Distr.
GENERAL
CCPR/C/81/Add.12
23 September 1998
ENGLISH
Original:
FRENCH
Initial reports of States parties due in 1993
:
Cambodia
.
23/09/98
.
CCPR/C/81/Add.12
. (
State Party Report
)
HUMAN RIGHTS COMMITTEE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT
Initial reports of States parties due in 1993
Addendum
*
CAMBODIA
[24 November 1997]
* The annexes to this report are available for consultation in the files of the Office of the United Nations High Commissioner for Human Rights.
CONTENTS
Paragraphs
Introduction
1 3
I. GENERAL
4 52
Land and people
4 10
Economy
11
General political structure
12 24
Legal framework within which human rights are protected
25 43
Relationship between the Covenant and Cambodian law
44 47
Information and publicity
48 52
II. INFORMATION RELATING TO ARTICLES 1 27 OF THE COVENANT
53 390
Article 1
53 58
Article 2
59 72
Article 3
73 88
Article 4
89 96
Article 5
97 101
Article 6
102 124
Article 7
125 145
Article 8
146 151
Article 9
152 168
Article 10
169 187
Article 11
188 190
Article 12
191 199
Article 13
200 201
Article 14
202 261
Article 15
262 265
Article 16
266
Article 17
267 276
Article 18
277 287
Article 19
288 302
Article 20
303 307
Article 21
308 312
Article 22
313 323
Article 23
324 339
Article 24
340 363
Article 25
364 373
Article 26
374 381
Article 27
382 390
Introduction
1. For the last two decades, during which the people of Cambodia have known only war and an extremely harsh life, especially between 1975 and 1979 under the Democratic Kampuchea regime, the application and protection of human rights has been no more than a bitter experience. Having fled the forests, the survivors of the killings crossed the plains and rice fields, following roads and tracks that took them back to their native villages, forgetful of fatigue and hunger and borne along by the joy of recovering their liberty and some of their rights. During the tragedy of the Khmer Rouge regime, which lasted 3 years, 8 months and 20 days, the Cambodian people saw their liberties and fundamental rights trampled upon. Since then they have thirsted for their rights and freedoms. This was the main reason for the massive participation of the Cambodian population in the general elections of May 1993.
2. The Royal Government is keenly aware of this and is continuing to address the numerous problems left over from a sick society. It is endeavouring to protect human rights by every possible means in order to restore the confidence of the people, a decisive factor in the country's development.
3. Pursuant to article 40 of the International Covenant on Civil and Political Rights, on 28 March 1994 the Royal Government set up an Inter-Ministerial Committee, with the Minister of State and Minister of Justice as Chairman, the Secretary of State for Foreign Affairs and International Cooperation as Vice-Chairman, and representatives of the important ministries as members, in order to prepare a report on the observance of human rights in the Kingdom of Cambodia for submission to the Secretary-General of the United Nations.
I. GENERAL
Land and people
4. Cambodia, with a surface area of 181,035 km
2
, is situated in South-East Asia. Some two thirds of the country are covered by forests, mountain ranges and hills. The majority of the population live in the plains of the Mekong Delta. According to an economic and social survey carried out in October 1993-1994, Cambodia has a population of 9,869,747 inhabitants, 85 per cent of whom live in rural areas. The average population density is 55 inhabitants per km
2
.
Ethnic groups
5. The population of Cambodia is made up of: Khmers (90 per cent), Muslim Khmers or Chams (approximately 200,000), ethnic minorities consisting of 16 groups speaking different languages and living on the high plateaux in the north-eastern part of the country (approximately 75,000), and foreigners (about 200,000 Chinese and 450,000 Vietnamese).
6. Each ethnic group is authorized to use its own language and retains its own practices and customs. However, Khmer is the official language.
Age structure of the population
7. According to the above-mentioned survey, 43.7 per cent of the population are under 15 years of age (boys, 46.6 per cent; girls, 41.1 per cent), while 4.1 per cent are over 65 (men, 3.6 per cent; women, 4.5 per cent). Life expectancy is less than 50 years.
Infant mortality
8. In 1993, the infant mortality rate stood at 117 per 1,000, and the under-five mortality rate at 183 per 1,000. Maternal mortality was estimated at 9 per 1,000. In 31 per cent of infant mortality cases, the cause was premature birth, with birth complications accounting for another 28 per cent of cases. The main causes of death in the two-to-four-year-old age group were respiratory infections (20 per cent), malaria (13 per cent) and diarrhoea (16 per cent).
Religions
9. Buddhism is the State religion and 97.5 per cent of Cambodian citizens are Buddhists. Other religions are also practised, the most widespread being Islam and Catholicism.
Education
10. Children over six years of age receive a minimum of nine years' compulsory primary education in State schools. Secondary schooling, which is not compulsory, lasts three years, and it is also possible to continue studying for four years beyond the primary level. Primary and secondary schooling are free. In higher education, poor students receive State grants. Currently, 37 per cent of adults are still illiterate.
Economy
11. In 1994, gross national product was estimated to be 6,048 billion riels (US$ 2,340 million) at market prices. Measured at constant 1989 prices, GNP increased by 5 per cent in 1994, of which 45 per cent was credited to agriculture, 20 per cent to industry and 35 per cent to the services sector. Agriculture, principally rice production, is a major component of the national economy. Exports include rubber, timber and fisheries products. In 1993, the per capita gross national product was estimated at US$ 180, and the inflation rate was 31 per cent. Unemployment in 1993-1994 stood at 2.5 per cent.
General political structure
Historical background
12. Cambodia met with disaster due to protracted war lasting over two decades, marked principally by the genocide committed by the Khmer Rouge.
13. As a result of the Paris Agreements of 23 October 1991 between the four Cambodian factions (the State of Cambodia, the Khmer People's National Liberation Front (KPNLF), the National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) and Democratic Kampuchea), the Supreme National Council, which represented national sovereignty, was set up with the task of achieving national reunification and reconciliation. The United Nations Transitional Authority in Cambodia (UNTAC) was established to monitor compliance with the Agreements and to organize the general elections of 1993.
14. Following the elections, a Constituent Assembly was convened to draft the Constitution adopted on 21 September 1993. The Constituent Assembly became the National Assembly, after which a Government headed by a First and a Second Prime Minister took office.
Political regime
15. Cambodia has adopted a political system constituting a multi-party liberal democracy. The Kingdom of Cambodia is an independent, sovereign, peaceful, neutral and non-aligned State.
16. The practice of democracy in Cambodia has encountered many initial difficulties. However, the Royal Government is making every effort to ensure the gradual development of democracy, while at the same time strengthening the legal system, the independence of the judiciary and the rule of law, and guaranteeing respect for human rights.
System of government
17. The State is run by three clearly separate powers.
18. With regard to executive power, the King reigns but does not govern. The Royal Government is headed by the Prime Minister, supported by Deputy Prime Ministers, Ministers of State, other Ministers, and Secretaries of State. During the first legislative term, however, the Government was headed by two Prime Ministers, the First Prime Minister and the Second Prime Minister.
19. Legislative power is vested in the National Assembly, which is composed of 120 members elected every five years. Since the 1993 elections, the various parties have held seats in the National Assembly as follows: FUNCINPEC won 58 seats, the Cambodian People's Party 51 seats, the Buddhist Liberal Democratic Party (BLDP) 10 seats, and MOLINAKA (National Liberation Movement of Cambodia) 1 seat.
20. Under article 109 of the Constitution, the judicial power is independent. The courts have exclusive competence to deal with all actions, including administrative cases. Since 1993, there have been two levels of jurisdiction. The 21 courts of first instance, established in all provinces and municipalities, hand down first judgements. The Court of Appeal rules on appeals lodged against first judgements by courts of first instance. Decisions of the Court of Appeal may be reviewed by the Supreme Court, which rules on points of law for first appeals and on points of fact and law for second appeals. Apart from the above-mentioned courts, the military court system is competent to judge breaches of military discipline and actions prejudicial to the interests of the armed forces.
21. Article 117 of the Constitution provides for the establishment of a Constitutional Council responsible for verifying the conformity and constitutionality of laws adopted by the National Assembly and the legality of legislative elections. The Council is not yet functioning because of the delay in setting up the Supreme Council of Justice, which must designate three of its members to serve on the Constitutional Council.
22. On 22 December 1994, the National Assembly passed a law on the organization and functioning of the Supreme Council of Justice. Under this law, the Council, over which the King presides, is composed of seven judges and includes the Minister of Justice. It helps the King to guarantee the independence of the judiciary, to decide on the appointment and transfer of judges and to maintain judicial discipline.
23. At the present time, there are 139 judges appointed by the Head of State sitting in the 21 courts of first instance, the Court of Appeal and the Supreme Court. A small number of these work in the Ministry of Justice. The structure of the latter has been reorganized and a General Inspectorate for Judicial Affairs has been established with the task of monitoring the administrative performance of judges. An assembly of judges, organized by the Ministry, is held at the end of each year to assess the activities of the courts and any problems of violations of the law and human rights that need to be addressed. These latest reforms enable the Ministry of Justice to guarantee the independence of the judiciary and to combat violations of the law and human rights.
Administrative organization
24. In Cambodia today there are 19 provinces and three municipalities administered and directed by provincial and municipal governors. These provinces and municipalities are divided into 170 districts and administrative areas under the authority of a governor. The latter, in their turn, are subdivided into 1,545 communes and neighbourhoods administered by heads of communes and neighbourhoods.
Legal framework within which human rights are protected
Authorities having jurisdiction affecting human rights
25. Certain fundamental principles of the protection of human rights are enshrined in the Constitution:
- Right to seek redress in the courts guaranteed for all citizens (art. 39)
- Independence of the judiciary (arts. 109 and 110)
- Requirement for judges to adjudicate with strict respect for the law, honestly and conscientiously (art. 110).
26. According to article 112 of the Constitution, "only the Department of Public Prosecutions shall have the right to bring criminal actions". The victim may always claim criminal indemnification, in accordance with the established procedure. The Department of Public Prosecutions, represented by the prosecutor attached to the court, institutes criminal proceedings against those accused of violations of human rights.
27. The National Assembly has established a commission on human rights and the reception of complaints. Its role is to protect human rights having due regard for public order. It also maintains relations with non-governmental organizations (NGOs) concerned with human rights and receives complaints from victims of violations of human rights, which it passes on to the competent administrative or judicial authorities.
28. The Royal Government has also established the Office of the Secretary of State for Women's Affairs, which has been given responsibility for protecting and promoting women's rights. The Office receives complaints from women concerning violations of their rights, examines them and deals with those of lesser importance. In more serious cases, it passes the complaints on to the competent court.
29. At present, more than 30 NGOs in Cambodia are authorized to engage in activities related to the protection of human rights. These organizations also undertake to help people gain a better understanding of the law and greater awareness of their rights. They assist victims in filing complaints with the courts.
