There are several reasons for the problem of impunity in Cambodia. The country's long civil war left behind a culture of violence. The army and police have unclear lines of authority and are frequently tied to political factions in the government. There are problems in law enforcement. There are too many weapons in too many hands. The judiciary is not independent. Cooperation between the police and the courts is poor. And a law passed in 1994 effectively grants civil servants immunity from prosecution.
Impunity in Cambodia grows out of the country's complex history of prolonged warfare and political upheaval over the last thirty years. The country's legacy of repression and violence from 1975 to 1979 under the Khmer Rouge has been well documented, and for many, the problem of impunity in Cambodia begins with the failure thus far of the Cambodian government and the international community to hold any senior Khmer Rouge leaders accountable for mass murder. Under the Khmer Rouge, there was no semblance of rule of law or justice, and only a handful of judges and lawyers survived. After their ouster in 1979, formal mechanisms of law enforcement and justice were re-established in name, but they were very weak in practice.
Under the Peoples' Republic of Kampuchea (1979-1989), there was no separation between state and party. Police chiefs, provincial governors, and provincial court officials and justice representatives did not operate in a neutral or independent way but answered to the provincial party chief, head of the provincial people's committee, or directly to ministries in Phnom Penh. The Ministry of Justice supervised and reviewed all judgments made by the courts, and police took their orders from party cadre.33 Decades of civil war also fostered a practice among government security forces of using extrajudicial violence or repression against the political opposition — who were often branded as criminals because they were seen as enemies of the state.
After the signing of the Paris Peace Accords in 1991, Cambodia held democratic elections and adopted a new constitution, which established a multiparty democracy and provided for fundamental human rights, the independence of the judiciary, and the neutrality of the police and military. In 1992 Cambodia ratified several key human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR).
However, the fractious 1993-97 coalition government opened the door to further impunity because office holders at all levels could blame their counterparts from rival parties for crimes committed by their subordinates. Police, military, gendarmerie, and bodyguard units maintained loyalties split along party lines, with political rivalries often exploding into armed confrontation. A high-ranking official in the Justice Ministry said of that period: "The division of responsibility was not equitable, from the district and commune chiefs to the composition of the Supreme Council of Magistracy, which was dominated by the Cambodian People's Party. The other side demanded representation, and when that did not happen, it began preparing troops. The two parties were waiting to find the mistakes from each other."34
While the Justice Ministry official said that the situation was improving with the consolidation of power under one party after the 1998 elections, he noted that the problem of impunity was far from solved. For example, he said, prosecutors and judges continue to violate the law by remaining afraid or hesitant to resolve lingering politically motivated cases from 1997 or 1998. "It's a problem of lack of technical expertise and lack of cooperation — plus they are afraid of revenge from the perpetrators," he said. "They need encouragement from the top to guarantee their security should they go after these high-profile cases. If there's no way to guarantee their security, either through adirective or [some other] official way, they won't dare to do anything."35
There are different interpretations of Cambodia's historical legacy. One, held by some officials interviewed, is that many police, judges, and prosecutors continue to see their role primarily as a means to make a living. They operate, as they did in the 1980s, not by rule of law but largely through political influence and intervention or by orders and executive decrees. Their aim is often to extract confessions and convictions in order to formally fulfill their duties, rather than to collect evidence, conduct proper investigations, or hold independent trials.
A second interpretation is that the problem stems not from deliberate efforts to thwart the rule of law for political ends but from the low level of professional skills. "During wartime we see soldiers looting, corruption by officials, gunmen killing people and using the war as an excuse," explained Prum Sokha, secretary of state at the Ministry of Interior. "This doesn't mean the authorities tolerate crime, but there's no time to investigate because the focus is on war. Our society has changed so much over the last several decades. This doesn't mean we tolerate crime or that it's government policy, or that most of the people support the idea of impunity — no. But there's a lack of competence of the police and authorities to crack down on the problem."36
No Clear Division of Labor in the Armed Forces
Impunity is attributable in part to the lack of distinct lines of command between the police, gendarmerie, and military forces. One reason why perpetrators are allowed to go unpunished is that there is no clear division of responsibility among the different ministries governing criminal investigations — the Ministries of Justice, Interior, and Defense.37
Cambodia has approximately 64,000 police, who are under the Ministry of the Interior. There are 148,000 members of the armed forces, which consist of the army, navy, and air force and report to the Ministry of Defense. The 10,000 gendarmes are formally part of the armed forces, and there are tens of thousands of commune-based militia who report to local commune officials. In addition, senior officials have created bodyguard units, largely composed of soldiers or police officers seconded from the regular forces, which sometimes seem to be little more than private armies and whose only role is to safeguard the personal security of the official to whom they are assigned.
The National Police force, which is under the Ministry of Interior, consists of six departments: Security Police, Transport Police, Public Order Police, Border Police, Administrative Police, and Judicial Police. The judicial police are the main police component in the criminal justice system, although the gendarmerie are also empowered to carry out criminal investigations when necessary, according to the criminal procedures law. The penal or criminal police are under the Judicial Police Department. According to the criminal procedures law, the judicial police are supposed to operate under the Prosecutor General of the Court of Appeals. They continue to receive their assignments, orders and disciplinary action from the head of the National Police, however, meaning that the prosecutors lack full control and authority over them.38
The gendarmerie, created by a subdecree in 1994, are under the Ministry of Defense. With the French providing training in some areas, the gendarmerie are better equipped, funded, and trained than the regular police. This has created strained relations between the two units, with the gendarmerie generally having more power and status. The gendarmerie effectively replaced the old military police, but the two institutions are not the same. The gendarmes have far greater powers than the military police had, for in addition to policing the military by addressing disciplinary violations committed by soldiers, they also share some of the tasks of administrative police, in protecting public order,and of the judicial police, in conducting criminal investigations and making arrests.39
One of the reasons the gendarmerie were mandated to share the criminal investigation powers of the judicial police was to offset the reluctance, fear, or inability of the judicial police to investigate crimes or execute court orders in cases committed by military personnel. In practice, however, the gendarmerie have not been effective in policing the military nor in supporting the judicial police in regular criminal investigations. Instead, they themselves are committing human rights abuses with impunity. The U.N. Special Representative for Human Rights in Cambodia noted: "Growing evidence of [the gendarmerie's] nationwide activities shows that not only is this force failing to fulfill its judiciary police and military police mission, but it is increasingly becoming an agent of human rights abuses, enjoying the same impunity as the other security forces.40 "The lines of authority are unclear between police and gendarmerie," said Secretary of State for the Interior Prum Sokha. "The gendarmerie do not act as police for the military; they work like police."41
Lack of Neutrality of the Armed Forces_
In addition to the unclear lines of authority, Cambodia's police and military forces, including bodyguard units, have been used by different administrations and political factions to serve political goals or defend the interests of individual high-ranking officials or businesspeople. Corruption and nepotism have played a key role in filling positions, which are often sold, or given out by politicians as rewards for political loyalty. For lower-ranking soldiers, their meager salaries cause many to resort to banditry or set up highway checkpoints to extort money from travelers.
