report on the Situation of Human Rights in Panama, OEA/Ser.L/V/11.44, doc 38, rev 1, 1978).
[40] Charter of the International Military Tribunal, Article 12, available at http://www.ibiblio.org/pha/ war.term/trib_02.html (last visited: 21 October 2004).
[41] Statute of the International Criminal Tribunal for the former Yugoslavia, Article 21/4/d. First adopted May 1993, available at www.icty.org (last visited: 21 October 2004).
[42] Statute of the International Criminal Tribunal for Rwanda, Article 20/4/d, available at www.ictr.org (last visited: 21 October 2004).
[43] Special Court for Sierra Leone Rules, Rule 60, available at www.sc-sl.org (last visited: 21 October 2004).
[44] To view all decision of the Special Court, see www.sc-sl.org, "Cases" (last visited: 1 October 2004).
[45] Rome Statute, Part II, IV.C.2, Paragraph 3, available at http://www.un.org/law/icc/statute/romefra.htm (last visited: 1 October 2004).
[46] Rule 82bis of the Rules of Procedure and Evidence of the International Criminal Court (ICC), available at
http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf (last visited: 21 October 2004).
[47] See website of the ICC at www.un.org/law/icc/. Last visited (26 October 2004).
[48] Whether international conventions are self-executing is not clear at the present time. There is no statute which provides guidance on this issue and there is dissention among judges as to whether or not to apply international conventions as law at the domestic level. Judicial discretion has so far applied.
[49] Cambodia signed and ratified both the ICCPR and the ICESCR on 26 May 1992. Entry into force was 26 August 1992. The International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women were ratified on 15 Oct 1992.
[50] International Covenant on the Elimination of Racial Discrimination: ratified on 28 November 1983
[51] Formally called "Provisions Dated September 10, 1992 Relating To The Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period."
[52] Efforts to draft a penal code and a criminal procedure code began in 2000. They were then suspended for some time and re-started in 2003.
[53] Kram Dated February 8, 1993 On Criminal Procedure, Article 122.
[54] Ibid, Article 123.
[55] Rape Trial before Judge Kongset, 19 May 2004 in Phnom Penh Municipal Court. Information obtained from Centre for Social Development (CSD) CourtWatch Project in Cambodia. The name of the accused was not available. Note that no court records or judgments are available for the public to peruse and therefore court monitoring is the only means of obtaining information and statistics. This case can be contrasted to the high profile case of Chhouk Rieng (an ex-Khmer Rouge commander responsible for the deaths of 3 foreigners and 13 Khmers in 1998 after the Khmer Rouge was criminalized in 1994), where although the accused was not present at his Supreme Court appeal, his lawyer was present and he specifically waived his right to attend the appeal. It is agreed that the Supreme Court did not err in this situation, however, there was no consideration of this issue and even if there had been, past practice suggests that no distinction would have been made between this sort of absence and any other type of absence.
[56] Interviews conducted by the author with judges and prosecutors at municipal and provincial courts suggested this was the deciding factor; this was supported by anecdotal evidence from court monitors.
[57] Raw data records of CSD CourtWatch Project; interview by the author with monitor on 5 September 2004.
[58] ICC Statute, Art. 17/2/c states that the proceedings must be independent and impartial. Potentially, if serious complaints on this issue are filed to the ICC by a number of sources, the ICC Prosecutor might intervene and attempt to establish jurisdiction.
[59] The full name of the law is the "Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea".
[60] United Nations General Assembly, Report of the Secretary General on Khmer Rouge Trials, 31 March 2003