30. The Cambodia Office of the United Nations Centre for Human Rights has been authorized by the Royal Government to carry out activities relating to the protection of human rights in the country. It is organizing training courses on human rights for the competent authorities and helping to improve respect for those rights. In November 1993, the Secretary-General of the United Nations appointed a Special Representative for human rights in Cambodia to maintain contact with the Cambodian people and make recommendations to the Royal Government on the human rights situation in the Kingdom.
31. Other international organizations, such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Office of the United Nations High Commissioner for Refugees (UNHCR), the International Labour Organization (ILO), World Vision International, the International Committee of the Red Cross (ICRC) and the European Union, also have offices in Cambodia and are actively participating in the protection of human rights. The United Nations Children's Fund (UNICEF) is especially active in protecting the rights of women and children to health and education.
Complaints from victims of human rights violations
32. Since 1982, the right of citizens to lodge protests or complaints concerning abuse of authority by the Government or its officials has been recognized by the law concerning the examination and settlement of public protests and complaints. Article 39 of the Constitution establishes the fundamental right of citizens to report, lodge complaints against and claim compensation for any injury caused as a result of breaches of the law by State or social agencies or by their officials in the course of their duties. The settlement of complaints and claims for compensation falls within the competence of the courts.
33. At present, victims may lodge complaints by any means, with NGOs or the National Assembly's Commission on Human Rights, the Royal Government, in particular the Ministry of Justice, or directly. Some even address their complaints to the King.
34. Anyone claiming to be a victim of an abuse of power by an administration may, in the first instance, appeal to the superior authority of the administration responsible. Administrations are empowered to put an immediate stop to any abuse and to take disciplinary action against the official concerned.
35. If the complainant is not satisfied, he may apply to the court with jurisdiction over administrative matters. Appeals concerning abuse of authority fall within the competence of a specialized division of the Court of Appeal.
36. Courts of all instances deal with allegations concerning violations of fundamental rights. The courts may take an administrative decision or make an enforcement order. If not satisfied with this decision, the plaintiff may appeal to the Court of Appeal and then seek a judicial review by the Supreme Court. In order to avoid unnecessary prolongation of the proceedings, the Supreme Court may rule simultaneously on points of fact and law and hand down a final judgement, at the petition of the representative of the Department of Public Prosecutions, the person convicted or the civil party claiming damages or his lawyer, if the lower court does not bow to its first ruling (art. 226 of the 1993 Criminal Procedure Law).
37. In order better to guarantee and protect human rights, the Kingdom of Cambodia will examine a proposal for accession to the Optional Protocol to the International Covenant on Civil and Political Rights which would enable the Human Rights Committee to receive and examine complaints from anyone in Cambodia claiming to be a victim of a violation of any of his rights under the Covenant, after that person has exhausted all available domestic remedies.
Claims for civil damages
38. Article 5 of the 1993 Criminal Procedure Law allows any victim of a criminal offence being examined by the Department of Public Prosecutions to bring an action for criminal indemnification.
39. Criminal indemnification proceedings may be instituted by all those who have directly suffered injury as a result of the offence against all those held directly or indirectly responsible for making good the injury caused by the offence, such as the perpetrator but also the party liable for damages, the principal, the administration, etc.
40. At present, as in many other countries, the possibilities of indemnification afforded by the law do not reflect the actual state of affairs.
41. Acts of violence being mainly the work of armed men, the victims do not dare file a complaint for fear of reprisals and, not being conversant with the law, they lack confidence in the authorities.
42. Human rights NGOs have therefore been playing an increasing part in receiving and forwarding complaints about human rights violations. They have also organized training sessions for groups of defenders concerned with criminal matters to work with those existing since 1983.
43. Notwithstanding enormous difficulties, the Ministry of Justice has made a stalwart effort to provide training and further training for judges, lawyers and court officers, despite the meagreness of its resources (0.2 per cent of the national budget):
- 132 serving judges followed intensive courses given by French judges during the fourth quarter of 1993;
- 42 new judges underwent training between September 1994 and February 1995;
- The Law Faculty inaugurated a training course for a first group of graduating lawyers in May 1995;
- A law on the establishment and functioning of the Supreme Council of Justice was passed by the National Assembly on 22 December 1994;
- The Ministry of Justice has organized frequent retraining or further training courses for the royal judges and prosecutors working in the provincial and municipal courts, on the basis of specific cases;
- A general assembly on the work of the courts is held each year;
- Numerous training and further training courses for registrars, chief registrars and bailiffs were organized in 1994;
- Workshops at Phnom Penh and seminars organized in certain provinces have helped to improve collaboration between the police and the Department of Public Prosecutions.
Relationship between the Covenant and Cambodian law
44. Article 31.1 of the Constitution stipulates that "the Kingdom of Cambodia shall recognize and respect human rights as defined in the Charter of the United Nations, the Universal Declaration of Human Rights and the covenants and conventions relating to human rights and the rights of women and children". Thus, all the rights defined in the International Covenants on Human Rights are protected by the Constitution of the Kingdom of Cambodia.
45. The Cambodian Constitution does not contain any provisions that are contrary to or impose restrictions upon fundamental human rights as defined in international human rights instruments. However, there are certain provisions which have been adopted in response to the country's circumstances and situation. Thus, article 31 states that "the exercise of personal rights and freedoms shall not adversely affect the rights and freedoms of others and shall be subject to the conditions established by law".
46. Article 31.1 of the Cambodian Constitution recognizes that the international covenants and conventions to which Cambodia has acceded take precedence over domestic law. Any provision of domestic law contrary to the provisions of an international convention or covenant is thus inapplicable.
47. The Kingdom of Cambodia has acceded to the following international conventions and covenants:
- International Covenant on Civil and Political Rights (26 May 1992);
- International Covenant on Economic, Social and Cultural Rights (26 May 1992);
- Convention on the Prevention and Punishment of the Crime of Genocide (14 October 1950);
- International Convention on the Elimination of All Forms of Racial Discrimination (28 November 1983);
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (15 October 1992);
- Convention on the Elimination of All Forms of Discrimination against Women (15 October 1992);
- Convention on the Rights of the Child (15 October 1992);
- Convention on the Suppression and Punishment of the Crime of Apartheid (28 July 1981);
- Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (12 June 1957);
- Convention Relating to the Status of Refugees and the 1967 Protocol (15 October 1992).
(See annex: table of ratifications.)
Information and publicity
48. The competent Cambodian authorities have broadcast on radio and television human rights programmes addressing the problems facing Cambodian society, although these problems have not been treated in depth. The Office of the Secretary of State for Women's Affairs has compiled a training programme and organized seminars on fundamental rights, in particular on measures to prevent violence against women.
49. The Ministry of Justice has had the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights translated into Khmer and has sent copies to all the provincial and municipal courts. Moreover, at the proposal of the Ministry, other human rights instruments have also been translated and distributed by the United Nations Centre for Human Rights to all court officials, civil servants and the armed forces in the provinces and municipalities. This programme commenced at the beginning of 1995.
50. Even though the Government has not yet become intensively engaged in publicizing human rights, the teaching of these rights has already been introduced into the curriculum of the Ministry of Education, Youth and Sports.
51. International organizations and national and international NGOs have actively encouraged respect for human rights by printing and distributing documents, posters and booklets throughout the country. Moreover, some organizations have arranged training courses on human rights for Cambodian civil servants and citizens.
52. An Inter-Ministerial Committee composed of representatives of 10 ministries and chaired by the Minister of Justice is responsible for preparing reports on human rights for the United Nations. This Committee has gathered documents from the ministries concerned, as well as other information, with the technical assistance of the Cambodia Office of the Centre for Human Rights.
II. INFORMATION RELATING TO ARTICLES 1-27 OF THE COVENANT
Article 1
Right of self-determination
Paragraph 1
53. Cambodia recognizes the right of self-determination of its people, as stipulated in article 1 of the Covenant. In Cambodia, citizens have the right of self-determination in the economic, social and cultural spheres; they are masters of their country's destiny. They exercised their right by choosing a political regime and their representatives in the elections held from 23 to 28 May 1993.
54. In accordance with the Constitution, the Kingdom of Cambodia has adopted a market-economy system. This principle is practised by all citizens throughout the Kingdom, in conformity with the policy declaration of the Royal Government of 29 October 1993.
55. Under articles 59 and 60 of the Constitution, Cambodian citizens have the right to dispose freely of their products and their country's natural resources, a right which is protected by the State. However, during the last few decades, the breakdown of the productive structure and export controls has encouraged the plundering of the country's natural resources, and has retarded the process of agricultural development: 45 per cent of rubber production brings in nothing for the State; in recent times tree felling and the illegal export of timber to neighbouring countries have devastated at least 30 per cent of the forests, to the detriment of the State, which receives nothing by way of foreign exchange from this illegal trade; almost all the tobacco crop has been sold clandestinely; the trade in precious stones at Païlin has recently suffered huge losses to the advantage of the
Thai companies to which the Khmer Rouge have sold the minerals under their protection; fishermen from neighbouring countries have engaged in clandestine fishing in Cambodian waters, destroying the shelters and disturbing the breeding of the fish during the period when fishing is prohibited; the ownership of Cambodia's oil fields is being disputed by neighbouring countries.
56. One positive factor contributing to the rebuilding and development of the national economy is the return of the Kingdom of Cambodia to the Mekong Committee after it lost its membership status more than 20 years ago.
Paragraph 2
57. The Kingdom of Cambodia recognizes and respects the right of self-determination of the peoples of all countries in the world. In its external relations, the Kingdom of Cambodia adopts a policy of permanent neutrality, non-alignment and peaceful coexistence (art. 53 of the Constitution).
58. As regards non-observance of the right of self-determination and racism, the position of the Kingdom of Cambodia is as follows. Concerning the Palestinian problem, the Kingdom of Cambodia welcomes the resolution of the conflict between Israel and Palestine, and has established diplomatic relations with both Palestine and Israel. With respect to apartheid in South Africa, the Kingdom of Cambodia welcomes the final abolition of apartheid in that country and the birth of a unified and democratic society. The Royal Government of Cambodia demonstrated its desire for solidarity with the South African people by sending a delegation to observe the presidential elections in South Africa during the period from 26 to 28 April 1994. His Majesty Preah Bat Samdech Preah Norodom Sihanouk Varman, King of Cambodia, has agreed in principle to the establishment of diplomatic relations between the Kingdom of Cambodia and the Republic of South Africa.
Article 2
Recognition of the rights of the individual
without discrimination
Paragraph 1
59. The Kingdom of Cambodia recognizes and respects the dignity of individuals without distinction of any kind. Article 31 of the Constitution states that citizens are equal before the law and have the same rights and duties without distinction as to race, colour, sex, language, religious belief, political views, ethnic origin, social status, wealth or other circumstances. In accordance with article 2 of the International Covenant on Civil and Political Rights, the Kingdom of Cambodia undertakes to respect and ensure to every individual all the rights recognized in the Covenant (arts. 31, 32 and 38 of the Constitution).
60. In the field of politics, Cambodian citizens enjoy the right to vote and to stand as candidates for election and the right to establish political parties (arts. 34 and 42 of the Constitution). Between 23 and 28 May 1993, 90 per cent of Cambodian citizens of both sexes participated in the parliamentary elections, which were contested by 20 political parties.
