人权事务委员会审议柬埔寨的报告（部分翻译）

人权事务委员会

2015年3月18日

人权事务委员会今天上午结束了对柬埔寨关于其如何落实《公民权利和政治权利国际公约》条款的第二次定期报告的审议。

柬埔寨常驻联合国日内瓦办事处代表内·萨默尔（Ney Samol）呈报了报告，谈到了1997年开始的、旨在根据《巴黎原则》建立一个国家人权机构的进程。政府目前正在与民间社会就一项法案草案进行协商。讨论这项草案的全国研讨会将在法案提交部长理事会之前举行。柬埔寨在土地改革问题上已取得了重要进步，向超过50万户家庭发放了384万份地契。柬埔寨政府正在向土著人民提供更多权利，包括对社区土地的集体权利。到2014年底，18个土著社区中已有8个完成了土著社区土地的注册进程。法律和司法系统的改革包括三项新的立法：法院组织法、最高法院组织和运作法、法官和律师地位法。此外，全面的选举改革已经在上一次全国大选后展开，其高潮就是2014年7月22日签署的一份政治协议。

在互动对话中，委员会专家请柬埔寨代表团从正面看待他们的意见而非相反，因为它们是善意的。对话中强调，委员会的作用根本不是要做出评判，而是协助各国在促进公民和政治权利方面改善其境况。专家们强调，就他们的意见而言，他们只使用公开文件和官方信息，从不会想当然地看待公民权利组织提交的信息。不过他们提到，柬埔寨政府应该作出努力，与民权组织开展更多互动，从而更全面地理解国内状况。专家们还表达关切称，他们的许多问题并未得到解答，或未收到明确的答案，例如涉及法外杀人的问题。专家们强调，有罪不罚应该真正成为政府关切的问题。数百起军方和警察职责范围内的处决尚未接受审查。

在总结发言中，柬埔寨代表团重申，他们已准备好继续与人权事务高级专员办事处和其他国际机构合作。

委员会专家在总结发言中重申，代表团提供第一手清晰的信息至关重要。回答有关司法部门而不仅是政府行政机关的问题也很重要。

柬埔寨代表团包括柬埔寨国家人权委员会、内政部和司法部的代表。

委员会将在今天下午3点举行下一场公开会议，讨论科特迪瓦的首份报告（CCPR/C/CIV/1）。

报告

柬埔寨的第二次定期报告请见这里：CCPR/C/KHM/2。


Presentation of the Report

NEY SAMOL, Permanent Representative of Cambodia to the United Nations Office at Geneva, presenting the report, noted that it had been submitted to the Committee in September 2012. He spoke about the ongoing process, started in 1997, to establish a national human rights institution in line with the Paris Principles. The Government was currently consulting with civil society over a draft bill. A national workshop to discuss the draft would be convened before the bill was submitted to the Council of Ministers.

Cambodia had made important progress on the issue of land reform, and had granted 3.84 million titles to more than 500,000 households. The Government of Cambodia was providing greater rights to indigenous peoples, including collective rights for community land. A Land Policy for indigenous peoples had been completed, and an online registration system established by the Ministry of Land. By the end of 2014 the registration process of indigenous communal lands had been completed for eight out of 18 indigenous communities.

Reform of the legal and judicial system included three new pieces of legislation: on the functioning of courts, on magistrates or judicial prosecutors, and on the functioning of the Supreme Court. Comprehensive electoral reforms had taken place following the last national elections, culminating in the signing of a political agreement on 22 July 22 2014. The culture of dialogue was deeply rooted in the Cambodia, and the authorities sought to further enhance and maintain social harmony. The freedom of expression was upheld in Cambodia, and the Constitution referred to the rights, duties and obligations applicable to citizens. In 2012, legislation on demonstrations had been adopted, which ensured that there were no restrictions on freedom of expression, apart from those designed to prevent the disturbing public order.

Questions by the Experts

An Expert noted that many positive developments had occurred in Cambodia since it had submitted its initial report 16 years earlier, but regretted that its second report was nearly ten years late. She asked about the direct applicability of the Covenant in Cambodian courts, about the training of judges, the impact of training workshops, and what assistance was given to help lawyers interpret domestic legislation.

