CAMBODIA is expected to produce 3.2 million tonnes of surplus paddy in 2010, according to a government report released Monday, which would represent an additional 100,000 tonnes on last year.
Following a meeting last week among government officials to assess production for next year, the Ministry of Agriculture, Forestry and Fisheries concluded that the Kingdom would harvest just less than 7.3 million tonnes of paddy – compared to 7.1 million tonnes last year – despite damage by bad weather.
“This year farmers have not only produced more paddy than last year, they have also sold paddy for a higher price,” Yang Saing Koma, president of the Cambodian Centre for Study and Development in Agriculture, said Monday.
Speaking at an event Monday in Phnom Penh to launch the report, Minister of Agriculture Chan Sarun called on farmers to store paddy appropriately and be ready to sell internationally. “We want farmers to sell their remaining paddy at a decent price to help improve the economy of their families,” he told attendees.
A lack of global supply led South Korea to declare last month that it would stockpile rice, and the Philippines, the world’s largest importer of paddy, has said in recent weeks that exporting countries have increased rice prices.
In Cambodia, paddy prices are up 4 percent this year, according to Trade Promotion Department figures Monday.
Tauch Tepich, president of Svay Rieng Rice Millers Association, warned Monday that Cambodia could face shortages if paddy trading continued at levels seen in recent weeks.
Cambodia set to raise paddy rice production
Kamrob lies low over 'spy'saga
The first secretary to the Thai embassy in Phnom Penh, Kamrob Palawatwichai, is caught between a rock and a hard place over the Cambodian "spy" saga.
Some people are calling for his head while his colleagues are pressuring the government to support him.
Mr Kamrob's position has become even more tenuous since the release on Monday of Sivarak Chutipong, the Thai engineer who was arrested by the Cambodian government on a spying charge on Nov 12 and pardoned on Friday. But both the Foreign Ministry and Mr Kamrob have good reasons to keep their heads down.
Sivarak's mother, Simarak na Nakhon Phanom, has demanded Mr Kamrob publicly take responsibility for the arrest and conviction of her son.
The Cambodia Air Traffic Services engineer, on his return to Thailand on Monday, also demanded the diplomat tell the truth about why he wanted to know whether former prime minister Thaksin Shinawatra's jet had landed on Cambodian soil last month.
Since being expelled from Phnom Penh as persona non grata on Nov 12, Mr Kamrob and the ministry have kept silent to try to distance junior staff from being dragged further into the political quagmire by the opposition Puea Thai Party. "The whole incident is giving him nightmares," a ministry official said of Mr Kamrob.
The first secretary asked Sivarak for information regarding Thaksin's arrival in Phnom Penh on Nov 10 where he was to give a lecture as the newly appointed economic adviser to the Cambodian government. As an escapee from Thai justice after being sentenced to two years in jail over the Ratchadaphisek land purchase scandal, Thaksin is a target for the Thai government which wants him to serve out his sentence.
"If a fugitive is in any country, it is the responsibility of the diplomats based in that country to check arrival information in order to coordinate extradition with prosecutors," said ministry deputy spokesman Thani Thongpakdi.
Many officials at the ministry are worried that if Mr Kamrob were to say this publicly, it would give Puea Thai a chance to further politicise the issue in order to attack Foreign Minister Kasit Piromya, who has been hunting Thaksin since he came to office one year ago. Prior to that, he was a strong critic of Thaksin at People's Alliance for Democracy rallies.
Mr Kamrob, who was assigned by the ministry to look after Cambodian Prime Minister Hun Sen during the Association of Southeast Asian Nations summit in Thailand in October, is not the only one feeling the pressure from Sivarak's family. Mr Kasit is in a similar position with ministry officials who want him to come out to say something to protect Mr Kamrob.
Sivarak freed, Hun Sen meets Thaksin
Cambodian Prime Minister Hun Sen on Monday morning gave an pardon letter to Sivarak Chutipong, a Thai man convicted spying on Thailand’s fugitive former premier Thaksin Shinawatra, in front of his mother, Simark Na Nakhom Panom, and some Phue Thai members at Hun Sen´s house.
Cambodian King Norodom Sihamoni on Friday morning pardoned a Thai man jailed for 7 years and fined CR10 million for spying on fugitive former Thai premier Thaksin Shinawatra during his 4- day visit to Cambodia beginning Novem- ber 10.
The release of Siwarak Chothipong came as Thaksin paid a visit to Cam-bodia that could inflame diplomatic tensions between Bangkok and Phnom Penh. Thaksin visited Siwarak briefly in prison Sunday.
Following the release ceremony, Thaksin arrived the premier Hun Sen´s house by tighten security. Then, the Premier Hun Sen and Thaksin talked privately without an interpreter, the two used English. Hun Sen has never publicly given an address in English though there have long been rumors that he is a competent English speaker.
Hun Sen invited Thaksin, his family and some Phue Thai members to join a special dinner at the premier’s house.
Sivarak was initially sentenced to 7 years in jail for supplying Thaksin’s flight schedule to the Thai embassy when the former prime minister visited Cambodia last month.
“From now on Sivarak has freedom and can carry out any business,” Hun Sen said in front of reporters at the ceremony, which was also attended by Sivarak ’s mother and members of Thailand’s main opposition party.
Several reasons motivated the Cambodian King’s pardon of the Thai spy, including the jailed man’s lawyer declining to appeal the case, Pheu Thai leaders asking for help from the PM Hun Sen, and Thaksin making efforts to seek help Sivarak, Khieu Kanharith, a government spokesman told DAP News Cambodia last week.
Sivarak told reporters that he would like to express his deep thanks to the Cambodian King who decided to pardon him, and to the premier Hun Sen for his intervention.
Thai Prime Minister Abhisit Vejjajiva on Friday welcomed news of a royal pardon but said the Thai government had not received official confirmation from Phnom Penh, the Bangkok Post reported on Friday.
Sivarak Chutipong arrived at Bangkok’s Suvarnabhumi airport on Monday evening and told reporters he “felt like a victim,” according to the Bangkok Post on Mon- day.
Sivarak, who was ac- companied by his mother Simarak na Nakhon Pha- nom and Puea Thai spoke -sman Prom pong Nop-parit, was greeted by a swarm of re- porters up on arrival.
Asked whether the Foreign Ministry helped him when he was detained in Prey Sar prison in Cambodia, he said the ministry did try to help him, but the Thai and Cambodian governments were not on good terms.
Asked if his case was staged, he said it was not possible since Kamrob, a Thai diplomat, contacted him first.
“I wouldn’t put my life at stake, since I already had a good job,” Sivarak Sivarak was quoted as saying by the Bangkok Post. “I feel like I’m a victim but in what sense I don’t know.”
He said it would be better if Kamrob Palawatwichai, the first secretary at the Thai embassy in Phnom Penh who asked him for former Prime Minister Thaksin Shinawatra’s flight information last month, would clarify the situation.
“I have yet to talk Kamrob. I would like him to say something, or at least call my mother.”
Sivarak said he would return home immediately and had no plans to meet any senior Puea Thai officials.
Asked about the release and the Thai opposition’s plan to raise this case in the expected no-confidence motion against the government, Suthep, Thai Deputy Prime Minister was quoted by Bangkok Post as saying he was not surprised and believed Sivarak’s case was politically motivated.
Siwarak’s arrest deepened a diplomatic crisis over Cambodia’s appointment of Thaksin as an economic adviser, and its refusal to extradite the ousted leader to Thailand when he traveled to Phnom Penh last month.
Thaksin, who was ousted in a coup in 2006 and faces a two-year jail term in Thailand for corruption, landed in Phnom Penh Sunday.
The Thai government said it would press anew for his extradition, but Cambodian Foreign Ministry Spokesman Koy Kuong said such a demand would be “just a waste of time.”
Billionaire telecoms mogul Thaksin is living abroad, mostly in Dubai, to avoid a jail term handed down by a Thai court in absentia in September 2008.
Thaksin won two elections in Thailand and remains an influential political figure at home, stirring up mass protests by his “Red Shirt” supporters against the current Thai government.
Yearender: Historic Khmer Rouge tribunal has lessons for the world
Duch in court.
Earth Times
Nobody knows how many people died under the Khmer Rouge. Most estimates range between 1.5 and 2 million people from a population of perhaps 8 million. For many people Cambodia remains defined by its Killing Fields moniker.
Despite the level of killing, the tribunal has gone largely unnoticed in the international media. However, trial observers said it marks a key component in a shift in international criminal justice away from impunity and towards some sort of accountability for those who commit the worst crimes.
Genocide Watch president Gregory Stanton, who has been involved in research into Khmer Rouge crimes since the early 1980s, said trials such as Duch's are the first steps towards changing global rules.
"Impunity because of state sovereignty has been the story up till now - rulers could basically get away with crimes against humanity committed against their own people. There was total impunity," he said. "I think we are creating a new world order in which rulers cannot expect that any more."
Stanton said another reason this tribunal and that of former Liberian president Charles Taylor in The Hague are of historic importance is because of the way they were established.
"Both of these trials were created by an agreement between national governments and the United Nations," he said. "The international community is working hand in hand with national governments to put on trial people who have committed crimes in their own nations."
David J Scheffer, the former US war crimes ambassador involved in negotiations to establish the Khmer Rouge tribunal, said he is encouraged that the Duch trial has shown international standards of due process can be met with a mix of domestic and foreign staff.
"The great aim of international criminal justice today is to build domestic courts that can render justice comparable to the international courts," Scheffer wrote in an email. "The Duch trial is an important first step in that direction for Cambodia."
Last month's final arguments in the Duch trial were broadcast live on all Cambodian television stations. Heather Ryan, a trial monitor for the George-Soros-funded Open Society Justice Initiative, pointed out one way in which theKhmer Rouge tribunal is arguably superior to the Taylor trial: Duch is being tried in the country in which he committed his crimes.
"That has generated a kind of discussion about justice in this country that has not existed before," Ryan said. "And you would never have had that if thistribunal were taking place in The Hague."
Another unique feature is the participation of civil claimants - some of them survivors of Duch's S-21 prison, but most of them relatives of people murdered there on his orders.
Their testimony brought a daily reminder of the damage done by the Khmer Rouge, and Stanton applauds their participation.
"It's like a constant presence that the judges always have to keep in mind," he said.
There was criticism that victim participation slowed down Duch's trial. However, Scheffer said that is an acceptable price, since it broadens the reach ofinternational justice in cases where there are so many victims.
"The issue really is not whether victims have a role in the trial proceedings," Scheffer said. "Rather the debate is over how extensive that role should be and how large victims' groups should be represented in the courtroom."
Ryan said trials such as Duch's help to create an understanding worldwide that there is "a level of atrocity that is not acceptable."
She added that the crimes of the Khmer Rouge were unique in international tribunals in that they were not by and large motivated by an ethnic divide. Cambodia, a highly homogenous society, saw Cambodians killing Cambodians.
