(New York) – The Cambodian Supreme Court’s decision to refuse bail to five detained human rights defenders is part of the government’s persecution of Cambodia’s rights groups, Human Rights Watch said today. On November 30, 2016, the court upheld pretrial detention for four current and one former member of the Cambodian Human Rights and Development Association (ADHOC), in violation of their due process rights under international law.
Cambodia’s donors and United Nations bodies should speak out against prosecutions and other actions supported by Prime Minister Hun Sen and the ruling Cambodian People’s Party (CPP) aimed at intimidating and suppressing human rights work. These measures, as well as recent threats to close the Cambodia Office of the UN High Commissioner for Human Rights (COHCHR), are part of a government campaign to curtail domestic and international human rights monitoring in Cambodia.
“The Supreme Court showed its political bias in refusing bail for five human rights defenders criminally charged for doing their jobs in a way the government didn’t like,” said Brad Adams, Asia director. “No one should mistake these prosecutions for anything other than Prime Minister Hun Sen’s effort to undo decades of work by Cambodian groups and the UN to promote the human rights of all Cambodians.”
The “ADHOC five” consists of ADHOC staffers Nay Vanda, Ny Sokha, Yi Soksan, Lim Mony, and former ADHOC staffer Ny Chakrya, now a deputy secretary-general of Cambodia’s National Election Committee. On May 2, an investigating judge of the Phnom Penh court filed charges of “bribery of a witness” against those five and Son Saly of COHCHR. Son Saly has not been arrested because as a UN employee he enjoys immunity from legal action for the conduct of his duties.
In a speech on May 1, Hun Sen publicly interjected himself into the cases by stating that those charged in this case should go to jail. He also said that Son Saly’s immunity as a UN employee was irrelevant, proclaiming, “Even if there is immunity, jail is a must.” “Bribery of a witness” is set out under article 548 of Cambodia’s Criminal Code as “the direct or indirect giving of a gift, offer, promise, or interest to a witness in order (1) not to testify; (2) to provide false testimony.” The offense is punishable by five to ten years’ imprisonment. Alleged accomplices face the same punishment.
The prolonged pretrial detention of the ADHOC five violates the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party. Article 9(3) states, “It shall not be the general rule that persons awaiting trial shall be detained in custody.” The UN Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has stated that “pretrial detention should be an exception and as short as possible.” Pretrial detention should not be used as a form of punishment. The Human Rights Committee has stated that excessive pretrial detention may in itself be a violation of the rights to liberty and presumption of innocence.
In its bail ruling, the Supreme Court cited article 205 of the Code of Criminal Procedure, saying it was necessary to deny bail to maintain public order and prevent interference with witnesses and victims. However, no specific information of the necessity of such prolonged pretrial detention was provided, and no explanation was given as to why non-custodial measures were insufficient to ensure their appearance in court or to prevent any reasonably anticipated interference with the administration of justice.
“The Supreme Court should be willing to challenge the arbitrary misuse of power by the authorities, but by simply rubber-stamping government malfeasance, the court is merely extending the suffering of the ADHOC five and their families,” Adams said.
Article 12 of the UN Declaration on Human Rights Defenders provides that governments shall take all necessary measures to ensure the protection for human rights defenders against “any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary actions” related to their efforts to protect and promote human rights and fundamental freedoms.
The UN Office of the High Commissioner for Human Rights has stated that the critical test for human rights work worldwide is whether it is aimed at “acting in support of victims of human rights violations,” including by providing those who may be victims of human rights violations with counseling and other assistance.
Human Rights Watch urged Cambodia’s donors and the wider public to participate in the #FreeThe5KH campaign at https://freethe5kh.net/.
In November, the Cambodian government threatened to shut down the UN human rights office in Phnom Penh by the end of 2016. The office has been operating in Cambodia since 1994 and, as the UN Human Rights Council and many UN member states have noted, plays a key role in promoting and protecting human rights in the country.
“Prime Minister Hun Sen has sent a message through the ruling party-controlled judiciary and through threats to close the UN human rights office that no rights advocacy is safe in Cambodia,” Adams said. “Civil society groups in Cambodia are facing unprecedented attacks. It is critical that Cambodia’s donors speak loudly and with one voice to say that this is unacceptable and that there will be consequences if the attacks don’t end.”
The case of the ADHOC five arose after ADHOC provided human rights advice and assistance to Khom Chandaraty, widely known as Srey Mom. She and her family approached ADHOC for help on March 9, 2016, after she was “invited” for questioning by the Counterterrorism Directorate of the government’s Central Directorate for Security, which is headed by Lt. Gen. Dy Vichea, a member of the CPP Central Committee and Hun Sen’s son-in-law. The summons did not concern any alleged terrorist activity but asked Srey Mom to provide clarifications about a purported surreptitiously-made recording of a conversation between her and Kem Sokha, acting leader of the opposition Cambodia National Rescue Party. The recording supposedly demonstrated that she and Kem Sokha were involved in an extramarital affair. On March 11, when questioned by counterterrorism officers, she denied all allegations. On March 18, she received a second summons, this time from the Phnom Penh court prosecution, to reply to the accusation she had lied to the counterterrorism unit and allegations that her relationship with Kem Sokha was one of prostitution.
Srey Mom continued to seek assistance from ADHOC. According to records released by the group, she said that the tapes were faked, that there had been no affair with Kem Sokha, and that she was being intimidated by the authorities and was suffering livelihood difficulties. As it routinely does for those approaching as victims of government abuses, ADHOC provided Srey Mom with a small sum of money for expenses, including to help her attend court, and assigned her a lawyer. On April 19, when she appeared with her lawyer before the prosecution, she reversed her denial of having an affair with Kem Sokha. On April 22, she issued an open letter alleging that the four ADHOC staffers and UN employee Son Saly had enticed her to lie to the authorities by sticking to her original story and suggested that she should leave Cambodia.
On April 23, the Ministry of Justice, which has a controlling influence over the Cambodian judiciary, cited Srey Mom’s letter and “condemned unreservedly the law-violating conduct” of ADHOC and COHCHR, and called for “the competent authorities” to “take the most vigorous legal measures” against them. ADHOC publicly denied any wrongdoing and distributed internal records backing up its contention that it had acted entirely in accordance with legal and professional standards for human rights work.
On April 25, the five current and former ADHOC staffers were summonsed to present themselves for questioning on April 27 and 28 by the government’s Anti-Corruption Unit (ACU), which has judicial police authority to investigate allegations of bribing a witness. It is headed by CPP Central Committee member and long-term Hun Sen confidant Om Yentieng. On April 28, the ACU placed the five in custody, and on May 1, it brought them before the Phnom Penh court prosecution. While in ACU custody, they were not given access to legal counsel.