Since 1997, Cambodia had been in the process of drafting a law to create a national human rights institution, which, in accordance with the Paris Principles, would be independent and autonomous, have its own budget and its own selection process of members who should be a reflection of the population. Could the delegation update the Committee on that process?

The report only gave a partial response on measures taken to tackle trafficking in persons, said an Expert. It seemed that the police opened very few investigations into trafficking cases and, therefore, prosecutions were rare. Could the delegation provide statistical data on the number of victims, their age and gender, the number of complaints filed, cases prosecuted and convictions made? How effective was the law against trafficking and sexual exploitation and what mechanisms were in place for early identification and support for victims?

There had been improvements in gender equality, noted another Expert, but concern was expressed that most women employees worked in the low-income and unskilled sector of the labour force. A particularly concerning sector was the garment industry, where most workers were women. When those women recently demonstrated for higher salaries, there were forceful crack-downs in response, and some women had reportedly been shot dead. What was being done to improve their working conditions, and more generally to reduce the gender pay gap? In wider terms, how were prevalent traditional stereotypes of women’s role in society being tackled?
It was reported that many ethnic Vietnamese people living in Cambodia were stateless, even those who had been living in Cambodia for generations and met the requirements for nationality. Many children born after 1996 had not been not given birth certificates. There was a problem with an anti-Vietnamese sentiment in Cambodia, said an Expert, asking the delegation to comment.

Regarding discrimination towards lesbian, gay, bisexual and transgender persons, it was noted that the Criminal Code contained various prohibitions of discrimination related to gender, but it did not expressly prohibit discrimination on the grounds of sexual orientation. That legislative loophole allowed employers to refuse to hire lesbian, gay, bisexual and transgender persons, resulting in high unemployment rates for that community. Furthermore, they allegedly faced discrimination in hospitals.

The Government’s efforts to raise awareness on the issue of persons with disabilities were commended by an Expert, who asked for information on the impact of the awareness-raising programmes. According to the report, people with a mental disability did not have the right to vote. How was that prohibition justified?

The issue of violence against women, particularly in the form of domestic violence, rape, and acid attacks, was a concern. It was reported that sexual violence within the family sphere was considered as normal. According to the reports published by Cambodia’s Minister of Women’s Affairs in 2012 and 2013, the prevalence of domestic violence largely stemmed from traditional attitudes that men were stronger than women, and that use of force was justified if a woman did not obey or respect her husband. A reported 35 per cent of men had used some form of physical violence against women. There was an urgent need to prevent and prosecute gender related violence.

To Cambodia’s credit, it had abolished the death penalty, commended an Expert. However there was still a gap between law and practice with regard to the right to life. Many incidents had been reported over the previous decade, including the murders of 12 journalists.

Cambodia denied that human rights defenders faced attacks, and that some had even been beaten to death. Was there any real political will to end excessive use of force by the police and the armed forces, what was the Government doing to combat impunity among perpetrators, and how was it working to raise awareness among police and armed forces on those issues, asked an Expert. Human rights defenders were often subjected to acts of aggression and it was clear that excesses often occurred in the context of police operations. Would Cambodia extend an invitation to the Special Rapporteur on Human Rights Defenders, asked an Expert. Excessive use of force by law enforcement officers in dealing with demonstrations was a real problem, said an Expert, noting that the Special Rapporteur had also drawn attention to that issue. How did Cambodia ensure that law enforcement officers complied with the Covenant and respected the principle of proportionality?

On the use of torture, another Expert asked about allegations that detained persons had been tortured. He asked if there was any preventive mechanism in place, what sanctions could be applied to the perpetrators, and what remedies there were for victims. The Government had responded by tightening legislation, it seemed, but the Committee would like to know what happened in practice.

What was being done to improve prison conditions and to tackle issues including overcrowding and the provision of food and personal hygiene articles? Pre-trial detention was the rule rather than the exception, said an Expert, also asking why so many children were imprisoned with their parents. He asked for more information on separate prison facilities for women, men, and minors. What was being done to counter corruption in the detention system, to improve health of inmates and increase financing for prisons? Preventive detention had to be an exception and not a rule, the Expert emphasized. He also asked about efforts to establish a juvenile justice system and protection measures for pregnant women in prison. The Expert said he was saddened to note that there were no prison facilities for inmates who had mental health problems who instead were incarcerated in regular places of detention.

