University of Minnesota Human Rights Library

[29 August 2002

I. GENERAL INFORMATION

1. From 1975 to 1978 Cambodia was faced with a ruling regime, led by the Khmer Rouge who committed cruel torture and inhumane acts against Cambodian people. The Khmer Rouge forced people to overwork without enough rest time, food and medicaments. The Khmer Rouge detained, tortured arbitrarily and killed people without judicial judgement.

2. Tuol Sleng Museum was a big detention place, and has been clearly proved as a place where the Khmer Rouge committed cruel and inhumane acts of torture. According to research, roughly 20,000 people were tortured and killed in this detention place. Apart from this, several million people were tortured and killed and their remains were found in big tombs in several places in Cambodia. This indicated clearly that torture organized by the Khmer Rouge was a crime against humanity.

3. To accomplish this policy, the Constitution of 1993 has ensured and protected all forms of freedom for Khmer citizens, as well as ensured and prevented any act of torture against any individual as outlined in article 38:

- The law guarantees that there shall be no physical abuse of any individual;

- The law shall protect the life, honour, and dignity of the citizens;

- The prosecution, arrest, or detention of any person shall not be done except in accordance with the law;

- Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited. Persons who commit, participate in or conspire in such acts shall be punished according to the law;

- Confessions obtained by physical or psychological force shall not be admissible as evidence of guilt;

- Any case of doubt shall be resolved in favour of the accused;

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

- Every citizen shall enjoy the right to defence through judicial recourse.

4. Apart from the Constitution of 1993, the transitional criminal law has remained in force ensuring and preventing against torture of any individual:

Article 12: “No detainee shall be subjected to cruel, inhumane or degrading treatment or punishment, nor be beaten or tortured. Each detainee must have access to appropriate medical care. Prisoners must not be shackled or kept in isolation, whether they are in pre-trial detention or already sentenced. In no case shall the family of a detainee or prisoner be harassed as a result of the prisoner’s behaviour.”

“Arrest and detention must take place in accordance with the Standard Minimum Rules for the Treatment of Prisoners, as well as the Body of Principles for the Protection of Any Person under Any Form of Detention or Imprisonment, adopted by the United Nations.”

Article 24 (3): “A confession obtained under duress, of whatever form, shall be considered null and void.”

Article 25: “All suspects, indicted and accused persons benefit from the most complete presumption of innocence.”

Article 35: “Anyone who, without orders from the judicial authority, arrests, detains or illegally confines anyone, shall be liable to imprisonment:

“For ten years, if the illegal confinement lasts longer than one month;

“From three to five years, if the confinement lasts less than one month.”

5. After the Paris Peace Accords of 23 October 1991 the Supreme National Council signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 22 September 1992. Ever since this convention has become the most important judicial principle for Cambodia. To enact this principle was a real accomplishment. The Kingdom of Cambodia has deemed this convention as the basis for constructing a system of regulations so that, as described in article 31 of the Constitution of 1993, “the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the Charter of the United Nations, the Universal Declaration of Human Rights, the covenants and conventions related to human rights and women’s rights”.

6. Based on the above-mentioned principle, the legislature, the executive and the judiciary recognized and considered this convention as a basis for issuing decisions relating to torture. The Ministry of Justice issued a letter, N.09 dated 13 September 1993, instructing provincial‑municipal prosecutors to review prisons and detention places on the basis of the Convention. The Ministers of the Interior instructed provincial-municipal governors and police commissioners not to commit torture at the time of interrogation.

7. The Constitution of 1993 has provided power to the courts in judging all cases. Article 128 (3) states: “The judiciary shall be responsible for all lawsuits including administrative ones. The authority of the court shall be granted to the Supreme Court [and] to the lower courts of all sectors and levels. Therefore, anyone who considered that he/she was tortured or ill‑treated shall have the right to submit a complaint to the court for physical and psychological damages and compensation. The prosecutor shall be responsible for penal proceedings, prosecuting the offender for the purpose of punishment, pursuant to the law. The Criminal Procedure Law of 1993 stipulates:

Article 8: “Penal actions and promotion of penal proceedings are the function of the prosecutor.”