"The broader the range of situations in which there are trials, the more universal the concepts become," she said. "In large part it was a politically-motivated situation, and so that broadens the kinds of situations to whichinternational criminal justice has been applied."
Kamrob to issue clarification in few days
Kamrob Palawatwichai, former first secretary of Thai embassy in Cambodia will clarify his action in the next few days over his request for a Thai engineer to check flight plans of exThai PM Thaksin Shinawatra.
Government spokesman Panitan Wattanayakorn said Kamrob tried to contact Sivarak who was freed and returned home on Monday. Sivarak was arrested and sentenced to seven years in jail for stealing flight plan of Thaksin at the request of Kamrob. He was pardoned by Khmer King Norodom Sihamoni.
The Nation
Govt sets conditions for resumption of full relations
Published: 15/12/2009
The Cambodian government has to meet three conditions before the the Thai government will send its ambassador back to Phnom Penh, government spokesman Panithan Wattanayakorn said on Tuesday.
He said the release of pardoned spy Sivarak Chutipong was the first step toward restoring diplomatic relations.
However, ambassador Prasas Prasasvinitchai would return to Phnom Penh only if Cambodia rectified its stated opinion about Thailand's justice system, and its politics, and dismissed former prime minister Thaksin Shinawatra from the position of economic advisor to the Cambodian government.
"The government may send a first secretary back to the Thai embassy in Phnom Penh back if Cambodia wishes to improve bilateral ties, but I cannot confirm that it would be the same person,"the government spokesman said.
Last month, Kamrob Palawatwichai, the first secretary of the Thai embassy in Cambodia, was expelled by Cambodia for his involvement in obtaining Thaksin's flight plan.
Mr Panithan also said that Mr Kamrob had tried to contact Mr Sivarak on his arrival back in Thailand.
Mr Sivarak, who was convicted of spying on ousted premier Thaksin Shinawatra but later pardoned by the Cambodian king, demanded on Monday that Mr Kamrob "tell the truth".
He said Mr Kamrob had made a phone call to him and asked about a VIP plane's flight information and if Thaksin was on board the plane.
He demanded that Mr Kamrob speak out and restore his damaged reputation by confirming he was not involved in any government attempt to get Thaksin's flight details.
Mr Kamrob has not spoken to the media since.
Mr Panithan said Mr Kamrob tried to contact Mr Sivarak after he landed in back in Bangkok on Monday, but said he was not sure whether the two had talked.
He added that Mr Kamrob would clarify the matter in the next day or two.
"The reason why he does not clarify the issue now is because his superiors are concerned that he is not a good public speaker," he said.
Mr Sivarak's mother, Simarak na Nakhon Phanom, denounced Democrat Party spokesman Buranat Samutrak for saying the release of her son was staged and in the interests of a certain group of people.
"My son has suffered much already. Please don't hurt him more," Mrs Simarak said. "The person who thinks that this was staged, I believe, can also make up stories well."
The stressed mother also called on the media to stop referring to Mr Sivarak's father, who it was claimed was close to Thaksin, because he had passed away a long time ago.
"My son and I do not know Thaksin," she said.
She and her son forgave Kamrob Palawatwichai even though he was the one who called her son and got him arrested in the end.
"I agree with Prime Minister Abhisit Vejjajiva that everything should end here, but I wonder how would Mr Kamrob feel if he was in prison for just a day," she said.
She said she would like to thank Thaksin for his assistance and the people for their support.
Deputy Prime Minister Suthep Thaugsuban said on Tuesday that he would make no further comment on the case involving Mr Sivarak.
This matter should be put to end, he said, adding that the public understand what happened.
He earlier said the incident was a conspiracy by Puea Thai and Thaksin to discredit the government and boost the popularity of the convicted former prime minister, who arrived in Cambodia on Sunday to arrange for Mr Sivarak's release.
When asked about the government's efforts to extradite Thaksin now that he is back in Cambodia, Mr Suthep said that was the responsibility of the Foreign Ministry.
On Tuesday, Thaksin addressed Cambodian ministers in his advisory role on how to develop their economy during the global recession.
Foreign language media were locked out of Thaksin's meeting at the Council for the Development of Cambodia, but local reporters said he spoke to between 20 and 30 seniorCambodian ministers and their deputies.
He talked about how to develop the impoverished nation's economy during the worldwide financial crisis and discussed agricultural reform, the reporters added.
China call Uighurs who fled after riots criminals
BEIJING (AP)— China on Tuesday said the United Nations' refugee program "should not be a haven for criminals," adding that the 22 Muslim Uighurs who have fled the country and applied for asylum at a U.N. office in Cambodia have been involved in crimes.
A Foreign Ministry spokeswoman told a press conference that China is investigating the case of the Uighurs, who fled after ethnic rioting this summer. They arrived in Cambodia in recent weeks after being smuggled out ofChina with the help of a secret network of missionaries and Chinese Christians.
"These people are involved in crimes," Foreign Ministry spokeswoman Jiang Yu said.
The ethnic rioting in July between Uighurs and the majority Han Chinese was China's worst communal violence in decades. The Chinese government says the violence left nearly 200 people, mostly Han, dead.
At least one leader of a Uighur exile group has said it is not clear what role the 22 Uighurs had in the rioting. Another leader has said the Uighurs fear they will be returned toChina by Cambodia, which has close ties with China.
The Uighurs have applied for asylum at the U.N. refugee office in Phnom Penh. So far, they have not agreed to be interviewed.
Jiang said the U.N. refugee program "should not be a haven for criminals."
Kitty McKinsey, a spokeswoman for the office of the United Nations High Commissioner for Refugees at its Asian regional office in Bangkok, said the agency's policy is not to discuss individual cases. She described its mission as "to protect any people in the world who cannot receive protection from their own government."
"Sometimes the UNHCR and the government have a dispute over the kind of people in need of protection," she said.
Ilshat Hassan, the U.S.-based director of interior affairs for the World Uyghur Congress, has said the group of 22 Uighurs is the first large one to leaveChina after the riots.
Earlier this month, Cambodian government spokesman Khieu Kanharith said the country has the right to deny a deportation request if the people involved are political asylum seekers, but "if they are purely criminal people and there is a request, we may deport them."
As of this month, China has handed down at least 17 death sentences over the July rioting.
Overseas Uighur groups say Uighurs have been rounded up in mass detentions since the violence, which flared up after long-simmering tensions between the ethnic groups.
Associated Press writer Grant Peck in Bangkok, Thailand contributed to this report.
Strenghtening Vietnam-Cambodia relations
The General Secretary of the Communist Party of Vietnam Nong Duc Manh will pay an official visit to Cambodia on December 17-19 at the invitation of King Norodom Sihamoni. This is Mr Manh’s second visit to Cambodia after his first in March 2005.
The visit aims to strengthen the traditional friendship and comprehensive cooperation between the two countries and to elevate Vietnam’s position in the region, especially as the country will assume the chair of ASEAN in 2010.
Vietnam and Cambodia share a 1,000km long border and both use the Mekong River. They stood shoulder to shoulder in the fight against colonialism and the Pol Pot genocidal regime and have continued with mutual support and assistance during the current process of national construction and defence. Both countries have an open foreign policy of diversifying and multilateralising their international relations.
Over the past years, bilateral relations have developed well with an emphasis on ‘good neighbourliness, traditional friendship, comprehensive cooperation and long-term stability. A regular exchange of high-level visits has been maintained to promote mutual trust and understanding. Relations between the Communist Party of Vietnam and the two Cambodian parties in the ruling coalition have also fared well.
Economic, trade and investment ties between Vietnam and Cambodia have grown and flourished constantly on a par with their political ties. Two-way trade has increased by 40 percent annually, reaching US$1.7 billion in 2008 and US$945 million in the past three quarters of this year.
Both countries have worked out measures to expand economic and trade cooperation, to raise bilateral trade to US$2 billion in 2010. They have also opened and upgraded a number of economic zones and markets along the border.
Vietnam’s investment in Cambodia has increased considerably, with 50 projects licensed and valued at US$640 million. These projects mainly focus on the exploration and exploitation of minerals, oil & gas, the construction of hydro-power electric plants and power transmission lines, rubber plantations and developing transport infrastructure.
Progress has been made in several joint projects such as health care, education-training and science-technology. Since 1995, Vietnam has trained thousands of Cambodian officials, university graduates and post-graduates in economics, culture and science-technology. In 2010 Vietnam is expected to grant 550 scholarships to Cambodian students. In turn, Cambodia will also grant scholarships to Vietnamese officials studying theKhmer language.
Cambodia has appreciated Vietnam’s humanitarian programmes to provide medical check-ups and restore the eyesight of visually-impaired people in border provinces.
The two countries have also worked closely in regional and international forums, thereby elevating their status globally.
Sivarak: My phone talks were recorded
Siwarak and his mother with Hun Sen (L) at his home before he fly off to Thailand on 14th December.By THE NATION
Pardoned Thai "spy" Sivarak Chutipong has revealed that the Cambodian authorities recorded his phone conversations with a senior Thai diplomat, leading to his arrest and conviction in Phnom Penh.
Sivarak told Thai Rath online he knew his conversations with first secretary Kamrob Palawatwichai had been recorded. This account was likely to rekindle speculation that Phnom Penh had been tapping the communications of Thai citizens and diplomats.
The Cambodians apparently built their spy charges against Sivarak around Kamrob's alleged request for Thaksin Shinawatra's flight plan when he visited Phnom Penh last month, and Sivarak's action afterwards.
"I knew our conversations had been recorded," he told Thai Rath. He had said that he thought those phone conversations were normal.
Sivarak told Thai Rath he held no grudges against Kamrob, who he said had not contacted him since his return to Thailand on Monday.
Sivarak was last week sentenced to seven years in jail but later promptly pardoned by the Cambodian king. He returned to Thailand on Monday but the Thai government was very cautious about any sign of improvement in soured bilateral ties.
The
improvement of Thai-Cambodian ties will hinge on three conditions -
respect for the Thai judiciary, non-interference in internal affairs
and a Cambodian review of the appointment of fugitive ex-premier
Thaksin Shinawatra as adviser - the deputy secretary-general to the
prime minister said yesterday.
"The return of the Thai engineer
[Sivarak Chutipong] is a good sign - but bilateral ties will depend on
how Cambodia meets the three conditions," Panitan Wattanayagorn said.
Thailand
will neither set a timetable for the next move by Cambodia nor make any
demands for diplomatic normalisation, he said, reaffirming to uphold
good neighbourly relations whilePhnom Penh ponders its decision.
He said Cambodia's decision to back a Thai fugitive like Thaksin had made it impossible for Thailand to maintain bilateral ties under normal circumstances.
In regard to the involvement of Thai diplomat
Kamrob Palawatwichai in the Sivarak legal wrangling, he said the
Foreign Ministry would clarify pertinent issues in due time, as Sivarak
had already returned to his homeland.
"Pending the green light
from his ministry, Kamrob is expected to release a written statement to
explain his role," he said, ruling out a call for Kamrob to give an
interview in person.