In addition, personnel rosters are filled with vast numbers of "phantom" police and military officers, whose commanders receive their salaries. A commander adds extra names to a pay list and then sells the names to individuals, who subsequently turn over a portion of their monthly salary to the commander. The estimated 148,000 members of the Royal Cambodian Armed Forces (RCAF) includes sizable numbers of "noneffective troops"— disabled and elderly soldiers as well as the "nonexistent." Hun Sen adviser Om Yentieng estimates that there at least 20,000 phantom soldiers whose pay goes to their commanding officers.42 Armed forces cannot be accountable if their rolls are filled with nonexistent personnel, making it difficult to find the real names of perpetrators in the military or police force.
A proposed restructuring of the military would bring provincial units and their commanders under the direct tactical control of central RCAF headquarters. This would make the regional and district commanders less vulnerable to manipulation by local warlords by changing the provincial focus from military operations to administration.43
Many generals are extremely entrenched in politics after years of factional fighting or are preoccupied with their lucrative business in illegal logging, casinos, smuggling, human trafficking and operation of brothels. Human rights organizations have received numerous reports of the military and the gendarmerie committing acts of violence in order to pressure the courts or influence their decisions.
· On June 10, 1998 about fifty heavily armed gendarmes surrounded the Phnom Penh municipal court in an effort to reverse the court's decision to release two suspects. The two had been held for the alleged murder of a gendarme but stood to go free for lack of evidence and because the deputy prosecutor determined that they had been tortured while in detention. The court was forced to turn the two men over to the samegendarmerie unit that had tortured them instead of releasing them. The gendarmes again beat and severely tortured the two, including the use of electric shocks, and illegally detained them for a day before transferring them to T-3 prison.44 Later in 1998, in an incident that court and Ministry of Justice officials believed was linked to the June 10 case, then-Justice Minister Chem Snguon received threats; also, several grenades were thrown at his house or found on the premises after he reported to the two prime ministers that the gendarmes had intimidated court employees.45
Obtaining an arrest warrant for soldiers who have committed crimes is very difficult, as the military often does not recognize court-issued arrest warrants. The judges in turn are afraid to confront the military and have little ability to force them to attend court as an accused or a witness. When military personnel accused of a crime have fled to a military base, commanders can protect them by barring police with arrest warrants from the base.46
· A Kompong Speu land dispute is seen as a test case as to whether the judicial system can prevail in disputes involving the military. Royal Cambodian Armed Forces (RCAF) General Chum Tong Heng is trying to evict more than one hundred families of former soldiers. The military claims that the land is under the control of the military development bureau, but legal advocates say the families were on the land before the military took it over and the matter should be settled in the civilian courts. General Chum Tong Heng has ignored three courts summonses and a civil case filed against him by the one hundred families, and was quoted in the press as saying, "This is an internal [military] affair. I don't need to discuss the matter in court."47
"Cases involving perpetrators who are soldiers are very difficult for us to effectively settle," said Battambang Judge Nil Nonn. "Part of the problem is we do not have a clear address or military base [for the perpetrators], and the commanders often do not cooperate with the judicial police."48 It is also difficult to arrest offenders who are members of militias; they are generally armed but often have no clear commanders. Instead, they operate under more of an extended family system in the commune setting, enabling perpetrators to be tipped off in advance by neighbors or relatives in the police that they are going to be arrested, giving them time to escape.
The military court, which is under the Ministry of Defense, presides over cases involving military offenses committed by the members of the military, or cases in which military personnel are involved in damage to military property. Common offenses committed by soldiers are under the jurisdiction of the provincial and municipal courts.49 The role of the Military Court is not always clear. For example, former Khmer Rouge official Ta Mok is being tried in a military court, not a civilian one, for violating the 1994 Law Outlawing the Khmer Rouge, a law that applies equally to civilians and military personnel. The rationale in this case is that he was an active soldier at the time the crimes were committed, and that the crimes he committed were directly linked to military activity.
Availability of Weapons
Decades of warfare and civil strife, plus the recent effort to demobilize thousands of soldiers, have left Cambodia saturated with cheap, easily available arms and explosives. Both private civilians and officially authorized armed unitspossess these weapons, and misuse them. Estimates of the numbers of guns in Phnom Penh alone range from 100,00050 to the Ministry of Interior's official figure of 10,130 weapons, of which 8,937 were licensed as of April 1999.51 Guns are used to solve anything from neighborhood quarrels to settling political or business rivalries.
There are few mechanisms to effectively control the way security personnel use firearms during off-hours. However, in the course of duty, police often resort to excessive use of lethal force to apprehend suspects; police are known to have used hand grenades in police operations and to routinely shoot alleged criminals during arrest.
Murders increased in Cambodia during 1998, according to a report to the National Assembly by Minister of Interior Sar Kheng, who said that most criminals were police, soldiers, and students.52 From January through October 1998 in Phnom Penh alone, 297 people were killed as a result of crimes involving guns — more than during all of 1997 — and another 130 were wounded.53 These figures do not include the numbers of alleged criminals routinely shot dead by police.
Authorized by Subdecree 62, in April 1999 the Ministry of Interior established checkpoints in Phnom Penh to confiscate weapons from persons lacking licenses from the Ministry of Interior.54 During the first three weeks of the campaign, approximately 1,150 weapons were voluntarily turned in to authorities and another 124 weapons and thirty-two grenades were confiscated in Phnom Penh.55 In May, Phnom Penh authorities made a public display of destroying some 4,000 weapons at Olympic Stadium. However, critics have said that the gun control effort is largely a cosmetic measure because police, gendarmerie, and soldiers — some of the greatest perpetrators of armed crimes — will remain entitled to their weapons. More important than whether a gun is licensed or not, critics say, is whether there is strong political will to enforce the law against those who abuse weapons. In addition, measures need to be taken to ensure that confiscated weapons are not put back in circulation again, either redistributed by those who confiscated them to their local political constituencies or resold at arms markets such as one at Toek Tlaa on the outskirts of Phnom Penh.