Responses by the Delegation

All core international human rights instruments had been signed and/or ratified by Cambodia, began a delegate, informing the Committee that the draft law to establish a national human rights institution had been completed the previous week, but would be reviewed to ensure its compliance with the Paris Principles. Following that, a national workshop for stakeholders including lawyers, members of academia, indigenous peoples, and other groups would be convened, where the Government could hear recommendations and feedback.

A delegate said he was dubious about the Committee’s information on the prison system in Cambodia. There were four correction centres in Cambodia. The first held male prisoners only; the second had two sections, one for women prisoners and the other for juveniles under 18 years of age; the third housed people who had been tried; and the fourth, which stood on 80 hectares of land, housed accused people. Those inmates could choose to engage in agricultural work.

As part of efforts to prevent torture, the Human Rights Committee of Cambodia visited prisoners every month. Cambodia had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2007, and consequently established a National Mechanism to Prevent Torture in 2009, involving several Ministries. The Human Rights Committee of Cambodia monitored police centres, social centres, drug rehabilitation centres and other facilities. Furthermore, many non-governmental organizations worked with prisons. The delegation asked the Committee to provide specific information, including names of alleged perpetrators in the alleged cases of torture.

Any act of corruption, such as detention facility personnel charging a fee to visitors would be sanctioned. The Human Rights Committee, under the Ministry of Interior, had been tasked to work on the issue.

Regarding health care in prisons, a delegate said that the prisons were indeed old buildings, but the Government was ready to repair the facilities, and in fact it had received financial assistance from Australia in one province to do just that. Development partners had been asked to help in the reconstruction and renovation of prisons. Food rations had been also brought in to enable families to buy food for prisoners from outside. The Government would look into providing more medical doctors in prison facilities.

Children who were in prison with their mothers were urged to leave their mothers once they reached six years of age, but usually the mothers and children asked to stay together. In some cases, mothers allowed their children to live with relatives in centres run by non-governmental organizations. A child could not be taken away from its mother against the mother’s will. It was prohibited for women to give birth in prison.
On the International Women’s Day this year, 20 female prisoners had been released, noted a delegate, adding that the Government condemned people who used women as illegal workers. A new law on juvenile justice had recently been drafted and was currently being considered by the Ministry of Social Affairs.

If the figure of 35 per cent of women being affected by domestic violence were true, that was indeed alarming, said a delegate. The Ministry of Women’s Affairs was working hard to combat domestic violence and bring perpetrators to justice. The delegate cited a recent case following the adoption of the law on domestic violence in which a man had been arrested for the crime, with the consent of his wife. However, the wife had subsequently asked that her husband be released so that he could provide a livelihood for their children. Judges allowed such men to be released on bail with the condition that they did not commit any further acts of domestic violence. There had been a decrease in the number of rapes and acid attacks reported, thanks to the new law, noted a delegate.

Answering the question on racial discrimination towards Vietnamese people, a delegate emphasized that Cambodia did not discriminate against anyone and would never legally prevent any person from obtaining a national identification card. Birth certificates were provided to children born in Cambodia, but they were not automatically provided with nationality. There were 22 different nationalities living in Cambodia, including Vietnamese people, who had proper documents in line with the law.

Concerning discrimination faced by the lesbian, gay, bisexual and transgender community, a delegate said that the Government had considered their issues but never denied them rights.

Regarding persons with disabilities, a delegate clarified that if persons with a mental disability had no legal ability, they could not be employed and they could not vote. The only exception would be if a doctor indicated that they could. The Government did, however, facilitate the transport of sick people to enable them to vote.

The delegation explained that there was a law on demonstrations and riots, where the relevant articles of the Covenant were taken into account. Police officers were working to investigate alleged perpetrators of any disappearance or killing and bring them to justice. The Government had also made efforts to ensure that people who had been injured or lost property in the demonstrations would be remedied.

On the right to freedom of expression, a delegate stated that there was an information and press law in place, which clearly set out the freedom of expression, assembly, writing and publication. However, those freedoms could not be used to violate other freedoms. Consultations were currently being held on a draft law entitled Law on Access to Information, which would be open to non-governmental organisations before its adoption. The law on registration on non-governmental organisations had been completed.

