- Title I: JUDICIAL SYSTEM
- Title II: CRIMINAL PROCEDURE
- Article 10: Legal Assistance
- Article 11: Military Tribunals
- Article 12: Treatment of Detainees
- Article 13: Arrest and Detention
- Article 14: Pre-Trial Detention
- Article 15: Administrative Detention
- Article 16: Release of Detainees
- Article 17: Access to the File
- Article 18: Arrest Without a Warrant
- Article 19: Arrest based on Existence of Substantially Incriminating Evidence
- Article 20: Searches
- Article 21: Time Limits
- Article 22: Release for Procedural Error
- Title III: TRIAL
- Title IV: FELONIES
- Title V: MISDEMEANOURS
- Article 40: Involuntary Manslaughter
- Article 41: Battery with Injury
- Article 42: Indecent Assault
- Article 43: Theft
- Article 44: Offenses Concerning Cultural Property
- Article 47: Counterfeit of Seals, Bank Notes, Public Documents, Stamps and Trademarks
- Article 48: Violation of Copyright
- Article 52: Wrongful Damage to Property
PROVISIONS RELATING TO THE JUDICIARY
APPLICABLE IN CAMBODIA
DURING THE TRANSITIONAL PERIOD
Decision of September 10, 1992
THE SUPREME NATIONAL COUNCIL (hereinafter referred to as "the SNC"),
Acting in accordance with the powers granted to it as the unique legitimate body and source of authority under Article 3 of the Agreement On A Comprehensive Political Settlement of The Cambodian Conflict, of 23 October 1991, (hereinafter referred to as "the Agreement"),
Recalling Article 6 of the Agreement, according to which the SNC has delegated to the United Nations all powers necessary to ensure the implementation of the Agreement,
Further recalling that the United Nations Security Council, by its resolution 745 (1992), has established the United Nations Transitional Authority in Cambodia (hereinafter referred to as "UNTAC") in accordance with Article 2 of the Agreement, to carry out the mandate set forth in Annex 1 to the Agreement,
Considering that UNTAC has been given responsibility, pursuant to Articles 6 and 16 of the Agreement and sections B and E of Annex 1, for direct control or supervision in the areas of maintenance of law and order, protection of human rights, law enforcement, and judicial processes,
Considering further that all parties to the Agreement explicitly recognized in Article 15 that all persons in Cambodia, and all Cambodian refugees and displaced persons shall enjoy the rights and freedoms embodied in the Universal Declaration of Human Rights and other relevant international human rights instruments,
Considering also that the SNC acceded to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on 20 April 1992 and that these instruments entered into force with respect to Cambodia on 26 August 1992,
Concerned that the structures, laws and judicial institutions of Cambodia do not fully comply with the requirements of the Paris Agreement and are sometimes totally or partially lacking in certain areas, and in any case are inadequate to ensure public order and human rights throughout most of the territory,
Recognizing that UNTAC has the responsibility to assist in establishing such structures, laws and judicial institutions where they are absent and to help improve them where they already exist in order to bring them up to the requirements of the Agreement,
Convinced of the urgent need to indicate clearly to all the Cambodian parties the rules of law which must be applied throughout Cambodia and the judicial procedures which must be put in place in order to ensure their effective application during the transitional period,
Further convinced that the application of these rules and procedures is necessary to foster a politically neutral climate and to prepare for free and fair elections,
THEREFORE ADOPTS the following provisions relating to the judiciary, and criminal law and procedure applicable in Cambodia during the transitional period, and solemnly CALLS UPON all Cambodian parties to apply them in good faith until such time as the Legislative Assembly resulting from the elections amends them or adopts new legislation in this area.
The independence of the judiciary must be guaranteed in accordance with The Basic Principles on the Independence of the Judiciary, adopted by the United Nations. Judges must decide in complete impartiality, on the basis of facts which are presented to them, and in accordance with law, refusing any pressure, threat or intimidation, direct or indirect, from any of the parties to a proceeding or any other person. The judiciary must be independent of the executive and legislative authorities and of any political party. Persons selected for judicial functions must be honest and competent. The principle of the independence of the judiciary entitles and requires judges to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. They must have decent and sufficient material conditions for the exercise of their functions. Judges must receive suitable training and be remunerated adequately to ensure their impartiality and independence. Article 2: Judicial Functions
Judges and prosecutors both are magistrates. Only judges may adjudicate. Prosecutors are responsible for penal actions, which only they may initiate. They file indictments in court and in all other forums provided for in this text. The Attorney General pleads before the Supreme Court in the interest of the law, reviews the legality of indictments by provincial prosecutors, and organizes and supervises their work.