"We need to look at who really has the guns," said a source in the Ministry of Interior. "Is it really effective to look in car trunks? Of course it is a deterrent, but you can still give twenty dollars and keep your gun. The ones who conduct the criminal activities are the ones with the licenses — they're the ones who use the guns. The current effort is confiscating the guns of people who lack licenses — they are the ones who generally don't use their guns. Gun control is a good idea, but you have to implement it without discrimination. If you close one door but open dozens more, it will have no effect."56
At present, military generals and high-ranking civil servants such as senators, parliamentarians, Supreme Court judges, ministers of state, and district and provincial governors are entitled to own and carry handguns if they are properly licensed. Police, military, and gendarmes, as well as combatants and bodyguards are entitled to carry licensedguns, but only during working hours or while on mission.57 Eventually even ministers will not be entitled to carry guns, according to the Ministry of Interior, but this will have to be a "step-by-step process."58
A high-ranking Ministry of Interior official said that many crimes are committed by police, causing even himself to mistrust them. "Some are not disciplined soldiers or police — they just get the position but never go to work, or they work as a casino guard," he said. "When they need money they can use their gun; there's no way to control them. The commander of their unit doesn't even know the number of people he has. Even I myself don't trust the police who stop me along the road. Some are fake police. I give them some money because in the dark I don't know if they're real police or not. In any case, I can be sure they are armed."59
Problems in the Law Enforcement Process _
Impunity is also fostered by major shortcomings in the law enforcement process, including poor training, corruption, the lack of regulations governing recruitment and promotion, and the tendency for police to see their role as ridding the country of undesirable elements by whatever means necessary.
In 1998, police killed suspects in 6 percent of arrests in Phnom Penh. At least one in every thirteen arrests in Phnom Penh resulted in either death or injury; out of 1,152 arrests police killed seventy-six people and wounded twelve.60 Reports from Siem Reap province show that in 1998, one in seventeen arrests resulted in death; out of 193 arrests, eleven suspects were killed.61
The police say they use guns because criminals do, too. "The reality in Cambodia is that in 99 percent of cases the robbers use guns," said Ministry of Interior Chief of General Staff Mao Chandara. "The perpetrators are so cruel and savage — even teenagers are incredibly violent, shooting and killing just to steal a motorcycle. The perpetrators don't make an exception for the police. When we shoot them [alleged robbers], the people are happy and congratulate us."62
A source familiar with the workings of the national police force commented on the police force's excessive use of lethal force in apprehending suspects or conducting arrests:
The violence goes down so deep — people know that anyone they confront would not hesitate to open fire. The policeman's reflex is to protect himself, not to implement the law, because they are afraid the suspect will open fire on them. They figure because the whole system will not condemn them [for shooting], why shouldn't they do it to protect themselves? It's part of the culture of implementing law and order: it's done on a very unilateral basis. The policeman's priority is to protect himself first; the interest of the public comes second; for example the possibility that an innocent citizen might be hit by a stray bullet is not as important as their own safety.63
Police officers often do not initiate investigations into cases, and when they do they are prone to settle cases on their own, outside of the judicial system, through payment. Sok Sam Oeun, executive director of the Cambodian Defenders' Project, said, "The police believe they don't need to proceed on a case unless there is a complaint. If a body is found floating down the river they don't investigate. They prod the body to let it loose but don't investigate." He cited a case where a man was found dead on a roadway. The police came, and reported to the hospital that the man was still alive so that they wouldn't have to spend money to take him to the hospital morgue themselves. They did not investigate the case.64
Despite provisions in the 1992 criminal code, police continue to arrest many suspects without warrants. Furthermore, suspects are often arrested without being informed of their rights or of the charges against them. In violation of the criminal code, many suspects are kept in police custody for questioning for more than forty-eight hours before being brought before a judge, with many detainees reporting severe mistreatment during police questioning. Within these first forty-eight hours, lawyers and family members are rarely allowed access to suspects. A substantial proportion of pre-trial detainees spend more than six months in prison before the actual trial commences, again in violation of the criminal code. According to Article 22 of the criminal code, if any of the procedures set out in articles 10-21 of this law are not complied with, the accused must be immediately released. This provision is often completely ignored.65
The Royal Cambodian Government is aware of these procedural errors routinely committed by police, stating in its first report on compliance with the International Covenant on Civil and Political Rights (ICCPR) : "The law protects and safeguards rights in accordance with the provisions of Article 9, Paragraph 1, of the Covenant [ICCPR], 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."66
The failure of the law enforcement process is due in part to lack of training and competence of police, as well as the lack of funds to properly conduct investigations and execute court orders. Difficulties also arise when crime sites are located in remote or unsafe areas. But training by itself will not solve the technical errors that officers commit in the law enforcement process. The absence of rules over procedures such as recruitment, training and promotion enables political parties and powerful individuals to appoint and promote police officers and commit other such abuses of power which compromise the neutrality and effectiveness of the police.
According to one source familiar with the workings of the national police force, "If I'm chief of a police checkpoint, I got that position by paying my boss to get it. I have to pay him back. Police openly take money from people they stop along the roadway — training has nothing to do with that. Training has to come after a long list of things has happened: increasing salaries, making salaries merit-based, and basing recruitment on competence and not on the envelope of cash I give my boss and then have to pay back."67
Part of the problem is that sanctions or disciplinary measures are not always enforced for policemen who violate the law while carrying out their duties. "Right now the national police force operates essentially as a state within a state: no one can touch it," said the source familiar with the national police force. "From the top to the bottom, if policecommit violations they are never sanctioned. At most they are reshuffled to another position for a while."
