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New Protection Status of Juvenile Victims with the Passage of the New Criminal Legislation in Cambodia

Published online by Cambridge University Press:  16 April 2015

Stan V. Starygin
Stan V. Starygin*
Affiliation:
Save the ChildrenAustralia
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Abstract

This article seeks to explore whether the position of juvenile victims, vis-à-vis the Cambodian criminal law, has changed with the passage of the new criminal legislation and whether this change is positive or otherwise. The quality of this change, henceforth, will demonstrate to the reader whether the overall reform of the juvenile justice component of Cambodia's criminal justice system, which has spanned over the last 15 years and has been funded by the international community, has been a success. The author has limited the scope of this inquiry to a comparison between the various domestic laws applicable to juvenile victims and did not include comparisons with international law, model laws or juvenile laws of other states. Being the first publication of its kind, this analysis limits its claim to the analysis of the relevant statutory provisions rather than ‘practice notes’ which have yet to develop.

Keywords

juvenilevictimCambodiacriminal procedurelegal reform
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 4 , 2009 , pp. 1 - 34
Copyright
Copyright © Faculty of Law, National University of Singapore 2009

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References

1 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (23 October, 1991) popularly known as the Paris Peace Accord.

2 The United Nations Transitional Authority in Cambodia (UNTAC)’s mandate commenced in February, 1992 and expired in September, 1993.

3 Cambodia acceded to a sizable number of international human rights instruments within a very short period of time by approving the accession to many of these instruments on the same day (e.g. Cambodia acceded to the Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Convention Against Torture, and the Convention on the Rights of the Child on the same day, 14 November 1992).

4 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period (hereinafter ‘UNTAC Law’) (1992).

5 Law on the Criminal Procedure of the State of Cambodia (hereinafter ‘SoC CPC’) (1993).

6 Law on Prevention of Domestic Violence (hereinafter ‘DV Law’) (2005).

7 Law on the Amendment of Articles 36, 38, 90, 91 of the Law on Criminal Procedure (hereinafter ‘SOC CPC Amendments’) (2000).

8 Law on the Criminal Procedure of the Kingdom of Cambodia (hereinafter ‘KoC CPC’).

9 Supra note 4.

10 Supra note 5.

11 Supra note 7.

12 Supra note 8.

13 Supra note 6.

14 Although the author recognizes the need for determining the attitudes of minors to the new criminal legislation, this topic falls outside the scope of the present inquiry.

15 Supra note 5, Art. 8.

16 Ibid. Art. 9.

17 Ibid, Art. 17.

18 Supra note 8, Art. 6.

19 Ibid, Art. 5.

20 Ibid, Art. 74.

21 Most houses in Cambodia do not have indoor plumbing.

22 Author's interview with officers of the Provincial Police Commissariat of Ratanakiri Province (Banking, Ratanakiri, March, 2008)

23 Supra note 5, Art. 59.

24 Supra note 8, Art. 41.

25 Supra note 5, Art. 69; supra note 8, Art. 5.

26 Ibid.

27 Supra note 5, Art. 69.

28 The transitional law does, however, stipulate that “in all cases, the prosecutor can appeal decisions of the investigating judge if s/he is not satisfied with them” (Supra note 5, A rt. 94).

29 The transitional law, however, does provide for cases where an introductory submission (charge) made by the prosecutor does garner the investigating judge's support in which case the investigating judge can discontinue with the submission (‘file a non-suit’ in the statutory language), a decision which can be appealed by the prosecutor (Supra note 5, Art. 91).

30 Supra note 8, Art. 139.

31 One component of the transitional law, the UNTAC Law (Supra note 4, Art. 27), created a framework of victim intervention that was broad enough to include the sentencing hearing, which, however, was never used as it conflicts with the other component of the transitional law, the SOC CPC (Supra note 5), which made no provision for a separate sentencing hearing and folded the content of which into ‘judgment’ (the term ‘sentencing hearing’ remains alien to the Cambodian legal profession to date, as Cambodian lawyers use the English term for it when they discuss this practice in other countries, although the Khmer version of the UNTAC Law bears its Khmer translation). This conflict was resolved in favor of the SOC CPC, for political reasons, the fact which effectively prevented victims from being able to intervene in the case after the judgment has been handed down.

32 Supra note 5, Art. 131.

33 Supra note 8, Art. 311.

34 Ibid.

35 All legal aid services, as of today, in Cambodia are funded by foreign donors as opposed to the national government as it is the case in most developed countries.

36 Approximately 95%.

37 Supra note 5, Art. 48; supra note 8, Art. 75.

38 Supra note 4, Art. 10.

39 Supra note 5, Art. 76.

40 Supra note 8, Art. 15; supra note 6, Art. 31.

41 Supra note 5, Art. 48; supra note 8, Art. 75.

42 Supra note 6, Art. 36.

43 Ibid.

44 Supra note 4 and the Law on Aggravated Circumstances of Felonies (2001).

45 Supra note 8, Art. 140.

46 Ibid.

48 Ibid., Art. 141.

48 Cambodian Labor Law sets the minimum age of employment for minors at 12 years of age if the employment is (1) no hazardous to the minor's health and/or mental and physical development and (2) does not interfere with school attendance (Labor of the Kingdom of Cambodia (1997), Art. 177).

49 No comprehensive study of the matter has been conducted, as of the writing of this.

50 Supra note 5, Art. 76.

51 Supra note 8, Arts. 17–19.

52 Ibid, Art. 19.

53 Ibid, Art. 20.

54 To the best of this author's knowledge and the writing of this, there is no single locally-funded association of this type.