61. The women citizens of Cambodia also enjoy full political rights. Among the 120 deputies there are seven women. The limited participation of women in politics is not the result of discrimination. It is mainly due to the fact that women have traditionally taken little interest in politics.
62. In the area of civil rights, the Kingdom of Cambodia respects the civil rights of all individuals as defined in the Covenant, without distinction of any kind. However, because of the war, which is still continuing, the low level of education of the population and the legal vacuum, the application of these rights is encountering numerous difficulties. Nevertheless, there are many very encouraging signs. The Royal Government is working to develop the legal system, public order, respect for the law and security in order that Cambodia may soon become a country in which the rule of law prevails.
63. Economic, social and cultural rights are recognized for citizens without distinction. Articles 35 and 36 of the Constitution fully guarantee these rights. Details concerning these three areas are given in the report on economic, social and cultural rights.
Paragraph 2
64. The Royal Government is eager to ensure that the laws conform to the Constitution promulgated on 24 September 1993. The Constitutional Council is not for the time being in place because of the absence of candidates to represent the Supreme Council of Justice, which is not currently functioning, the bill on the status of judges not yet having been passed by the National Assembly.
65. Since the promulgation of the Constitution on 24 September 1993, numerous laws relating to civil and political rights have been adopted by the National Assembly:
Constitution (21 September 1993);
Assistance regime: missions, sickness, persons convicted or charged (15 November 1993);
Financial system (22 December 1993);
Powers and structure of the Royal Gendarmerie (15 February 1994);
Youth rehabilitation (18 April 1994);
Urbanization (24 May 1994);
Outlawing of the Democratic Kampuchea group (7 July 1994);
Organization and functioning of the Cabinet of Ministers (19 July 1994);
Investment (4 August 1994);
Immigration (26 August 1994);
Common statute for civil servants (21 October 1994);
Military pensions and incapacity regime (28 October 1994);
Functioning of the Supreme Council of Justice (22 December 1994);
Law on the status of lawyers (15 June 1995);
Budget of the National Assembly (28 December 1994);
Press regime (15 June 1995);
Chamber of Commerce (22 June 1995);
Trade measures (26 June 1995);
Administration and use of arms and explosives (31 July 1995);
Law on kidnapping and on traffic in and exploitation of persons;
Labour Code;
Law on nationality (20 August 1996).
66. At the same time, a number of laws have remained in force under article 139 of the Constitution, which states: "Any law or provision which guarantees the legitimate interests, rights, liberty and goods of individuals and is consistent with the national interest shall continue in force until amended or abrogated by new texts, except for those provisions that are contrary to the spirit of the Constitution." (Enactment on the judicial system, criminal law and criminal procedure of the transitional period.)
67. New laws at the drafting stage include: the Criminal Code, the Code of Criminal Procedure, the Civil Code, the Code of Civil Procedure, a law on combating the production and use of drugs and drug trafficking, and the Women's Code.
Paragraph 3
68. If there has been a violation of rights and freedoms, whatever the source, the State guarantees the victim the right to institute legal proceedings. The National Assembly's Commission on Human Rights and Complaints, as well as NGOs, may intercede with the various authorities or assist the victim in having his case decided by the courts.
69. The complaints are dealt with by the courts, which have jurisdiction over all actions, including administrative litigation (arts. 39 and 109 of the Constitution).
70. Victims often encounter difficulties in exercising their right to seek legal remedies, in particular because of their limited knowledge of the law and the slowness of the proceedings, not to mention the time wasted because the complaint is sometimes addressed to an authority which lacks competence and then has to be transferred to the competent body. There is only one court in the provincial capital, which is not easily accessible for every victim. There are not enough judges to deal with the increasingly numerous and complicated cases. Inter-agency collaboration is not yet effective.
71. To overcome these difficulties, the Ministry of Justice has organized a training course for 42 new judges, together with another course of training; a bar consisting of 38 lawyers has been created, and further training courses are being provided for judges, royal prosecutors and court registrars at every level.
72. The National Assembly has passed a law on the establishment and functioning of the Supreme Council of Justice. The Royal Government has authorized NGOs to publicize the law and the rights of citizens and to provide defenders for the poor.
Article 3
Equal rights of men and women
73. The Constitution of the Kingdom of Cambodia guarantees the equality of men and women, fully entitling women to take an active part in social life. This constitutional principle is a step towards the complete abolition of discrimination against women and enables them to enjoy to the full the same rights as men in political, economic, social and cultural life.
74. The Constitution of the Kingdom of Cambodia guarantees the equality of men and women in the enjoyment of civil and political rights:
- Equality before the law (art. 31);
- Equal right to vote and to stand as candidates for elections (art. 34);
- Equal participation in political and social life (art. 35);
- Equality in marriage and the family (art. 45);
- Dismissal of pregnant women is prohibited. Women have the right to take maternity leave with full pay (art. 46).
75. In order to safeguard the right to equality, the Constitution has also abolished all practices demeaning to women:
- Prohibition of discrimination and exploitation of the labour of women;
- Prohibition of trafficking in human beings and exploitation by means of prostitution and obscenities demeaning to women (art. 46).
76. Women are also protected in the workplace (arts. 178-182 of the Labour Code).
77. The law guarantees women the freedom to choose their husband (art. 4 of the Law on Marriage and the Family).
78. Women must be accommodated separately from men in detention centres and prisons.
79. By law, women enjoy preferential access to the civil service (art. 11 of the Law on the Common Statute for Civil Servants).
80. The Constitution of 1993 proclaims the equality of men and women in all areas, and specifically in the workplace:
- Of the 120 deputies in the National Assembly, seven are female;
- There are five female Under-Secretaries of State;
- There are seven female judges;
- There are nine female lawyers and defenders.
81. In other respects, too, women enjoy a range of opportunities to participate in the development of the country. In agriculture, 60 per cent of the workforce is female. In industry, 76 per cent of workers are women. In education the figure is 83 per cent; 32.5 per cent of teachers are women in primary schools, 25 per cent in secondary schools (first stage) and 25.5 per cent in secondary schools (second stage). In the services sector, 58.9 per cent of the workforce is female. There are 685 female police officers.
82. The destructive war of the last 20 years has plunged Cambodian society into a deep economic crisis and created very serious problems for families all over the country. The majority of girls from poor families have been unable to receive any training and have had to discontinue their studies at the primary-school level. Up to 50 per cent of women are illiterate, and only 19 per cent of students at university faculties are female.
83. The present situation and Cambodian social customs are additional factors which prevent women from continuing their studies. In the countryside, there is a shortage of higher-level schools and most parents do not allow their children to stray too far from home.
84. In the past, a number of female prisoners used to be raped by prison warders. Since the general election, the Royal Government has ensured that women are segregated from men and that they are guarded by female warders in most prisons.
85. The abduction of girls for the purposes of prostitution or trafficking is a growing problem and the Royal Government is addressing the matter (see paragraphs 146-151 regarding article 8 of the Covenant).
86. The right to life in Cambodia is currently threatened by the ravages of AIDS, which is spreading very rapidly and is transmitted through sexual relations with prostitutes. The AIDS problem has increased since 1992 and the Ministry of Health estimates that 6,000 people are currently HIV-positive.
87. In order to ensure the equality of men and women in all respects, the Royal Government established the Office of the Secretary of State for Women's Affairs in November 1993. Its role is to educate women about their legitimate rights, thereby enabling them to achieve true equality with men and to facilitate their involvement in efforts to improve their lives and their vocational, technical and scientific skills, and permit them to exercise fully their acknowledged rights.
88. With the assistance and support of the Office of the Secretary of State for Women's Affairs, a dozen NGOs run by women have played an active role in the advancement of women in Cambodia's new society. The Office has also prepared a draft Women's Code for referral to the National Assembly. This is a legal mechanism for guaranteeing and fully protecting women's rights in all areas.
Article 4
Rights during a state of emergency
Paragraph 1
89. When the nation is in danger, the Cambodian Constitution authorizes the King to proclaim a state of emergency with the consent of the Prime Minister and the President of the National Assembly (art. 22). Even when the nation is in danger, Cambodia continues to apply democratic principles (art. 22).
90. Even during a period of martial law, Cambodia will not take measures that are contrary to international law.
91. In time of war or other exceptional circumstances, when it is impossible to hold elections, the National Assembly may extend its term for one year at the King's request (art. 78, para. 5, of the Constitution). The National Assembly shall sit continuously when the nation is in danger. The Assembly has the right to terminate the state of emergency when circumstances permit. If the Assembly is unable to sit owing to circumstances such as occupation by foreign armed forces, the proclamation of the state of emergency shall be extended automatically. During a state of emergency, the Assembly cannot be dissolved (art. 86).
92. The King is supreme commander of the Royal Khmer Armed Forces. He is the Chairman of the Supreme Council of National Defence. He may declare war with the approval of the National Assembly (arts. 23 and 24).
Paragraph 2
93. The Kingdom of Cambodia will continue in all circumstances to apply articles 6, 7, 8, paras. 1 and 2, 11, 15, 16 and 18 of the Covenant and to recognize and respect human rights as guaranteed by article 31 of the Constitution.
94. Since its accession to the Covenant, Cambodia has refrained from taking any new measures contrary to the provisions of article 4 thereof.
95. The Khmer Rouge, a signatory to the Paris Agreements of 23 October 1991, has not demobilized, confined or disarmed its troops under the supervision of United Nations representatives. They have kept their weapons and prolonged the war, by continuing to cause destruction and posing a threat to security. They are also continuing to murder civilians and officials, to wage a campaign of insurgency against the Royal Government and to pursue a policy of racism. These acts violate the provisions of the Covenant and represent a very grave danger to the nation. However, even under these circumstances, the Royal Government, the National Assembly and the King have never proclaimed a state of emergency and have not taken advantage of the situation to adopt new measures that would contravene the provisions of the Covenant. The Law on the Outlawing of the Democratic Kampuchea Group, which was adopted by the National Assembly on 7 July 1994, expressly prohibits any violation of civil rights.
Paragraph 3
96. To date, it has not been necessary to apply article 4 of the Covenant. Although the Constitution does not make express provision for the implementation of article 4, by the same token it contains nothing that would prevent its application. In any event, the Secretary-General of the United Nations would be informed of the proclamation of a state of emergency.
Article 5
Exercise of rights under the Covenant
Paragraph 1
97. The Cambodian Government has never interpreted the Covenant in such a way as to violate the rights and freedoms embodied therein, nor has it applied its provisions in a more restrictive or rigid fashion than that laid down by the Covenant itself. Article 31 of the Constitution states that the Kingdom of Cambodia recognizes and respects human rights as defined in the Charter of the United Nations, the Universal Declaration of Human Rights, and the covenants and conventions relating to human rights. Thus, no law or regulation must conflict with the provisions of the Covenant.