Panitan hinted, however, that there would
be no objection if Kamrob were also to seek a personal meeting with
Sivarak to present his side of the story.
He said the Sivarak
case, which prompted Thaksin's second trip to Cambodia, was a ploy
designed to discredit the government and the Thai justice system.
Thai citizens should not fall prey to such ploys since political stability is the key to economic recovery, he said.
He added that Thaksin might also have a second motive: boosting the morale of the red shirts, currently seen as in disarray.
"Since
negotiations aimed at eluding his judicial conviction cannot
materialise, Thaksin is doing everything to sway the masses in order to
pressure for a general election that he hopes would pave the way to get
out of his legal trouble," Panitan said.
Thaksin yesterday accused the Foreign Ministry of ordering Kamrob to spy on his flight information when he landed in Phnom Penh last month.
Kamrob
received a call from Bangkok and later called Sivarak, who worked for
Cambodia Air Traffic Services, to ask for the flight schedule, Thaksin
said in his Internet radio show.
When Kamrob got the information
from Sivarak, he rushed to inform Bangkok, Thaksin said, without
specifying what he meant by "Bangkok".
The Foreign Ministry, of
which he was once a minister, had mobilised all resources to hurt him
and caused much trouble for the Thai national and relations with a
neighbouring country, the ex-PM added.
The Rights and Obligations Of Khmer Citizens
Article 31: Human Rights, Equality, Restrictions
1. The Kingdom of Cambodia recognizes and respects human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, woman's and children rights.
2. Every Khmer citizen is equal before the law, enjoying the same rights and freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status.
3. The exercise of personal rights and freedom by any individual may not adversely affect the rights and freedom of others. The exercise of such rights and freedom must be in accordance with law.
Article 32: Life, Personal Freedom, Security
Every Khmer citizen has the right to life, personal freedom, and security.
Article 33: Citizenship
1. Khmer citizens may not be deprived of their nationality, exiled or arrested and deported to any foreign country unless there is a mutual agreement on extradition.
2. Khmer citizens residing abroad enjoy the protection of the State.
3. Khmer nationality is determined by a law.
Article 34: Electoral Rights
1. Khmer citizens of either sex shall enjoy the right to vote and to stand as candidates for the election.
2. Citizens of either sex of at least eighteen years old, have the right to vote.
3. Citizens of either sex of at least 25 years old, have the right to stand as candidates for the election.
4. Provisions restricting the right to vote and to stand for the election are defined in the electoral for the election.
Article 35: Political Participation
1. Khmer citizens of either sex are given the right to participate actively in the political, economic, social and cultural life of the nation.
2. Any suggestions from the people shall be given full consideration by the organs of the State
Article 36: Work
1. Khmer citizens of either sex have the right to choose any employment according to their ability and to the needs of the society.
2. Khmer citizen of either sex receive equal pay for equal work.
3. The work by housewives in the home has the same value as what they can receive when working outside the home.
4. Every Khmer citizens has the right to obtain social security and other social benefits as determined by law.
5. Khmer citizens of either sex have the right to form and to be members of trade unions.
6. The organization and conduct of trade unions is determined by law.
Article 37: Strike, Demonstration
The right to strike and to non-violent demonstration is implemented in the framework of a law.
Article 38: Procedural Guarantees
1. The law does not allow physical abuse against any individuals.
2. The law protects the life, honor, and dignity of the citizens.
3. The prosecution, arrest, or detention of any person may only be executed in accordance with the law.
4. Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner is prohibited. Persons who commit, participate, or conspire in such acts are punished according to the law.
5. Confession obtained by physical mental force is not admissible as evidence of guilt.
6. Khmer citizens of either sex shall respect public and legally acquired private properties.
7. Any case of doubt shall be resolved in favor of the accused.
8. The accused is to be considered innocent until the court has judged finally on the case.
9. Every citizen enjoys the right to defense through judicial recourse.
Article 39: Complaints
Khmer citizens have the right to denounce, make complaints, or file claims against any breach of the law by the State and social organs or by members of such organs committed during the course of their duties. The settlement of complaints and claims shall reside under the competence of the courts.
Article 40: Travel
1. Citizens' freedom to travel, far and near, and legal settlement has to be respected.
2. Khmer citizens have the right to travel and settle abroad and return to the country.
3. The right to privacy of residence and to the secrecy of correspondence by mail, telegram, fax, telex, and telephone is guaranteed.
4. Any search of the house, material, and body must be in accordance with the law.
Article 41: Freedom of Expression
1. Khmer citizens have freedom of expression, press, publication, and assembly. No one may exercise this right to infringe upon the rights of others, to affect the good traditions of the society, or to violate public law and order and national security.
2. The regime of the media is determined by law.
Article 42: Associations, Political Parties
1. Khmer citizens have the right to establish associations and political parties. These rights are determined by law.
2. Khmer citizens may take part in mass organizations for mutual benefit to protect national achievements and social order.
Article 43: Religion
1. Khmer citizens of either sex enjoy the freedom of belief.
2. Freedom of religious belief and worship is guaranteed by the State on the condition that such freedom does not affect other religious beliefs or violate public order and security.
3. Buddhism is the State religion.
Article 44: Property
1. All persons, individually or collectively, have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality have the right to own land.
2. Legal private ownership is protected by the law.
3. The right to confiscate possessions from any person may only be exercised in the public interest as provided for under law and requires fair and just compensation in advance.
Article 45: Gender Equality, Marriage
1. All forms of discrimination against woman are abolished.
2. The exploitation of women in employment is prohibited in marriages and matters of the family.
3. Marriage is to be conducted according to conditions determined by law based on the principle of mutual consent between one husband and one wife.
Article 46: Women
1. The commerce of human beings, exploitation by prostitution and obscenity which affect the reputation of women is prohibited.
2. A woman may not lose her job because of pregnancy. Women have the right to take maternity leave with full pay and with no loss of seniority or other social benefits.
3. The State and society provides opportunities to women, especially to those living in rural areas without adequate social support, so they can get employment, medical care, send their children to school, and have decent living conditions.
Article 47: Parentage
1. Parents have the right to take care of and educate their children to become good citizens.
2. Children have the right to take good care of their elderly mother and father according to Khmer traditions.
Article 48: Children
1. The State protects the rights of the children as stipulated in the Convention on Children, particular, the right to life, education, protection during wartime, and from economic or sexual exploitation.
2. The State protects children from acts that are injurious to their education opportunities, health, and welfare.
Article 49: Duties
1. Every Khmer citizens must respect the Constitution and laws.
2. All Khmer citizens have the duty to take part in the national reconstruction and to defend the homeland. The duty to defend the country is determined by law.
Article 50: Principles to be Respected
1. Khmer citizens of either sex must respect the principles of national sovereign and liberal multi-party democracy.
2. Khmer citizens of either sex must respect public and legally acquired private properties.
Cambodian Investment Law
Cambodian Investment Law
Chapter 1
General Provisions
Article 1. This Law governs all investment projects made by investors who are Cambodian citizens and/or foreigners within the Kingdom of Cambodia.
Article 2. Investor can be either a natural person or a legal entity.
Chapter 2
The Council for the Development of Cambodia
Article 3. The Council for the Development of Cambodia is the sole and one-stop service organization responsible For rehabilitation, development and over-seeing investment activities. The Council for the Development of Cambodia is the Royal Government's "Etat-Major" responsible for the evaluation and the decision making on all rehabilitation and development, and investment project activities.
Article 4. The Council for the Development of Cambodia comprises the following two operational Boards:
1. The Cambodia Rehabilitation and Development Board;
2. The Cambodia Investment Board.
Article 5. The organization and functioning of the Council for the Development of Cambodia shall be mentioned by Sub-Decree.
Chapter 3
Investment Procedures
Article 6. Investors have to submit investment applications to the Council for the Development of Cambodia for review and decision.
Article 7. The Council for the Development of Cambodia shall provide a response as to its decision to all investor/ applicants within a period of a maximum of forty five (45) days following the date of submission of the complete investment application. If without proper justification, any Government official who refuses to review and respond to investors' application past law.
Chapter 4
Investment Guarantees
Article 8. Investors shall be treated in a non-discriminatory manner as set by law, except for ownership of land as set forth in the Constitution of the Kingdom of Cambodia.
Article 9. The Royal Government shall not undertake nationalization policy which shall adversely affect private
properties of investors in the Kingdom of Cambodia.
Article 10. The Royal Government shall not impose price control on the products or services of investors who have received prior approval from the Government.
Article 11. In accordance with the relevant laws and regulations issued and published for the public by the National Bank of Cambodia, the Royal Government shall permit investors to purchase foreign currencies through the banking system and to remit abroad these currencies for the discharge of financial obligations incurred in connection with their investments. This concerns the following payments:
1. Payment for imports and repayment of principal and interest on international loans;
2. Payment of royalties and management fees;
3. Remittance of profits;
4. Repatriation of invested capital incompliance with Chapter 8.
Chapter 5
Investment Incentives
Article 12. The Royal Government shall make available incentives to encourage investments in such important fields as:
1. Pioneer and/or high technology industries;
2. Job creation;
3. Export-oriented;
4. Tourism industry;
5. Agro-industry and Transformation industry;
6. Physical infrastructure and energy;
7. Provincial and rural development;
8. Environmental protection and
9. Investments in Special Promotion Zone (SPZ) as shall be created by law.
Article 13. Incentives shall include the exemption, in whole or in part, of duties and taxes.
the above mentioned period of time shall be punished by Article 14. Incentives shall consist of the following:
1. A corporate tax rate of 9 per cent except the tax rate on the exploration and exploitation of natural resources, timber, oil, mines, gold, and precious stones which shall be set in separate laws.
2. A corporate tax exemption of up to 8 years depending on the characteristics of the project and the priority of the government which shall be mentioned in a Sub- Decree. Corporate tax exemption shall take effect beginning from the year the project derives its first profit. A 5-years loss carried forward shall be allowed. In the event the profits are being reinvested in the country, such profits shall be exempted from all corporate tax.
3. Non taxation on the distribution of dividends or profits or proceeds of investments, whether they will be transferred abroad or distributed in the country.
4. 100 per cent import duties exemption on construction materials, means of production, equipment, intermediate goods, raw materials and spare parts used by:a. An export oriented project with a minimum of 80 per cent of the production set apart for export;
b. Located in designated Special Promotion Zone (SPZ) listed in development priority list issued by the Council;
c. Tourism industry;
d. Labour intensive industry, transformation industry, agro-industry; and
e. Physical Infrastructure and energy industry.
These 100 percent exemption of duties and taxes mentioned above shall be in effect according to the terms of the agreement or requirement book of the investment projects which will produce goods for export in minimum of 80 percent of overall productivities as stipulated in the above point (4) a. and for the investment projects which are located in Special Promotion Zone (SPZ) as in (4) a. And (4) b. The 100 percent exemption of duties and taxes shall only be authorized for an arrangement of construction period of enterprises, factories, buildings and the first year of operation of business production.
5. 100 percent exemption of export tax, if any.