Article 9: “Any person who is victimized by an offensive act may submit a complaint for damages with the prosecutor’s accusation.”

8. An offender who has committed an act of torture shall be punished in conformity with the law, and shall compensate the victim. Even if the offender has already compensated the victim, he/she cannot escape the punishment of the law. Article 7 of the Criminal Procedure law of 1993 states that penal actions may not be reconciled.

9. Although the Constitution of 1993 has guaranteed and protected against torture and the law has prohibited and punished perpetrators, acts of torture are still committed. Some accused persons or suspects have been tortured by the competent authorities during interrogation. These acts happened secretly and were difficult to prosecute. There has been little evidence sufficient to punish the offender.

10. The victim of torture was under the arrest or detention by the authorities and was unable to complain, due to fear of revenge from the perpetrator, and also the victims had difficulty giving specific evidence to the court. This problem was also difficult to research because torture was rarely proved by evidence or witnesses.

11. Accordingly, the implementation of the Convention is still not perfect and is faced with many difficulties still to be resolved. The plague war lasted for more than two decades, leaving many inhumane acts in people’s memories. War created illiteracy, poverty, and unemployment and these factors have promoted torture and inhumane acts. The dissemination of human rights education and morality is still narrow. Knowledge of human rights on the part of the public, as well as the competent authorities, is still limited and vague.

11.

II. IMPLEMENTATION OF ARTICLES 1 TO 16 OF THE CONVENTION

Article 1

Definition of “torture”

12. The term “torture” for the purpose of the Convention means acts by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her what has been committed or is suspected of having been committed, or intimidating or coercing him or her, a third person, or for any person based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

13. According to the Khmer dictionary of 1967, the term torture means “brutal, bad and inhumane acts”. Presently, in Cambodia there is still no law to determine the definition of “torture”, so the Kingdom of Cambodia adopts the term “torture” from the Convention.

14. To ensure continually lawful execution, the Ministry of Justice has prepared a draft Criminal Code that states a prohibition of acts of torture. Article 200 of this draft code states that anyone who commits an act of torture or cruelty shall be punished with 7‑15 years in prison.

Article 2

Paragraph 1 - Preventive measures

15. The Kingdom of Cambodia takes legal, administrative and judicial measures to prevent any acts of torture in all areas that are under its jurisdiction.

Legal measures

16. Article 38 of the Constitution of 1993 says that:

- The law guarantees that there shall be no physical abuse against any individual (para. 1);

- Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited. A person who commits, participates in or conspires in such acts shall be punished according to the law (para. 4);

- Confessions obtained by physical or psychological force shall not be admissible as evidence of guilt (para. 5).

17. Transitional criminal law which has remained in force has prohibited any acts of torture:

Article 12: “No detainee shall be subjected to cruel, inhumane or degrading treatment or punishment, nor be beaten or tortured.”

Article 57: “All public agents, including police and military agents, who abuse individual integrity and individual residence, shall be punished by one to five years’ imprisonment.”

Administrative measures

18. The Ministry of Justice, Ministry of the Interior and Ministry of Health have issued a joint declaration on 7 July 1993 instructing their agents not to shackle or handcuff prisoners in prison. On 13 September 1993 the Ministry of Justice instructed provincial-municipal prosecutors to review provincial-municipal prisons and detention places at least once a month in order to review the personal circumstances of convicted and pre‑trial prisoners.

19. On the occasion of a seminar on 14 and 15 May 1995 on protesting acts of torture, H.E. Chem Sgoun, senior minister and Minister of Justice, stated that “any act of torture committed against suspected, accused, pre-trial and convicted persons is contrary to law and shall be punished pursuant to the law”.

20. The Ministry of the Interior on 23 November 1995 has imposed punishment on police officers who commit torture. Any police officer who during interrogation uses torture, all forms of duress or instigation thereof, shall be punished, demoted, removed from his position or dismissed from the force. Any police officer who conspires to commit or commits a cognizable offence and tortures seriously, or beats an accused to death attempting to obtain a confession, shall be prosecuted.