Lack of an Independent Judiciary _
An independent judiciary is one of the main conditions for a state based on the rule of law. The aftermath of Khmer Rouge rule left Cambodia with only a handful of judges, and rebuilding the judiciary has been a slow and highly politicized process. Most of the judges and prosecutors in Cambodia have been beholden to political parties that are in turn under the direct control of top government officials, undermining the very principle of separation of the executive and judicial branches.68
Article 109 of the Cambodian Constitution does provide for judicial independence. All judges are subject to supervision and disciplinary action from the Supreme Council of Magistracy (SCM). The Supreme Council of Magistracy is less independent than the constitution intended, however, since its members include representatives of the executive branch, including the minister of justice. In addition, many of its members have been strongly linked to the ruling Cambodian People's Party (CPP), politicizing the highest judicial body in the nation and violating the principle of the separation of powers.
The Supreme Council of Magistracy has met only twice, with only one meeting — its first, in December 1997 — in which the body discussed judicial issues, and no meetings in which cases or disciplinary action were addressed.69 Because the Supreme Council of Magistracy rarely meets, the Ministry of Justice has taken upon itself the role of a disciplinary authority. In addition, influence on the judiciary by the Ministry of Justice is often exercised through circulars issued by the ministry, which are often considered in effect as law. This violates the principle that only the legislative branch has the power to make laws, as well as Article 90 of the constitution, which gives sole authority to the National Assembly to make laws. Furthermore, the Ministry of Justice has used its power to influence the decisions made by the courts, especially in politically sensitive cases. This causes judges to hesitate even more in following their own conscience or legal training in making decisions. Examples of the Ministry of Justice taking power that belongs to the Supreme Council of Magistracy, interfering in court decisions, or being subject to political pressure, include the following:
· In 1998, the Ministry of Justice suspended three judges of the Appeals Court after they overturned the conviction of former Funcinpec military official Chau Sokhon. Chau Sokhon had been arrested and convicted in 1997 on drug smuggling charges, sentenced by municipal court to fifteen years in prison plus another three years on a separate drug smuggling charge. In December 1997 the Appeals Court overturned one of his convictions, saying there was insufficient evidence. He was released but then arrested eight days later when he was trying to leave the country, escorted by United Nations personnel. Minister of Justice Chem Snguon then suspended the three Appeals Court judges who overturned his conviction on the grounds that they had made an "abnormal" decision.70
· In 1998 a deputy governor of a province summoned court personnel to a meeting where he organized them as a branch of the CPP. He ordered court officials to postpone hearings or complaints filed by opposition party members until after the July 1998 elections were over.71
Because of the long delays in setting up the Supreme Council of Magistracy, the politicization of the body, and the fact that the SCM's Disciplinary Council has never met, there effectively has been no official body to discipline judges. In part because the SCM was not established until late 1997, prolonged suspensions of judges have generally been decided upon by the Ministry of Justice. For example: Appeals Court Judge Samreth Sophal, suspended in March 1995; Pursat Prosecutor Kong Bin, suspended in April 1997; and Pursat Judge Son Neatheavy, who was transferred to a post as investigating judge after being accused of illegal arms possession in 1997.
According to the 1993 Law on Criminal Procedure, the judicial process should operate as follows: police detain suspects for a short period of time while they gather evidence and present a preliminary report to the prosecutor, who then either files charges or requests police to provide additional evidence. If the prosecutor files charges, an investigating judge is assigned to the case to evaluate whether the accused should be arrested and sent to trial. The investigating judge's duty is to make sure that correct legal procedures are followed during the investigations, and that the rights of the accused are respected. A trial date is set; during the trial, the presiding judge decides whether the accused is guilty, by considering the evidence put before the court.72
The reality is quite different, with judges receiving instructions from the executive branch or letting themselves be influenced by bribes or intervention by offenders or their representatives. There is little concept within the judiciary of the presumption of innocence or the importance of evidence in determining guilt.
There are also many aspects of the Cambodian judiciary that remain undefined in law. There is still no law, for example, that clearly defines the roles of trial judges, investigating judges, prosecutors and clerks or sets forth qualifications or how ranks and salaries are to be determined. There are also no regulations governing membership in political parties or conflicts of interest for judges and other court officials.73
The Royal Cambodian Government acknowledged the problem, stating in its report on compliance with the ICCPR that, "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."74 "Before 1992," the report continued, "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."75
The government report further noted:
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 offenses; the Minister of Justice makes recommendations and issues guidelines to enable the judges to apply laws and procedurescorrectly. 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.76
A court official from the Takeo Provincial Court agreed with the government's assessment: "Frankly, habits from the communist days are still in place, with the court system continuing to operate under the supervision of the party."77
In a 1997 interview, former Minister of Justice Chem Snguon admitted that judges make their decisions prior to conducting a trial:
The judge prepares his decision before the trial opens. Before the case opens, he already has a model. During the trial, issues may be brought up that modify the judge's decision. If the responses to questioning or testimony are slightly different than expected, the judge will modify the decision for ten or fifteen minutes at the end of the trial. If the events during the trial are very different, he must suspend the trial until a later date. At that time, he will look at additional evidence and write a decision. Judges always make a map of their decision after looking at the [pre-trial] evidence.78
Highly politicized cases such as the trials of Prince Ranariddh in a military court in March 1998, in which pre-arranged pardons had been negotiated, show the power of the executive branch over the judiciary. "There are many political cases where the judge cannot be independent but listens to the top, for example, the case of Srun Vong Vannak,"79 said Cambodian Bar Association President Ang Eng Thong. "There was no evidence; only `advice' from the top. Trials cannot be independent when judges work for political parties." 80
Aside from interference in the judiciary by the executive branch, the Cambodian court system clearly suffers from a lack of funds and training. Only 0.37 percent of the national budget goes to the Ministry of Justice. At salaries averaging U.S.$20 a month, clearly many court officials give precedence to cases involving parties who can pay for their cases to be adjudicated. The Royal Cambodian Government described the problem of corruption in the judiciary: "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."81
It has been difficult to increase the numbers of trained and experienced judges and prosecutors; those appointed during the People's Republic of Kampuchea period of the 1980s received a minimal legal education at best, and many still lack basic knowledge related to human rights and implementation of justice in a constitutional democracy.82 Until recently, when some judges and prosecutors began to receive training from the Ministry of Justice, the Cambodian Court Training Project, University of San Francisco, or the U.N.'s Judicial Mentor Program, the best education mostcourt officials could get was a five-month law course at the Institute of Public Administration and Law that was offered between 1982 and 1989, plus a year or two of university-level education.83
While prosecutors may commit procedural errors in charging a perpetrator, this rarely leads to the release of the offender.84 Procedures outlined in Articles 10 to 21 of the 1992 criminal code, which deal with arrest warrants, searches, and legal assistance are often not followed.