6. The permission to bring into the Kingdom of Cambodia foreign nationals who are:- Management personnel and experts,
- Technical personnel,
- Skilled workers, and
- Spouses and dependents of the above persons as authorized by the Council for Development of Cambodia and in compliance with the immigration and labour law.
Article 15. The approval and incentives granted by the Council for Development of Cambodia shall not be transferred or assigned to any third parties.
Chapter 6
Land Ownership and Use
Article 16. In accordance with the constitution and relevant laws on regulations pertaining to the ownership and use of land:
l. Ownership of land for the purpose of carrying on promoted investment activities shall be vested only in natural persons or in legal entities holding Cambodian citizenship. Legal entity holding Cambodian citizenship is the legal entity in which more than 51 percent of the shares are owned by natural persons or legal entities holding Cambodian citizenship.
2. Use of land shall be permitted to investors, including long-term leases of up to a period of 70 years, renewable upon request. Upon such use may include the right of ownership of real and personal property situated on the land as may be permitted by the law.
Chapter 7
Employment Practices
Article 17. Investors in the Kingdom of Cambodia shall be free to hire Cambodian nationals and foreign nationals of their choosing in compliance with the labour and immigration law.
Article 18. The investors shall be allowed to hire foreign employees who are listed in article 14 (6) provided that:
1. The qualification and expertise are not available in the Kingdom of Cambodia among the Cambodian populace. In the event of such hiring, appropriate documentation including the photocopies of the employee's passport, certificate and/or degree, and a curriculum vitae shall be submitted to the council;
2. Investors shall have the obligation to provide adequate and consistent training to Cambodian employees;
3. Promotion of Cambodian staff to senior positions will be made over time.
Article 19. Foreign employees shall be allowed to remit abroad their wages and salaries earned in the Kingdom, after payment of appropriate tax, in foreign currencies obtained through the banking system.
Chapter 8
Disputes and Dissolution
Article 20. Any dispute relating to a promoted investment established in the Kingdom by a Cambodian or e foreign national concerning its rights and obligations set forth in the Law shall be settled amicably as far as possible through consultation between the parties in dispute.
Should the parties fail to reach an amicable settlement within two months, the dispute shall be brought by either party for:
Conciliation before the Council which shall provide its opinion, or refer the matter to the court of the Kingdom of Cambodia, or refer to any international rules to settle the disputes as mutually agreed by the parties.
Article 21. In the event a promoted company intends to end its activity in the Kingdom of Cambodia, it will have to inform the Council through either a registered letter or a hand delivered letter stating the reasons of such a decision, which letter shall be signed by the investor or his attorney in fact.
Article 22. In the event of a proposal for a dissolution of a company without judicial procedures, the investor shall provide proofs to the Council that the company has property settled its potential creditors, complainants and claims from the Ministry of Economy and Finance before the investor is allowed to officially dissolve his company according to the applicable commercial law.
Article 23. Once the investor is allowed to officially dissolve his company either within the judicial procedures or not, the investor can transfer the remaining proceeds of its assets overseas or use them in the Kingdom of Cambodia. However, in the event that the dissolving company had used machinery and equipment which were imported duty free for less than five years, the company will have to pay the duties applicable to those machinery and equipment.
Chapter 9
Final Provisions
Article 24. Investments authorized under the previous "Law on Investment" of the State of Cambodia and its Sub-Decrees shall be subject to the same benefits and obligations as stated under this Law. This law is not retroactive.
Article 25. In the case where the promoted company violates or fails to comply with the conditions stipulated by the Council, the Council shall have the power to with- draw the rights and benefits granted to it, in whole or in part.
Article 26. This Law shall be promulgated immediately.
This law is adopted by the National Assembly of the Kingdom of Cambodia in Phnom Penh on August 4, 1994 during the extraordinary session of the first legislature.
Phnom Penh, August 4, 1994
Chairman
Cambodia Investment Board
Nation Religion King
Shaping a better future
From The Secretary General
ANNOUNCEMENT
The Board has the pleasure to inform potential investors that it has started its operation since Monday August 8, 1994.
Our new and speedy approval procedure aims at facilitating private investment in the Kingdom. Indeed we shall process and decide on the approval of investment projects within 45 days. (1)
Our young and dedicated staff and I stand ready to provide investors with all the required information and guidance.
Vichit Ith
1. Except for major infrastructure projects where more time is needed due to their technical characteristics. Are considered investment projects all projects which create local value-added and bring in actual technical expertise (trading activities are not considered as investment.
METHODS FOR PROSECUTORS IN MAKING CHARGES WITH OFFENSES
INSTRUCTION DATED NOVEMBER 18, 1993
ON THE METHODS FOR PROSECUTORS IN MAKING CHARGES WITH OFFENSES
No. 5 CIR. 93
The State Minister, Minister of Justice
To:
- HE. President Of The Supreme Court;
- HE. General Prosecutor To The Supreme Court;
- Mr. President Of The Appeal Court;
- Mr. General Prosecutor To The Appeal Court;
- Mr. Chiefs Judges Of The Provincial And Municipal Courts;
- Mr. Prosecutors To The Provincial And Municipal Courts;
- Mr. Chief Judge Of The Military Court;
- Mr. Prosecutor To The Military Courts;
Subject: Instruction for Circular dated March 3, 1995
On The Methods for Prosecutors in Making Charges with Offenses. Concerning the Law on Criminal Procedure, the Ministry of Justice has already given instruction directly to all the judges and prosecutors during the refresher training course. But upon this instruction, the Ministry has noticed that all the judges and prosecutors are still having different views on the matter concerning the technical process that is to be applied in practice. In order to avoid this difference in views, the Ministry shall have duty to give instruction of the some important technical processes of this as follows:
I- PROSECUTORS:
As to the principle, the main job of the prosecutors are to make accusations then sue to the adjudicate courts, for all criminal offenses, in order to avoid effects to the public security and order. Thus when upon receiving a complaint, or a minute/statement from the justice police of a criminal case, the prosecutor shall take actions as hereunder:
1- If upon seeing that it is not part of the crimes as specified in the law which should be subjected to punishment, the prosecutor shall decide to keep the file in suspense without taking further action through a Decision, then the prosecutor shall inform this to the complainant within a delay not exceeded 2 months from the date of reception of the complaint, in order to give time for the complainant to make an appeal to the Appeal Court against this Decision. After this the prosecutor shall write down a mention in the Complaint Register Book, on the minute/statement and also on the complaint for the remark.
2- If upon seeing that it is a misdemeanor or crime, which are required to be punishable by the law, even though if there is a file or not, the accused person must be brought in. The prosecutor shall order for an investigation to be carry out immediately then make a conclusion on what is called a " Commentary Dispatch Memo of sending the case for inquiry ". In this Memo, the prosecutor shall make a preliminary charge, in which should indicate precisely of the accused person, the offense/crime and the related provision of the law; and after this the prosecutor shall send this Commentary Dispatch Memo with the file to the investigating judge to conduct investigation in accordance with the law.
3- In this Commentary Dispatch Memo of sending the case for inquiry, the prosecutor when thinks necessary, may have rights to make a conclusion recommending the investigating judge to detain the accused person. But this last conclusion is not for the purpose of compelling the investigating judge to make a decision following what is recommended, if the investigating judge thinks otherwise. In case when the investigating judge thinks otherwise differently from the conclusion of the prosecutor, this judge shall have obligation to send immediately his/her Decision together with the file to the prosecutor, in order to have possibility to proceed it further in conformity with the law. The prosecutor shall have right to either file immediately or not to file an opposition to the Appeal Court against such Decision.
4- If seeing that there is no clarity, for any file which the accused person is not brought along with it, and it is not possible to make a conclusion as to what is the kind of crime? the prosecutor may have power to carry out personally a preliminary investigation, in order to collect evidences as basis for making an accusation.
When there are enough evidences for making an accusation, the prosecutor shall, if necessary, send the Commentary Dispatch Memo the same way as said above, to the investigating judge; or during such personal investigation, if the prosecutor could collect sufficient evidences, enough to submit to the court for the trial right away, he/she need not refer that file to the investigating judge, but should instead make out preliminary charge/ indictment then send the file directly to the Court for trial. Could be proceeded in this way, only for those crimes which are due to be punishable by the law for a maximum term which should not be exceeded one (1) year.
5- In case when it is to examine on the minutes/statements made by the Customs, Forestry, Fishery and Taxation departments, for those cases which concerned with the abuses of the Customs, Forestry, Fishery and Taxation Laws, the Prosecutor shall make a preliminary charge/indictment to forward the case directly to the court for trial right away, by considering that those minutes/statements of the above departments as incriminating evidences for making charges and for submitting the file to the court for trial.
6- As for the flagrant delicto crimes, the Prosecutor may have power to take actions with the Justice Police directly, in going down to investigate on site, by asking for statements from the accused person, to conduct searches, arrests or seizures as evidences and taking statements from the witnesses etc.... Upon receiving the minutes of the activities that he/she conducted the investigation on site, the prosecutor shall have to make out a Commentary Memo the same way as said above then refer the case to the judge for inquiry in accordance to the law.
7- For flagrant delicto misdemeanor cases, which are required by the law for condemnation to imprisonment for a term not exceeded one (1) year, the Prosecutor, upon receiving the file and the accused person, may also have power to conduct immediately an inquiry then shall make a preliminary charge/indictment for referring the case and brining the accused to the court directly for trial, and it is not necessary to make a Commentary Dispatch Memo to send the case to the Investigating judge for investigation again .
8- In case which an offense is a crime or misdemeanor, that the Prosecutor thinks that there is a special ground of incrimination in it, the Prosecutor shall inform it immediately by any feasible and quick method, to the General Prosecutor to the Appeal Court and the Minister of Justice, and the Prosecutor shall always comply with the orders which he/she received from both officials above.
9- Working relations between the prosecutors and the investigating judges:
The Prosecutors shall follow up and control all the activities of the investigating judges through " Dispatch Memos of sending the file" of the investigating judges which referred such file to the Prosecutors for examination. In such condition, the prosecutor shall check that file thoroughly, when thinks that there are sufficient evidences in such file, the investigation was exactly done, and it is enough to be submitted to the court for trial; then he/she shall make his/her conclusion on a Dispatch Memo of sending the file" which was sent to him/her by the investigating judge for examination. Or otherwise the prosecutor shall make a separate conclusion, in order that the investigating Judge will make a Dispatch Memo to refer the file to the court for trial, if this judge has the same idea.
Beside this, upon examination, if the prosecutor thinks that the file has yet no sufficient evidence and may not be submitted for trial, he/she shall make his/her conclusion on such Dispatch Memo of sending the file of the investigating judge, in order that this latter will make out an order to acquit the charge, if the investigating judge has this same idea.
If the prosecutor and the investigating judge had different ideas on the same file. For instance if the prosecutor thinks that there is culpability onto the accused person; but as to the investigating judge he thinks that there is no culpability basing on the ground such as what has a character as a civil case etc., such investigating judge will decide to acquit the charge through that Decision. The investigating judge has obligation to refer the file and the Decision immediately, in order that the prosecutor may have possibility to make an opposition according to what specified by the law.