Judicial measures

21. Presently, in the Kingdom of Cambodia there are 21 provincial-municipal courts, 1 appellate court and 1 Supreme Court. Both higher courts are situated in Phnom Penh City. As the judiciary is responsible for all cases, including administrative ones, the courts shall have full capacity to judge and punish torture offences.

22. The victim of illegal acts of physical and mental abuse committed by a public authority may make complaint to all courts, such as the pre-trial court, the appellate court, the Supreme Court (articles 2 and 5 of the Transitional Criminal Law). The victim may file claims and damages against the perpetrator, co‑offender and accomplice (article 39, Constitution
and article 27, Transitional Criminal Law). A detainee or prisoner shall also have the
right to complain or denounce any officer who commits torture or acts of cruelty against him
or her.

23. Legal and administrative measures are sufficient to prevent acts of torture, but they still have not been eliminated completely. The acts are committed secretly, without evidence or witnesses; the victim may also not dare to complain.

Paragraph 2 - Torture during a state of emergency

24. In spite of a state of war or threat of war, domestic political instability or a state of emergency, Cambodia has not used these reasons as a pretext to torture citizens.

25. This protection shall be guaranteed by the Constitution of 1993:

- Article 22 states that when the nation faces danger, the King shall make a proclamation to the people putting the country in a state of emergency after agreement with the Prime Minister and the President of the National Assembly or Senate;

- Article 78 (5) states that in time of war or other special circumstances where an election cannot be held, the National Assembly may extend its term for one year at a time, at the request of the King;

- Article 90 (6) states that the National Assembly shall approve a law on the declaration of war. The adoption of the above-mentioned clauses shall be decided by a simple majority of the entire Assembly membership;

- Article 86 states that if the country is in a state of emergency, the National Assembly shall meet every day continuously. The National Assembly has the right to terminate the state of emergency wherever the situation permits. If the National Assembly is not able to meet because of circumstances such as occupation by foreign forces, the declaration of the state of emergency must be automatically extended. During a state of emergency, the National Assembly shall not be dissolved.

26. By determination of the Constitution of 1993, in all circumstances of state of emergency or war, the Kingdom of Cambodia still applies democratic principles. In a state of emergency, the Royal Government will not take any new measures contrary to the conventions and national laws. The King is the supreme Commander‑in‑Chief and President of the Council for National Protection (articles 23 and 24 of the Constitution). The Constitution has not specified any special condition other than this article.

27. The judicial branch is dependent on appointed judges in all cases and has no power to replace, even though the State is in an emergency (articles 128 and 130 of the Constitution).

28. After acceding to the Convention, Cambodia has never proclaimed a state of emergency. Although the Khmer Rouge had acted against the Royal Government, provoking civil war and clashes between armies, the Royal Government has never declared a state of emergency. And the Government has never taken up this problem of illegal acts of torture. In any case, torture is an offence that the competent institutions are continuously taking measures to prevent and to punish pursuant to the law.

29. In order to ensure preventive measures against torture, the Ministry of the Interior as well as the Ministry of National Defence have tried to commit to training courses for competent national police officers and national military police officers in techniques to obtain confession without any coercion or torture. Both Ministries have also closely cooperated with the Office of the High Commission for Human Rights in this endeavour.

Paragraph 3 - Orders to commit torture

30. An order of a superior or public authority shall not be more powerful than the law, if the order is contrary to the law and constitutes an offence. Thus, an order of a superior or public authority may not legitimate torture because the law defines torture as an illegal act and prohibited by law. Article 122 of the Constitution of 1993 stipulates that members of the Royal Government shall not use the orders, written or verbal, of anyone as grounds to exonerate themselves from their responsibility.

31. In this case, whoever gives an order to commit torture acts shall be guilty of torture and punished pursuant to the law. The direct perpetrator and the person who ordered or masterminded the act are both liable for punishment. As defined in article 69 of the Transitional Procedure Law, whoever supplies the modalities of an offence, orders the offence to be committed or facilitates commission of the offence, shall be considered an accomplice and punished with the same punishment applicable to the principal instigator.