Article 3: Courts The Cambodian parties to the Agreement (hereinafter referred to as "the parties") agree to set up, with the collaboration of UNTAC, at least one trial court in each zone or province where such courts do not now function. Judges shall be appointed, promoted and dismissed by the existing administrative structure, under the supervision of UNTAC. Trial courts are composed of a judge and a prosecutor. These courts have general jurisdiction over the application of these rules, as well as laws and other norms in force in their respective jurisdictions. Alternate judges may be appointed in the same way to replace judges who disqualify themselves due to a conflict of interest or incapacity. Article 4: Appellate Courts The parties agree to set up, with the collaboration of UNTAC, at least one appellate court in any zone or territory under their control where they have not already established one. Appellate Courts are composed of three judges and one prosecutor, appointed, promoted and dismissed by the existing administrative structure, under the supervision of UNTAC. Alternate judges may be appointed in the same way to replace judges who disqualify themselves due to a conflict of interest or incapacity. Any intervening party, prosecutor or the accused may appeal decisions of trial courts within a period of two months from the day judgment is pronounced in court if the accused is present; an additional fifteen days are added to this period if the judgment was rendered in absentia. Appellate courts judge both law and fact. Article 5: Supreme Court
In accordance with the wishes of the Party "State of Cambodia", the current Supreme Court in Phnom Penh shall be improved so that it may comply with the requirements of Article 1 above and perform the following functions: it exercises judicial review of the law; it reviews appellate judgments on petition by the Attorney General, the convicted party, the intervening party or by their counsel within a period of two months from the day judgment is pronounced in the appellate court if the accused is present for sentencing; an additional fifteen days are added to this period if the judgment was rendered in absentia. it may send cases back to an appellate court and, if that court does not conform to its judgment, the Attorney General, the condemned party, the intervening party, or their counsel may resubmit the case to the Supreme Court within two months of the judgment under the same conditions mentioned under sub-paragraph b) above. The Supreme Court may then render a final decision on both the law and the facts. Article 6: Police The police shall observe the Code of Conduct for Law Enforcement Officials and, to the extent possible, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the United Nations. The parties whose law enforcement officials are not able to comply with the requirements of this text agree to collaborate with UNTAC in setting up and training an appropriate police force. Article 7: Attorneys and Counsel Attorneys are authorized to establish a Bar Association, which will take the form of a non-profit association with disciplinary and regulatory authority over its members. The Bar Association shall neither receive nor accept any directives from any political party, nor from any legislative authority or executive authority acting for any of the Cambodian parties to the Agreement. During the transitional period, any person holding a degree equivalent at least to the university law degree or having five years of legal or judicial experience at a sufficiently high level of responsibility may be admitted to practice law. Due to the small number of attorneys in Cambodia, during the transitional period, any Cambodian holding a diploma of completion of secondary school education may represent an accused person in court, provided he or she is not an executive-level official or an elected official of the existing administrative structures or of a recognized political party. Furthermore, accused persons may ask a member of their family to represent them, regardless of level of education. The representative of an accused party shall have the same rights in judicial proceedings as an attorney and be able to have access to any document, to file motions or to plead. In the present text the term "counsel" refers without distinction either to an attorney or to any other person representing an accused. Foreign attorneys shall be allowed to appear in Cambodian courts, provided they furnish proof that they are members of a Bar in their own country or are officially authorized to practice in their country. The existing administrative structures agree to facilitate the granting of visas to attorneys coming to practice their profession in Cambodia. Article 8: The Correctional System The aim of the correctional system is social rehabilitation. Treatment of all prisoners must be in conformity with the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations. Any authority that arrests or detains suspects or detains anyone in pre-trial detention or following conviction, must maintain a prison registry signed every month by the prosecutor and one of the judges in the province or zone indicating, for purposes of verification, the name, age, address, date and reason of arrest, the date of arraignment, and, for convicted persons, the date of the sentencing and the prescribed punishment. Article 9: Visits to places of detention Prosecutors and judges may at any time enter prisons to visit prisoners. Authorized agents of UNTAC human rights, civil administration and civil police components have the same right. In this connection, each Cambodian party to the Agreement must compile a list of all its detention centers at the latest upon entry into force of the present text, and submit the list by this date to the central services of the UNTAC civil administration component. Title II: CRIMINAL PROCEDURE
Article 10: Legal Assistance The right to assistance of an attorney or counsel is assured for any person accused of a misdemeanor or felony. No one may be detained on Cambodian territory more than 48 hours without access to assistance of counsel, an attorney, or another representative authorized by the present text, no matter what the alleged offense may be. Article 11: Military Tribunals
Military tribunals have jurisdiction only over military offenses. Military offenses are those involving military personnel, whether enlisted or conscripted, and which concern discipline within the armed forces or harm to military property. All ordinary offenses committed by military personnel shall be tried in ordinary courts.