Besides, if the investigating judge has requested the prosecutor to start to make a preliminary charge with an offence/a crime other than which he/she has made, the prosecutor shall have to start to make another additional charge, in order that the investigating judge shall have rights to proceed to investigate the new additional offense/crime that has just been arisen.
10- Apart from the above duties, the prosecutors shall have obligation to participate in the hearings according to what specified by the laws and without absent, in order to defend the charges they made and the interests of the laws. In civil cases, the prosecutors, if deems necessary, may also participate in the hearing. But for those cases which effects the public order, the interests of the incapable persons, it is necessary for the prosecutors to consider themselves as complaining party and to attend with out absent in the hearings. So the prosecutor may have rights to make opposition against all the decisions of the investigating judges, when they think that it is necessary to do in all the criminal cases. If they think that the decisions of the courts are not correctly in conformity with the laws for the reasons of acquitting the accused persons from charges or for sentencing convicted persons with too long or too short term of punishment comparably to what is due. For the Civil cases, the prosecutors may not appeal, unless they considered themselves as the complaining party.
II- INVESTIGATING JUDGES:
The investigating judges may have rights to undertake to investigate in all criminal cases which the prosecutors have forwarded through Commentary Dispatch Memos to them for investigation, and in those Dispatch Memos the prosecutors had made charges and demonstrated of the articles of the laws which required to be punished. In such case the investigating judges shall have rights and duties as follows:
1- When upon receiving a Commentary Dispatch Memo which is sent to investigating judge, this latter shall create a file and register it in the inquiry book, then he/she shall proceed with it in accordance with the sequence of actions as specified in the procedure, such as making an inquiry of the accused person in front of the lawyer if there is a lawyer, victims, witnesses; and making order to take other actions such as to manage to conduct an expertise or to go down by himself/herself to the place of incidence for investigation to search for evidences, for elements of the crime as what accused by the prosecutor. But during this investigation, if it is found that it arises a new crime different from what charged by the prosecutor so far, the investigating judge shall make a Dispatch Memo to send the file back to the prosecutor, in order to enable the prosecutor to start to make out a preliminary charge with such new crime which just arose, except for when such new crime which just arose is only a contravention. The investigating judge may have power to start to investigate the new charged crime, only after receiving the new charge. If the prosecutor did not make a new charge, the investigating judge may not start to proceed the investigation on that new arisen crime. This is an important principle that has been stated in articles 70 and 71 of the law on Criminal Procedure.
In conclusion the investigating judges shall proceed the investigations only following the charges of the prosecutors.
2- During the inquiry, at their discretion the investigating judges may have power to decide by Decisions for detaining the accused persons to prevent them from fleeing away, to escape from punishment or from destroying the evidences, or they may also decide not to detain the accused " through bails or without bail",
if they thought that the accused has committed a misdemeanor of low degree only, and he/she got their specific/fix residences and who will not escape from punishment. See I (3) for problems relating to the Commentary Dispatch Memo for sending the cases for investigation, of the prosecutors.
3- During the investigation to collect evidences, when thinks that the investigation is ended and that there is no incriminating evidence suitable for making accusation on the accused person, the investigating judge shall make out a Decision to acquit the accused from the charge. But before making such decision, the investigating judge shall make a Dispatch Memo to send the case to the prosecutor to examine and make conclusion on it before hand. The prosecutor within 3 days from the day of receiving the file, shall make a written conclusion then return the file to the investigating judge in order that this latter will make out a Decision. In this Decision, the reasons must be very clearly specified. Within a delay of 24 hours, if the prosecutor makes an appeal against the Decision of acquitting the accused from the charge of the investigating judge, the accused person if being detained, should remain the same must not be released yet, and for the file it must be sent immediately to the Appeal Court according to what specified by the law. But if the prosecutor has accepted with Decision of the Investigating Judge to acquit the accused person from the charge, the investigating judge shall make out an order to release immediately such person. The accused should not be detained any more.
4- Principles to remember:
- the judges may not decide by themselves the extend right away their investigation on any new arisen crime. It requires therefore to have an additional conclusion on it from the prosecutor through a Commentary Dispatch Memo at first.
- the Commentary Dispatch Memo of the prosecutor is not a tie which binds the investigating judge that he/she shall always make Decision in compliance with it.
- Judges may extend their investigations on all persons, even though if the names of those persons have not been inscribed in the conclusion in the preliminary charge of the prosecutor, but it has mentioned the word: " colleague or partner ".
III- COURTS:
The court may proceed the hearings on criminal cases only for those accused persons who have been charged and their files have been forwarded to trial by the prosecutor, or through a Dispatch Memo of the investigating judge when upon a charge has been already made by the prosecutor, or through Judgements of dispatching files of the other courts, or through bringing immediately the accused to trial in flagrant delicto cases.
Once a judge has undertaken to investigate any criminal case or who has once conducted a hearing on such case, such same judge may not be allowed to proceed the hearing again on this same case.
In case when the judge thinks that the specification of the (type of) offense/ crime for a committed act as mentioned in the conclusion of the charged which is sent to him/her is not correct, the court then may rectify it to suit with such committed act, but the judge may not add anything to the elements which are closely related to the act mentioned in the charge or in the Dispatch Memo.
- This above rectification of the (type of) offense/crime shall indicate clearly the reasons in the judgement.
In the condition if there is not sufficient evidence which the judge thinks that it is not possible to conduct a trial, he/she shall issue by an order to carry out an investigation by himself/herself or by assigning this task to the investigating judge or the prosecutor to do it.
The judge has no power the keep the file suspense without proceeding the trial, except only in urgent case where it is compelled to wait for the Decision of the Civil judge on such urgent case first.
For a flagrant delicto crime which has been already charged by the prosecutor, and which both the file and the accused have been brought before the court for trial, the judge who is to assume this task shall firstly consider and make decision on matter of: "whether the accuse should be detained or released pending trial, or should he/she pay a bail or not?", before he/she put this case for hearing later on.
In the judgement of the court, which decided to sentence the convicted, shall point out the offence/crime that the person has committed and the article of the law that is required to punish.
Beside this if in the judgement it stated about damages or compensations, shall also point out the article of the law and number of the days of imprisonment that shall be applied to force the concerned person to pay compensation.
The Ministry of Justice is hoping that this above instruction, even though that it is not very comprehensive, but may help also in the works of the judges and prosecutors in all the provincial and municipal courts in the implementation of the Penal Procedure. In case of encountering any difficulty in the course of implementing this above instruction, please raise the questions to the Ministry of Justice, the Ministry will provide further additional instruction.
Signature and seal of:
Chem Sgnuon
Ministry of Justice
METHODS FOR PROSECUTORS IN MAKING CHARGES WITH OFFENSES
CIRCULAR DATED MARCH 3, 1995
ON THE METHODS FOR PROSECUTORS IN MAKING CHARGES WITH OFFENSES
Nº 206 Cir.Pen.95
State's Minister, Minister of Justice
To :
Mr. the Prosecutors to the Provincial, Municipal
and military Courts.
Mr. Chief Judges of the Provincial, Municipal and Military Courts.
Subject: Specification on the methods for prosecutors in making charges with offenses.
The Ministry of Justice has observed that the court's works have been accumulated more and more, cannot be worked out on time and cannot response to the requirement of our population.
This delay is connected with the civil as well as criminal cases.
For Criminal cases, one of the elements which caused the delay, was the waste too much times for forming up the dossiers for the courts, this was because of the prosecutors had to issue commentary summons to refer the dossiers to the investigating judges for almost all of the criminal cases.
I would like to remind you all of the methods for making charges and the selection of its methods as follows:
I- Methods for making charges:
The filing of penal actions is the duty of the prosecutors. in order to make up the Penal actions, the means for making charges are as hereunder " Art. 102 of the Law on Criminal Procedure" :
- referring (the case) directly for trial.
- commentary summon to refer the case for inquiry.
- the immediate hand over of the accused person to trial, for the flagrant delito misdemeanor case.
1- Referring the case directly for trial:
The referring of the case directly for trial is a method that the prosecutor decides to make a charge to refer directly the accused person before the court.
According to the article 67 of the Law on Criminal Procedure, the prosecutor may use this method, when the accused is due to be condemned to imprisonment which its maximum term should not exceed 1 year.
Among the misdemeanor offenses as stipulated in the Provisions of Criminal transitional law and other laws which shall be punishable to imprisonment and which their maximum terms shall not be exceeded one year, are primarily:
- the offenses for the causing of injury, which did not cause the lost of physical capacity (Art. 41 ).
- incitement to commit acts of discrimination (Art. 61).
- defamation and derogatory insults (Art. 63 ).
- use of addicted drugs (Art. 65 ).
- the offenses for having fled from the scene after a traffic accident ( Art. 59 of Land traffic law).
- offenses for non-intentional causing of injury ( Art. 56 of Land traffic law).
- other offenses as stated in the Fishery, Forestry, Custom, taxation and labor laws, may as well be charged with the method of referring directly for trials.
2- Commentary summon to refer the case for inquiry:
The commentary summon to refer the case for inquiry are the written papers of the prosecutors who sued to the investigating judges to carry out investigations on specified cases. The Article 60 of the Criminal Transitional Law has stipulated that the prosecutor allows to proceed immediately an inquiry following the commentary summon which referred the case for inquiry, when it is a misdemeanor or crime/felony.
The article 61 indicated that for misdemeanors the prosecutor may allow to have a choice by permitting to make either an inquiry or referring the case directly for trial, if there is sufficient conditions as stated in the article 67.
For crime/felony the process of investigation following the commentary summon of referring the case for inquiry, shall be necessary. For misdemeanors, the inquiry shall absolutely be necessary to do, but for only those misdemeanor offenses which are subjected to imprisonment for over one (1) year term, and which are not flagrant delicto misdemeanor cases, only. This is because there was already a special procedure for it which allows hearing the case immediately, for any flagrant dallied case that shall subjected to be punishable to imprisonment.
CRIMINAL PROCEDURE, 1993
KRAM DATED FEBRUARY 8, 1993
ON CRIMINAL PROCEDURE
- having seen the 1993 Constitution of the State of Cambodia;
- having seen the law on the Organization of the Assembly and the State Council of the Peoples Republic of Cambodia promulgated by Decree No. 04 KR dated February 10, 1982;
Decide:
Promulgate the law on Criminal Procedure adopted by the State Assembly of Cambodia on January 28, 1993 at the 24th Session of the First Legislature.
Phnom Penh, March 8, 1993
For the State Council
President
Signature and Seal
Heng Samrin
CHAPTER ONE
GENERAL PROVISIONS
Article 1.
The law on criminal procedure has the purpose of establishing the rules that shall be respected and strictly implemented in order to determine by law the existence of a criminal offence.
Article 2.
Any criminal offence may give rise to two separate legal actions: public action and civil action.