Article 3

Expulsion, expatriation and extradition

Paragraph 1

32. The Kingdom of Cambodia recognizes and respects the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as defined in the Constitution of 1993 (art. 31). The Kingdom of Cambodia shall not expel, expatriate or extradite abroad anyone who is believed to be subject to torture.

33. In this above-mentioned case, the Constitution of the Kingdom of Cambodia (art. 33), states: “Khmer citizens shall not be deprived of their nationality, exiled or arrested and
deported to any foreign country unless there is a mutual agreement on extradition.” Therefore, Khmer citizens shall be protected by the Constitution from expulsion, expatriation and extradition.

34. In the case of an alien, the Kingdom of Cambodia will apply regulations in accordance with the Convention.

35. The expulsion of aliens from Cambodia is decided by the Minister of the Interior, according to the immigration law promulgated by Royal Decree N.05/94, dated 22 September. Similarly, a Cambodian court judgement also has power to expel. An English citizen who committed an offence was sentenced to imprisonment and expelled from Cambodia, after already serving imprisonment, by the Kandal provincial court.

36. The Kingdom of Cambodia has ratified the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees, but Cambodia has not set up a law on refugees for its real application.

37. In conformity with the law on immigration, in 1995 Cambodia expelled 2,938 aliens
who illegally entered Cambodia (report of the Foreign Department, Ministry of the
Interior).

38. So far, Cambodia does not have enough regulations or treaties on extradition to extradite offenders to other countries. Cambodia has signed an extradition treaty with Thailand

on 16 May 1998, and signed one with China on 9 February 1999.

39. In reality, Cambodia does not have enough regulations or treaties on extradition with other countries, but Cambodia is a member of the International Criminal Police Organization (Interpol). Thus, for applying extradition, the Royal Government exercises the principles of mutual understanding and diplomatic and Interpol codes.

40. According to the above-mentioned principles, and upon the request of the United States authorities, the competent Cambodian authorities have sought to arrest criminals to send to the United States, as follows:

- In March 1996, a Japanese named Tanory Ayasy, who was accused of attempting to murder the United States President, and who stole an aeroplane, was arrested;

- Meng Sothy, who was accused of 12 counts of murder in the United States, was arrested in July 1997;

- In December 1997, John Minh, also called Kim Kvieng, accused of murdering a Vietnamese woman and stealing US$ 21,500 in California, was arrested;

- In February 1998, Sun Ly, also called Vo Sunminh, accused of burning his house for the purpose of gaining insurance, causing his son’s death, was arrested.

41. In case of implementation of article 3 (1), the Royal Government of Cambodia will consider all points concerning acts of torture as mentioned in the Convention, as well as violations of human rights.

42. The Royal Government of Cambodia will study violations of human rights in other countries through the assessments of the United Nations Commission on Human Rights.

43. To guarantee the best application of article 3 (1), the Royal Government of Cambodia will try its best to reform the justice system including enactment of laws, especially the law on the Criminal Code and the law on the Criminal Procedure Code, and at the same time will try to conclude extradition treaties with many countries, especially with countries in the region.

Article 4

Paragraph 1 - All acts of torture are contrary to the law

44. Acts of torture are inhumane acts, contrary to the morality of Cambodian Buddhists. The Kingdom of Cambodia has adhered to Buddhism as a guide for educating human mentality, avoiding cruel and inhumane acts, and especially for educating people not to commit acts of torture. To avoid all acts of torture, the Kingdom of Cambodia has regarded that all acts of torture and inhumane and cruel acts are offences. As the Minister of Justice stated at a seminar on 13 and 14 March 1996, acts of torture of suspected, accused, detained and convicted persons are offences. In this case, attempt, complicity, participation and commission of acts of torture are all offences and contrary to the law.