On judicial reform and the implementation of laws, a delegate reiterated that three laws had been adopted, the first being on the functioning of courts, the second on magistrates or judicial prosecutors, and third on the functioning of the Supreme Court. Administrative entities had been established to support the courts. The Law School in Cambodia integrated human rights in its curriculum and provided human rights training to students, and thus to future judges. Another development was that best practices from the Khmer Rouge Tribunal had been considered and integrated into the court system.

It was true that overcrowding in prisons was an issue, said a delegate. A larger budget had been requested to solve the problem, and three developments had been proposed. First, courts were encouraged to use measures under supervision of the court; second, provisional sentences of less than five years were preferred; and third, there were alternatives to detention, such as community work.



Follow-up Questions by Committee Experts

An Expert noted that the role of the Committee was not at all to pass judgment, but rather to assist countries in improving their situations with respect to the promotion of civil and political rights. He expressed surprise at the reaction of the Head of the Cambodian delegation, noting that the Committee was using only public documents and official information. The Committee Experts made their own conclusions and never took information supplied by civil rights organizations for granted. They did not rely on rumours. Nonetheless, the Expert said, there should be an effort by the Government to contact civil rights organizations, which would allow it to get a more in-depth idea of the whole situation in the country.

The Expert also noted that many of their questions did not receive answers, such as, for example, questions regarding extrajudicial killings and enforced disappearances. Impunity should really concern the Cambodian Government. Hundreds of executions under the responsibility of the military and the police had not been examined. The Cambodian delegation was asked to take the Committee’s comments into a positive rather than negative light because they were well meaning.

Another Expert asked for clarification on the health services provided to prisoners in Cambodia. They were only allowed half an hour per day to go outside and get some fresh air. Reasons of security could not impede prisoners’ right to exercise their right to go out. Allegations of torture and cruel and inhumane treatment were also observed. There was a need to improve prison conditions through monitoring. The Committee thus recommended to the Government to form an inter-ministerial commission. Would representatives of the Office of the High Commissioner for Human Rights and civil society organizations be allowed to visit prisons and other detention centres? Experts also inquired about the fate of persons who were subject of torture.

Responses by the Delegation

Answering the first part of Experts’ questions, the delegation stressed that in Cambodia about one thousand non-governmental organizations worked on human rights issues, and that media outlets, such as a radio station in Khmer, freely criticized the Government. More than 4,000 non-governmental organizations and associations were active in Cambodia, which was a great number compared with other countries. The Government cooperated with the Office of the High Commissioner for Human Rights on a regular basis, and it had accepted five special rapporteurs thus far. The Government also disseminated relevant reports, which were distributed publicly to the Cambodian citizens as well.

As for the enforced disappearances, the Government regularly responded to the Committee about such cases. It never ignored the Committee’s requests on that issue. Country special rapporteurs were always welcomed by the Government of Cambodia. Killings and enforced disappearances were never ignored by the Cambodian authorities, which continued to investigate current cases. However, so many cases after the war in Cambodia rested on unreliable information, which was why the Government avoided wrongful arrests. It was, nevertheless, working tirelessly to tackle disappearances, in particular the cases of disappeared journalists. The delegation stressed that there was no impunity in Cambodia.

Explaining small budget allocations for persons with disabilities, a delegate stated that the Government had to balance between individual freedoms on the one hand, and economic, social and cultural rights on the other hand. As a least developed country, Cambodia faced budget constraints and thus had difficulties making adequate budget allocations for persons with disabilities.
Responding to observations that gender representation in the Cambodian delegation was skewed, with only one female delegate, the delegation noted that all five special rapporteurs to Cambodia had also been male, just like all Secretary-Generals of the United Nations. In 2013, a mechanism had been introduced in Cambodia, which stipulated that a certain number of women had to be present in all instances of government: local, regional and national. At the moment, some 20 per cent of women were in leading positions in public institutions. Historically, women in Cambodia occupied important roles within family, but, the Government was now promoting to engage them in leadership roles in administration.

Responding to Experts’ observation that persons with mental disabilities did not have the right to vote, the Cambodian delegation urged the Committee members to re-read the delegation’s report which stated that all persons above the age of 18 had the right to vote, except prisoners or those under guardianship. If a person with a mental disability was not fit to vote, and was certified as such by the competent institution, he or she could not vote. The Government thus did not discriminate against persons with mental disabilities.