Article 3.
The penal action is for the purpose of condemning all acts disrupting social order and breaching the peace and the offenses provided by the law.
Therefore, public actions strive to prevent these offenses from re-occurring by imposing on offenders punishments provided by the law.
Article 4.
Only officials appointed by law may initiate public actions.
Article 5.
The civil action is for the purpose, shall receive award proportionate to the damages incurred to him/her.
Article 6.
Both actions, public and civil, even though closely inter-related, can always be separately filed.
Article 7.
Public action may not be settled by any arrangement.
The court of repressive jurisdiction provided in further articles; when seized upon knowledge of any penal infraction, shall decide on the case. the non-compliance to this principle shall be considered as a miscarriage of justice and punishable of a disciplinary measures or imprisonment from 6 days to 1 month.
Article 8.
The exercise of penal action and putting it into process are the responsibilities of the prosecution department.
In principle, at the prosecution department, the deputy general prosecutor and prosecutor perform their duties on behalf and under the responsibilities of the prosecution department.
In principle, at the prosecution department, the deputy general prosecutors perform their duties on behalf and under the responsibilities of the general prosecutor, whether or not in his/her presence.
At the municipal and provincial prosecution department, the deputy prosecutor performs his/her duties on behalf and under the responsibilities of the prosecutor, whether or not in his/her presence.
Article 9.
The person who believes to be injured by an infraction may lodge a complaint along with the prosecution proceedings in order to obtain award.
Article 10.
In case when the complaint of any plaintiff, believing to be injured by an act that he/she thinks consisting a criminal offence and the representative of the prosecution office does not respond or file it without follow-up, the plaintiff may summit the case to the appellate court.
Article 11.
The penal action can be exercised against any person in the State of Cambodia without discrimination of race, nationality, religion, sex or social class.
Article 12.
The civil action may be grounded only on any crime, misdemeanor or minor offence, however, in order to judge whether or not a civil action is relevant, the fact constituting the criminal offence that gives rise to civil reparation shall be clearly and appropriately indicated according to the law.
On the other hand, the criminal offence shall have really caused damages even though the damage is a moral one.
Article 13.
It is not sufficient to just have criminal offence and damages caused by the offence but there shall also be relationship between the two elements: cause and effect, or in other words the damage is the direct result of the offence and it really and currently occurs.
Article 14.
In principle, only the person who is personally injured by the offence may file a civil action.
May also file a civil action on behalf or for the benefit of the person injured by the offence are those who have legal guardianship of the injured person or those, by law, have the authority to represent the victim.
Article 15.
The civil action can be exercised against all those who are liable for the reparation of damages resulting from the offence; that is to say principals, co-principles as well as those liable for civil action that offence.
The civil action may exercise against the persons civilly liable because it is a consequence of the liability to the person whom he/she shall respond in accordance with the provisions of the civil law. However, the civilly liable persons shall not be subject to direct or sole condemnation.
Article 16.
The civil action may be filed together with the penal action at the same time and before the same judge.
The civil action may also be filed separately. In the latter case, the exercise of the civil action shall be suspended as long as the penal action is not finally decided.
Article 17.
The victim of any offence who has lodge a complaint for damages before the civil judge and who has already received reparation shall not be a plaintiff claiming damages in the public prosecution of the same case.
Article 18.
This principle can only be applied when the civil and penal jurisdictions receive the same case, that means there is identity of subject, of cause and of parties.
Article 19.
The criminal jurisdiction, receiving complaints for damages from an injured party, shall not only decide on criminal jurisdiction, receiving complaints for damages from an injured party, shall not only decide on criminal case and continue to hear the and decide on the civil action in another session. If it is not sufficiently clarified it shall put off the judgment till later time.
Nevertheless, in any particular case when the amount for damage cannot be evaluated at the present time, the jurisdiction shall just recognize the rightfulness of the claim for the claim for damages and delay assessing the amount of compensation that will later be furnished by the plaintiff claiming damages.
Article 20.
Even though, in principle, a judge who hears a case may hear all issues arising from the case; that means any criminal judge has the competence to adjudicate all questions raised be parties before him; but "preliminary question" which is a question necessary to establish an offence, and that the criminal jurisdiction cannot resolve. It is so when the question raised is the question of pure civil law.
Article 21.
There are two kinds of preliminary questions: the preliminary for action and the preliminary on judgment.
The preliminary question for action exists where the prosecution cannot be carried out as long as this preliminary has not been definitely resolved.
The preliminary question on judgment is the question that causes the stay of proceeding of prosecution. That is to say the criminal judge has received valid prosecution but he cannot decide on the merits unless he has received preliminary decision from the civil jurisdiction.
Article 22.
Preliminary questions for action are those which can occur on the issue of a crime or a misdemeanor relating to a taking away or a concealment of a baby newborn.
No prosecutions can be instituted on a crime or a misdemeanor of the suppression of the status of birth of a person if there is no judgment previously recognizing the filiation of the child whose status bas been suppressed.
Article 23.
The preliminary questions to judgment are incidental pleas relating to the right to proprietorship or another real estate right, and the plea concerning the existence of marriages in the bigamy case.
Article 24.
To be considered that there is an preliminary question relating to the proprietorship right or another real estate right, such as usufruct, use or easement, the real estate right, put forward as means of defense in the criminal proceeding, shall be of a really rights. If it's only of a personal right the criminal judge is always competent to adjudicate and there is no preliminary question to be decided by the civil jurisdiction.
Article 25.
The right of possession will constitute a preliminary question only if it is substantiated by a valid title or by a title of which the nature is sufficiently serious for consideration. In other case, if it only is invoked by using witnesses to establish the right, the case then remains subject to the consideration the penal jurisdiction.
Article 26.
The preliminary question relating to the right to proprietorship or other right of real estate shall not be automatically raised by the jurisdiction, but only by the accused him/herself.
Article 27.
The preliminary question can be raised at any stage of the case even in the stage of appeal.
Article 28.
In case when the prosecution relates to the polygamy, the nullity of one of the two marriages may be raised but to the condition that the alleged facts raised make the nullity possible.
Article 29.
When the preliminary question is raised and considered admissible by the criminal judge, the judge, under penalty of nullity, shall stay the judgment and set up a time allowing the party who raises the preliminary question to submit to a competent jurisdiction.
Article 30.
In any case, the judge shall not discharge any defendant without hearing.
If the judge considers that the incidental plea is not admissible he will simply reject it and continue the hearing and obligatory indicate it in the ground of his decision. If the judgment does not indicate the ground in this regard, it is vitiated by absolute nullity.
Article 31.
At the expiration of the set-up time as specified in article 29, if the accused justifies having submitted to a competent civil jurisdiction about the preliminary question, a new time limit may be granted in order to obtain judgment on the question is notified of the date of expiration of this time limit by the representative of the prosecution department.
If, at the expiration of the time limit, a final decision is taken on the preliminary question, the procedure shall proceed normally. Without the decision and if the delay is imputed to the negligence of the accused, the later is considered as having renounced the exercise of the interlocutory question. The criminal tribunal shall continue the proceeding.
Article 32.
If the accused is the applicant of the incidental plea and if she/he brings in a judgment in his favor on the preliminary question, the criminal jurisdiction shall recognize this decision and discharge the accused.
If the accused loses in the process of the preliminary question, the penal jurisdiction shall proceed with the action as if the incidental plea has not been jurisdiction shall proceed with the public action as if the incidental plea has not been occurred.
Article 33.
The renunciation of the civil action may neither stop nor suspend the prosecution.
Article 34.
The prosecution may be extinguished in the cases below:
- the death of offenders,
- the expiration of statute limitation of the offence,
- the amnesty,
- the withdrawal of the injured party in a number of penal offenses, such as the taking away of minors above 14 years of age with consent, the insult on ancestors.
CHAPTER II
JUDICIARY POLICE
Article 35.
The judiciary police searches crimes, misdemeanors and minor offenses, gathers evidence and hands over perpetrators to the jurisdiction in charge of punishment. But the offenders can be arrested and handed over to the court by the judiciary police only in the case where they commit obvious crimes or misdemeanors caught red-handed in the act or when there is an order to appear or a warrant of arrest.
Article 36.
The judiciary police or those who can perform the duty of judiciary police are:
- prosecutors and magistrates in charge of investigation "on duty only",
- directors and deputy directors of the departments of the judiciary and economic police,
- directors and deputy directors of the department of counter terrorism,
- commissioners and inspectors of municipal and provincial police,
- chairman of the criminal and economic police,
- chairman of the office of counter terrorism,
- chairman of the office of security police,
- district, provincial and Khan political inspectors,
- chairman of administrative police station "in regards to criminal offence",
- commissioners of traffic police or traffic violation section "for traffic violation",
- chairman and officers of military police or "for military offence",
- border police officers,
- customs inspectors "for customs violation"
- officers of the forestry and fishing,
All operation of the judiciary police is under direct guidance of the prosecutors and under supervision of the prosecutor general of the Appeals Court.
Article 37.
The officers of the judiciary police component to perform are as the following:
- the judiciary police officers at places where criminal offenses occur,
- the judiciary police at the residence of the offenders,
- or the judiciary police officers at the place where the offenders are found.
Article 38.
The officers of the judiciary police
- receive denunciations complaints as well as judiciary police reports relating to crimes, misdemeanors and minor offenses.
- gather evidences
- can request the assistance of the public force.
- make reports.
- may accept rogatory commission.
- may decide the detention for a maximum of 48 hours.
In cases of crimes or misdemeanors caught red-handed in the acts, the judiciary police may interrogate witnesses, search and confiscate the object produced in evidence, assign experts, decide to detain offenders for 48 hours.
Article 39.
The officers of the judiciary police shall write down their findings and the result of their searches in the document called "report".
In principle, the police reports are not necessary the base for prosecution. They simply provide elements of appraisement for prosecutors and judges.
Article 40.
The reports shall indicate first and last name and function of the reporter who shall sign and date the report that shall be made without delay. The erasures and writing over the existing text must be approved.
In principle, the reports worth only as information. In other terms, the police reports possess the value of simple reports and do not obligate the jurisdiction or judges to believe.
Article 42.
Nevertheless, the reports of the judiciary police shall be considered as authentic evidence to the contrary when they are drawn up by the officers of the judiciary police. In this case, judges shall consider the essence of the report truthful and accurate as long as contradictory evidences are not brought up. These contradictory evidences may be freely brought to the judge by all legal means.
Article 43.
For minor offenses, the report of the judiciary police shall always be considered as authentic until the showing of contradictory evidences. There is only one condition: police officers who make the reports shall have the quality to conduct the inquiry on minor offenses.
Article 44.
The officers of the judiciary police shall, in the shortest period of time, submit his reports, with object produced in evidence, to the prosecutor of the competent jurisdiction.
Article 45.
The officers of the judiciary police have the rights to directly conduct official inquiries on all penal offenses, except some offenses for which the law requires the complaints from the injured party prior to the inquiries.
Article 46.