45. Acts of torture and complicity and participation in their commission are prohibited by law. The Constitution of 1993, article 38 (1+4), states that the law guarantees that there shall be no physical abuse of any individual, and any treatment that imposes additional punishment on a detainee or prisoner shall be prohibited. Persons who commit, participate in or conspire in such acts shall be punished according to the law. According to the Transitional Criminal Law, no detainee shall be subjected to cruel, inhumane or degrading treatment or punishment, nor be beaten or tortured (art. 12-1). Any public agent, including police or military agents, who deliberately infringe upon the rights or integrity of any person will be punished by one to five

years in prison. Anyone who supplies the modalities of an offence, orders that the offence be committed or facilitates commission of the offence shall be considered an accomplice and punished with the same punishment applicable to the principal instigator (art. 69).

46. The above regulations were not sufficiently defined. Article 38-1 of the Constitution of 1993 states that “to prohibit physical abuse against any individual”, has not been clearly related to acts of torture. Article 38-4 of the Constitution and article 12-1 of the Transitional Criminal Law prohibit acts of torture on detainees. Article 57 of the Transitional Criminal Law provides for punishment of any authority that infringes the integrity of any individual.

47. The new draft Criminal Code states clearly that torture is an offence (chap 8, arts. 200‑207).

Paragraph 2 - Punishment of perpetrators and accomplices in torture offences

48. Attempted acts of torture and complicity in acts of torture are illegal and punishable in accordance with their grave nature. Even if no article of law specified torture as an offence, the existing laws as described above would be adequate for punishing offenders.

49. Cambodia has no clear law to determine that acts of torture are criminal or misdemeanour offences. In deciding to punish an offender, a court decision is based on acts committed and resulting consequences. Even though there are still no regulations to punish torture, the offender may not escape punishment. On 5 November 1993, Phnom Penh municipal court sentenced a Batambang prison guard convicted of torturing a prisoner to one year in prison and ordered him to pay 200,000.00 riels in damages to the victim.

50. The competent ministries do not permit torture to escape from legal remedy. In one case, the body of Ly Peng An, who died in the Krochhmar District police commission (in Kampongcham province), was exhumed for re-examination seven months later after the
Ministry of Justice received a complaint that this person had been tortured to death.

51. The Kampongcham provincial prosecutor issued a letter, N.310/97
dated 25 September 1997, to the Ministry of the Interior for the purpose of permitting the prosecutor to prosecute a group of police who murdered a suspect. In response, the Ministry of the Interior issued a letter, N.1/18 dated 9 December 1997, to the Kampongcham provincial governor ordering the provincial police commissioner to turn a group of policemen over to the court in order to resolve the case.

52. In the case of acts of torture which have occurred, the court determines punishment in accordance with the acts committed, as follows:

- In cases of the victim's death, the court shall sentence the offender for a criminal offence, in accordance with articles 31 and 32 of the Transitional Criminal Law;

- In cases of rape, the court shall punish the offender for a criminal offence in accordance with article 33;

- In cases of illegal detention, the court shall punish the offender in accordance with article 35;

- In cases of injury, the court shall punish the offender pursuant to the Transitional Criminal Law;

- In cases of complicity in acts of torture, offenders shall be punished like the perpetrator, in accordance with article 69.

53. The Royal Government will determine the acts of torture that are contrary to the new draft Criminal Code being prepared and examined by the Ministry of Justice. In this draft, there are eight articles dealing with punishing the offence of torture.

Article 5

Competence for prevention of offences

Paragraph 1

54. In the Kingdom of Cambodia there are competent authorities to prevent offences under their jurisdiction committed on board a ship or aircraft registered in Cambodia. Article 2 of the Constitution states that the territorial integrity of the Kingdom of Cambodia shall absolutely not be violated within its borders as defined in the 1/100,000-scale map made between 1933 and 1953 and internationally recognized between the years 1963 and 1969. Article 145 of the Constitution states that the territory of the Kingdom of Cambodia shall be divided into provinces and municipalities. Provinces shall be divided into districts (Srok) and districts into communes (Khum). Municipalities shall be divided into Khan and Khan into Sangkat.