As for the prison system, the Ministry of Interior was working on the issue. The number of prisoners amounted to more than 10,000, who were placed in 24 prisons in eight provinces. They were separated according to age and gender.

Questions by Committee Experts

An Expert raised the issue of Extraordinary Chambers in the Courts of Cambodia, noting that the Government had refused to pay remuneration to the national staff. They also referred to allegations that the Government of Cambodia interfered with the work of the Extraordinary Cambers in the Courts of Cambodia, reminding that the Minister of Justice had warned that the continuation of investigation of additional cases would result in war and chaos. Although the Cambodian Government stated that it respected the independence and neutrality of the courts, which was encouraging, the Expert wondered how that would be put into practice.

As for granting concessions for the land of the indigenous peoples, an Expert noted that the Government was not implementing laws appropriately and concessions continued to be granted for private use.

Another Expert addressed the right to a fair trial and the lack of lawyers in remote provinces, and wanted to know how the number of lawyers could be increased. It was also problematic that the criminal procedure code provided that only 24 hours after the arrest detainees could talk to a lawyer, which would force them to incriminate themselves.

Judicial independence was called into question, in light of the adoption of three new laws: the Law on the Organization of Courts, the Law on the Organization and Functioning of the Supreme Court, and the Law on the Status of Judges and Lawyers. Experts asked for clarification on the composition of the Supreme Magistrate Council, the role of the Ministry of Justice in the allocation of budget, about measures to fight corruption in judiciary, and about measures against political instrumentalization.

Question was asked on how frequently confessions provided reasons for imprisonment, and what steps were taken to prevent forced confessions, as well as measures against officials who used forced confessions.

An Expert noted the lack of public debate on the electoral reform. Such reform required financial and institutional independence. The national electoral commission was not a political body. Nobody should be prevented to speak on political issues, the Expert stressed. There were persons whose names were not recorded on the voters’ lists, as well as duplicates.

The delegation was asked about the situation of ethnic Khmers who migrated from Viet Nam to Cambodia and who were now stateless, which negatively affected their employment and access to land. They were considered Vietnamese because of their place of birth.

With respect to freedoms of expression, press, publication and assembly, Experts raised concern that several pieces of legislation could limit those rights on the grounds of defamation, disinformation and incitement. They were used to harass journalists and human rights defenders, as some had been found guilty on defamation charges. Journalists were threatened to be prosecuted for disinformation and incitement. Experts also expressed concern about some aspects of the draft laws on assembly and non-governmental organizations, which required mandatory registration of civil society organizations. They also raised concern that the cyber law was not publicly available, and that its adoption process had not been transparent.

An Expert wondered whether it would be possible to amend or reform, or not apply the law that prohibited divorced women from marrying again within 120 days. Issues were on the protection of children, elimination of child labour, elimination of corporal punishment for children, and their protection from economic and sexual exploitation. It seemed that the relevant legislation for the protection of the rights of the child existed, but its implementation was lacking.

Experts noted that the criminalization of genocide under Cambodian law was limited, with respect to targeted groups. Only acts committed against certain minorities under the Khmer Rouge were considered, which was disappointing. Non-retroactivity of the criminal law also presented a problem. They wanted to know whether the Government would consider changing the definition of genocide.

A question was also raised regarding the denial of the right to vote by prisoners. If it was that a blanket denial, then it violated the provisions of the International Covenant on Civil and Political Rights.

As for the establishment of juvenile justice system, an Expert observed that there was no evidence whether it was indeed a separate one.

Responses by the Delegation

The Delegation of Cambodia clarified the issue of non-payment to the national component staff of the Extraordinary Cambers in the Courts of Cambodia. The Government did not refuse to pay remuneration as was alleged, but it only delayed it. It was stressed that the Government upheld its commitments, and it was noted that the international component of the tribunal also delayed payment.

As for the crimes of genocide, that issue was the prerogative of judges. The Government played no role in that respect and it did not interfere with courts. Nevertheless, it had to maintain peace and stability in the country.

