ftrc - seminar 2

8/6/2019 FTRC - Seminar 2

1/19

FAIR TRIALRIGHTS CLUB

Seminar 2: Pre-Trial Rights

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE


2/19

Presentation Overview

4.15 - 4.30 PM What are pre-trial rights?

4.30 - 4.45 PM Cambodian, International, andECCC laws on pre-trial rights

4.45 - 5 PM Case studies and group work


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Pre-Trial Rights

The right to remain silent

The right not to be subjected to any form of coercion (threats or

promises)

The right to an interpreter

The right to have legal assistance

The right to be informed of the charges against you

The right to have adequate time and facilities for the preparation

of a defence


4/19

Pre-Trial Rights

Who has those rights?

1. Witnesses?

2. Suspects?3. Charged persons?

4. Detainees?

When those rights apply ?

1. Detention ?2. Investigation ?

3. Trial ?

4. Promptly?


5/19

Pre-Trial Rights

ICCPR International Covenant on Civil and Political Rights

Article 9:A

nyone who is arrested shall be informed, at the time of arrest, of thereasons for his arrest and shall be promptly informed of any charges against him.

Article 14: To be tried in his presence, and to defend himself in person or through

legal assistance.

The Constitution of the Kingdom of Cambodia

Article 31: 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.


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Pre-Trial Rights

AGREEMENT BETWEEN THE UNITED NATIONS AND THE ROYAL

GOVERNMENT OF CAMBODIA CONCERNING THE PROSECUTION

UNDER CAMBODIAN LAW OF CRIMES COMMITTED DURING THE

PERIOD OF DEMOCRATIC KAMPUCHEA

Article 13: to engage a counsel of his or her choice; to have adequate time and

facilities for the preparation of his or her defence; to have counsel provided if he or

she does not have sufficient means to pay for it.


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Pre-Trial Rights

Article 96: Judicial police officers may remand in custody a person

suspected of participating in the commission of an offense.J

udicialpolice officers may also remand in custody individuals who mayprovide them with relevant facts.

Article 97: When a person is placed in police custody, the judicialpolice officer shall immediately notify their decision and the reasons

to the detainee.Judicial police officers shall also inform thedetainee about the rights provided in Article 98 (Assistance ofLawyers during Police Custody)

Article 98: After a period of twenty four hours from the beginning ofthe police custody has expired, the detainee may request to speak

with a lawyer.

Code of Criminal Procedure - Police Custody


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Pre-Trial Rights

Article 98:After a period of twenty four hours from the beginning ofthe police custody has expired, the detainee may request to speak

with a lawyer.

Article 145: A charged person can be interrogated only in thepresence of his lawyer. However, if the lawyer was properlysummonsed but does not show up on the specified date and time,

the investigating judge can question the charged person withoutthe presence of his lawyer...Exceptionally, the investigating judgemay interrogate the charged person without summonsing thelawyer if the charged person expressly waives his right to hislawyers presenceIn case of urgency, the investigating judge mayinterrogate the charged person without summonsing the lawyer.

Code of Criminal Procedure The Right to Counsel


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Pre Trial Rights

Article 143: Inform him of the imputed act and its legal qualification, andreceive his statement after informing him of the right to remain silentIf thecharged person is willing to answer, the investigating judge shall take thestatement immediately.The investigating judge shall inform the chargedperson of his rights to choose a lawyer

Article 149: The lawyer of a charged person who is in detention may freelycommunicate with his client in the detention center or in prison.Theconversation between the lawyer and the charged person shall be confidentialand shall not be listened to or recorded by others.The lawyer may read out partof the case file to his client.The lawyer may not give the copies of part of thecase file to his client.

Code of Criminal Procedure Notification of

Placement Under Judicial Investigation


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Pre Trial Rights

ECCC Law

Article 35 new: The accused shallbe informed promptly and in detail in a

language that they understand of the nature and cause of the charge against

them

Article 21: Every person suspected or prosecuted shall be presumed innocent as

long as his/her guilt has not been established.Any such person has the right to be

informed of any charges brought against him/her, to be defended by a lawyer ofhis/her choice, and at every stage of the proceedings shall be informed of his/her

right to remain silent.

Article 58: A Charged Person shall only be questioned in the presence of his or

her lawyer, unless the Charged Person waives the right to the presence of a

lawyer.

ECCC Internal Rules


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Case Study #1

Prosecutor v. Kabiligi International Criminal

Tribunal for Rwanda (ICTR)


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Case Study #1

Investigator: Do you understand your right to counsel? Do you have any questions about that?

Kabiligi:Thank you. I do have one question. I am prepared to exercise my rights as soonas I understand the reasons for my arrest and the case broughtagainst meI would like to know the reason for my arrest.Am I indicted? By whom, and why? Have I committed any crimes? Where, when and why? Andhow? Thats it. I am prepared as soon as I find out the reasons for my arrest, I wi ll be entitled to request the assistance of counsel provided by theInternational Tribunal.

Investigator:So, at this time, you are laying down the condition that we must fi rst inform you of all the charges the Tribunal has against you. Is that what youare requesting?

Kabiligi:Precisely. Before exercising my rights, before requesting the assistance of counsel, I must be informed of the charges against me At the least theoffences I am accused of.