55. To ensure prosperity and protect the freedom of Khmer citizens, in Cambodia there exist provincial-municipal judges and prosecutors (article 128 of the Constitution).

56. Cambodia is facing border problems with Thailand and Viet Nam. These problems make it difficult for Cambodia to resolve cases of offences that occur in disputed areas.

57. Whenever the above-mentioned offence defined in article 4 of the Convention occurs on board a ship or aircraft registered in Cambodia, the competent provincial-municipal authorities have the right to arrest the alleged offender and send him or her to the provincial-municipal courts for the appropriate legal procedure. The law on Criminal Procedure of 1993, (art. 96) states that each province or municipality has one court, with jurisdiction over the territory of that province or municipality.

58. All persons who are in the territory, air space and waters of the Kingdom of Cambodia shall be under the jurisdiction of Cambodia. Article 11 of the Law on Criminal Procedure of 1993 states that penal action may be taken against all persons who are in Cambodia, without discrimination as to race, nationality, religion, sex and social position.

59. The Diplomatic Corps shall be protected by the Vienna Convention on Diplomatic Relations. Parliamentarians and senators are protected by the Constitution. The accusation, arrest, or detention of an Assembly member or senator shall take place only with the permission of the National Assembly or the Senate or by the Standing Committee of the National Assembly or Senate, except in case of flagrante delicto. In such case, the competent ministry shall immediately report to the National Assembly or Senate or to the Standing Committee for a decision. The decision made by the Standing Committee of the National Assembly shall be submitted to the National Assembly at its next session for approval by a two-thirds majority vote of the Assembly members. In any case, the detention or prosecution of a parliamentarian shall be suspended by a three-quarters majority vote of the Assembly members (arts. 80 and 104).

60. The court shall have sole competence to adjudicate all cases. Article 128 of the Constitution sets out that the judiciary shall have jurisdiction over all lawsuits, including administrative ones. Article 130 of the Constitution states that judicial power shall not be granted to the legislative or executive bodies.

Paragraph 2

61. In the Kingdom of Cambodia there exist laws for punishing anyone who commits acts of torture. The courts of the Kingdom of Cambodia shall have the competence to judge these cases, whatever the nationality of the offender or the victim, or if the offender cannot be extradited.

62. In the past, the courts of the Kingdom of Cambodia have not been presented with the case of a foreigner having committed acts of torture inside or outside the territory of Cambodia. If a Khmer national who committed acts of torture abroad should enter Cambodia, the court has the competence to handle the case. On the other hand, Cambodian authorities can cooperate with the country where the offence was committed. This issue is governed by article 33-1 of the Constitution which says that Khmer citizens shall not be deprived of their nationality, exiled or arrested and deported to any foreign country unless there is a mutual agreement on extradition.

Article 6

Paragraph 1 - Detention or taking an offender into custody

63. When anyone is suspected of committing acts of torture and evidence is found in the territory of Cambodia, the competent authority of Cambodia will detain, or temporarily detain, the offender for the purpose of ensuring that the offender does not escape, in order to investigate the criminal offence or to arrange the legal procedure to extradite the offender, if he or she is a foreigner. But the prosecution, arrest, or detention of any person shall not be done except in accordance with the law (article 38 of Constitution). Anyone who, without order from the judicial authority, arrests, detains or illegally confines anyone shall be liable to imprisonment.

64. The judicial police shall have the duty to seek the offender, collect evidence and then send it to the court that has the duty to adjudicate. The police may arrest and send an offender to court if the offender has committed a cognizable criminal or misdemeanour offence, or with a writ of capias or an arrest warrant (article 35 Law on Criminal Procedure of 1993).