Article 12: Treatment of Detainees No detainee shall be subjected to cruel, inhuman 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 behavior. Arrest and detention must take place in accordance with the Standard Minimum Rules for the Treatment of Detainees, as well as the Basic Principles for the Treatment of Prisoners, adopted by the United Nations. Article 13: Arrest and Detention No one may be detained more than 48 hours without being brought before a judge, following charges filed by a prosecutor. In the event that it is impossible to abide by this time limit due to prevailing transportation conditions in the region, the time may be extended to the extent strictly necessary to bring the detainee before a judge by the most rapid means available. The public prosecutor petitions the judge to indict and possibly to detain a suspect, based on the police file, by preparing an introductory indictment making reference to specific facts and legally characterizing the infraction according to the present text. The judge may thus decide, by a decision setting out the reasons: - to charge the suspect, with or without incarceration; - to release the suspect because the evidence is insufficient; - to continue the investigation without disclosing the name of the suspect Within the same time limit of 48 hours after arrest, extended if appropriate for the additional period mentioned in the sub-paragraph (1) above to allow for transportation, counsel must receive a copy of the file of accusation against the suspect. Article 14: Pre-Trial Detention Only the judge, if so petitioned by the prosecutor, may decide to keep an accused in prison, and only if there is a risk of escape or non-appearance manifested by the absence of such factors as a job, a family, a home, or if there is reason to believe that the accused will influence witnesses or the conduct of the investigation. The accused has the right to petition the judge for release, either directly or through counsel. The judge must respond within five days with a decision setting out the reasons. The accused, the intervening party or their counsel or the prosecutor may appeal the decision of the judge within five days. The Appellate Court must judge within fifteen days petitions appealing decisions on detention. The duration of a pre-trial detention must in no case exceed four months. However, upon the decision of a judge setting out the reasons, this period may be extended to six months if justified by the requirements of the investigation. Minors less than 13 years of age may not be placed in pre-trial detention; minors 13 to 18 years of age may not be placed in pre-trial detention for more than one month. The length of such detention may be doubled if the minor is charged with a felony. Article 15: Administrative Detention
No one in Cambodia may be detained by any administrative police nor for offenses not set out in this text or other applicable penal law or text.
Article 16: Release of Detainees
All persons detained or held in a center of detention not appearing on the list mentioned in article 9 of the present text shall be considered as illegally detained and shall be immediately released, upon petition by a prosecutor, by any court, by counsel of the detained, or by any authorized representative of UNTAC civil administration, human rights or civil police components. Any person detained or held within a listed center of detention but not listed on the prison registry shall similarly be released.
Article 17: Access to the File If a judge decides that additional investigation is necessary, counsel of the accused shall, throughout the investigation, be immediately advised of new evidence presented against his or her client. Counsel shall have access to the file of the person charged upon simple written request at any time during the proceeding, and shall obtain from the judge any results of investigation, expert testimony or hearings which he or she considers useful in the defense of his or her client. Article 18: Arrest Without a Warrant
Police may arrest anyone found in the act of committing a cognizable offense, in particular:
- if the suspect is observed committing a felony or misdemeanor, or if pursued by a public hew and cry; - if the suspect is identified at the scene of a felony or misdemeanor by witnesses or the victim; - if the suspect attempts to flee the scene of a felony or misdemeanor.
