COMMITTEE AGAINST TORTURE REVIEWS INITIAL REPORT OF CAMBODIA

CAT
30th session
29 April 2003
Morning




Government Delegation Absent, Experts Raise Questions
About Independence of Judiciary,
Reports of Maltreatment by Police



The Committee against Torture began its consideration this morning of an initial report of Cambodia, asking a series of questions, among other things, on the independence of the Cambodian judiciary and on reports that police maltreatment was widespread under a judiciary system that placed heavy emphasis on confessions.

No Government delegation was present to answer the Committee's queries, although a Representative from the Cambodian Mission in Geneva said all remarks would be passed on to the Cambodian capital.

Presentation of the report was made by Khin Cheam, First Secretary of the Cambodian Mission to the United Nations Office at Geneva. Mr. Khin said among other things that because of financial constraints and the preparations for the general election in Cambodia, there was no competent Government delegation available to participate in the meeting. However, the Government felt that the report reflected clearly the situation in the country and felt that since its ratification of the Convention against Torture in 1992, the Government had recognized and respected the provisions of the treaty.

Peter Thomas Burns, the Committee Expert who served as Rapporteur for the Cambodian report, noted among other things that reliable sources had indicated the judiciary was subject to "directives" from Government ministries, which seemed to indicate the judiciary was not independent; that an apparently broad group of people had the power to carry out arrests; and that regulations allowed incommunicado detention for 48 hours following arrest, that a recent measure allowed incommunicado detention for much longer periods upon approval by a prosecutor, and that lengthy incommunicado detention appeared to occur frequently in practice.

As one of 133 States parties to the Convention against Torture, Cambodia must submit periodic reports to the Committee on efforts to put the Convention into effect. The Committee will issue its conclusions on the report of Cambodia at 3 p.m. on 12 May.

Towards the end of its morning session, the Committee discussed what its contribution should be to a "brainstorming meeting" to be convened by the High Commissioner for Human Rights from 4 to 7 May in Liechtenstein on the subject of responses to reforms proposed by the Secretary-General, and in particular to potential changes in the operation of the Office of the High Commissioner. Members of treaty bodies, States parties, entities of the United Nations system, and non-governmental organizations had been invited to the meeting. The Committee had asked Expert Felice Gaer to attend.

The Committee will meet at 3 p.m. to discuss the recommendation by United Nations Secretary-General Kofi Annan that States present one consolidated report to all the treaty-based bodies. At 10 a.m. on Wednesday, 30 April, the Committee will begin its review of a second periodic report of Azerbaijan.


Initial Report of Cambodia

The report (CAT/C/21/Add.5) reviews efforts to implement the Convention, considering the steps taken on an article-by-article basis in relation to the Convention. It notes, among other things, that the Cambodian Constitution of 1993 prohibits in its article 38 any act of torture, guaranteeing that there shall be no physical abuse of any individual. The article has clauses protecting the life, honour and dignity of citizens; outlawing coercion, physical ill-treatment or any other acts that impose additional punishment on a detainee or prisoner; and prohibiting the admissibility of any confessions obtained by physical or psychological force.

The Convention against Torture was signed by Cambodia in 1992, the report states, and since then has served as the basis for a system of regulations to eradicate such ill-treatment. In 1993, the Ministry of Justice instructed provincial-municipal prosecutors to review prisons and detention places on the basis of the Convention. The Criminal Procedure Law of 1993 stipulates that any person who is victimized by an offensive act may submit a complaint for damages with the prosecutor's accusation, and an offender who has committed an act of torture shall be punished in conformity with the law and shall compensate the victim.

Despite numerous measures taken, acts of torture are still committed, the report notes. "Some accused persons or suspects have been tortured by the competent authorities during interrogation. These acts happened secretly and were difficult to prosecute. There has been little evidence sufficient to punish the offender. The victim was under arrest or detention by the authorities and was unable to complain, due to fear of revenge from the perpetrator. This problem was also difficult to research because torture was rarely proved by evidence or witnesses."


Introduction of Report

KHIN CHEAM, First Secretary of the Cambodian Mission to the United Nations Office at Geneva, said that because of financial constraints and the preparations for the general election in Cambodia, there was no competent delegation from the capital to participate in this important meeting. However, the Government felt that the report reflected clearly the situation in the country and felt that since its ratification of the Convention in 1992, the country had recognized and respected the provisions of the Convention. There was no perfect country in the world, of course; the Committee therefore was requested to send its recommendations on the report to the Cambodian Mission, and they would be passed on to the relevant ministries in the Cambodian capital.


Discussion

Serving as Rapporteur for the initial report of Cambodia was Committee Chairman PETER THOMAS BURNS, who said this was the first time the Committee had considered a report without the presence of a Government delegation to answer questions.

He asked, among other things, how international treaties were incorporated into Cambodian domestic law, as paragraph 13 of the report stated that torture was prohibited by the Cambodian Constitution, but there was no definition of torture. The report seemed to indicate that in the absence of such a definition, the definition contained in the Convention against Torture applied, but the matter was not clear. Nor did the report say if international treaties ratified by Cambodia had the force of domestic law and could be applied directly in the courts.