55 Supra note 6, Art. 10.

56 Supra note 4, Art. 27.

57 Ibid, Art. 13.

58 Supra note 5, Art. 110.

59 Supra note 8, Art. 150.

60 Supra note 4, Art. 14.

61 Ibid.

62 Ibid.

63 Supra note 8, Art. 212.

64 Concerns about such centers were raised by UNICEF: see An Assessment of the Situation of Children in Conflict with the Law in the Kingdom of Cambodia (UNICEF, 2005), at 130 Google Scholar.

65 Ibid.

66 Supra note 8, Art. 213.

67 This issue is exacerbated the lack of clarity in cases where the court sitting as a single judge hands down a decision finding that the accused was erroneously charged with a lower offense, which the court believe should have been a felony, and rescinds the case to the prosecutor for “to initiate a judicial investigation” (Supra 8, Art. 348). It is unclear whether such judicial investigation will start the period of pre-trial detention anew without taking the term of previous detention into consideration or whether the accused is entitled to compensation for being wrongfully accused.

68 It is noteworthy that this prong has been reduced to its mere title and no longer includes the items which it included under the transitional law, i.e. absence of (1) a job, (2) a family and (3) a home.

69 Supra note 8, Art. 204.

70 Supra note 4, Art. 41.

71 Ibid, Art. 52.

72 Ibid, Art. 14.

73 Supra note 8, Art. 208.

74 Ibid., Art. 209.

75 Supra note 8, Art. 134.

76 Ibid.

77 Supra note 5, Art. 88.

78 Supra note 8, Art. 162.

79 Supra note 5, Art. 88.

80 Supra note 8, Art. 171.

81 Ibid., Art. 170.

82 Supra note 5, Art. 109.

83 Ibid., Art. 76.

84 Supra note 8, Art. 313.

85 It is not clear what the UNTAC Law (supra note 4)’s drafters meant by ‘preliminary investigation’, however, it is unlikely to be similar to the definition of the same by the KoC CPC (supra note 8).

86 Supra note 4, Art. 27.

87 Supra note 5, Art. 131.

88 Supra note 8, Art. 311.

89 Supra note 5, Art. 5.

90 Supra note 8, Art. 13.

91 Ibid., Art. 321.

92 Ibid., Art. 318.

93 Supra note 5, Art. 131.

94 Ibid., Art. 19.

95 Supra note 8, Art. 356.

96 Supra note 4, Art. 23.

97 Supra note 5, Art. 129.

98 Supra note 8, Art. 316.

99 Supra note 6, Art. 18.

100 Ibid., Art. 20.

101 Ibid., Art. 22.

102 Ibid.

103 Ibid., Art. 24.

104 Supra note 4, Art. 27.

105 Supra note 5, Art. 19.

106 Ibid.

107 Ibid.

108 Ibid., Art. 131.

109 Ibid., Art. 153.

110 Supra note 8, art. 355.

111 Ibid.

112 Ibid., Art. 523.

113 Ibid., Art. 524.

114 Ibid., Art. 533.

115 Ibid., Art. 530.

116 Ibid., Art. 532.

117 Ibid.

118 This author is unaware of any studies which would quantitatively assess the exercise of the right in question, however, his own and other lawyers and legal experts' experience serves as an indication that granting access to the copy of the judgment was not understood as the victim's right by many courts.

119 Supra note 8, Art. 358.

120 KoC CPC sets this period at the maximum of 8 days since the day on which the judgment was issued (supra note 8, Art. 358).

121 Supra note 4, Art. 10.

122 Ibid., Art. 27.

123 Supra note 5, Art. 76.

124 Although the BAKC was created in 1995, to the best of this author's knowledge, it has not provided funds for counsel for the poor on any basis deemed as consistent.

125 Supra note 5, art. 162.

126 Supra note 8, Art. 376.

127 Supra note 5, Art. 59.

128 Ibid.

129 Ibid.

130 Supra note 8, Art. 41.

131 Ibid.

132 Supra note 5, Art. 90.

133 Ibid.

134 Ibid., Art. 91.

135 Supra note 8, Art. 247.

136 Ibid.

137 Ibid., Art. 270.

138 Ibid., Art. 276.

139 Ibid., Art. 281.

140 Supra note 5, Art 95; supra note 4, Art. 14.

141 Supra note 4, Art. 14.

142 Supra note 5, Art 95.

143 Supra note 8, Art. 268.

144 Ibid.

145 Supra note 5, Art. 178.

146 Ibid., Art. 161.

147 Ibid., Art. 166.

148 The prosecutor's appeal is although able to stay the judgment cannot substantively affect the victim's claim (Supra note 5, art. 174).

149 Ibid.

150 Supra note 5, Art. 170.

151 Supra note 8, Art. 382.

152 Ibid., Art. 375.

153 Ibid., Art. 399.

154 Ibid., Art. 402.

155 Ibid., Art. 405.

156 Some judges believe that the transitional law (this part it remaining in force at the writing of this) effectively prevents them from applying the attenuating circumstances article of the UNTAC Law (Supra note 4, Art. 68) due to the existence of a later article to the same effect (the AC Law, Art. 8). This judicial interpretation makes sentences in felony cases even longer and will do so until the passage of the new criminal code and depending on the form in which it passes.

157 Supra note 4, Art. 71.

158 Supra note 8, Art. 513.

159 Ibid., Art. 516.