98. All laws and regulations must be submitted to the Constitutional Council for examination of their constitutionality prior to their promulgation (art. 121). Even if a law has already entered into force, the Constitutional Council may always exercise its supervisory role and rule on its constitutionality (art. 122). Any provision that is ruled unconstitutional will not be promulgated or implemented (art. 123)
99. At the present time, in view of the fact that the Constitutional Council has not yet been established, the constitutionality of all existing laws passed by the National Assembly has still to be examined by the Council.
Paragraph 2
100. There are no restrictions or limitations on the fundamental rights recognized by the Cambodian Constitution, even when those rights are not mentioned in the Covenant. For example, article 47, paragraph 2, of the Constitution stipulates that children have the duty to feed and care for their elderly parents in accordance with Cambodian traditions.
101. The Law on the Outlawing of the Democratic Kampuchea Group, which was passed by the National Assembly on 7 July 1994, is a special law which satisfies the popular desire for peace and for an end to genocide. It applies only to a group of Cambodians who are resisting the popular will (art. 2 of the Law) and contains no provision harming or restricting citizens' rights and freedoms (art. 9). Furthermore, it has not exceeded the limitations allowed by the Covenant. It is in keeping with the circumstances and the situation in Cambodia.
Article 6
Right to life
Paragraph 1
102. The right to life set forth in article 6, paragraph 1, of the Covenant is embodied in article 32 of the Constitution, which states that "every person shall have the right to life, liberty and security of person". This provision concerning the "right to life" applies to all persons without distinction. The Kingdom of Cambodia therefore guarantees and protects the right to life of all persons in its territory.
103. The death penalty has been abolished, a fact which demonstrates that Cambodia considers the right to life to be a basic right of every human being.
104. Cambodia believes that war is one of the major causes of the destruction of human life. In order to protect the lives of its citizens and spare them the devastation of war, the Royal Government has twice agreed to participate in round-table conferences with the Khmer Rouge, requesting them in the meantime to declare a ceasefire in order to settle the domestic situation and re-establish peace. But these efforts have not produced any satisfactory results. In its relations with foreign States, Cambodia has adopted a policy of permanent neutrality, non-alignment and settlement of conflicts by peaceful means (art. 53 of the Constitution).
105. The Democratic Kampuchea group has failed to abide by the Paris Agreements of 23 October 1991 and is continuing to wage a relentless war of devastation and to massacre innocent civilians. The Royal Government has made every effort to prevent acts of aggression by the insurgents and to safeguard and protect the lives of civilians. The National Assembly passed a Law on the Outlawing of the Democratic Kampuchea Group with a view to ending the war and punishing the insurgents who continue to commit crimes against the population.
106. To protect life, Cambodia has prohibited the manufacture, use and stockpiling of modern weapons of mass destruction (art. 54 of the Constitution).
107. Cambodian people are currently being killed, wounded and maimed by landmines. These are dangerous weapons which threaten human life indiscriminately. The number of landmines in Cambodian territory is estimated at between 8 and 10 million, according to the Royal Government's statement of 15 March 1995. As of 1994, approximately 40,000 people had been killed or maimed. Landmines claim a further 300 victims every month. The number of deaths is about the same as the number of injured (statement by Engineer Mouly, Director of the Cambodian Mine Action Centre (CMAC)).
108. Apart from the cost in terms of human lives, landmines in Cambodia inhibit current and future economic development. The Royal Government has set up a demining centre to deal with this problem. On 1 November 1993 the King signed a
kret
(decree) appointing the Chairman of the CMAC governing board. Another
kret
of 25 February 1995 established the Centre itself. Between the end of 1992 and the end of 1994, the centre was instrumental in clearing 32,923 anti-personnel mines, 209 anti-tank mines, and 251,292 unexploded munitions (CMAC report, October 1994).
109. The Royal Government issued a statement outlining its position on the landmine issue (see annex) at the meeting of government experts to prepare the Review Conference of the States Parties to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, with special emphasis on landmines, which was held in Geneva from 8 to 19 August 1994. An NGO conference on banning landmines was held in Phnom Phen on 3-4 June 1995.
110. The Ministry of National Defence has ordered Cambodian military personnel to discontinue the use of landmines in the war against the Khmer Rouge insurgents. The Government is currently drafting a bill prohibiting the manufacture, use, stockpiling and importation of mines into Cambodian territory.
111. Cambodia regards the right to life as a supreme right that guarantees every individual the hope of developing harmoniously, prosperously and healthily from cradle to grave. Article 38 of the Constitution makes provision for the protection of the life, honour and dignity of citizens. Article 53 states that Cambodia follows a policy of peaceful coexistence with its neighbours and with all other countries throughout the world. Articles 72, 73 and 74 require the State to protect public health, paying particular attention to the needs of poor citizens, women, children and the disabled.
112. The methods and measures which have been adopted in the economic, social and cultural fields are covered in detail in the report on economic, social and cultural rights which will be submitted at a later date. The current life expectancy of the Cambodian population is below 50 years.
113. Despite numerous guarantees designed to make life more secure, it is impossible to eliminate infant mortality entirely. With regard to abortion as a violation of the right to life, the Royal Government is drafting a bill which stipulates the circumstances in which abortions may be performed and the power of the hospitals in this matter.
114. A person who has committed crimes that violate the right to life, or who disseminates propaganda and engages in subversion designed to provoke war, is liable to incur penalties as stipulated by the provisions of criminal law and criminal procedure applicable in Cambodia during the transitional period (articles 31, 32, 40, 53, 54 and 67).
115. Following the Paris Agreements, the uncontrolled use of weapons posed a threat to human life. In order to eliminate this problem, the Royal Government has specified those persons entitled to possess and use firearms, including rifles, and explosives in order to maintain public order and ensure their personal safety in the performance of their duties; such persons include police officers, personnel of the armed forces, and certain officials and civilians (letter No. 088 of 3 September 1993 issued by the Ministry of the Interior and Security).
116. Any person who illegally possesses or transports firearms, explosives, or any weapon of war, will be punished according to the law (art. 54 of the Transitional Criminal Law). Two kinds of licences may be obtained: a licence to possess and carry a weapon, and a licence to possess a weapon but not to carry it. The latter permits the bearer to keep a weapon in his house but not to take it outside.
117. Victims of acts endangering their lives may claim damages proportionate to the harm suffered (art. 39 of the Constitution, art. 9 of the 1993 Criminal Procedure Law and art. 27 of the Transitional Criminal Law).
118. The Royal Government is proceeding to confiscate weapons from all persons who do not hold a licence. An appeal has been launched to persuade people to apply for licences to possess and carry weapons; stop and search procedures have been instituted, and searches of domestic premises have been conducted; persons possessing and using weapons without a licence have been brought to trial. However, none of these measures has proved entirely satisfactory. Large numbers of people continue to evade the crackdown and use their weapons illegally.
119. No person may be unlawfully detained in Cambodia (art. 38 of the Constitution, art. 12 of the Transitional Criminal Law), and the Royal Government intends to take measures to eliminate arbitrary imprisonment (see paras. 152-168 concerning art. 9 of the Covenant).
120. Notwithstanding protection measures, the right to life is still under threat. For example, 17 soldiers of the Khmer People's National Liberation Front (KPNLF) were murdered by the Khmer Rouge on 23 September 1993 at Pursat. In April 1994, 18 of the Royal Government's police officers were intercepted by the Khmer Rouge while in transit from Battambang to Pailin. They have not been heard from since. It is presumed that they were murdered by the Khmer Rouge. In October 1994, the Khmer Rouge murdered 50 inhabitants of Battambang. On 17 November 1994, the Khmer Rouge abducted 71 civilians, including seven women, in Bavel district, Battambang Province, while they were cutting bamboo in the forest. Armed gangs have also threatened judges (see para. 205 below for further details). On 8 December 1994, a journalist was murdered at Kampong Cham, and there has been a spate of robberies in which victims have subsequently been murdered.
121. The Royal Government has launched an in-depth investigation into these crimes, but with little result because, on the one hand, the perpetrators are protected members of the armed forces who do not hesitate to resort to violence to prevent investigations and, on the other hand, because Cambodian investigators lack experience. On one occasion, soldiers surrounded the residence of the public prosecutor and the courthouse in an attempt to kill both him and the judges. Another incident in Battambang involved a group of soldiers commanded by a general who surrounded the prison and fired on the warders in a bid to free the inmates. Police officers and an examining magistrate in Kampong Cham failed to arrest the suspected murderer of an individual on the staff of the newspaper
Koh Santepheap
(Island of Peace).
Paragraphs 2, 4, 5 and 6
122. The death penalty has been abolished in Cambodia (art. 32, para. 2, of the 1993 Constitution).
123. Since 1993 Cambodian courts have not passed a death sentence, even on individuals who have committed the most heinous crimes. The maximum sentence that the law allows is 20 years' imprisonment (art. 31 of the Transitional Criminal Law).
Paragraph 3
124. Cambodia abides by the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, to which it acceded on 14 August 1950.
Article 7
Prohibition of torture and cruel, inhuman or degrading treatment or punishment
125. Cambodia is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
126. The Cambodian Constitution prohibits physical abuse (art. 38). The provisions relating to the judicial system, criminal law and criminal procedure applicable in Cambodia during the transitional period clearly state that detainees must be protected against torture and cruel, inhuman or degrading treatment (art. 12).
127. The Ministry of Justice has instructed the public prosecutors attached to provincial or municipal courts to visit detention centres and prisons twice a month (or at least once a month when they have a heavy workload). Public officials, police officers and military personnel who physically abuse individuals are liable to a penalty of five years' imprisonment (art. 57 of the Transitional Criminal Law).
128. Confessions obtained from detainees by torture or physical or mental duress do not constitute evidence of guilt (art. 38 of the Constitution). Some defendants have retracted their confessions at trial, explaining that they had confessed only because the police had threatened to torture them. Even if the public prosecutor can find no evidence to support this claim, he is under no obligation to believe the confessions obtained by the police. In certain cases, the Phnom Penh court has rejected a confession made to the police in the interests of securing justice for the victim. In accordance with article 38 of the Constitution, the draft new criminal law stipulates that any confession obtained under duress, whether physical or mental, is inadmissible as evidence.
129. In the case of physical abuse or improper application of the law by State bodies, social organizations or their employees, aggrieved persons may lodge a complaint with courts at all levels: courts of first instance, the Court of Appeal and the Supreme Court (arts. 2 and 5 of the Criminal Procedure Law).
130. Victims may claim compensation for wrongs and damages from persons who commit or participate or conspire in wrongful acts (art. 39 of the Constitution and art. 27 of the Transitional Criminal Law).
131. In order to safeguard the lives, honour and dignity of the people, article 38, paragraphs 3 and 4, of the Constitution stipulates that the investigation, arrest, custody and detention of any person must proceed in accordance with the law. Coercion, physical abuse or any other mistreatment that imposes additional punishment on a detainee or prisoner is prohibited. Persons who commit or participate or conspire in such acts will be punished in accordance with the law. The Transitional Criminal Law (art. 57), Decree-Law No. 27 and the Criminal Procedure Law lay down the penalties for such violations.