65. The competent authorities have the role of judicial police as stated in article 36 of the Law on Criminal Procedure as follows:

(a) Prosecutor and investigating judge;

(b) Provincial-municipal governor, vice provincial-municipal governor, district-khan governor, vice district-khan governor, chief of commune or sankat;

(c) Director or deputy director of department, chief or deputy of bureau, chief or deputy chief of section of the following:

- Department of criminal police;

- Department of economic police;

- Department of science and technology police;

- Department of anti-terrorism;

- Department of border police;

- Department of foreigners;

- Department of anti-narcotics;

(d) Provincial-municipal deputy police commissioner;

(e) Chief or deputy chief of bureau and chief or deputy chief of section who is in charge of a criminal job and is under the control of a provincial-municipal police commissioner such as:

- Serious criminal police bureau;

- Light criminal police bureau;

- Economic police bureau;

- Criminal science and technology bureau;

- Anti-narcotics bureau;

- Anti-terrorism bureau;

- Foreigners bureau;

(f) Police inspector, vice police inspector and chief or deputy chief of criminal section of district-khan police inspectorate;

(g) Chief or deputy chief of traffic police bureau and chief or deputy chief of traffic police section “traffic offence only”;

(h) Chief or deputy chief of commune - sankat administrative police post;

(i) Commander or deputy commander of military police, who is in charge of criminal offences concerning the military;

(j) Official of any ministry or institution who is given power to examine offences by the law.

Any operation of a judicial police officer is led and coordinated by a prosecutor in order to ensuring an effective accusation, which is under the control of the appellate prosecutor. The Minister of Justice has the right to delegate to the judicial police any competence in the whole territory, and also issues any instruction on methods and procedures for judicial police officers.

A provincial-municipal governor/deputy governor, district-khan governor/deputy governor, or chief of commune-sankat has the competence to instruct the judicial police in their respective territory to act on offences in cooperation with the prosecutor.

66. The officers of the judicial police have the right to arrest offenders only in cases of crimes or misdemeanours caught in the act. They shall bring the alleged offenders to the competent jurisdiction within 48 hours. In case of non-compliance with this strict rule, the officer shall be punished in accordance with the law (article 47 of the Law on Criminal Procedure 1993).

67. After receiving the charge files from the prosecutor, the judge has the right to decide whether to detain the offender (article 13 of the Transitional Criminal Law).

68. The accused has the right to petition the judge for release, either directly or through counsel. The judge must respond within five days by a reasoned decision (article 14-2 of the Transitional Criminal Law). Article 65 of the Law on Criminal Procedure states that if the presiding judge thinks that the accused may be temporarily released, with or without bail, he/she shall decide on this issue before examining the merits. He/she will act the same way if the accused so requests in writing.

69. Permitting temporary release of the offender before opening the hearing of a criminal offence is difficult because there is no guarantee that the accused will appear before the court for the opening hearing, and the competent authority has difficulty in finding him/her because the administrative management system is not perfect.

70. Some judges permit criminal suspects to temporarily remain at large. In this case the suspects taking this opportunity to escape without appearing before the court.

71. Any person, whether in detention or not, must be judged no later than six months after arrest (article 21 of the Transitional Criminal Law). In case of a cognizable misdemeanour offence, the accused shall be temporarily detained and will be brought to trial in the near future. If the judge finds that the file is incomplete, he or she may postpone the hearing to a later date that is not longer than four months counting from the date of detention (article 64 of the Law on Criminal Procedure). In cases of cognizable and non-cognizable offences, the accused shall be brought to trial no later than six months after the date of arrest. This time is kept for the investigation (article 60 of the Law on Criminal Procedure).

72. Concerning extradition, the Cambodian competent authority will take the appropriate measures to investigate and temporarily arrest, after receiving a warrant from the requesting country. During the temporary detention, if the competent ministry has not received the request for extradition from the requesting country, the offender shall be released. This temporarily is the procedure because Cambodia is a member of Interpol.

73. This above-mentioned principle shall be exercised in the Kingdom of Cambodia to ensure that all persons are treated equally before the law, whether Khmer citizens or foreigners. But its real execution is still not effective, owing to the following difficulties:

(a) Some competent authorities have violated the procedure by detaining or arresting the accused without warrant;

(b) Some police fail to bring the accused before a prosecutor within 48 hours after the time of detention. This is the result of a lack of means and capacity of competent agents;

(c) In principle, a hearing for the accused must be held no later than six months after arrest. But this principle is still not completely followed because there still exists pre-trial detention longer than six months because of a lot of lawsuits, insufficient judges, weak capacity and lack of means and facilities, as well as a lack of research facilities.