The officers of the judiciary police also have the right to collect evidence and the right to also conduct searches, but this right of house-search may only be conducted when crimes or misdemeanors are flagrant delicto.
Article 47.
The officers of the judiciary police have the right to offenders only in cases of crimes or misdemeanors caught red-handed in the act. They shall bring the alleged offenders to the competent jurisdiction within 48 hours without counting necessary transportation time by the quickest transportation means possible.
In case of non-compliance with this strict rule, the offices shall be punished in accordance with articles 22 and 57 of the interim penal code.
Article 48.
In any case, the officers of the judiciary police have no rights to file without continuation the penal case that they have received, even though already coming to terms. They shall always forward their reports to the competent prosecutor.
CHAPTER III
PROVINCIAL PUBLIC PROSECUTOR DEPARTMENT
Article 49.
There is one public prosecutor department in each provincial court. In each public prosecutor department there are one prosecutor and one assistant prosecutor.
Article 50.
In principle, the prosecutor has the same rank as the president of the court.
Article 51.
The court adjudicating penal actions as well as civil actions, is considered as plenary only if there is the participation of the representative of the public prosecutor department.
Article 52.
Concerning the penal jurisdiction, the prosecutor shall be always the "principal party. In that sense, this is the prosecutor files the prosecution in the court, by accusing and asking for the application of the law upon the accused.
Article 53.
Concerning the civil jurisdiction, the representative of the public prosecutor department is only a joint-party in a civil case the representative of the public prosecutor may not appeal the case to the Appeals Courts or to the Supreme Court.
Article 54.
Concerning the civil actions, the ones which are related to the public law and order or the to the interest of a minor or a disabled person etc..., the representative of the public prosecutor shall consider herself/himself as principal party. In this case, the public prosecutor department takes action automatically.
Article 55.
Once the perpetration of any crime or any misdemeanor is known, the prosecutor shall proceed immediately to the investigation measures which are provided to him/her by the law and which are necessary to find the truth. In case where the committed crime or misdemeanor is exceptionally serious, the prosecutor shall inform immediately the general prosecutor at the Appeals Court and the Minister of Justice. The Prosecutor shall carry out the instruction he/she receives from them in this matter.
In case where the prosecutor is unavailable because of the sickness or other reason, the assistant prosecutor shall be in charge in his/her place. If there are many assistant prosecutors, the one who is senior in the rank shall replace the prosecutor.
If there is no assistant prosecutor the Minister of Justice shall decide immediately any judge from the jurisdiction to replace the prosecutor. In case of extreme emergency, the president of the jurisdiction may designate a judge to temporary replace the prosecutor and shall inform immediately the Minister of Justice.
Article 56.
The prosecutor has the duty:
- to receive the complaint and the denunciation related to the crime or the misdemeanor even though the complaint is from any person, from any officer of the judicial police or from any official competent for the penal action.
- to receive the report made by the officer of the judiciary police who ascertains crimes, misdemeanors or the minor offenses.
- to proceed to preparatory investigation by himself/herself in case where the offense is a crime or a flagrante delicto misdemeanor.
- to call out the public force for the performance of his/her duty.
Article 57.
The prosecutor has no duty to search for the minor offender but when the penal court judges on the minor offense, the prosecutor may ask for the punishment related to that minor offense.
Article 58.
When the prosecutor upon receiving a complaint, denunciation or report, shall immediately register or ask someone to register it in a registration book called "order register" which consists of different columns as follows:
- first column is for the case number and the date of the registration into the book
- second column is for the offender's surname and name
- third column is for the plaintiffs surname and name if there is any
- fourth column is for the nature, the date and the place of the offenses
- fifth column is for miscellaneous.
Article 59.
Once the complaint, denunciation or report have been received, and if the prosecutor thinks that it does not constitute a penal offense, he/she shall file that case without processing and with his remark written on that complaint denunciation or report and also on the order register. In that case, the prosecutor shall inform the plaintiff on his/her decision within a period not longer than two months starting from the date he/she received the complaint. The plaintiff may appeal his/her decision to the Appeals Court.
The decision to file without processing by the prosecutor, has no res judicata. This mans the prosecutor shall inform the plaintiff on his/her decision, unless the prosecution expires due to the statute of limitation or due to the other cases provided by law.
Article 60.
If the complaint pertained to the crime or the misdemeanor, the prosecutor shall immediately open a judicial inquiry, this means, the prosecutor makes a charge called introductory requisition which indicates the offense in accordance with the law and the person presumed to be responsible for the offense and sends it to the judge.
In case of misdemeanor, the prosecutor may accuse the offender and send him/her directly to the penal court for judgement or proceed the same way as described in article 60 above.
The prosecutor accuses and sends the offender to the court for judgement when the file is completed and there are sufficient factors that constitute the offense.
The prosecutor has also the right to make additional inquiry before sending the case to the court. In this case, he/she may ask necessary information from the judiciary police officer. Once all the information is obtained, the prosecutor sends the case to the court for judgement that is based on the full knowledge of the facts.
Article 62.
In the case where the committed crime is flagrante delicto, and if the investigating judge did not receive the case, the prosecutor may issue order to the suspect to appear through arrest.
The prosecutor shall interrogate immediately that person. If that person is accompanied by a human right defender, the prosecutor shall interrogate him in the presence of his human right defender. The prosecutor may interrogate the witness who is present and issue an order to take temporary measures, in order to ensure the sufficiency of the evidence.
The prosecutor may search the criminal offender's house and confiscate the object produced in evidence necessary for finding the truth.
The prosecutor may interrogate any person who may provide useful information but may not order him/her to have witness or order to take an oath. The prosecutor has right to assign an expert to evaluate the object produced in evidence that the prosecutor thinks necessary.
The prosecutor has the right to forbid any person from leaving the scene of the crime. If the prohibition is not respected, the prosecutor may issue a requisition to detain that person for 24 hours.
Once the report on the place of the accident is completed, the prosecutor shall send immediately the file and the introductory requisition to the judge who will continue to gather some more information or reviewed all the documents if he/she feels there is a need. When the investigating judge receives the case and is present at the scene of the offense, the prosecutor or the judiciary police officer shall give the whole investigation process to the judge.
The prosecutor shall examine immediately whether or not the charge on the offender is sufficiently established. If the offender is detained and with proper send to him.
If the charge is related to a flagrante delicto offense punishable by imprisonment, the prosecutor interrogates the offender the following firstly:
- Identity card with the surname and name, age profession, the domicile place and date of birth of the offender
- Surname and name of the offender's parents
- Summary of the offender's biography especially on the past judiciary record.
After that, the prosecutor asks the questions on:
- The offense that is charged on the offender
- All circumstances related to the offense
The prosecutor shall make and sign the report written by a clerk.
This report shall also be signed by the offender. If the offender does not know how to sign the prosecutor shall mention it in the report and have the offender's to fingerprint.
Article 64.
Upon receiving a misdemeanor case, the presiding judge decides on the detention and asks to bring the accused for the next hearing. If the judge finds that the file is incomplete, he may postpone the hearing to a later date which is not longer than four months counting from the date of detention.
If the presiding judge thinks that the accused may be temporarily released, with or without bail, he/she shall decide on this issue before examining the merit. He/she will act the same way if the accused requests it in writing.
Article 66.
If the presiding judge thinks the case that he receives, does not constitute a flagrante delicto misdemeanor as determined in the accusation, he/she cancels this procedure and send it back to the public prosecutor for action in accordance with the law. The prosecutor issues an assumed order of for the investigation and send it to the investigating judge who shall continue the regulations as stated by the law.
The prosecutor shall apply the procedure directly to the court in case where the convicted person is liable to a punishment of imprisonment not more than one year as the maximum term, if not, the prosecutor shall send the case to the investigating prosecutor.
CHAPTER IV
THE INVESTIGATING JUDGE
Article 68.
In each provincial and city court, there is one or many judges is responsible for investigating criminal cases depending on the work load and the court's needs.
No judge may participate in the judgement of a case of which he/she has involved n the investigations.
Article 69.
The investigating judge cannot make any investigative acts if he/she did not receive the introductory charge from the representative of the prosecution office.
In the case in which the investigating judge has directly been submitted a complaint, he/she shall, before instituting any investigation, forward the complaint and attached documents to the public prosecutor who will process in accordance with the provisions of the preceding chapter.
Article 70.
The investigating judge is referred for the prosecution of a determined act. Therefore, the investigating judges shall investigate only in the area of criminal act specified in the introductory charge from the prosecution office.
Article 71.
During the investigating, if a new punishable act arises, the investigating judge shall have a new introductory charge for investigation in order to be able to investigate this new punishable act.
If the new act was only an aggravating circumstance of the former one for which the judge is referred, the same obligation regarding the introductory charge is not required.
Article 72.
The investigating judge has the rights to visit the scene of the offence occurrence always accompanied by a clerk. In this case, previous notice of the visit shall be given to the public prosecutor.
Article 73.
If the imputed act investigated by the judge does not have the misdemeanor character and is only a minor offence, the investigating judge continues the investigation, then forward the case file to the court.
Article 74.
In the case of a conflict among many investigating judges in different territorial circumscriptions who receive the same criminal case, the conflict shall be directed to the Appeals Court which decides without appeal.
Article 75.
When the accused person appears for the first time, the investigating judge shall record his/her identity, inform him/her of the imputed act, receive his/her statement after informing him/her of the right to answer or not to answer without the assistance of a lawyer or defender chosen by him/her or appointed automatically.
Article 76.
At this first appearance and after recording the identity and informing his/her accused act, if the accused tells the judge that he/she chooses a lawyer, or requests that a lawyer shall be automatically appointed by the government for his/her defense, then the investigating judge shall suspend the interrogation and call the counsel shortly in order to interrogate the accused in the presence of the counsel.
The automatic appointment of a lawyer shall be made by the presiding judge in the following cases:
- the victim is a minor without defense,
- the accused person is a minor without defense,
- the accused person is mute, deaf, blind, or has mental disorder,
- the accused of committing any crimes and is not able to afford a defender.
In other cases as mentioned above, the investigating judge may interrogate the accused person when he/she accepts to defend by him/herself.
Article 77.
If the lawyer or the defender did not show up at the indicated date and time, the investigating judge has the rights to interrogate without the presence of the lawyer. The investigating judge shall mention this absence in the report.
Article 78.
The case file shall be put at the disposal of the lawyer or the defender at any time.
The communication of the case file shall be made at the clerk's office or, if possible, in the investigating judge's office.
The lawyer or the defender may be authorized to make copies of all pieces of the documents contained in the case file by his/her clerk under his/her entire responsibility.
Article 79.
Right after the first appearance of the accused person, the investigating judge has the rights to decide whether the accused person shall be put in liberty or in temporary detention. This decision is enforceable immediately, even if there is an appeal, unless the appeal is from the public prosecutor.
All parties have the right to appeal the above decision to the Appeals Court within 15 clear days from the date of receiving the notification of their decision rejecting their request.