132. The Royal Government has prohibited all forms of secret detention. All persons in detention or custody whose names do not appear in the prison register are regarded as being arbitrarily detained and must be released immediately on the orders of the public prosecutor (art. 16 of the Transitional Criminal Law). Any person who resorts to arbitrary imprisonment "without the warrant of the court" is liable to punishment (art. 35 of the Transitional Criminal Law).
133. In order to avoid any case of arbitrary detention which could give rise to torture, officers of the criminal investigation service must bring accused persons before the competent magistrates within 48 hours at most (arts. 38-47 of the Criminal Procedure Law and art. 13, para. 1, of the Transitional Criminal Law).
134. The location and designation of places of custody and prisons in Cambodia are officially determined. Every place of custody and every prison keeps a register of the names, ages and addresses of the persons detained therein, in addition to the date of and reason for their arrest. In the case of detained persons, the register also indicates the date on which they were brought before a magistrate; in the case of convicted persons, it includes the date of conviction and the nature of the sentence (art. 8 of the Transitional Criminal Law).
135. When the procedure has been violated, a defendant is entitled to request the judge, either directly or through his counsel, to order his release. The judge is obliged to reply by way of a reasoned decision within five days (art. 14). If the error constitutes a serious breach of the right of defence, the defendant must be released immediately (art. 22 of the Transitional Criminal Law).
136. The public prosecutor, the judge, a doctor and counsel for the defence are all authorized to visit places of detention and to inspect conditions of detention at any time (art. 9 of the Transitional Criminal Law). Some doctors have been designated by the Ministry of Health to check the medical condition of detained or imprisoned persons twice a week.
137. In 1995 there were few cases of physical abuse during interrogations. The royal prosecutors attached to provincial and municipal courts monitor such abuse closely. As of 1996, the Ministry of Justice decided to assume responsibility for the administration of detention centres and prisons. A draft decree-law on this matter has been submitted for the approval of the Council of Ministers.
138. In 1994 it was reported that there was a secret prison at Vat Chhoeu Khmao in Battambang province, where people had been arrested, detained, tortured and killed. Upon receiving this information, the Royal Government ordered an urgent inquiry. On 10 June 1994 the military prosecutor visited the site and confirmed the existence of the secret prison and cases of arbitrary detention at Chhoeu Khmao and Vat Paccha (report No. 229/94 of the Military Prosecutor's Office, dated 11 July 1994).
139. The Ministry of National Defence ordered the Chief of the General Staff to close down the two detention centres and requested the prosecutor of the military court to prepare an indictment against the individuals concerned. At the same time, the Government set up an inter-ministerial commission of inquiry. Following successive inquiries, the commission found that there was no longer any trace of the prison and no further cases of illegal custody had been reported.
140. On 5 February 1995 in Battambang, two inhabitants of Maung Russey were arrested and shot dead by military personnel who had accused them of belonging to the Khmer Rouge. The examining magistrate ordered warrants to be issued for the detention of two suspects, a police officer and a member of the armed forces. However, the two suspects were released shortly afterwards when a dismissal order was issued in their favour on the basis of lack of evidence. On 15 August 1995 the Battambang court handed down a default judgement convicting three fugitives of the crime of homicide.
141. In order to make the prohibition of torture and other barbaric acts more effective, the Ministry of Justice, the Ministry of the Interior and the Ministry of Health issued a joint order on 7 July 1993 prohibiting the use of handcuffs and chains in all detention centres and prisons in Cambodia.
142. The Royal Government, in cooperation with the United Nations Centre for Human Rights, is continuing to organize human rights training for police officers, military personnel, judges, prosecutors and administrative staff of prisons and detention centres. In addition, a number of NGOs have participated in the organization of similar courses for Cambodian citizens in rural and urban areas.
143. The Royal Government has improved conditions in prisons and detention centres, eliminating the dark cells. Relatives, friends, the prosecutor, the accused's lawyer or defender, and a doctor may visit prisoners and inspect prisons and detention centres.
144. Prisoners are entitled to lodge complaints or accusations against any official who carries out acts of torture on their person. Those responsible will be punished in accordance with article 57 of the Transitional Criminal Law and victims have the right to claim damages in accordance with article 5 of the Criminal Procedure Law.
145. No person in Cambodia is subjected to medical or scientific experimentation without his consent.
Article 8
Prohibition of slavery, the slave trade and institutions and
practices similar to slavery
Paragraph 1
146. The Kingdom of Cambodia acceded to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery on 12 June 1957. In line with this Convention, the Cambodian Constitution recognizes and respects the rights of every individual regardless of race, colour, sex, language or religious belief, and prohibits all forms of physical abuse and violations of human honour and dignity (arts. 31 and 38, paras. 1-4).
147. Anyone who violates the provisions listed above is punishable by law. Slavery was definitively abolished in Cambodia in 1955. However, during the Democratic Kampuchea regime from 1975, citizens were enslaved, forced to transport weapons and munitions and made to perform many and various forms of hard labour.
Paragraph 2
148. Under articles 45, 46 and 48 of the Cambodian Constitution, no one may be held in servitude or be subjected to any form of exploitation. The exploitation of women through their work or by means of prostitution, and the exploitation of child labour and the labour of other persons is prohibited.
149. The Transitional Criminal Law also imposes a heavy penalty on anyone who has procured or abducted a minor for the purposes of prostitution or has exploited the use of children in prostitution, even with their consent (art. 42).
150. Notwithstanding this legal interdiction, increasing numbers of women have been abducted for the purposes of trafficking and underground prostitution. In 1994 an unregistered company procured 11 Cambodians and subsequently sold them in Malaysia, either for domestic service or for prostitution. On 16 January 1996, the National Assembly passed a law on the procurement of persons for sale or prostitution, which prescribes a penalty of between 5 and 15 years' imprisonment for persons who commit such a crime. If the victim is a minor under 15 years of age, the sentence increases to 20 years.
Paragraph 3
151. Cambodia ratified the International Labour Organization (ILO) Convention concerning the Abolition of Forced Labour on 24 February 1969 and a detailed report on the implementation of that Convention is being prepared by the Ministry for Social Welfare. This report will be submitted to ILO in the near future. In accordance with article 8, paragraph 3, of the Covenant, the Constitution stipulates that Cambodian citizens of either sex shall have the right to choose any profession according to their ability and the needs of society (art. 36). Labour law prohibits the employment of children. Owing to poverty, however, a number of families have urged their children to start earning a living at a very early age.
Article 9
Liberty and security of person
Paragraph 1
152. Although the Constitution guarantees and provides solely for the protection of the rights and freedoms of Cambodian citizens, in practice the relevant State organs and especially the courts respect the rights and freedoms of all persons in Cambodian territory. The individual's right to liberty and security of person is protected and guaranteed by article 32 of the 1993 Constitution, which states that "every person shall have the right to life, liberty and security of person. No one may be arrested or detained arbitrarily". This right is guaranteed by the Transitional Criminal Law.
153. Article 12 of the Transitional Criminal Law lays down the conditions governing arrest and detention in accordance with the principles established by the United Nations. Article 13 stipulates that detention must be sought by the prosecutor and ordered by a judge after a period of 48 hours. Article 15 states that the administrative police are not entitled to detain individuals, and there is no authorization for arresting individuals in connection with offences not provided for by law. Article 19 specifies the conditions for the arrest of suspects. Article 22 states that, where an arrest has been made in breach of the proper procedure, the individual concerned must be released.
154. The Criminal Procedure Law stipulates that a suspect may be arrested only on the basis of an arrest or detention warrant (art. 35); officers of the criminal investigation service have the right to arrest individuals thought to be guilty of an offence (art. 47); officers of the criminal investigation service do not have the right to decide that the file concerning a criminal case should be closed (art. 48).
155. The law protects and safeguards rights in accordance with the provisions of article 9, paragraph 1, of the Covenant, but in practice law-enforcement officials do commit violations, such as arresting suspects without a warrant issued by the prosecutor or the examining magistrate, and detaining suspects for longer than the six-month period established by law. In March 1994, for example, the police arrested a clerk in Kratie without the authority or warrant of the court; in Svay Rieng, in December 1994, the provincial governor ordered the release of a gendarme who had been arrested following the issuance of a judicial warrant; at Siemreap in March 1995 a parliamentary deputy and the deputy provincial governor ordered the release of a suspect who had been arrested following the issuance of a judicial warrant.
156. The most serious infringements of personal liberty and security are committed by the armed forces of the Khmer Rouge, who rob, plunder and murder innocent civilians and destroy their homes and possessions. People who live in areas under Khmer Rouge control lack the means to protect their personal liberty and security. The only law known to the Khmer Rouge is the gun. Those who are thought to be guilty are shot dead without any form of trial.
157. Abuses of the provisions of article 9, paragraph 1, of the Covenant are inevitable considering the wide range of problems which the country faces. Nevertheless, the Royal Government has not remained inactive. It is endeavouring to take appropriate measures to ensure that the provisions of the Covenant are gradually implemented under better conditions.
158. The Royal Government is currently taking the following measures. The Ministry of Justice is drafting a new Criminal Code and Code of Criminal Procedure, both of which will provide for the elimination of all forms of arbitrary detention; pursuant to a proposal put forward by the Ministry of Justice, the Royal Government has authorized judicial proceedings to be instituted against officials of all ranks for abuses of power and breaches of the law (letter 351 of 6 March 1995).
159. With reference to the Law on the Outlawing of the Democratic Kampuchea Group, any member of the Khmer Rouge who is arrested or gives himself up after the specified grace period, and who committed a crime prior to the date of his arrest or surrender, must be punished under the criminal law in force.
Paragraph 2
160. Respect for the right of liberty and security of person is demonstrated by the fact that, since 1994, anyone placed under arrest is to be informed immediately of the charges against him and his rights, in particular his right to have a lawyer present. In 1994-1995, the Ministry of Justice trained 33 lawyers, in addition to the 70 defenders already practising. Another training course for 45 new lawyers began in February 1996. Since 1995 there have been fewer cases of persons being arrested or detained without approval from the prosecutor or the examining magistrate.
Paragraph 3
161. Anyone held in police custody or arrested in connection with an offence must be brought before the prosecutor or examining magistrate within 48 hours. Upon a referral from the prosecutor, the examining magistrate may either remand the person in custody or release him on bail (art. 13 of the Transitional Criminal Law), and in either case he must cite the reasons for his decision. Anyone charged with an offence who has been arrested or detained must be tried within six months therefrom (art. 21 of the Transitional Criminal Law).
162. The detainee may, either through his counsel or personally, request that he be released on bail pending trial. The judge must rule on the matter within five days (art. 14 of the Transitional Criminal Law). The judge must cite the reasons for his decision either to refuse or to grant conditional or unconditional release on bail. Regarding the payment of bail to secure release pending trial, article 65 of the Criminal Procedure Law states that "if the judge believes that the detainee may be released with or without the payment of bail, he shall decide this matter before considering the substance of the case. He shall act in the same way if the detainee makes a specific request to be released on bail".
