FAIR TRIAL RIGHTS CLUB

Seminar 4: The Presumption of Innocence

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE

Presentation Overview

1. What is the presumption of innocence?

2. Cambodian, International, and ECCC laws on the presumption of innocence.

3. Case studies and group work – The ECCC and the OJ Simpson Trial (Trial by Media)

What is the presumption of innocence?

Blackstone’s Formulation

“Better that ten guilty persons escape than that one innocent suffer."

Questions:

1. Do you agree? Is it better to let 10 guilty people go free than to have 1 innocent person in prison?

2. Better for who?

Discussion

The Sayings of Angkar

“Better to arrest ten innocent people by mistake than free a single guilty party.”

“Better to kill an innocent by mistake than spare an enemy by mistake.”

“You can arrest someone by mistake; never release him by mistake.”

Questions:

1. What if you are the innocent person mentioned above? How can you prove your innocence?

2. Would it be better to have the individual have to prove their innocence, instead of the state?

What is the presumption of innocence?

1. A legal right of the accused in a criminal trial, a right recognized by many nations.

2. The burden of proof is on the prosecution to prove the guilt of the accused beyond a reasonable doubt, and let the judge make the final determination. In other words, the burden is on the person who asserts, not the person who denies.

3. The state must prove that 1) the crime was committed, and 2) the defendant was the one who committed the crime.

1. The defendant does not have any burden of proof. The defendant does

not have to testify at all (right to remain silent), present any evidence, or call any witnesses. The fact that a defendant refuses to testify, present evidence or call witnesses, may not be used against them.

1. Maintaining the presumption of innocence not only protects fundamental

FTR rights, it also helps victims discover the truth.

Law

The accused shall be considered innocent until the court has judged finally on the case

ICCPR - International Covenant on Civil and Political Rights

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Article 14

CONSTITUTION OF CAMBODIA

Article 38

Law

LAW ON THE ESTABLISHMENT OF EXTRAORDINARY CHAMBERS OF THE COURTS OF CAMBODIA FOR THE PROSECUTION OF CRIMES COMMITTED DURING THE PERIOD OF DEMOCRATIC KAMPUCHEA

Article 35 new The accused shall be presumed innocent as long as the court has not given its definitive judgment.

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 - Rights of the accusedThe rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: to be presumed innocent until proved guilty...

Law

Rule 87: Rules of Evidence

EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIAINTERNAL RULES

The onus is on the Co-Prosecutors to prove the guilt of the accused. In order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.

Rule 12

The Office of Administration shall establish a Victims Support Section and a Civil Party Lead Co-Lawyers’ Section.

Every person suspected or prosecuted shall be presumed innocent as long as his/her guilt has not been established.

Rule 21: Fundamental Principles

Discussion

1. Why is the “onus,” or burden, on the prosecutor?

2. What does it mean to prove the guilt of the accused beyond a reasonable doubt?

3. If the defendants in Case 002 are presumed innocent, why is there a “Victims” Support Section?

4. If people are presumed innocent, why have pre-trial detention?

Questions:

Case Study #1

The following is taken from the ECCC outreach booklet: “An Introduction to the Khmer Rouge Trials”

“Now the time has come for those responsible for planning and directing this horror to be held accountable for their crimes....we hope that Cambodians and all who support us will feel a load lifted from our backs as we finally bring justice in the name of the victims.”

-Prime Minister Hun Sen (preface)

[speaker] at a Public Affairs Section (“PAS”) outreach event

“The court has enough competency and enough of a role in Ieng Sary’s case over genocidal crimes, and other crimes…to try him under its jurisdiction.”

The accused in case 002 are not admitting their responsibility at the moment, but once the Prosecution gathers enough evidence and brings its case, they will.

Tribunal spokesman Huy Vannak, before the initial hearing

Case Study #1

LAW ON THE ESTABLISHMENT OF EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA FOR THE PROSECUTION OF CRIMES COMMITTED DURING THE PERIOD OF DEMOCRATIC KAMPUCHEA

Article 1:The purpose of this law is to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

1. Please take a moment to read and analyse the above Article and statements made to the press. What effect does this language and rhetoric have on the presumption of innocence for the accused?

2. Can a tribunal maintain the presumption of innocence when the accused are charged with crimes against humanity, genocide, and war crimes?

Questions:

Trial By Media

Case Study #2

The OJ Simpson Trial

1. Former American football star and Hollywood actor OJ Simpson is accused of murdering his ex-wife and her friend.

2. Evidence found at the scene of the crime led police to believe OJ Simpson had committed the crime.

3. OJ Simpson was supposed to turn himself in to the police for questioning, but instead….

….he leads a massive police chase for 50 Kilometers.

Case Study #2

Trial By Media – News Coverage

1. The most publicised trial in American history. “The trial of the century.”

2. The Los Angeles Times put the story on the front page for 300 days after the murder.

3. The nightly news networks gave the OJ Simpson trial more on-air coverage than the Oklahoma City bombing and the Bosnian War combined.

4. The trial was covered in 2,237 news segments from 1994 through 1997.

Case Study

Trial By Media – News Coverage

Case Study

1. With so much media scrutiny, is it possible to maintain the presumption of innocence?

2. What about for war crimes, crimes against humanity, and Genocide?

3. Do the defendant’s in Case 002 at the ECCC enjoy the presumption of innocence?

Questions

FAIR TRIAL RIGHTS CLUB

Seminar 4: The Presumption of Innocence

DEFENCE SUPPORT SECTION CAMBODIA COUNTRY OFFICE