Like the police, court officials suffer from morale problems and often do not take initiative on cases. Prosecutors rarely go out to investigate crimes but wait for the police report. If the police do not report a crime, it often does not get to the court, even though prosecutors are obliged by law to investigate a crime that comes to their attention even if they have not been informed by the police or even if there is no formal complaint.85 Prosecutors often complain that they do not have the funds or means of transportation to investigate cases.
"The prosecutor must do more, not just sit in his chair if there are criminals in the locality," said Cambodian Bar Association President Ang Eng Thong. "They should not just listen to the police but conduct their own investigation. The prosecutors tend to use the police report as the basis of the dossier to send to investigating judge to make an arrest warrant. The investigating judges have the same problem — they don't go to the field to investigate. They say they lack resources or transportation to conduct investigations."86
Trial judges also overly rely on written police reports; often they do not call police as witnesses even though they are legally entitled to do so. In some cases judges make their decisions solely based on confessions extracted under pressure or torture. This is in violation of Article 24 of the criminal code.
Some court decisions are determined by armed intimidation by members of the police, military, or gendarmerie. The Royal Cambodian Government offered the following examples of intimidation of court personnel in its report on civil and political rights:
In May 1994 soldiers attacked the home of the Kompong Som prosecutor in order to kill him and then burst in on a court hearing a few hours later, causing the judge, prosecutor and court clerk to flee. In July 1994 soldiers entered the Phnom Penh Courthouse seeking to intimidate the judges. Also in July 1994 soldiers entered the Kandal courthouse in an effort to intimidate the judges. On December 28, 1995 a group of gendarmes armed with pistols, rifles and submachine guns attempted to obstruct the enforcement of a civil judgment in Phnom Penh. The court was only successful in enforcing its judgment when the Minister of Justice intervened.87
Other examples of armed attacks against the judiciary include the following:
∙ In June 1998 proceedings at the Koh Kong provincial court were disrupted by the chief of the provincial judicial police and ten policemen when the court was to hold a hearing on a land case involving the wife of the judicial police chief, causing the court to indefinitely postpone the hearing out of concerns for their safety.88
∙ On November 2, 1996 the chief of the Banteay Meanchey judicial police stormed the provincial prison with thirty heavily armed police officers and an armored personnel carrier in order to release a police officer who had been arrested by the gendarmerie for beating and threatening to kill his wife. After some negotiation, the prison staff decided that they did not need a court order to release the suspect and freed him immediately. The judicial police chief later threatened the life of the prosecutor who had issued the arrest warrant.89
∙ In March 1994 several soldiers in Battambang attacked the provincial prison in an attempt to obtain the release of persons imprisoned for drug trafficking; in another instance in Kratie a general ordered his deputy and two other subordinates to make threats against the prison to obtain the release of a prisoner (no date given).90
Even when proper judicial procedures are followed in the administration of justice and perpetrators are found guilty and convicted to a prison sentence, many verdicts are not actually implemented. In a survey of courts in nine provinces, Adhoc found that several reasons were given for the low rate of implementation of verdicts. These included that the judicial police did not properly carry out their duties but negotiated unofficial financial compensation with offenders; armed groups intervened in the judicial process; offenders obtained the protection of the military or fled to remote areas; or the courts lacked resources and financial means to implement verdicts.91
The problem is compounded in provinces such as Battambang, the site of military activity for many years. Battambang Judge Nil Nonn reports that almost no court decisions or verdicts were actually implemented in Battambang in 1998, where he estimated that members of the military were responsible for committing as much as 15 percent of the criminal cases. Half of the Battambang court's criminal cases were tried in absentia, and only 5 percent of the total verdicts were actually implemented.92 The court issued plenty of arrest warrants, Nil Nonn said, but could not implement most criminal verdicts, particularly prison sentences.93
Poor Cooperation between Police and Courts_
Lack of collaboration, trust, and respect between the courts and the police is often a factor in the poor implementation of criminal justice procedures and ensuing impunity for perpetrators. In many cases, the police charge that they have risked their lives to make an arrest, but then because the courts are corrupt and slow to act, criminals are allowed to escape. Even when arrest warrants are issued, the courts still sometimes release suspects, alleging that the police have not provided enough evidence or properly prepared their paperwork. The courts, meanwhile need sufficient evidence in order to prosecute, which they say they often do not receive.
Ministry of Interior official Mao Chandara said that the judicial police have difficulty preparing case files because of lack of expertise and experience, causing the courts to close cases for lack of evidence. "But then we have to wonder why, if the case file is not complete, why don't they send it back to us so we can fill in the missing parts?" he said. "The judicial police are under the prosecutor's control, according to the legal procedures. The investigating judge has the right to investigate but he also the right to order the judicial police to do more investigation to complete the file."94
In Phnom Penh, there are 500 outstanding arrest warrants for 1998, in which police have been unable to apprehend perpetrators, according to Khieu Sameth, chief of the penal department of the Ministry of Justice.95 Ministry of Interior spokesman Khieu Sopheak attributes the huge backlog not only to problems in preparing the warrants but to corruption within the judiciary, with court officials taking their time to issue warrants for cases in which they have a conflict of interest.96
The Cambodian government acknowledged the problem in its report to the United Nations on its compliance with the ICCPR: "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."97
In practice, the police often wield far more power than the courts. Provincial prosecutors complain that the judicial police do not respect the courts and often ignore judicial procedure completely; detaining, incarcerating and releasing suspects without notifying the courts.
"The police don't respect the law, they respect their boss," said an official from the Kandal provincial court. "We at the court are not their commander; we don't pay their salaries. In general the police should contact the prosecutor when they have a case, but they only contact us when they have a really difficult case. If there's material they can confiscate they don't contact us. The police love power and don't care about the procedure. That's the reality."98 A Banteay Meanchey court official wryly noted that police used arrest warrants "like a basket to collect money."99
Police officers often do not feel it is their role to prepare a report, conduct an investigation, or even to enforce warrants and summonses. Part of the reason, according to an official at the Takeo Court, is because they see the courts as lower than themselves. "The police have the appearance of having more status because they have property, vehicles, bodyguards," he said. "We have none of that so we appear weak."100 He advocated legal reforms to clearly place the judicial police under the authority of the prosecutors.