163. The three principles referred to above are enforceable throughout Cambodia. In practice, however, the following shortcomings are to be noted:
(a) Generally speaking, the principle that every detainee must be brought before the prosecutor within 48 hours is observed. In certain areas, however, this time limit is not rigorously adhered to by the police, who still deliberately keep accused persons in detention for more than 48 hours in order to pursue their inquiries before referring the case file and the detainee to the prosecutor;
(b) The obligation to try a person without undue delay, i.e. within six months of the date of arrest, is likewise observed. In practice, however, some remand prisoners are detained for longer than six months without trial. Statistics show that in November 1994 the Ministry of Justice identified 85 such cases out of a total of 670 persons charged. These shortcomings may be attributed to various causes: the increase in the case load, staff shortages, a lack of qualified members of the judiciary, and limited resources. The inquiries and investigations carried out by duly empowered officers are not yet at a very advanced level, preventing them from keeping within the time limits. Lack of funds and modern investigative tools are additional problems;
(c) Release on bail pending trial raises serious practical problems because it is by no means certain that defendants will appear for trial, and having to rearrest them would pose even greater problems.
164. One of the measures instituted by the Royal Government is the monthly visit to prisons by representatives of the Ministry of Justice. When these representatives uncover cases of detention exceeding six months, they request the court to be convened urgently to try them. The extent of the problem caused by failure to observe the time limit for pre-trial detention has greatly diminished. For example, in Phnom Penh in August 1994, 41 out of a total of 216 defendants were held in detention for longer than six months; by November 1994, that figure had fallen to just 13. The Ministry of Justice is currently training 42 additional judges for provincial and municipal courts.
Paragraph 4
165. There is no provision in Cambodian legal procedure which specifically states that persons in custody or under arrest have the right to request a court to examine and rule on the lawfulness of their detention. Article 14, paragraph 2, of the Transitional Criminal Law merely provides that "the accused has the right to ask the judge, either directly or through his counsel, to release him. The judge must respond within five days in the form of a reasoned order".
166. When the police arrest a suspect and bring him before the prosecutor immediately, the latter must order the detainee's immediate release if the charges and evidence lack substance. The release of defendants or suspects often creates friction between the police and the courts. The police criticize the courts for deliberately releasing individuals whom they have made every effort to arrest. This disaffection is the result of a limited understanding of legal matters and poor relations between the two institutions.
Paragraph 5
167. Under the Transitional Criminal Law, victims of arbitrary arrest or detention are entitled to seek compensation by bringing criminal indemnification proceedings (art. 35). At present, however, most victims are unfamiliar with the law and are simply glad to be released. As a result, they do not seek compensation.
168. The Ministry of Justice has drafted a criminal procedure bill which includes the right of victims of abuses to claim damages.
Article 10
Humane treatment of detainees
Paragraph 1
169. Articles 31 and 38 of the Constitution recognize and ensure respect for human rights and guarantee the physical integrity of the individual and the life, honour and dignity of every detainee or prisoner, who must not suffer any act of torture or inhuman treatment.
170. In accordance with article 38, paragraphs 1-4, of the Constitution, detainees and prisoners have the right to be treated decently and humanely. Their human dignity is accorded the same recognition as anyone else's. Paragraph 4 of this article stipulates that any coercion, physical abuse or other treatment that imposes additional punishment on a detainee is strictly prohibited. Persons who commit or participate or conspire in such acts are to be punished according to the law. Article 9, paragraph 1, of the Transitional Criminal Law states that the prosecutor or the judge may visit detention centres and detainees at any time. Article 12, paragraph 1, of the Transitional Criminal Law provides that no detainee is to be subjected to cruel, inhuman or degrading treatment, nor is he to be beaten or tortured. All detainees must have access to appropriate medical care. Prisoners are not to be restrained using handcuffs or irons, nor must they be kept in solitary confinement in dark cells, either on remand or following conviction. Family members of detainees or prisoners are not to be threatened in any way on account of acts committed by the detainee or prisoner.
171. With regard to the custody of detainees, the Ministry of Justice, the Ministry of the Interior and Security and the Ministry of Health issued a joint order on 7 July 1993 prohibiting the use of shackles and chains on detainees and placing all detention centres under their supervision. Detention centres and prisons are supervised by these three ministries.
172. Pursuant to the joint order, the Ministry of Justice has addressed an official directive (No. 509 dated 13 September 1993) to all provincial and municipal prosecutors requesting them to visit detention centres at least twice a month to check on the legality of conditions of detention, in accordance with the provisions of articles 9 and 12 of the Transitional Criminal Law. For its part, the Ministry of Health has urged all hospital administrators to cooperate closely with local authorities to monitor the health of detainees (letter No. 816 dated 3 May 1994). Medical officers make visits to detention centres twice a week, but they lack the medicines to treat patients. The Ministry of the Interior has requested all provincial and municipal police commissioners to cooperate with hospitals in taking care of detainees (letter No. 653 dated 4 August 1993).
173. The Royal Government has set the daily food allowance at a rate of 1,000 riels per detainee (sub-decree No. 9 dated 15 November 1993). This sum corresponds to the salary of middle-ranking State officials.
174. Detainees also have the right to send out one letter a month and to receive a visit from family members once every two months. This period may be shortened depending on the extent of the detainee's rehabilitation (arts. 23-25 of the 1983 internal regulations for rehabilitation centres under the Ministry of the Interior of the People's Republic of Kampuchea). Medical officers and lawyers may also be authorized to make prison visits.
175. There are currently 24 prisons and detention centres in Cambodia. At the end of 1994, there were 803 convicted prisoners, including 15 women, and 670 unconvicted detainees, including 12 women.
176. The dark cells were abolished after the 1993 elections, but the buildings containing them have not yet been demolished because of the risk to adjoining structures, which are in an advanced state of disrepair. Whatever the severity of their punishment and the nature of their crime, convicted prisoners must not be kept in solitary confinement. The use of shackles and chains has been prohibited by the joint order, but such instruments continue to be applied to recalcitrant and dangerous prisoners in order to keep the peace in prisons.
177. Changes have taken place since the establishment of the interim Government in 1993. However, the situation is still unsatisfactory and international standards are not always adhered to. Circumstances vary from one place to another. All Cambodian penal institutions are dilapidated and the level of training and responsibility of prison officials vary widely.
178. Problems persist in all areas relating to the living conditions of detainees and prisoners because Cambodia is currently facing considerable economic and financial hardship. For example, Cambodian prisons date from the colonial period and their dilapidated state does not meet current requirements. Moreover, the staff responsible for penal institutions lack in-depth training in human rights matters. The Royal Government has nevertheless made an effort to rectify these problems gradually: the detention centre at the criminal investigation service in Phnom Penh has already been renovated and excess detainees have been transferred; the Cambodia Office of the United Nations Centre for Human Rights has organized a seminar for prison administrators which was also attended by prosecutors; the organization Médecins du Monde and the Cambodian League for the Promotion and Defence of Human Rights have provided doctors and medicines to treat sick detainees.
Paragraph 2
179. Article 38, paragraph 7, of the Constitution states that "every accused person shall be considered innocent until finally convicted by the court". Article 25 of the Transitional Criminal Law sets forth the same principle of the presumption of innocence. Article 8, paragraph 1, of the same Law furthermore states that "the purpose of the prison system is social rehabilitation. All prisoners shall be treated in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners". Thus, in principle, prisoners awaiting trial are segregated from convicted persons and are accorded different treatment appropriate to their status as unconvicted persons.
180. The segregation of untried and convicted prisoners is not yet a reality in Cambodia owing to the shortage of space. The criminal investigation service in Phnom Penh does have a pre-trial detention facility for remand prisoners. However, since its capacity is limited, some remand prisoners are held in other premises intended for convicted persons. Provincial police stations do not have pre-trial detention facilities; remand prisoners are held at the provincial prison, but they are separated from convicted prisoners.
181. Because they are kept in the same prison as convicted prisoners, untried detainees are subject to the same arrangements in respect of administration, food and visits as convicted prisoners. They must submit to the same discipline. However, they have the right to wear their own clothes, to be sent food from outside and to receive visits more frequently than convicted prisoners.
182. In the immediate future, the Royal Government is unable to ensure the effective implementation of the principle of segregating convicted and untried prisoners because the country is experiencing serious economic and financial problems. However, it reiterates its request to international organizations to provide assistance in the matter of prisons with a view to resolving the country's problems. At the Ministerial Conference on the Rehabilitation and Reconstruction of Cambodia held in Paris, the Ministry of Justice requested help in renovating eight penal institutions to ensure that they meet required standards.
183. Although untried and convicted prisoners may be held in one and the same prison, they are segregated according to the nature of the offence they have committed or the charges against them, and also according to sex. Female detainees are guarded by female personnel. But in some penal institutions, such as T3 prison in Phnom Penh, there are no female prison officers.
184. According to article 14, paragraph 5, of the Transitional Criminal Law, juveniles under the age of 13 years may not be remanded in custody. Juveniles between the age of 13 and 18 years may not be remanded in custody for more than two months. This period may be extended to four months if they are accused of a serious offence. Young prisoners must be segregated from adults and must undergo personal rehabilitation in a special institution. At the end of 1994 there were 28 juvenile inmates. The Royal Government has authorized the establishment of a rehabilitation centre for juveniles under the age of 18 (sub-decree No. 17 dated 18 April 1994).
Paragraph 3
185. Despite the lack of a law or standard for the segregation of categories of prisoners, in practice the Cambodian Government has acted on the basis of paragraph 8 of the United Nations Standard Minimum Rules for the Treatment of Prisoners and the internal regulations of prisons and detention centres issued in 1983 by the Ministry of the Interior, with a view to facilitating the administration and rehabilitation of all categories of prisoners.
186. Convicted and untried prisoners are permitted to read newspapers, books and magazines, and to practise their religious faith. This also contributes to the improvement of their mental state (art. 5 of the internal regulations for rehabilitation centres). In addition, prison officials have organized workshops for untried and convicted prisoners, according to the category involved, in order to teach them how to live in a law-abiding manner. Untried prisoners also take part in workshops designed to elicit criticism and self-criticism of their personal conduct and to encourage respect for the internal regulations of the prison. These workshops are themselves a kind of education, enabling prisoners to adapt to the discipline of the law (art. 17 of the internal regulations for rehabilitation centres).
187. The Ministry of the Interior has also prepared a draft order on prison administration in conformity with international standards.
Article 11
Prohibition against imprisonment for failure
to fulfil a contractual obligation
188. Article 11 of the Covenant provides that "no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation". This means that no one may be imprisoned for debt. Failure to pay a debt may be due to the debtor's insolvency and poverty. However, the 1992 Law on the procedure for execution of civil judgements does authorize imprisonment for debt in cases where the debtor is solvent but persists in refusing to repay the debt (arts. 125-128, 131-133, 136-137 and 139).
