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Chea's murder had a political character as he was the leader of the largest labor union in Cambodia, with 70,000 members, and was a strong supporter of the opposition party that was maneuvering to oust Hun Sen, the incumbent prime minister and vice-chairman of the ruling party, the Cambodian People's Party. Many observers believe that the two men were scapegoats and their conviction was a whitewash for the widely suspected role of the government in the murder.
In early April 2007, the Court of Appeals heard the two men's appeal and pronounced its verdict six days later, on April 12. Early in the morning of that day, 10 minutes before the court officially opened and without waiting for the accused and their lawyers to arrive, Judge Saly Theara, president of a panel of judges, read out the court's judgment for about 20 minutes in which he upheld the Phnom Penh court's 20-year sentence for the two men.
Both trials had many flaws, and the conviction and the appeals court's decision to uphold it have aroused indignation. A coalition of 23 Cambodian non-governmental organizations, for instance, has called both judgments "very unjust and politically biased," maintaining that both courts were not independent and did not make reasonable judgments.
These views were supported by Peter Leupretch, the U.N. envoy for human rights in Cambodia, who denounced the trial by the Phnom Penh Municipal Court and said that the investigations and trial hearings in that court "lacked credibility." Yash Ghai, his successor, added that the upholding of the conviction by the Courts of Appeals was "a grave injustice." In addition, the International Trade Union Confederation called the decision of the Courts of Appeals a "double travesty of justice" as two "innocent" men are in prison and "the real perpetrators have gone unpunished."
Both the lower court and the Court of Appeals dismissed the defense witnesses' exculpating testimonies in court, including an alibi that Born Samnang had been about 60 kilometers away when the crime was committed. In contrast, none of the prosecution witnesses was brought to either court to testify and be cross-examined by the defense.
Both courts could have summoned these witnesses to appear in court, using legal means of compulsion if necessary. Both courts simply based their judgments on the statements of the two men to the police and on the confession Born Samnang made to the police, prosecutor and investigating judge in the lower court after their arrest. Born Samnang retracted his confession, however, when interrogated by the same investigating judge for the second time on the grounds that the police had used threats and intimidation and had tried to extort a confession from him by offering him a position as a police officer. Moreover, Born Samnang's allegations of police ill-treatment and extortion could have been thoroughly investigated, but were not.
The Court of Appeals rejected on the grounds of "procedural irregularity" the testimony submitted by Va Sothy from her place of asylum in Thailand. She was the owner of the newspaper kiosk and witnessed the killing itself. She asserted that Born Samnang and Sok Sam Oeun were not the killers and gave a description of the man who shot Chea and his accomplice. The appeals court could have accepted her statement as new evidence and assigned a judge to take a statement directly from her, but did not.
The conviction of Sok Sam Oeun and the decision of the Court of Appeals to uphold it were based on Born Samnang's allegation that Sok Sam Oeun was his accomplice, but Sok Sam Oeun denied this allegation and protested his innocence throughout the whole legal process. In the lower court, following Born Samnang's retraction of his confession and with due consideration of the evidence gathered by the police and himself, Hing Thirith, the first investigating judge, found no case against the accused and dropped the charges. This judge was immediately disciplined, however, and his decision was reversed.
Trials based on confessions are well-entrenched practices in the Cambodian criminal justice system and are very much part of the political culture of the country. In a response to criticism of the lower court's judgment, Cheam Yeap, a minister of Parliament from the ruling party, said that the court was right to convict them as they had "confessed" to the killing.
Criminal procedure in Cambodia offers few mechanisms to hinder the extortion of confessions when suspects have no right to counsel during the first 48 hours of police custody and there are no rules or directions for the questioning of suspects and the taking of statements to protect the rights of suspects. Moreover, the verification of torture or other ill-treatment of suspects in police custody is not the responsibility of prosecutors and judges. As the Chea Vichea case has illustrated, they instead merely dismiss allegations of torture or other ill-treatment.
The list of flaws cannot be exhaustive here, but the most serious one was the Court of Appeals' disregard for the plea made by Pan Kim Heng, the prosecutor, for a "reinvestigation" of the case in his summations on the ground that there were "huge gaps in the police investigation." He pointed out that the artist of the sketches of the killers circulated by the police after the crime had no proper expertise, and there was no verification of the record of the phone calls said to be made by the accused, no proper autopsy, no proper examination of the scene of the crime and no proper forensic examination of the bullets that killed Chea.
According to Pan Kim Heng, the proposed reinvestigation would lead to the arrest of the "real killers," and he did not press any charge against the accused. This plea for a reinvestigation by the prosecutor should question, if not destroy, all evidence on which the Court of Appeals based its decision to uphold the conviction of the two men and, indeed, the conviction itself.
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(Dr. Lao Mong Hay is currently a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and received the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)