With respect to the insufficient number of lawyers available to detainees, the delegation said that some 500 lawyers were active. However, in provinces there were some difficulties finding lawyers because they worked in the private sector. Courts were responsible to supply juvenile detainees with legal representation free of charge.

As for the Supreme Magistrate Council composition, there were 11 members. Three were automatic members: Minister of Justice, Head of the Supreme Court, and General Prosecutor of the Supreme Court. One member was appointed through voting in the Senate and had to have 15 years of experience. Others were nominated by the National Assembly, the Supreme Magistrate Council, by the Ministry of Justice, the Appeal Court, and municipal courts. Following their nomination through votes, the King would appoint them by a royal decree.

Answering questions on corruption in the judicial system, a delegate said that there was an anti-corruption unit which worked tirelessly to eradicate corruption. Other measures included an inspector unit to monitor complaints by citizens.

The delegation clarified that confession by force was forbidden under Cambodian law and could not be used in trial. However, it was noted that courts could not always believe when people said their confessions had been forcefully extracted.

It was explained that prohibiting divorced women from remarrying wihin 120 days was a measure to protect them when they were pregnant. They were allowed to marry again sooner when they were not pregnant.

The juvenile justice system was not governed by a separate law. However, certain articles did refer to it. The Government was trying to draft a new law, and had held discussions with civil society regarding that law; UNICEF was also involved in those discussions, as well as the national child committee. Once the law was adopted, a system of juvenile justice would be established. Two important provisions were made: divert juveniles from the courts towards rehabilitation, and create separate rehabilitation centres for juvenile detainees. However, many challenges were ahead of the Government in that respect, such as the availability of trained staff and adequate budget. There were 24 provinces in the country and the Government had to decide whether to establish juvenile rehabilitation centres in all of them.

With respect to the elimination of child labour, the Ministry of Labour had a labour inspection unit, which monitored such instances. However, when parents themselves took their children to work with them, the Government could not arrest them all because then nobody would take care of the children. Provisions were in place to regulate the work performed by children from the age of 15. As for torture of children, the civil code and the law on domestic violence allowed parents to use certain minor measures to discipline their children. That could not be considered domestic violence. Certain cultural ways in raising children could not be changed overnight.

As for the question of the stateless Vietnamese in Cambodia, they could in fact apply for citizenship. They could obtain citizenship if they came to invest in Cambodia, or through marriage. Some of them lost their documents during the Khmer Rouge regime, and in that case they could request new documents.

Regarding the freedom of expression, press and assembly, any kind of protest that threatened security and stability would be temporarily prohibited, a delegate noted.

Follow-up Questions by Committee Experts

An Expert noted that it was strange to hear that courts could not always believe people when they said they were tortured. Imprisoned people by default were not in a position to offer such evidence, and the burden of proof was on the prosecution. It was troubling that judges did not investigate such cases.

Experts remarked that many questions remained unanswered, and expressed hope that the delegation would answer them in the following 48 hours. It was fine to take note of recommendations, but public policies and laws did not depend on several workshops held with civil society. The Government should seek a systemic approach to all the issues raised.

An Expert insisted that the Government clearly expressed whether they would allow the Office of the High Commissioner for Human Rights and other international bodies, and civil society, to monitor prisons and other detention facilities. It was noted that it was disconcerting that people in Cambodia had to pay cash to ensure that police accusations were dropped. That seemed to be an endemic problem of the police in Cambodia. In addition, domestic violence and elimination of child labour were a matter of cultural shift, rather than adoption of laws.

Responses by the Delegation

The Delegation of Cambodia stated they did not know what kinds of answers the Committee Experts had expected, which was why they could not answer according to the Experts’ wishes. They clarified that the term “prisoner” referred to a convicted person, and that it was not strange that they did not have the right to vote, as that was also the case in some other countries.

Concluding remarks

The Delegation of Cambodia said that it would continue to work hard on the mentioned issues, and thanked the Committee Experts for their recommendations. The Government would continue to coordinate with the Office of the High Commissioner for Human Rights, and other international bodies.

Experts emphasized that they had not asked follow-up questions out of whim, but in order to be able to draw vital conclusions and recommendations. It was vital for the delegations to provide information first hand. It was key to take a due note of the comments and recommendations. The Committee was not a court, but a mechanism of cooperation. It was very important to answer questions about judiciary and not just executive branch of the government.

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