A written submission to the UN Commission on Human Rights 57th Sesstion by the Asian Legal Resource Centre
Basic principles of international law and fair trial are often violated in Cambodia’s criminal justice system. Impunity, torture, forced confessions, illegal arrests and detention are frequently reported by the news media and monitoring non-government organisations.
Such practices are in violation of the Cambodian constitution of 1993 and the International Covenant on Civil and Political Rights (ICCPR), which Cambodia has ratified and to a large extent incorporated into its national constitution. The constitution protects the right to life, personal freedom and security and the right to judicial recourse. It also prohibits the death penalty, physical abuse, arbitrary arrest and detention. Accused persons are protected against forced confessions and are presumed innocent until proved guilty.
However these constitutional provisions are often violated, and the Cambodian criminal justice system lacks almost all components for effective operation, including an independent and efficient judiciary. Police activities are devoid of democratic policing and rule of law principles. In fact, the police and military are often involved in crimes and human rights violations, alike ordinary perpetrators. Police or military agents perpetrating gross abuses are not brought to justice. In the eyes of the public, the police constitute a threat to their safety and security; they are mistrusted and regarded as criminals.
Police officers do not behave according to either the Cambodian constitution or article 6 of the ICCPR, protecting the right to life, as the following examples demonstrate.
On November 1, 2000, Don Ran (26) was shot dead by a police officer armed with an AK-47, at his house in Traing Village, Kom Rieng district, Battambang. Border policeman Chhun Touch shot the victim repeatedly in the throat and chest, after becoming angry when Ran criticised him and belittled him over an unpaid debt. According to the police, Touch fled over the border to Thailand. (Phnom Penh Post, November 10-23, 2000).
On November 28, 2000, Buot Dan was shot dead by criminal police after he was freed from prison in the provincial capital of Kratie. According to the police, a moto-taxi driver was severely wounded in the shooting. Buot Dan was allegedly a former member of the Khmer Serey insurgency movement in Sambo district. (Phnom Penh Post, December 8 -21, 2000). This case is an example of police in Cambodia not considering the judiciary and its judgements binding on them or their authority. The motive for this killing was the victim’s alleged political persuasion, indicating a lack of respect for other political convictions and so further violating articles 1 (1), 2 (1) and 26 of the ICCPR.
Cambodian legal aid organisations report that approximately twenty percent of all their cases involve forced confessions (Cambodia Defenders Project statistics). Lawyers have major problems proving that they are forced, as police tend to keep the victims in custody until bruises and other signs of violence have disappeared. Victims of forced confessions tend to confess to prosecutors because police threaten the accused with more violence if they do not obey their orders and do so. Police very rarely testify in court, and never stand trial accused of torturing or forcing confessions. That most criminal cases are based on confessions indicates that Cambodia is still employing a socialist evidentiary style. These violations breach article 7 of the ICCPR. The following cases illustrate:
On May 27, 1998, Ngan Kim Srun was charged drug usage, counterfeiting, murder, robbery and kidnapping of two children near the central market in Phnom Penh. The accused was one of ten persons charged in the kidnapping case, of which six persons are being prosecuted. The robbery and murder charges were dropped. Ngan Kum Srun was arrested by a soldier and blindfolded. According to his statement when brought to the police station he was beaten and forced to confess. However, witnesses did not identify him among the kidnappers, and the kidnapped children were not available to give testimony. The defence lawyer argued that the confessions were forced, but the investigating judge maintained that the accused had confessed to both the police and prosecutor, stating that there was no risk of being beaten by the prosecutor and therefore that confession could not be regarded as forced. The investigating judge decided to forward the case to court. The trial date is set for June 6, 2001 (Cambodia Defenders Project, Case No. 424 / 27-05-98).
On November 1, 1999, Kim Van Dy was one of three persons accused of robbery. The two other accused confessed and stated that Kim Van Dy also participated. When the case came before Phnom Penh Court, the two withdrew their statements and said that they had only confessed to Kim Van Dy being part of the crime because the police had beaten them and forced them to do so. The defence lawyer raised the question of forced confession, but the judge did not consider this argument and said that the police knew the three for their previous crimes, however he did not make any specific reference to a crime the accused had allegedly been involved in. No other witnesses were heard. The judge sentenced the accused to three years imprisonment. (Cambodia Defenders Project, Case No. 18/ 03-01-00).
Cambodian police also violate the right to liberty and security, including freedom from arbitrary arrest and detention, as dealt with by article 9 of the ICCPR. For example, in February 2000 a married couple travelling by motorbike in Siem Reap Province were arrested by a military lieutenant for no apparent reason. The husband was threatened with death if he resisted. Both suffered head inquiries from beatings. The wife was pregnant at the time of the incident, and the case went to court, as the couple wanted compensation for the wife having to spend all her time at the hospital till she gave birth. In November 2000, the judge issued an arrest warrant for the lieutenant, which was sent to the police commissary and headquarters of the provincial military police. By the beginning of December 2000, however, the perpetrator was still not arrested (LICADHO).
In Cambodia, illegal arrest and detention, torture and forced confessions in police custody are common. This situation may have been caused by many factors, such as the heritage of the communist era; the long term use of the Cambodian police as a tool for political power struggles; the militaristic role imposed on policing by past regimes; and the many police officers without training, if any education at all.
No doubt there is a major need for reform of policing in Cambodia. International organisations and donors must push the government to conduct reforms towards creation of a democratic civil police force committed to upholding the national constitution. However, reforms cannot be successful without the commitment and participation of all the key stakeholders, including the government and police organisations. Furthermore, police reform should be linked with reform of the judiciary and rule of law in Cambodian society.
In the short term, the Commission must urge the Government of Cambodia to make an effort to stop human rights violations committed by police and military authorities and to ensure that those violating constitutional provisions be bought to justice. The government should put high priority on creation of an independent organ with a mandate to handle complaints against the police, empowered to make inquiries into specific cases, as well as general areas of concern. It should have the capacity to obtain all documentation on cases that it is investigating and hold powers to subpoena and refer cases to the judiciary. An independent organ handling public complaints would facilitate reduction of the prevailing climate of impunity in Cambodia.
