CCHR: 9th Edition of Series on Fair Trial Rights and Rule of Law - Prohibitio​n on Retroactiv​e Applicatio​n of Criminal Law: New Provisions of the Penal Code

Today the Cambodian Center for Human Rights' (CCHR) Trial Monitoring Project releases the 9th edition of its Series on Fair Trial Rights and Rule of Law. This month's edition, to reflect the year anniversary since the Penal Code of Cambodia came into full force and effect, is entitled: Series on Fair Trial Rights and Rule of Law - Prohibition on Retroactive Application of Criminal Law: New Provisions of the Penal Code.

It is a fundamental principle of criminal law that no one can be found guilty of a criminal offense for an act or omission that did not constitute a crime at the time the alleged action or omission took place (Article 15 of the International Covenant on Civil and Political Rights and Article 3 of the Penal Code). Additionally, a heavier penalty may not be imposed than the one that was applicable at the time of the offense. If, subsequent to the commission of the offense, provision is made by law for the imposition of a lighter penalty, the lighter penalty shall apply (Article 10 of the Penal Code).

CCHR's Findings

Of the 567 trials monitored by CCHR at the Phnom Penh Municipal Court from 10 December 2010 until 31 October 2011, trial monitors recorded 6 cases were the accused was charged with a criminal offense under the Penal Code, even though the Penal Code was not in force at the time the alleged offense was committed.

Of the 567 trials monitored, the sentencing provisions from the Penal Code were applied in 240 trials. In 41 of the 240 trials the retroactive sentencing provisions found in the Penal Code were correctly applied, with their being no recorded instances of the incorrect application of retroactive sentencing provisions.

For further information, please see the attached edition of the Fair Trial Rights and Rule of Law series available in Khmer and English, or visit our website, www.cchrcambodia.org.

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Heated debate on the criminal law

08 October 2009
Kampuchea Thmei
Translated from Khmer by Socheata

While the debate for the ratification of the draft criminal law has already reached Section 5, opposition MPs still insist on removing a number of articles from this draft law, however the CPP MPs claimed that they cannot be removed. The debates are heating up.

In the morning of 07 October 2009, the Cambodian National Assembly (NA), under the presidency of Heng Xamrin, continued its session to debate and ratify the draft criminal law. Of notice was the fact that the opposition MPs insisted on removing a number of articles involving defamation and a number of articles that have gaps.

Kampot SRP MP Mu Sochua, whose parliamentary immunity was lifted by the NA, asked for the removal of a number of articles that restrict freedom of expression, as well as articles involving defamation from the draft law. At the same time, Mrs Mu Sochua asked Heng Xamrin to provide rights to women in order to bring balance between men and women during draft law debates.

Mrs. Mu Sochua added that during these debates, there is at least one more person who is of the same mind as her. Mrs. Mu Sochua indicated that she will continue to make her request every single day. At the same time, the opposition MP also asked that the NA abides by the UN treaties and conventions, and that the NA should also adopt a number of opinions proposed by the representative of the UN Office of the High Commissioner for Human Rights (UN OHCHR) in Cambodia.

Phnom Penh CPP MP Kruoch Sam An indicated also that prior to the NA debate and ratification of the draft criminal law, there were about 30 discussions on this topic, and the draft law was even the subject of a seminar to seek inputs. Therefore, no removal can be made at will, and if there is any request to remove any article, they should be done when the draft law was still under discussion, and not when it has already reached the NA floor for debate and ratification.

Hy Sophea, a secretary of state of the ministry of Justice, who were on hand to defend the draft law during the NA debate on 07 October, told the NA that the criminal draft law has a clear goal, and it has proper meanings and definitions, therefore no articles should be removed, and if a number of number of articles were to be removed as requested, then there will be gaps in the meaning of this draft law.

A CPP MP indicated that the use of freedom rights must remain under the legal framework, and the draft law under debate and ratification is set to protect [the people’s] rights and honor, therefore, the opposition party cannot curse or defame anyone as it pleases. Defamation is a serious offense, therefore it should be set by the law, and nobody can defame anybody else as they please. Furthermore, in front the law, people have the same rights, i.e. when a private citizen defames someone, he is guilty, but when the opposition party defames someone else, it is not affected by the law. The CPP MP went on to claim that the request to remove a number of articles from the draft law, is a lack of understanding of the draft law altogether. Hy Sophea added that the draft law has proper explanation for each crime as stipulated in each of its articles.

Regarding the request for balance between men and women, Heng Xamrin said that about the freedom rights of female and male MPs in the NA, there are many female MPs, and some of them are even vice-PM, like Men Xam An, and these [female] MPs can stand up to defend or intervene in all manners. At the same time, any MP can have their opinions and there is no bias.

The request made by the opposition to remove 43 articles from the draft criminal law takes place at a time when an opposition MP was talking loudly about freedom of expression, both inside the country and overseas. Therefore, for the opposition MPs to be able to talk a lot, they must request the removal of articles involving defamation.

New Criminal Law Worries Rights Groups

By Sok Khemara, VOA Khmer
Washington
12 November 2007

Cambodian rights groups are concerned a new criminal law gives more power to law enforcement without making them understand human rights protection, Sok Samoeun, a legal expert at the Camboda Defenders Project, said Monday.

Wider powers without this understanding, of the law or the human rights, could lead to abuse, he said, as a guest on "Hello VOA."

Better, clear training and understanding of civic freedoms need to be instituted in law enforcement to prevent rights violations of the people, he said.

The new law meanwhile nullifies some clauses of the old law that ensured effective evidence was introduced into the court.

Under the new law, a judge has more power based on initial reports that is not open to the former line of questioning.

Under the old law, evidence collected through illegal means was not considered valid. But the new law does not cover this, he said.

Without independent judges or more training, false evidence can more easily enter a case, Sok Samoeun said, leading to injustices.