Secretary of State at the Ministry of Interior Prum Sokha summarized the tension: "We have corrupt police and corrupt courts. Sometimes the police send all the evidence to the court but the real criminals are released anyway. In some cases the police look down on the court, and in some cases the court looks down on the police."101
Institutionalized Impunity: Article 51 _
Legal aid organizations and human rights activists are critical that Cambodia still lacks a comprehensive criminal code five years after the creation of the Royal Government of Cambodia. Instead it is still relying on a criminal code, written and implemented by the U.N. Transitional Authority in Cambodia (UNTAC), that was supposed to be an interim law until a more complete criminal code was adopted. It has become, however, the country's sole criminal law. It has been criticized for not punishing enough offenses (it only punishes thirty-five) as well as lacking a list of defenses. In addition, there is a drastic need for a new criminal procedures code to replace the 1993 version, which does not contain enough standards for procedure; the focus is mainly on the responsibilities of various court personnel and not on how procedures such as issuing arrest warrants are to be conducted.
Despite these shortcomings in Cambodia's legislation, the most important form of state-sanctioned and institutionalized impunity in Cambodia is Article 51 of the 1994 Law on the Common Statutes for Civil Servants. It provides that civil servants — which in practice includes police and security forces as well as military — may not be prosecuted for any crimes that they commit without the consent of the Council of Ministers or the alleged offender's supervising ministry. Theoretically the only exception is when civil servants are caught in the act of committing such crimes.
Requests to waive a state official's immunity are generally channeled through the Ministry of Justice, which then forwards them to the relevant ministry. For example, if a policeman commits armed robbery in Takeo, the provincial prosecutor would send a request to the Ministry of Interior through the Ministry of Justice for Article 51 provisions to be lifted so that the policeman can be charged and an arrest warrant issued. However, it can take months, or even years, for the ministries to respond to a request, not only giving the perpetrator plenty of time to escape or to intimidate witnesses or court officials but paralyzing the criminal justice process and effectively granting the perpetrator immunity during the delay.
Article 51's protections of civil servants from prosecution are always in place unless a prosecutor requests a waiver. In many cases the prosecutor does not ask for a waiver because the case involves the military or high-ranking officials who have the ability to pressure or intimidate the court. Often prosecutors do not bother to request the waivers because they know they will encounter significant delays or receive no answer at all. For example, 62 percent of the requests filed in 1998 have not yet received a response from the Ministry, meaning in effect that Article 51 protections for the offender are still in place.102
"When I ask permission from the Ministry of Justice to file a complaint I don't receive an answer for more than half a year," said an official from the Kandal court. "The victims are left with only their tears. The perpetrators have already committed their action. Later they threaten the victim so the victim cannot do anything. This is contrary to the legal principle that each person should be equal before the law."103
The long (or permanent) delays in obtaining responses to requests by provincial courts for Article 51 waivers clearly interferes with the court's abilities to function. "It is difficult to enforce the law with government civil servants because they have privileges in Article 51 and the concerned institutions do not reply or give us a clear response as to whether they allow us to charge the civil servant or not," said Judge Nil Nonn in his 1998 Annual Report to the Ministry of Justice.104
If an Article 51 decision is finally made, authorization is given to lift immunity in 60 percent of the requests at best;in 1998 only 38 percent were approved.105 In this way, since its enactment in 1994, Article 51 has allowed hundreds of crimes allegedly committed by state officials, military, or police to go unprosecuted and unpunished. Meanwhile, when victims inquire about the status of their complaint, they are told that it is being held up by bureaucratic red tape.106
Many countries provide immunity from civil action to public officials who commit administrative mistakes but believe in good faith that they are acting within the law. However, that immunity does not apply to acts that are illegal, such as murder, robbery, assault, rape, or torture. Cambodia appears to be one of the only countries that places civil servants above the law, essentially providing blanket immunity to all crimes they commit. Article 51 violates several articles of the Cambodian constitution, including Article 31, which provides for equality before the law to all Khmer citizens; Article 51, which mandates separation of powers, because it transfers the decision whether to prosecute from the courts to the ministries; and articles 109, 110 and 111, which have to do with judicial independence, the rights of judges only to adjudicate, and separation of judicial power from the legislative and executive branches. In addition, it violates articles 2 and 14 of the ICCPR, which provide equal protection of the rights under the covenant and equality before the court.
Then-Minster of Justice Chem Snguon proposed in January 1997 that Article 51 be amended and sent a draft law to the co-prime ministers to that effect. However, to date it has not been amended or repealed. Snguon proposed that prosecutors need only to inform the relevant ministry of a civil servant accused of a crime, rather than seeking permission to prosecute from the Council of Ministers or the relevant institution, except in cases of flagrante delicto — where someone is caught in the act of committing a crime.107
While Chem Snguon also stated that military personnel were excluded from the scope of Article 51 in a letter to the minister of defense in a letter dated April 22, 1997, it continues to be applied to the military.108 Minister of Defense Tea Banh has continued to state that soldiers are covered by provisions of immunity similar to that provided by Article 51. For example, in an August 1998 letter to U.N. Special Representative Thomas Hammarberg, Tea Banh referred to a November 1995 letter from the co-ministers of the Council of Ministers that had proposed the inclusion in the common military statute of provisions that would provide immunity to the military in a similar manner as Article 51.
Article 51 waivers of immunity are usually not used to protect lower-ranking level civil servants who commit crimes. "It's only used for the big fish," said Sok Sam Oeun, executive director of the Cambodian Defenders Project. "In many instances where the police or courts are intimidated by a high-level perpetrator they need Article 51 in order to be able to essentially say, `I don't want to arrest you but your boss told me to.'"109
According to Ith Rady, deputy director of the Department of Personnel and Training of the Ministry of Justice, in 1996 there were approximately one hundred requests for Article 51 waivers, of which sixty were approved. In 1997 there were about 200 requests, of which 120 were approved.110
During calendar year 1998, the Ministry of Justice recorded 117 cases in fourteen provinces where courts asked for authorization to prosecute civil servants under Article 51. Authorization was granted in forty-four of these cases, and the rest are listed as still waiting response from the relevant ministries. The Ministry of Interior received seventy-eight letters of request for authorization in cases involving police, the largest single category of offenders, and in more than half of these cases the alleged crime committed was intentional manslaughter. The ministry authorized thirty-seven of the total number of cases for prosecution; the rest are awaiting approval.