74. In ensuring the detention of accused persons for the period of 48 hours, the Royal Government has adopted a legal amendment permitting the police to delay the period and detain the suspect longer, with appropriate reason and with the approval of the prosecutor. This amendment, adopted by the National Assembly, was promulgated officially on 10 January 2002.

75. The Ministry of Justice is preparing a draft Criminal Code and Criminal Procedure Code including punishment of competent authorities who do not act in accordance with the laws and regulations. The Ministry of Justice will be also scheduled to continue training of new judges in all courts. The Ministry of Justice has instructed all provincial-municipal courts to adjudicate cases punctually, avoiding longer periods of pre-trial detention than the law allows, as follows:

- Circular N.13/6106.94 dated 31 May 1994;

- Instruction N.198 dated 14 February 1996;

- Circular N.4/97 dated 2 April 1997.

The Ministry of Justice issued an order on 16 December 1996 to Takeo provincial court, which excessively detained four persons. On 10 September 1997, the Ministry of Justice issued an instruction to Koh kong provincial court, which excessively detained six persons.

76. The Council of Ministers decided to submit to the Royal Government,
on 5 February 2002, and the Royal Government has issued a subdecree relating to the
creation of the Royal Court School for the purpose of training judges and prosecutors. The selection of new judges will take place at the end of 2002.

77. Upon receiving the information that someone has committed an act of torture, as defined in article 4 of the Convention, the prosecutor is competent to carry out a preliminary inquiry in order to bring charges and to send the accused to the investigating judge to conduct proceedings consistent with court procedure. If there is enough evidence and documentation, the prosecutor may prosecute and send the accused directly to the court for a hearing when the file is complete and there are sufficient elements to constitute an offence. Inquiring into criminal offences is the competence of the prosecutor and investigating judge, pursuant to law. Article 38-3 of the Constitution states that the prosecution, arrest, or detention of any person shall not be done except in accordance with law. Article 2 of the Transitional Criminal Law states that the prosecutor files the indictment in court. Article 55 of the Law on Criminal Procedure of 1993 states that once the perpetration of any crime or offence is known, the prosecutor shall proceed immediately to investigation measures which are provided to him/her by the law. Article 68 of the Law on Criminal Procedure of 1993 states that in each municipal court, there is one or several judges responsible for investigating criminal cases, depending on the workload and the court’s need.

78. In cases where the offender is caught in flagrante delicto and the investigating judge did not receive the case, the prosecutor may order the suspect arrested. The prosecutor shall inspect and confiscate any object as evidence necessary for finding the truth and shall propose a technical evaluation of objects as may be deemed necessary. The prosecutor shall, after completing the statement of confession immediately send the files to the investigating judge for conducting additional investigations and rearranging the documents prior to delivering the files to the court hearing the case (article 62 of the Law on Criminal Procedure).

Paragraph 2

79. In additional investigations, the investigating judge proceeds according to the following procedure:

(a) When the accused person appears for the first time, the investigating judge shall record his/her identity, inform him/her of the imputed act, receive his/her statement after informing him/her of the right to answer or not to answer without the assistance of a lawyer or defender chosen by him/her or appointed automatically. At this first appearance the accused may request the judge to appoint counsel. If he/she does so, the investigating judge shall suspend the interrogation and call in counsel in order to interrogate the accused in the presence of the counsel (articles 75 and 76 of the Law on Criminal Procedure);

(b) To collect additional information, the investigating judge has the right to order all those on the list of complainants and witnesses before the judge, as well as all persons who consider that their testimony is useful. In all cases, the investigating judge has the right to cross-examine parties and witnesses;

- To examine the spot where the criminal offence occurred, accompanied by one clerk;

- To search the residence of the accused, accompanied by a lawyer or defender;