Article 19: Arrest based on Existence of Substantially Incriminating Evidence In all other cases, the investigating police may not arrest a suspect without substantially incriminating evidence which is specific and consistent and indicates that the suspect participated in the commission of a felony or misdemeanor. A suspect who has fled may be arrested pursuant to an arrest warrant issued by a public prosecutor or judge and executed by police conducting the investigation. The arrest warrant must stipulate facts and grounds for the arrest of the suspect. The treatment of an arrested person shall be in accordance with the provisions of article 13 of the present text. Furthermore, the police may, if so instructed by a prosecutor or judge, subpoena any person useful to the investigation to appear before the police, judge or prosecutor if that person has refused to heed other requests to appear voluntarily. After appearance, a person so summoned shall be immediately released unless there are specific, consistent and serious charges against him or her, in which case the procedures outlined in article 13 of the present text shall apply. Article 20: Searches In the case of flagrante delicto offenses police have the power to search. Searches must be conducted in the presence of the suspect and two witnesses, preferably neighbors or owners of the building. Except in cases of flagrante delicto offenses, searches must be authorized by one of the judges of the competent court or by the prosecutor. They may take place only between the hours of 6:00 a.m. and 6:00 p.m. They should take place in the presence of the suspect if possible, and two witnesses from among the suspect's family members. Proof obtained in violation of the present article is not admissible in court. Article 21: Time Limits Any accused person, whether or not in detention, must be judged no later than six months after arrest. Counsel for the accused must be informed at least fifteen days prior to the date of the trial of his or her client. Article 22: Release for Procedural Error In case of non-compliance with the procedures set out in articles 10-21 that seriously interferes with the rights of defense, the accused must be immediately released. This immediate release may be obtained by counsel for the accused or any authorized representative of UNTAC civil administration, human rights or civil police components. As of the date that the present text takes effect, all detained or imprisoned persons must have a file prepared in conformity with the present text and immediately available for review by judges, prosecutor or authorized agents of UNTAC. If no such file exists, these persons must be released on petition by their counsel, by any authorized representative of UNTAC civil administration, human rights or civil police components, by the judge or by the prosecutor. Violations by public officials of the individual rights enumerated in articles 10-21 of the present text will incur sanctions provided in article 57. Title III: TRIAL
Article 23: In Camera Hearings
All proceedings must be public, unless the victim or his or her representatives request a closed hearing and the judges concur.
Article 24: Evidence Witnesses mentioned in the police file, including police officers, must be heard in court. Witnesses may be examined by the intervening party, the accused or their respective counsel, or by the prosecutor. All evidence, including police reports, is rebuttable and may be challenged during the trial. Confessions by accused persons are never grounds for conviction unless corroborated by other evidence. A confession obtained under duress, of whatever form, shall be considered null and void. Nullification of a confession must be requested from the judge by counsel for the accused prior to the sentencing hearing. The defense may call its own witnesses, and present its own evidence to the court. All witnesses, whether for the prosecution or for the defense, may be summoned to appear before the court by subpoena and are subject to a fine of 100,000 to 1,000,000 Riels for failure to appear. Article 25: Presumption of Innocence
All suspects, indicted and accused persons benefit from the most complete presumption of innocence.
Article 26: Judgment All criminal judgments are rendered "In the name of the Cambodian Nation". They must indicate the acts held against the accused and the witnesses or evidence on which the judge relies, as well as the explicit grounds of the conviction. The judgment, containing the explicit grounds for the conviction and the order, must be read aloud at the trial. A copy of the judgment shall be given to the parties in the trial at their request. Victims or their beneficiaries may directly or through counsel bring a civil action in a criminal case during the preliminary investigation, or during the sentencing hearing in order to claim damages and costs against the offender, co-offender or the accomplices to the offense. Counsel for the intervening party shall have access to the file on the same terms as those of counsel for the accused. Parties guilty of the offense and their accomplices are jointly liable for reparations or compensation, under conditions outlined in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations. Article 28: Offenses based on Opinion or Belief No one may be prosecuted for political opinion, religious convictions, or membership in a race or ethnic group. Penal texts currently in force anywhere in Cambodia may no longer refer to offenses based on opinion or ideology, and are accordingly abrogated. Article 29: Review of Certain Trials
Any convicted person may directly or through counsel or an attorney, request a review of their trial to determine whether they have been convicted for their ideas, opinions, statements, or their membership or non-membership in a racial, ethnic, religious, political or social group.
Article 30: Statute of Limitations
The Statute of Limitations is three years for misdemeanors and ten years for felonies. The Statute of Limitations ceases to run as soon as any legal process has been initiated.
Title IV: FELONIES
Article 31: Murder AND CRIMINAL LAW AND PROCEDURE
Title I: JUDICIAL SYSTEM
Article 1: Independence of the Judiciary
Article 27: Intervention