33 See Dolores A. Donovan, "The Cambodian Legal System," Rebuilding Cambodia: Human Rights, and Law, Johns Hopkins University, 1993. See also Koy Neam, Introduction to the Cambodian Judicial Process, The Asia Foundation, 1998, p. 3 and 9.
34 Human Rights Watch interview with Justice Ministry official, Phnom Penh, April 6, 1999.
36 Human Rights Watch interview with Prum Sokha, secretary of state, Ministry of Interior, Phnom Penh, April 9, 1999.
37 United Nations High Commissioner for Human Rights, "Grenade attack in Phnom Penh 30 March 1997 and Extrajudicial executions 2-7 July 1997: An assessment of the investigations," Geneva, May 13, 1998.
38 United Nations High Commissioner for Human Rights, "Grenade attack in Phnom Penh 30 March 1997 and extrajudicial executions 2-7 July 1997: An assessment of the investigations," Geneva, May 13, 1998.
39 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
40 Report of the Secretary-General, "Situation of Human Rights in Cambodia," October 17, 1997.
41 Human Rights Watch interview with Secretary of State for the Interior Prum Sokha, Phnom Penh, April 9, 1999.
42 "The delicate challenge of downsizing RCAF," Phnom Penh Post, April 13-29, 1999.
43 "The delicate challenge of downsizing RCAF," Phnom Penh Post, April 13-19, 1999; Michael Richardson, "With Khmer Rouge Collapse, Pressure Grows to Rein In Army," International Herald Tribune (Paris), January 11, 1999.
44 Report of the Secretary-General to the United Nations General Assembly, "Situation of human rights in Cambodia," September 17, 1998; Cambodia Daily, June 12, 1998.
45 Muzamil Jaleel, Cambodian Police and the Need for Reforms, Asian Human Rights Commission, August 6, 1998.
46 For an example of a case where a perpetrator of a mass killing is thought to have obtained protection in a military base, see case study in Section IV below, "Takeo: Massacre of Five Family Members by Commune Militiaman."
47 Yuko Maeda and Phann Ana, "Land Dispute Triggers Soldiers' Transfer," Cambodia Daily, March 22, 1999; Yuko Maeda and Im Sophea, "Land Case Called Key for Judicial `Revolution,' " Cambodia Daily, April 9, 1999.
48 "Annual Report (1998) on Actions of the Provincial Court and Prosecutor," 6 December 1997-30 November 1998, from Battambang Court Chief to H.E. Minister of Justice, November 30, 1998.
49 Article 9, Law on the Organization and the Activities of the Tribunals of the State of Cambodia (1993). See also Koy Neam, Introduction to the Cambodian Judicial Process, The Asia Foundation, 1998, p. 17.
50 Reuters, "Cambodia's murder rate rises, other crime down," April 8, 1999.
51 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
52 Reuters, "Cambodia's murder rate rises, other crime down," April 8, 1999.
53 Huw Watkin, "Phnom Penh's crime deaths soar amid unrest and recession," South China Morning Post (Hong Kong), November 20, 1998.
54 See Subdecree 62, "Subdecree on Illegal Weapons and Explosives Control," July 31, 1995; Decision 27, "The Cease of Validity of Licenses Authorized to Carry Weapons," April 2, 1999; Decision 28, "Decision on the Establishment of a Commission for Weapons and Explosive Confiscation," April 2, 1999.
55 Im Sophea, "City Seeks to Destroy Guns," Cambodia Daily, April 26, 1999; Saing Soenthrith, "Phnom Penh's Residents Cough Up 1,000 Weapons," Cambodia Daily, April 14, 1999.
56 Human Rights Watch interview with source in the Ministry of Interior who asked to remain anonymous, Phnom Penh, April 1999.
57 Chapter Three, Subdecree 62, "Subdecree on Illegal Weapons and Explosives Control," July 31, 1995. See also Chapter Four, Subdecree 38, "Subdecree on Administering and Inspecting the Import, Production, Selling, Distribution and Handling of all Types of Weapons," April 30, 1999.
58 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
59 Human Rights Watch interview with Ministry of Interior official, Phnom Penh, April, 1999.
60 The 1998 number is higher than that for 1997, when 5 percent, or sixty-five out of 1,118, of Phnom Penh arrests resulted in deaths. Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
61 Joint Commentary by Adhoc and Licadho on the Report of the Royal Cambodian Government under the ICCPR, Under Consideration by the U.N. Committee on Human Rights, March 30, 1999.
62 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
63 Human Rights Watch interview with source close to the Ministry of the Interior, Phnom Penh, April 1999.
64 Human Rights Watch interview with Sok Sam Oeun, executive director, Cambodian Defenders' Project, Phnom Penh, March 2, 1999.
65 Joint Commentary by Adhoc and Licadho on the Report of the Royal Cambodian Government under the ICCPR, Under Consideration by the U.N. Committee on Human Rights, March 30, 1999.
66 Paragraph 155,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997. The report was submitted to the U.N. Human Rights Committee for its March 30, 1999 meeting in New York.
67 Human Rights Watch interview with source close to the Ministry of the Interior, Phnom Penh, April, 1999.
68 Report of the Secretary-General, "Situation of Human Rights in Cambodia," October 17, 1997.
69 The only other meeting of the Supreme Council of Magistracy, in May 1998, was convened in order to establish the Constitutional Council as part of the 1998 electoral process.
70 Kimsan Chantara, "Suspended Appeal Court Judges Return to Work," Cambodia Daily, January 5, 1999; Commission on Human Rights, "Report of the Special Representative of the Secretary-General on the Situation of Human Rights in Cambodia," February 20, 1998; Kay Johnson, "Evidence Clear: Justice System Routinely Fails," Cambodia Daily, March 25, 1999.
71 Commission on Human Rights, "Report of the Special Representative of the Secretary-General on the Situation of Human Rights in Cambodia," February 20, 1998.
72 Kevin Maguire, "Kingdom of Cambodia, Courts Handbook," Cambodian Criminal Justice Assistance Project, December 1998. See also Dolores A. Donovan, "The Cambodian Legal System," Rebuilding Cambodia: Human Rights, and Law, Johns Hopkins University, 1993, p. 90.