A December 2002 report of the Special Representative of the Secretary-General on the situation in Cambodia raised a number of questions about the independence of the judiciary, Mr. Burns said; in fact, the material extant seemed to indicate that judicial independence did not exist, in part for historic reasons. The findings of the Special Representative echoed those made previously by the Human Rights Committee. Mr. Burns asked how judges were appointed in Cambodia, how they were trained, what skills they were required to have, and how they might be removed for improper conduct. He asked if it was true that the judiciary in Cambodia was subject to instruction from the ministries it reported to. There were reports that "administrative directives" were issued to the judiciary, which was a strong sign of lack of independence. Mr. Burns wondered if any recent steps had been taken to ensure that the judiciary was independent of other branches of the Government.

Judges' salaries had been increased, according to the report, Mr. Burns said, which was a good sign; appropriate salaries reduced the incentive for corruption. General information received indicated that in Cambodia, in a criminal trial, heavy evidence was placed on confession as the crucial piece of evidence, which could incline the police not to investigate other evidence and incline the judge not to consider other evidence; it could also explain widespread reports of endemic, brutal treatment by police of members of the public and of detainees. Concern about impunity in relation to police brutality was also widespread. In a system where confessions were crucial, there was a strong possibility that police would resort to improper treatment in order to obtain confessions. Mr. Burns asked if there was a concerted effort to reconsider the theories behind the judicial system and the country's Criminal Code.

There were three human rights institutions in Cambodia, Mr. Burns said; he asked what the responsibilities of each were. He asked about the apparently actively used "criminal defamation law", and what the results of its application were, saying such provisions were usually resorted to by police officers when an accusation of brutality had been made in order to prevent proceedings from being pursued – it frightened off victims from seeking justice for abuses committed against them. Mr. Burns asked how often the criminal defamation law was resorted to, and if there had been convictions under the measure.

Mr. Burns noted that there was no independent police complaints authority and no Parliamentary Ombudsman; such institutions were very effective in preventing police abuses.

Mr. Burns also asked about "administrative measures" mentioned in the report, under which the Ministry of Interior had imposed punishment on police officers who committed torture. But this was administrative punishment, while the Convention imposed a clear obligation on States to prosecute offenses of torture under criminal law. He asked how many administrative punishments had been issued, and under what circumstances. One specific instance had occurred on 23 November 1995; but he said he would be surprised if that was the only such instance.

Mr. Burns asked, among other things, what "continuous measures" were taken to combat torture, as stated in the report; if article 3 of the Convention was respected in the expulsion of aliens; if Cambodian authorities had sufficiently established that Falun Gong adherents expelled to China would not be subject to ill-treatment in China, and had considered their cases individually; about the director of the guards of a prison who was convicted of torturing a prisoner, sentenced for a year, and reportedly now was re-employed at the same prison in a senior capacity; about several other specific cases, including one in which a group of prisoners, after an unsuccessful escape attempt, were badly beaten by prison guards and several were denied medical treatment, after which five guards were tried and acquitted, yet the judge said the Ministry of the Interior should "discipline" the guards; Mr. Burns asked if the acquittals were appealed; how Senatorial and Parliamentary immunity from prosecution worked in practice; about the apparently broad group of people who had the power to carry out arrests; about regulations allowing incommunicado detention for 48 hours following arrest; about a new measure under which incommunicado detention was often for much longer periods, with the approval of the prosecutor; if the principle of habeas corpus applied in Cambodia; if legal aid was provided for detainees; if, in practice, detainees had access to legal counsel, medical counsel, and family contact; if more was being done to ensure that judges were legally trained; how and how often inspections were carried out of places of detention; if conditions of detention met international minimum standards and what was being done to improve conditions in detention centres and prisons; and what the Government was doing about widespread allegations of corruption in the judicial system.

Mr. Burns said he was particularly concerned by the situation of impunity. Not a single Khmer Rouge official had been prosecuted for serious human rights offenses, for example, nor had other serious crimes in recent years resulted in charges being filed against specific persons. If anything underlined concerns about the state of the Cambodian judicial system, it was that, he said.

Serving as Co-Rapporteur for the Cambodian report was Committee Expert YU MENGJIA, who said, among other things, that as he came from that part of the world, he was well aware of the difficulties Cambodia faced in rebuilding a country from ruins after many years of military conflict; its infrastructure was still weak, as were its institutions, including those dedicated to the rule of law. It was not surprising that there were problems. However, the Government had a responsibility to respect the international human rights instruments it had signed. The country had certainly done a great deal in terms of human rights education and training, including through various methods of international cooperation, among other things with the Office of the High Commissioner for Human Rights.

Mr. Yu asked, among other things, why extensive training and education programmes had not apparently reduced a high rate of torture and what steps the Government was considering to improve the situation; if more was being done to apply anti-torture provisions in practice, which of course was the true test of legislation aimed at preventing ill-treatment; what was being done to reduce pre-trial detention, which in some parts of the country apparently could last as long as six months; how close the new Criminal Code and new Code of Criminal Procedure were to adoption, and what strategies and principles the new Codes were based on; what was being done to reduce mob violence and to punish instances of it; to what extent settlements of compensation for acts of torture occurred out of court, and whether that limited victims' rights to full redress and limited the criminal liability of the perpetrators; and what steps were being taken to reduce forced confessions.

Other Committee members also put questions. They asked, among other things, how domestic legislation regulated acquisition of Cambodian nationality; what was being done to protect the rights of illegal immigrants and to prevent human trafficking; how Cambodia's initial report to the Committee was prepared, and if non-governmental organizations had participated; how many perpetrators of acts of torture had been punished; if reports that trafficked women and girls were treated as criminals rather than as victims were true, and what steps the Government was taking to protect such women and girls.




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