189. However, the Law makes exceptions for everyone meeting the conditions established in article 132: "The court shall not order civil imprisonment against the following:
Minors under 18;
Men over 70 and women over 65;
Disabled people;
Pregnant women and women with children under three;
Guarantors;
The debtor's relatives through the fourth generation;
Debtors owing less than 100,000 riels;
The debtor's heirs";
and authorizes the debtor's release in cases of serious illness (art. 134), at the creditor's request (art. 135) or in cases of failure to pay an allowance (art. 141): "If the creditor fails to pay maintenance, the debtor shall be released on the day following the expiry of the time-limit set for that purpose."
190. Generally speaking, this law is not applied to insolvent and impoverished debtors. In keeping with the country's situation, it is applied only to delinquent debtors. It should be noted that imprisonment for debt does not appear in the draft new Code of Civil Procedure.
Article 12
Liberty of movement and freedom to choose one's residence
Paragraph 1
191. The Kingdom of Cambodia strictly enforces article 12 of the Covenant, in that Cambodian citizens and foreigners lawfully resident in Cambodia have the right to liberty of movement and freedom to choose their place of residence within the country (Constitution, art. 40). Cambodians are forbidden to travel to or settle in certain outlying areas because of insecurity owing to the Khmer Rouge and minefields. The east and north of the country are the regions primarily affected.
192. In the 1980s movement was strictly controlled because of infiltration by the Khmer Rouge. People are now free to travel or change residence. However, some groups of dishonest individuals have set up illegal checkpoints in an attempt to extort money from travellers on the pretext of ensuring road safety. After the elections, the Royal Government had ordered the elimination of all such checkpoints. But groups of armed individuals who demand money from vehicles transporting passengers and goods still exist. Despite its efforts, the Royal Government faces serious difficulties in combating such practices; it is in the process of reorganizing the military structure to strengthen discipline within the armed forces.
Paragraph 2
193. Pursuant to article 12, paragraph 2, of the Covenant, Cambodian citizens may settle abroad or return to their own country (Constitution, art. 40, para. 2). The exit visa for leaving Cambodia was eliminated for Cambodian citizens in 1992. The Ministry of the Interior is competent to issue standard passports to citizens. The Ministry for Foreign Affairs and International Cooperation is competent to issue duty passports to civil servants. Foreigners are entitled to leave Cambodia freely. An application to reside in Cambodia must meet the requirements of articles 6 and 23 of the Immigration Law.
194. Any foreigner involved in an offence who has not been tried is not authorized to leave Cambodia; an example was the case of three foreigners charged with drug trafficking, who were arrested and detained by the competent authorities on 4 January 1995. On 31 July 1995, the court at Phnom Penh sentenced the three drug traffickers to 10 and 5 years' imprisonment.
Paragraph 3
195. Cambodian legislation provides for restrictions on freedom of movement. Such restrictions are necessary for national security, public order, health and the smooth functioning of society, or to protect the freedom of others, and in no case undermine the rights recognized by the Covenant.
196. The Immigration Law stipulates that non-immigrant foreigners may reside in Cambodia on three conditions: they must have authorization from the Royal Government of Cambodia, hold a passport or other equivalent document, and pay the entry visa tax (art. 8). In the absence of any of these conditions, foreigners are not authorized to enter Cambodia, unless there is a decision to the contrary by the Royal Government (art. 39, para. 1). In the event of a threat to national security, the competent authority may refuse entry into Cambodia even if the non-immigrant foreigner has met all the conditions established in article 8 (art. 9).
197. If necessary, the Minister of the Interior may prohibit entry or settlement in a certain region or exit therefrom (art. 17). This occurred in the region where the Khmer Rouge had taken hostage three foreigners, a Frenchman, an Englishman and an Australian, on 11 April 1994. The Royal Government had barred journalists' access to the area at the time.
198. Foreigners who are settling or have just settled in Cambodia must be cleared by the provincial or municipal police authority (Immigration Law, art. 22). With regard to foreigners applying to resume residence in Cambodia, the Royal Government authorizes only those in possession of papers proving that they lived in Cambodia under the former regime, i.e. before 1975. The Royal Government is currently looking into the question of foreigners who have lived in Cambodia since 1979 and who returned to Viet Nam out of fear of massacres by the Khmer Rouge: those in possession of papers proving that they lived in Cambodia before fleeing to Viet Nam will be given permission to return.
Paragraph 4
199. All Cambodian citizens residing abroad have the right to return to their country with no legal restrictions (Constitution, art. 40). They are not to be exiled from their country (art. 33).
Article 13
Right of aliens not to be unlawfully expelled
200. Any alien who violates the provisions of the Immigration Law may be expelled from the Kingdom of Cambodia pursuant to a decision by the Minister of the Interior (Immigration Law, art. 35). The following are grounds for expulsion:
(a) Behaviour and activities that undermine the national security of the Kingdom of Cambodia (art. 36).
(b) A clear and reliably attested attempt to undermine the security of the Kingdom of Cambodia (art. 36).
(c) Non-possesion of a work permit (art. 36).
(d) Illegal entry into Cambodia (no entry visa) (art. 37).
Aliens who have applied for political asylum are not expelled from Cambodia, in accordance with international agreements.
201. According to law, the expulsion of aliens may be ordered only by the Minister of the Interior (art. 35). The expulsion must take place no more than seven days after the Minister's decision, except in cases where the court has ordered a stay of execution (art. 39). Aliens who have been the subject of expulsion measures in Cambodia have the right to seek a remedy before the court within a period of two months (art. 38). Mass expulsion measures are prohibited. The competent Cambodian ministers have expelled a number of aliens for violating Cambodian law, including nine Thais who posed a threat to the security of Cambodia in 1994. Arrangements are made with the embassy in question prior to expulsion.
Article 14
Equality before the law and right to a fair trial
Paragraph 1
(a)
Equality before the law
202. Equality before the law is the foundation of social justice in a democracy. The Constitution of the Kingdom of Cambodia guarantees the equality of all before the law:
All citizens are equal before the law (art. 31.2);
Everyone has the right to defend himself in a court of law
(art. 38.8);
All citizens have the right to report an offence, to lodge a complaint and to seek compensation for any injury sustained (art. 39).
203. Thus, the principle of the equality of all individuals before the law is guaranteed and protected by the Constitution. In practice, however, this principle is not yet properly applied. Many factors exist which weaken this principle.
204.
Problem of impunity
: Many detainees have been lawfully tried within the time-limit established by law (Transitional Criminal Law, art. 21.1). However, as indicated earlier, many others have been detained without trial beyond the six-month period. It has not been possible to arrest and try some suspects serving in the armed forces. For example, on 29 March 1994, one soldier from Battambang, supported by several others, attacked the prison in an attempt to obtain the release of persons imprisoned for drug trafficking; a general in Kratié ordered his deputy and two other subordinates to make threats against the prison to obtain the release of a prisoner.
205.
Judges' fears
: Judges are fearful, owing to threats against their own lives and those of members of their families. The following cases of intimidation of judges and threats against their lives have been reported. On 13 May 1994, members of the military attacked the home of the prosecutor at the Kampong Som court in an attempt to kill him. A few hours later they burst in on a court hearing. The judge, prosecutor and court clerk became frightened and fled. On 7 July 1994, members of the military entered the courthouse at Phnom Penh, seeking to intimidate the judges; on 7 July 1994, members of the military entered the courtroom of the Kandal tribunal in an attempt to intimidate the judges. Such events make judges fearful of carrying out their functions.
206. On 28 December 1995, an attempt to enforce a judgement by the civil court at Phnom Penh met for the third time with organized obstruction from a group of gendarmes armed with pistols, rifles and submachine guns. The Minister of Justice, determined to prevent the violation of the law, intervened to enable the court to enforce its judgement, which it succeeded in doing on 11 January 1995. In a violent incident which also took place on 28 December 1995, 200 members of the congregation and bonzes from a pagoda in the Kg. Tralach district, province of Kampot, armed with machetes, axes, clubs and diesel oil mixed with acid, ransacked the court building at Kampot, destroying the fence, front door, offices, chairs and other equipment, including 100 civil and criminal case files. The cause of the incident was the court's decision to restore to the pagoda a disputed piece of land on which the people were living, at the pagoda's request. The losing party appealed, but at the urging of the representative of the local authority, it did not wait for the verdict of the Court of Appeal. The Minister of Justice, with his usual determination, approached the Minister of the Interior to ensure that such events would not recur in any province or municipality, particularly Kampot. He also ordered the prosecutor at Kampot to open an urgent investigation into the case and bring to justice those responsible for the violent event in question.
207.
Corruption of judges
: Judges must dispense justice in accordance with the law, must not be influenced by personal feelings and must not receive benefits from the people they try. However, this cannot be fully guaranteed. Some judges, unable to bear the difficulties of their daily living conditions, accept bribes and take biased decisions, thus weakening the principle of equality before the law.
208.
Inequalities in legal defence
: The law guarantees every person charged with a criminal offence the right to defend himself. Article 38, paragraph 8 of the Constitution and article 10 of the Transitional Criminal Law guarantee the accused the right to legal assistance. Article 76 of the 1993 Criminal Procedure Law authorizes accused persons to defend themselves or to ask the court to assign them a defender. Despite this legal guarantee, it is not possible to ensure an equal defence to all, especially to accused persons who have no knowledge of the law or who are poor and cannot afford to pay someone to defend them. Even in cases where the accused do have defenders, the latter encounter problems in performing their duties as they are, occasionally or systematically, refused permission to meet their clients in prison. This jeopardizes the principle of equality before the law.
(b)
Fair and public hearing by a competent, independent and impartial tribunal established by law
209.
Independence of the judiciary
: According to the 1993 Constitution, the judicial branch is an independent branch of government in the Kingdom of Cambodia (art. 109.1). Neither the legislature nor the executive branch can exercise judicial power (art. 111). The independence of the judiciary is guaranteed by the King (art. 113.1). The Supreme Council of Justice is to assist the King in guaranteeing the independence of the judiciary (art. 113.2). The independence of judges is also guaranteed by article 1 of the Transitional Criminal Law, in conformity with the United Nations Basic Principles on the Independence of the Judiciary. The independence of the judiciary is guaranteed by law. However, practice has shown that, owing to interference and pressure from other branches, the courts are not fully independent.
Relationship between the Ministry of Justice and the courts
210. According to the law on the organization and functioning of the judicial bodies of the State of Cambodia, which is still in force, the Ministry of Justice has a very close relationship with the courts, which it is in charge of administering. Nevertheless, judges enjoy sufficient independence in taking their decisions, i.e. they do not have to ask the Ministry of Justice for its opinion before handing down a decision, and the Ministry of Justice does not interfere in judges' decisions.
211. Given that the Supreme Council of Justice has not yet been established, the trial courts, the Court of Appeal and the Supreme Court do not yet function well, because of the lack of competent staff and documents available for consultation. Some judges are obliged to seek the opinion of the Ministry of Justice on the interpretation of articles and the determination of offences; the Minister of Justice makes recommendations and issues guidelines to enable the judges to apply laws and procedures correctly. Such actions might weaken the independence of the judiciary to some extent, but under the present circumstances, in which judges are not sufficiently experienced, they need guidance in order to perform their work.