Investigator: at some point, the Tribunal will have the obligation to disclose in full the case against you.Thats part of the standard procedure for yourdefence procedure.At some point during your defence, you will be entitled to examine your case file. For the moment,this interview, considered to be the firstquestioning.

Kabiligi: Personally, I am prepared to talk at this time. But, questioning or preliminary investigation or interview of me, but reserving the right to request theassistance of counsel and exercise the full benefit of the rights that have just been read to me, as soon as I find out the case against me, because I dontknow what it is at this time.

Investigator: So, you are saying that before you speak to us, you require that your case file be disclosed to you? Thats the condition you seem to be layingdown. We are just trying to understand what you are saying.Tell us what you want.Are you saying that you will not talk to us unless your case file isdisclosed to you?

Kabiligi: What I am asking is that at this time, as you explained yesterday, this is a preliminary interview. In case once I discover the case against me, I willrequest the assistance of counsel. I am not insisting on having the presence of counsel during this interview, but once I discover the case against me, I mustbe able to exercise the full extent of the rights that have just been read to me, that I have just taken cognisance of.


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Discussion

Please take a few minutes to examine the transcriptof the interview between the Investigatorand Kabiligi.

With your partner, discuss and be prepared topresent your findings.

1. In your opinion, did Kabiligi voluntarily waive his

right to counsel?

2. Should the interview be admitted as evidence?


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Case Study #1

Along with the right to silence, [the right to counsel] is rooted in the concern

that an individual, when detained by officials for interrogation, is often

fearful, ignorant and vulnerable; that fear and ignorance can lead to falseconfessions by the innocent; and that vulnerability can lead to abuse of the

innocent and guilty alike, particularly when a suspect is held

incommunicado and in isolation.

ICTR Trial Chamber Reasoning on the Right to Counsel

To be so informed, the suspect must be informed that the right includes theright to the prompt assistance of counsel, prior to and during any questioning.Any implication that the right is conditional, or that the presence of counselmay be delayed until after the questioning, renders any waiverdefectiveGenerally, a suspect may be taken to comprehend what areasonable person would understand; but where there are indications that awitness is confused, steps must be taken to ensure that the suspect does

actually understand the nature of his or her rights.

ICTR Trial Chamber Reasoning on the Voluntary Waiver


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Case Study #1

At the beginning of his interview with the investigators, the Accused demonstrated that hedid not understand that he had an immediate right to the assistance of counsel. He askedrepeatedly to be informed of the charges against him, and seems to have believed that as

soon as I find out the reasons for my arrest, I will be entitled to request the assistance ofcounsel, and that before exercising my rights, before requesting the assistance of counsel, Imust be informed of the charges against me. Rather than correcting the Accusedsmisperception that his right to counsel was conditional upon being informed of the caseagainst him, the investigators responded that standard procedure is that disclosure wouldhappen later. The Accused then attempted to reserve the right to request the assistance ofcounsel as soon as I find out the case against me, because I dont know what it is at this

time. This again should have demonstrated to the investigators that the Accused was stillconfused, and probably did not understand that he had the right to assistance of counselimmediately. Nothing in the remainder of the interview indicates that the Accusedsmisunderstanding was ever corrected, and at no time did the investigators advise the Accusedthat he had an immediate right to the assistance of counsel during questioning. Under thesecircumstances, the Prosecution has not proven that there was a waiver of the right to counsel.

ICTR Trial Chamber Findings


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Case Study #1

Mr. Kabiligi was acquitted and released after 11 years in detention.


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Discussion

1. What does the ICTR Trial Chamber mean when it states thatthe right to counsel during a custodial interrogation is closelyintertwined with the exercise of the right to silence?

2. Is the ICTR Trial Chamber correct to assert that an individual,when detained by officials for interrogation, is often fearful,ignorant and vulnerable; that fear and ignorance can lead tofalse confessions by the innocent; and that vulnerability can lead

to abuse of the innocent and guilty alike.?

Please take a few minutes to review the ICTR Trial Chambersfindings and decision.

With your partner, discuss and be prepared to present yourfindings.


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Case Study #2 ECCC

The Accused alleges that he submitted to questioning only after he was told that

the interviewer had a UN mandate. He contends that this emphasis on the

apparent right to question him suggested an obligation to respond.

Duchclaimed he was not informed either of his right to silence or warned that the

interview might subsequently be used in the proceedings.

Statement of Duch taken by a representative of UNCHR:

Waiver of Nuon Chea to be represented by his counsel

at the initial hearing

The co-lawyers for Nuon Chea claimed that: the CIJ should not have

concluded the initial appearance and the adversarial hearing in the absence of

defence counsel. They argue that this situation resulted in the violation of

several of the Charged Persons rights (right to counsel and the right to an

adversarial hearing, reasonable time to prepare his defence, remain silent and

equality of arms.) They assert that Mr. Nuons apparent waiver of his right to

counsel was involuntary, uninformed, ambiguous, and therefore ineffective."


19/19

FAIR TRIALRIGHTS CLUB

Seminar 2: Pre-Trial Rights

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE

ftrc - seminar 2

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