Between 1975 and 1979 the Cambodian people suffered one of the worlds most brutal regimes, the Khmer Rouge, which used, among things, torture as a means to assert its rule. In its notorious Tuol Sleng Torture Centre in Phnom Penh, some 16,000 Cambodians died horribly by the systematic use of torture by the Khmer Rouge to extract confessions during the four years of its reign. Now, the man who ran that centre, Kaing Guek Eav alias Duch, is being tried by the UN-assisted Khmer Rouge tribunal for torture and other crimes.
Due to this experience, in 1992, upon the end of the war that had followed the ousting of the Khmer Rouge regime, Cambodia did not hesitate to adhere to the UN Convention against Torture (UNCAT) and has since taken measures to combat torture. Surveys among a sample of inmates conducted by a human rights NGO, LICADHO, in 18 different prisons across the country have shown a decline of alleged torture cases, from 450 in police custody and 49 in prison in 1999, to 124 and 78 respectively among the 2,556 inmates interviewed in 2007, and to 78 and 7, respectively among 1,983 inmates interviewed in 2008.
In order to show its commitment, Cambodia ratified the Optional Protocol to this convention or OPCAT in 2007. Unfortunately the Cambodian government has failed to honour its obligations under this Protocol and it has not created, within the OPCAT-prescribed one year period, an independent National Preventive Mechanism to visit places of detention; it has simply pledged to do so by the end of 2010.
For many years the Ministry of Interior has authorized NGOs access to prisons but not to police stations, especially to LICADHO, to provide medical treatment and conduct surveys on the treatment of inmates. Recently, it authorized, on a long term basis, the field Office of the High Commissioner for Human Rights (OHCHR) to conduct visits to prisons, which is going to contribute to the prevention of torture on inmates and the improvement of prison conditions and the treatment of inmates.
For his part, in 2009, the Prosecutor General of the Court of Appeal, with whom the Code of Criminal Procedure enacted in 2007 entrusts the task of inspection prisons and police stations, started a programme of inspection of all prisons and major police stations across the country. One purpose of this programme is to prevent torture in those places of detention. The Court of Koh Kong province has lately convicted a police officer for torture.
The Ministry of Interior and the Prosecutor Generals Office are supporting training for prosecutors, police officers and prison personnel to get them to comply with UNCAT and OPCAT, prevent and combat torture and all forms of ill-treatment in all places of detention, and cooperate with the future National Preventive Mechanism.
Cambodia has no anti-torture law, but torture is criminalized and punishment for it is provided for in the final draft Penal Code which the government is reportedly going to approve and send to the Parliament for adoption in the near future.
However, torture, though in decline, is still being used, mainly to extract confessions. The surveys conducted so far may not reflect the extent of its use when inmates, interviewed in the presence of prison guards, are inhibited by fear of reprisals to tell about the torture they or their fellow inmates have been subjected to. In the first five months of 2009, there were reportedly five deaths in police custody against three for the whole of 2008. The families of the dead and human rights monitors have suspected torture as the cause of death. The concerned authorities have denied the use of torture and usually claimed suicide. But no independent investigation into those deaths has been ordered, and medical personnel called upon to certify such deaths in police custody are known to be reluctant to contradict what the police have said.
For their part, prosecutors before whom the police bring suspects for charging are themselves inhibited to inquire whether those suspects have been subjected to any torture. They do not want to order new investigations into the alleged crime. Nor do they want to investigate torture should they suspect it as they do not want to create any friction with the perpetrator who might be none other than the police themselves. For the same reasons they are not willing to conduct any prompt investigations into torture complaints as called for under the UNCAT.
The Cambodian government must now make greater efforts to honour its obligations under the UNCAT and OPCAT and its commitment to combat torture and protect peoples absolute right to freedom from it more effectively. It should seek expertise and advice from the UN Subcommittee on Prevention of Torture to create a National Preventive Mechanism that meets the OPCAT requirements without any further delay. It should speed up the enactment of the Penal Code under which torture is criminalised.
Considering that the judiciary has a constitutional duty to protect human rights, the Prosecutor General of the Appeal Court should also do more to protect this absolute right. He should create within his office a torture complaint unit to receive complaints from victims or their families. Upon receiving a complaint, he should order the prosecutor under whose jurisdiction the incident has occurred to conduct a prompt investigation, and to report to him any legal action he or she has taken. The prosecutor should also receive such complaints and likewise conduct prompt investigation.
The prosecutor should exercise the power conferred upon them by the Code of Criminal Procedure to inspect prisons and police stations under his or her jurisdiction. Like the Prosecutor General, he or she should be well equipped with adequate expertise, including visit methodology, to avoid negative repercussion of the inspection on persons detained in police custody or in prison such as reprisals against them for telling the truth.
The Prosecutor General should issue a directive to all prosecutors to check whether suspects brought before them bear any physical or mental sign they have been tortured before laying any charge against them. If there is any such sign, they should conduct prompt investigation and take legal action against the perpetrators.
The current Code of Criminal Procedure has not stipulated this examination for sign of torture and legal action by the prosecutor. It should be amended forthwith to stipulate such examination and action not only by the prosecutor but also by the investigating judge and the trial judge. This amendment should also affirm the suspects right to legal counsel, medical treatment and contact with his or her family upon his or her arrest. He or she should be promptly informed of this right. His or her counsel should be present during all police interrogation. Currently, the suspect cannot have access to legal council until 24 hours after the arrest and then only for 30 minutes. As to medical treatment and contact with the family, he or she is very much subject to the discretionary decision of the prosecutor and the custody officer.