Relationship between the provincial authorities and the courts
212. Before 1992, the courts were completely subordinate to the provincial authorities from both the personal and the financial points of view. Since 1992, and more particularly since the Constitution's entry into force in September 1993, the judiciary has been an independent branch (art. 109). The courts are no longer under the administration of the provincial and municipal authorities. However, as the influence of the past has not yet been completely eliminated, the provincial and municipal authorities might weaken the independence of the judiciary to some extent.
Interference by other branches
213. Interference by other branches in the work of the courts most often takes the form of pressure, obstruction of proceedings and threats by those in power, particularly when they are members of the armed forces.
214.
Impartiality of the courts
: Articles 109.2 and 110.2 of the Constitution stipulate that the courts must render their decisions impartially and strictly according to the law. However, the courts' decisions depend on the independence of the judiciary and on equality before the law. As the independence of the judiciary and the equality of all before the law are not fully guaranteed, the impartiality of the courts also cannot be fully guaranteed.
215. The impartiality of the courts is furthermore linked to the rules governing the status of judges, by which all judges are guided in performing their duties. The Supreme Council of Justice is to decide on appointments, promotions and grades, transfers and disciplinary measures. However, despite the National Assembly's adoption of the Law on the Organization and Functioning of the Supreme Council of Justice on 22 December 1994, the Council is not yet operational. The Ministry of Justice is in the process of drawing up a report for the King in preparation for the convening of the Council's first meeting. In the interim, the Minister of Justice has made proposals to the King regarding the appointment of new judges from among candidates holding a law degree, as well as proposals concerning the transfer of prosecutors and judges from one court to another, at their request.
216.
Competence of judges
: From 17 April 1975 to 7 January 1979, under the Khmer Rouge regime, all judicial bodies were destroyed and nearly all the judges were killed. The Ministry of Justice managed to reincorporate only five surviving judges in early 1980. The judicial system was re-established in mid-1982 and a law on the organization and activities of the courts was enacted by the National Assembly on 10 February 1982. New judges were recruited by the Ministry of Justice, which establishes the rules governing their profession. Since then, the Ministry has organized short-term training courses to enable these new judges to acquire the necessary legal knowledge and basic practices, that is, to learn on the job. Because there is a lack of sufficiently qualified instructors, judges' training does not yet guarantee quality. The Ministry of Justice has also made its staff available to the courts for the training of judicial personnel. As a result of a number of successive training sessions judges have been able gradually to acquire knowledge and capacities. However, this is still not enough. In order to develop capacities and provide the courts with the remaining judges they require, the Ministry of Justice, with French assistance, trained 42 new judges in 1994 and 1995, and in the coming years intends to train other judges to be recruited from among candidates holding a law degree. An 18-month training programme for the provincial and municipal courts began, with American assistance, in May 1995. The Cambodia Office of the Centre for Human Rights also began its assistance programme for judges in the provinces in 1995.
217.
Establishment and competence of the courts
: All the courts currently operating in Cambodia, including military courts, were established in conformity with the 1993 Law on the Organization and Functioning of the Courts and with the Transitional Criminal Law. All the courts are therefore competent to render judgements in accordance with the law. The military court system is not competent to try ordinary offences, which means that accused persons are guaranteed the right to appear before a competent court. No special courts have been established to resolve special cases. All proceedings, including administrative cases, fall within the competence of the courts of the judicial system (Constitution, art. 109).
218.
Public hearings
: According to article 128 of the Criminal Procedure Law and article 23 of the Transitional Criminal Law, all proceedings must be held in public. The provisions of these two laws are applied by all the courts. Only the parties, witnesses and other persons involved are given notice to appear at the hearing. But in fact the hearing is also attended by the public.
219. However, the legislation also provides for hearings in camera. Article 129 of the 1993 Criminal Procedure Law provides that "if public proceedings might prove dangerous to public order and morality, proceedings in camera may be ordered. Hearings in camera may cover only a part of the proceedings. In other words, the duration of the in camera proceedings is strictly limited to the examination of the case. The judgement must be rendered in public, on pain of invalidity." Article 23 of the Transitional Criminal Law also stipulates that "all proceedings must be held in public, except when the victim or his beneficiaries request proceedings in camera and the judges agree."
220. Whether the hearing is held in public or in camera, the judgement must be pronounced in public (Criminal Procedure Law, arts. 129 and 142). This principle applies to the courts at all levels. Even when the judgement cannot be pronounced immediately, the court must inform the participants of the date on which it will be announced so as to enable everyone to participate.
221. The measures taken by the Royal Government to enforce these principles are an indication of the importance it attaches to the need to improve and strengthen the judicial system. The Ministry of Justice has prepared a draft Code of Criminal Procedure and a draft Code of Civil Procedure in an effort to improve the adjudication and effectiveness of the courts at all levels. The bill on the status of judges provides for the appointment, advancement, transfer and discipline of judges, as well as appropriate remuneration to enable them to lead an honest life. The Court of Appeal has been operating since May 1994 in order to guarantee the highest possible level of justice. The National Assembly has passed the Law on the Organization and Functioning of the Supreme Council of Justice, which is responsible for guaranteeing the independence of judges.
Paragraph 2
222. Regarding the presumption of innocence, article 38.7 of the 1993 Constitution states that "every accused person shall be considered innocent until the court's decision becomes final". Article 25 of the Transitional Criminal Law stipulates that "all suspects and accused persons or defendants shall have the benefit of the most absolute presumption of innocence". These legal provisions are recognized throughout the Kingdom. In practice, however, situations may be found where persons not yet tried by the courts are held in the same prison as convicted persons and where, during interrogations, some police officers have put pressure on accused persons in order to obtain confessions.
223. The above is inevitable, especially under the present circumstances, as Cambodia is encountering many difficulties in all areas, for example, being unable to build pre-trial detention facilities. Nevertheless, unconvicted prisoners are segregated from convicted prisoners. Beatings during interrogation are attributable to the fact that some police officers lack the proper techniques for questioning accused persons.
224. In order to guarantee the proper implementation of the above-mentioned principles, the Royal Government has taken the following measures:
It has appealed for international assistance to improve the prison system;
The Ministry of the Interior has requested a budget appropriation for the construction and renovation of prisons;
The Ministry of Justice has prepared a draft Criminal Code and a draft Code of Criminal Procedure, both of which clearly establish the presumption of innocence;
Training courses are provided for prison staff, with assistance from the Cambodia Office of the Centre for Human Rights and NGOs.
Paragraph 3
225. Every accused person is guaranteed the following rights:
Right to be informed promptly of the charges against him
226. Article 13.1 of the Transitional Criminal Law sets a 48-hour time-limit for the detention of suspects by the police. Article 75 of the Criminal Procedure Law requires examining magistrates to inform accused persons of the charges against them. These principles are binding throughout the Kingdom, but they are not applied in a satisfactory manner. Some accused persons are not brought before the prosecutor within the 48-hour time-limit. Others are detained without a warrant of committal. Still others are arrested without an arrest warrant. Such persons may not know the charges against them. In order to limit these problems, the Ministry of Justice has issued strict orders to all prosecutors to visit the detention centres and prisons under their jurisdiction at least once a month.
Right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing
227. Article 38.8 of the Constitution states that "every person has the right to defend himself in a legal proceeding". Articles 13.4 and 21.2 of the Transitional Criminal Law stipulate that, within 48 hours after arrest, the defender or lawyer must receive written notificaton of the charges against the suspect and must be informed of the date of his client's trial at least 15 days in advance. Articles 76, 78 and 80 of the 1993 Criminal Procedure Law grant accused persons the right to legal assistance as from their first appearance before the examining magistrate. These articles also grant the lawyer or defender the right to inspect the file and to communicate freely with the accused. These provisions ensure that accused persons have adequate time for the preparation of their defence.
228. The above principles are binding throughout the Kingdom, but they are not applied in a satisfactory manner. One problem concerns the ability of the lawyer or defender to communicate freely with the accused: most of the time, the lawyer or defender will have been unable to speak privately with his client, prison staff in some cases being present when counsel and client meet.
Right to be tried without undue delay
229. Accused persons in custody have the right to request the court to try them without undue delay. This right is protected and guaranteed by the law, which sets the maximum duration of detention at six months (Transitional
Criminal Law, arts. 14 and 21). These legal provisions guarantee accused persons the right not to be held in detention pending trial for more than six months.
230. Articles 61 and 64 of the Criminal Procedure Law provide that persons arrested
in flagrante delicto
must be tried immediately or as promptly as possible. If the file is incomplete, however, the court may postpone the case to a later date, which may not be later than four months from the date of arrest. If a serious offence is involved, an immediate trial is not possible. Sufficient time is needed for the investigation to be conducted properly so as to identify those persons actually responsible (art. 60 of the Criminal Procedure Law).
231. These principles are binding throughout the Kingdom. However, under the present circumstances, in which the number of judges is small, and where our investigators' capacities and the resources available to them are limited and the number of trials is increasing considerably, these principles are not applied in a satisfactory manner. There are delays in trying most accused persons. According to reports from prosecutors in 17 provinces which were brought to the attention of the Ministry of Justice at the end of 1994, of 785 unconvicted prisoners, 52 had been held for more than six months without being tried or released. However, the Ministry of Justice has continually reminded prosecutors of their obligation to bring accused persons to trial promptly.
Right to a defence
232. The right to a defence is a fundamental right guaranteed by article 38-8 of the 1993 Constitution. Article 10.1 of the Transitional Criminal Law recognizes the right to legal assistance for all persons charged with an offence or crime. Article 7 of the Law requires accused persons to be provided with such assistance to seek a remedy. Articles 75 and 76 of the Criminal Procedure Law recognize the right of accused persons to defend themselves in person or through counsel of their own choosing or assigned to them by the court.
233. The right to a defence is recognized throughout the Kingdom. There are currently an insufficient number of lawyers in Cambodia, as nearly all lawyers were murdered by the Khmer Rouge regime. In 1982, the Government designated 62 public servants having some legal knowledge to fulfil defence functions in court proceedings, with three defenders available per court. Following the adoption by the National Assembly of the Transitional Criminal Law, which establishes the criteria for such defenders, the activities of the latter have increased as a result of the assistance provided by UNTAC in regard to training.
234. Certain human rights associations and NGOs have Government authorization to train defenders. In early 1995 25 new defenders recognized by the Ministry of Justice began defending accused persons in criminal proceedings, primarily in the provinces. These defenders are occasionally assigned by the court to defend accused persons free of charge. Thus, accused persons are provided with a legal defence in all circumstances.
235. In October 1995, 29 new lawyers took their professional oath. A bar association has been established and a president elected.
Right to have witnesses
236. The right to have witnesses guarantees fairness in the court's decision. Both parties, the prosecution and the defence, must have witnesses and discussion must be permitted during the hearing; that is stipulated in article 24 of the Transitional Criminal Law. Articles 133, 134 and 135 of the 1993 Criminal Procedure Law provide that the judge must hear all of the parties' witnesses.
237. The prosecution and defence witnes