On November 19, 2007 an elderly man named Hach Tuos, 57, from Reaksmei Sang-ha village, Khnach Romeas commune, Bovel district in the northwestern province of Battambang, went with another man who he later told the police was a motorcycle taxi driver, to a karaoke parlour in Battambang city which is the capital of that province. Both men were drinking and singing and in the middle of the revelry, the driver took from him not only the transport fare but US$40 he had at the time, and left the place, leaving him to foot the bill of 222,000 riels or US$55.50. This is the information he gave to the police.
Hach Tuos had no money to pay the bill. The owner of the parlour named Oum Sarath took him to the district police, suing him for refusing to pay the bill. The police arrested Hach Tuos for breach of trust, which is a criminal offence under Article 6 of the criminal law of 1992, commonly known as the UNTAC Law. He was later sent to the provincial police where he was detained while the police contacted his family, telling them to bring the money to pay the karaoke parlours owner so that Hach Tuos could be released. However, according to the police no member of his family came.
During the night of 21 November, Hach Tuos died in police custody by hanging himself with his shirt from a window bar of his cell. A doctor named Uch Sitha certified that the man had committed suicide by hanging. No torture or any other ill treatment was suspected. There was a possibility that the man had killed himself out of shame or depression after his arrest.
It is likely that due to the circumstances he related to the police, Hach Tuos was simply unable to pay the debt of US$55.50 he owed to the owner of that karaoke parlour. He incurred a debt, a civil liability, under an unwritten contract between a seller and a buyer. Furthermore, when the police contacted Hach Tuoss family to have to money to pay the owner of the karaoke parlour, they acknowledged his inability to pay what he owed to the owner of that parlour. Hach Tuos committed no breach of trust as defined under Art. 6 of that criminal law which says:
Any person who misappropriates or disposes of, against the interest of the owner, possessor or holder, any property, money, merchandise, or document containing or establishing an obligation or release, which was entrusted to that person as rent, deposit, commission, loan or remuneration for paid or unpaid work, having promised to return it or to offer it back or to put it to an agreed upon use, is guilty of breach of trust and shall be liable to a punishment of a term of imprisonment of one to five years.
To charge Hach Tuos with any breach of trust, the police should have proof to show that (1) a property had been entrusted to him; (2) he had promised to return it to its owner or to use it for a specific purpose; (3) he had disposed of or misappropriated it; and (4) he had had criminal intent.
The police did not have such proof. Nor did they ask the owner of the karaoke parlour to show that Hach Tuos had any criminal intent when he was consuming the drinks and enjoying the services his parlour was selling him.
However, accusing or charging people who are unable to repay their debt or fulfill any other contractual obligation, and arrest and detain them is a common practice in the Cambodian legal system, though the life of those accused persons has not ended as tragically as Hach Tuoss. It is widely claimed that a criminal lawsuit and the ensuing detention are more effective and efficient in getting what the accusers want. The civil procedure simply takes too long and the outcome is uncertain.
This criminal lawsuit creates so much fear of being locked up in the accused persons that they find ways and means to avoid detention, including for instance, getting sympathetic relatives or friends to help pay up their debt or fulfill their contractual obligations, or bribing the police or the courts to bail themselves out. If the accused persons do not have such ways and means, then they have to linger in pre-trail detention or in jail following their conviction.
This practice is very much akin to holding the accused persons for ransom, but it is a blatant violation of the right to protection from imprisonment for debt and other inability to fulfill a contractual obligation recognized under Article 11 of the International Covenant on Civil and Political Rights which says that: No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. This right is further guaranteed by Article 4(2) of the same Covenant when it may not be derogated even in public emergency.
This is yet another area in which Cambodia has failed to honour its international human rights obligations under the Paris Peace Agreements of 1991 and especially under the International Covenant on Civil and Political Rights to which it has been a party since 1992. When imprisonment for debt and other inability to fulfill a contractual obligation is an accepted practice, the Cambodian judiciary not only has failed in its constitutional duty to protect this particular right to protection from such imprisonment, but has taken part in its violation.
The Asian Human Rights Commission (AHRC) strongly urges the Cambodian government, police and judiciary to abandon this practice of turning, what should be simple civil cases arising out of inability to pay a debt or fulfill other contractual obligation, into criminal cases in violation of the right to protection from imprisonment for such civil liability. A law should be enacted to strictly prohibit imprisonment for debt and other inability to fulfill a contractual obligation in conformity with Article 11 of the International Covenant on Civil and Political Rights. Any such imprisonment or detention in breach of this prohibition should be made a criminal offence of illegal confinement punishable by imprisonment from three to ten years under Article 35 of the UNTAC Law.