73 Report of the Secretary-General, "Situation of Human Rights in Cambodia," October 17, 1997.
74 Paragraph 209,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997. The report was submitted to the U.N. Human Rights Committee for its March 30, 1999 meeting in New York.
75 Paragraph 212,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997.
76 Paragraph 211,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997. The report was submitted to the U.N. Human Rights Committee for its March 30, 1999 meeting in New York.
77 Human Rights Watch interview with court official, Takeo, April 8, 1999.
78 Eric Pape, "Justice is a not a Wild Horse - It must be Controlled," Phnom Penh Post, November 7-20, 1997.
79 Srun Vong Vannak, security chief for opposition politician Sam Rainsy, was arrested and accused of organizing the murder of Keo Samouth, a relative of Hun Sen. In September 1997, he was sentenced to thirteen years in prison in what the UN Special Representative for Human Rights in Cambodia has called a "political trial" but released in an amnesty in 1998. See Report of the Secretary-General to the U.N. General Assembly, "Situation of Human Rights in Cambodia," October 17, 1997.
80 Human Rights Watch interview with Cambodian Bar Association President Ang Eng Thong, Phnom Penh, March 10, 1999.
81 Paragraph 207,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997.
82 See Dolores A. Donovan, "The Cambodian Legal System," Rebuilding Cambodia: Human Rights, and Law, Johns Hopkins University, 1993.
83 Dolores A. Donovan, "The Cambodian Legal System," Rebuilding Cambodia: Human Rights, and Law, Johns Hopkins University, 1993.
84 For an example of a case where numerous legal improprieties were committed by court officials but charges were not dropped, see the case of the arrest of two Licadho workers in December 1998 in Sihanoukville, described in Toxic Justice: Human Rights, the Judiciary, and Toxic Waste in Cambodia, Human Rights Watch / Asia, May 1999.
85 The Ministry of Justice issued a circular to prosecutors in 1998, underlining Article 56 of the Law on Criminal Procedures, stating that if they hear about a crime or receive a complaint — even if they have not been informed by the police — it is their duty to investigate.
86 For an example of lack of action by an investigating judge, due in part to fear of repercussions from military perpetrators, see the case study under Section IV of this report titled "Kompong Thom: Summary Executions of Nine Fishermen by Military."
87 Paragraphs 205 and 206,"Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997.
88 Report of the Secretary-General to the General Assembly, "Situation of human rights in Cambodia," September 17, 1998.
89 Report of the Secretary-General to the United Nations General Assembly, "Situation of human rights in Cambodia," October 17, 1997; See also Phnom Penh Post, June 13-26, 1997.
90 Paragraph 204, "Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997.
91 "Survey on Implementation of Verdicts by the Courts and the Police," Adhoc, March 1999.
92 At the same time, however, Battambang's prison population increased dramatically, with more than 200 people sentenced in 1998, according to a U.N. human rights official.
93 Human Rights Watch interview with Battambang Judge Nil Nonn, Battambang, March 3, 1999. See also, "Annual Report (1998) on Actions of the Provincial Court and Prosecutor, 6 December 1997-30 November 1998, from Battambang Court Chief to H.E. Minister of Justice," November 30, 1998.
94 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
95 Human Rights Watch interview with Khieu Sameth, deputy chief of the Department of Civil and Criminal Affairs, Ministry of Justice, Phnom Penh, April 6, 1999.
96 Phann Ana and Kevin Doyle, "Courts Guilty of Not Doing Their Job, Interior Officials Say," Cambodia Daily, April 12, 1999.
97 Paragraph 166, "Report on the Application of Civil and Political Rights in Conformance with Article 40 of the ICCPR," Kingdom of Cambodia, 1997. The report was submitted to the U.N. Human Rights Committee for its March 30, 1999 meeting in New York.
98 Human Rights Watch interview with court official, Ta Khmau, Kandal, March 16, 1999.
99 Human Rights Watch interview with Banteay Meanchey court official, Sisophon, March 5, 1999.
100 Human Rights Watch interview with Takeo Court official, Takeo provincial town, April 8, 1999.
101 Human Rights Watch interview with Prum Sokha, secretary of state for the Ministry of Interior, Phnom Penh, April 9, 1999.
102 "Report on Requests to File Charges from Prosecutors of Provinces and Municipalities During 1998," Ministry of Justice, April 9, 1999.
103 Human Rights Watch interview with official from Kandal provincial court, Ta Khmau, March 16, 1999.
104 Annual Report (1998) on Actions of the Provincial Court and Prosecutor," 6 December 1997-30 November 1998, from Battambang Court Chief to H.E. Minister of Justice, November 30, 1998.
105 "Report on Requests to File Charges from Prosecutors of Provinces and Municipalities During 1998," Ministry of Justice, April 9, 1999.
106 For an example of a case held up by Article 51, see the case study titled "Kompong Speu: Torture and Execution of Teenage Boy by Official's Bodyguards" in Section IV below.
107 Commission on Human Rights, "Report of the Special Representative of the Secretary-General on the situation of human rights in Cambodia," February 20, 1998.
108 Report of the Secretary-General to the United Nations General Assembly, "Situation of human rights in Cambodia," September 17, 1998. See also Chem Snguon's letter to the co-ministers of national defense, dated April 22, 1997, which states: "I would like to inform your excellency that the military are not under Article 51 of the Common Statutes for Civil Servants. According to the law, therefore, the charging or arrest of any military who committed misdemeanor, the law does not require obtaining permission from the concerned ministry beforehand." In a September 3, 1997 letter to the co-ministers of national defense, Chem Snguon states again that "Military officers are not under the power of the Law on Civil Servants. Therefore there is nothing to prohibit the prosecution of military personnel. The request for authorization the Co-Ministers of National Defense by civil prosecutors against military officers who commit criminal offenses may be made only to inform and to avoid the use of weapons by military offenders against the proceeding of the prosecutors and civil courts."
109 Human Rights Watch interview with Sok Sam Oeun, executive director of the Cambodian Defenders' Project, Phnom Penh, March 2, 1999.
110 Human Rights Watch interview with Ith Rady, deputy director, Department of Personnel and Training, Ministry of Justice, Phnom Penh, March 15, 1999.
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