The Appeals Court shall decide the case within 15 days, for the most, from the date of receiving the appeal request.
Article 80.
If the accused person is in detention and has a lawyer or a defender, the lawyer or the defender may freely communicate with his/her clients.
The conversation between the lawyer or the defender with his/her detained client shall not be heard to, nor recorded. The lawyer or the defender has the rights to tell his/her client about all documents h/she has seen or copied from the file, and that he/she thinks useful for his/her client's defense. Nevertheless, the lawyer shall not and over ant documents or object to his/her client without the investigating judge's special authorization.
Article 81.
The investigating judge subpoenas to appear before him/her all persons, whose names indicated in the complaint or denunciation complaint, witnesses called upon by the accused person, as well as all other persons of whom the hearing appears to be useful to the revelation of the truth.
In all cases, the investigating judge has the rights to confront one party with another, or one witness with other witnesses, or the witnesses with the parties.
Article 82.
Before the interrogation, the witnesses shall take an oath in accordance with their religion or belief. The witnesses shall be interrogated separately one by one. The accused person may be brought in front of the witnesses whenever the judge thinks that the confrontation is required.
Article 83.
The deposition of the witness shall be signed by the judge, the clerk and the witness after reading this deposition to the latter. If the witness refuses to sign, this refusal shall be mentioned this refusal. Each page of the deposition shall be signed by the judge, the clerk, and the witness.
No blank space between lines is allowed. Any crossing out, deletion, and reference shall be approved and signed by the judge, clerk, and witness. The same procedure as mentioned above shall be applied to the deposition of other person in the case.
Article 84.
All person subpoenaed to be witnesses shall respond satisfactory to the subpoena.
If, after receiving the subpoena, the witnesses does not appear before, the judge, the judge may order him/her domicile accompanied by his/her clerk to hear and record the witness's testimony.
Article 86.
If the witness lives in a city or province other than city or province under his/her jurisdiction, the investigating judge may issue a rogatory commission to the judge of the province or town where the witness is located to hear and write down his/her statement.
Article 87.
Besides hearing the witnesses, the investigating judge may take other actions deemed useful to the revelation of the truth. For example, the investigating judge may go to visit the accused person's domicile for a house search. In this case, the lawyer or the defender shall be informed and also invited to accompany the judge in the visit.
The investigating judge shall make a report describing, in details, his/her performance and shall sign with the clerk and all other persons participating in the search.
The investigating judge shall also draw up a precise and detailed inventory of things and papers that he/she has seized and keep them in a closed and stamped package on which the judge and the clerk sign.
Article 88.
The investigating judge may call for an expertise whenever he/she thinks that this measure is necessary for the revelation of the truth. In this case, the investigating judge shall look for the persons deemed to be capable of evaluating the nature and circumstance of the offence.
If there was a death with an unknown cause, the investigating judge shall have recourse to a physician specialist to establish the cause.
All expertise expenses shall be included into the court cost which is in the accused person's charge if he/she will be finally convicted. If there is no ground for prosecution or if the accused person is discharged, the state will be in charge of the expertise expenses.
The investigating judge may order a second expert appraisement to check the first one whenever he/she deems necessary.
Article 89.
If the investigating judge thinks that the investigation is complete, the case file shall be kept for the disposal of the accused person's lawyer for 24 hours. After that, the investigating judge shall issue an order "of discovery". Then, the file is forwarded to the public prosecutor.
Three days after the date of receiving the file, the public prosecutor shall make a charge in writing and refer it back to the investigating judge.
Article 90.
If the investigating judge thinks that the act does not constitute a felony, a misdemeanor, or a minor offense, or the charge on the accused offender is not sufficiently substantiated by evidence, the investigating judge has the rights to issue a non-suit order. In principle, the order of the investigating judge shall be well motivated.
This order and the file shall be immediately forwarded to the public prosecutor for allowing him/her to file an opposition to the Appeals Court within 24 hours. If there is an opposition from the public prosecutor, the detained accused person shall remain in temporary detention. In the contrary, if there is no opposition from the public prosecutor and the accused person does not have other causes to be detained, the investigating judge issues and orders to release him/her.
Article 91.
If there is a plaintiff claiming damages, he/she shall be informed of the "non-suit" order that is approved by the public prosecutor. Within the 60 days from the date of receiving the information, the plaintiff has the rights to make and opposition to the Appeals Court.
If the Appeals Court overrules the non-suit order, the president of the Appeals Court can issue an order to re-arrest and provisionally detain the accused person, if he/she temporarily released.
Article 92.
If the nature of the crime found is a misdemeanor or felony, the investigating judge shall send the accused person to the provincial-city court after receiving the charge from the public prosecutor.
The investigating judge is absolutely free to determine the qualification of the crime related to the imputed act. If the investigating judge believes that his/her qualification of the offence is different from that of the public prosecutor, he/she shall specify in the committal for trial the motives of this change of qualification.
In this case, the order of the change of qualification of the offence shall be forwarded to the public prosecutor that has the right to give notice of appeal to the Appeals Court within 48 hours.
Article 93.
In the case of change of qualification of the offence from misdemeanor to the felony, it is necessary to have new charge and the person accused of the felony shall be reinterrogated on the new prosecuted act.
Article 94.
In all cases, the public prosecutor may appeal the decision of the investigating judge that he/she is not satisfied with.
Article 95.
When the plaintiff requests the detention of the accused person who is temporarily released, the investigating judge shall make the decision on this issue within 5 days and inform the plaintiff of the decision. The latter has the right to oppose the investigating judge's decision before the Appeals Court within 15 days from the date of notification.
CHAPTER V
PROVINCIAL OR MUNICIPAL TRIBUNALS
Article 96.
In each province or municipality there exist one court of which the territorial jurisdiction covers all territory of the province or municipality. As a "criminal tribunal", the provincial or municipal court has competence of all kinds of criminal cases.
To be valid by constitute, the criminal court, as well as civil court, requires the presence of a judge, an assistant prosecutor and the assistance of the a court clerk.
The judge may be the president, the vice-president or the magistrate of the court.
Article 97.
Parents and relatives, by marriage until fourth degree included, shall no be simultaneously members of the same court, either as a judge or a representative of the prosecution department.
This principle is not only applied to provincial or municipal court, but also to all jurisdictions irrespective of level.
Article 98.
In principle, there is an absolute incompatibility of office between a judge and a representative of the prosecution department.
The representative of the prosecution department who performs his/her duty in any proceeding may not be a judge in the same case.
There is also incompatibility of office between an investigating judge and a trial judge.
Article 99.
In case of the absence or impediments of the investigating judge or trial judge, he/she may be replaced by another judge assigned by the presiding judge of the same court.
If that tribunal does not have a judge.
Article 100.
The absent or impeded prosecutor shall always be substituted by one of his/her assistants. In default of an assistant, a representative of the prosecution department of the adjacent provincial or municipal court shall be assigned by the general prosecutor to replace him/her.
Article 101.
If any misdemeanor occurs on the premises and during the hearing the judge shall make a report on the matter, hear the charge of the representative of the prosecution department, the declaration of the accused and of the witnesses then the tribunal shall apply the punishment provided by law and continues the process as usual without leaving the courtroom.
If a felony occurs the culprit shall be immediately arrested and, at the same time, a report shall be made. Objects produced in evidence and the accused shall be sent to the investigating judge with the charge of the prosecution office.
Criminal jurisdiction shall be referred:
- by the direct summon of the prosecutor,
- by the committal for trial of the investigating judge,
- by a letter of transfer to the court of appeal or other - jurisdiction,
- by the immediate hand-over of the accused to the court, in a flagrante delicto case.
Article 103.
The criminal jurisdiction shall only decide on cases of the accused transferred to it. If a person, subpoenaed as a witness, is found to be a principal, co-principal or an accomplice shall not be judged unless there is a charge or a committal for trial issued against him/her in accordance with the ordinary formality and time limit provided by law.
Article 104.
The criminal jurisdiction may only decide on acts mentioned in the charge, in the committal for trial or the remand and on accessory circumstances truly related to the act resulted from the hearing.
Article 105.
If the court ascertains that the offence qualification cited in the referral paper is not proper, the court may change the qualification which shall be exactly imputed to the act, but on express condition that there shall be no addition to the elements that are closely related to the facts specified in the direct summon, the committal for trial or the remand.
Article 106.
In case where the change is from a misdemeanor to a felony, the criminal court shall return the case to the prosecutor to proceed on a new charge in conformity with the time limit and formality provided by law.
Article 107.
If the act which is referred for judgement seems insufficiently clear the court may proceed itself with the complementary investigation or return the case to the judge or the prosecutor.
Article 108.
The accused shall appear in person before the judge at all sessions either for additional interrogation or hearing. If the accused appears in court and has the opportunity to defend him/herself, judgement to be made shall be judgement after trial.
Article 109.
The civilly responsible person or the plaintiff may be represented by an attorney or defender.
They may be represented by his/her direct line parent or relatives by marriage with a written power of attorney.
Article 110.
The accused, the civilly responsible person and the plaintiff may red his/her case file at the clerk's office.
Article 111.
If the accused, who is properly summoned, does not appear in court the judgment shall be proceeded by default. If the judge considers that the accused has not received the summons within the time limit, he/she may put off the hearing till the next session. The judge may render judgement by default if the accused does not appear by the new summons.
Article 112.
When the civilly responsible person doe not appear, this non-appearance shall be recorded in the minute book of clerk to the court. The court shall determine on whether or not there is legal connection that ties the responsible person to the accused. When there is sufficient evidence of guilt on the accused, the court shall evaluate the consequences of the damages.
Article 113.
When the plaintiff does not appear in court and the guilt of the accused has been recognized, the court, based on its own judgement, shall determine the cost of the damage reparation when there is a claim in the plaintiff's file.
Article 114.
Even though the accused does not appear, the court shall proceed as if the accused is present by hearing the witnesses testimony, examining all the documents and information that may lead the court to find out the truth. The court may dismiss the absent accused when it finds that there is not enough evidence. In case of sentencing, the court may also decide to allow extenuating circumstances for the accused. In one word, the non-appearance of the accused during the hearing shall not constitute an aggravating circumstance.
Article 115.
Sentencing an accused by default shall become null and void when the accused opposes the decision of the court within 15 days from the day of the reception of the decision notification.
But if the notification is not made in person or if there is no writ of judgement enforcement to be known to the accused, the decision may be opposed till the terms of limitation for punishment expires.
Article 116.
If the accused no longer resides at the previously indicated location and if the judiciary police in charge of notifying cannot locate his/her new residence, the notification of the judgement by default shall be posted at the last known domicile of the accused. This notice shall also be posted at the Khum or district office of the people's committee and be announced on national radio and published in the official newspaper.
Article 117.
The notification of the judgement by default transforms this judgement into a true judicial decision having the effect of substituting the term of limitation for punishment for terms of limitation for prosecution. The term of limitation for 3 years for a misdemeanor, 10 years for a felony.
This principle is also applicable when the court decision is notified by means of posting on the accused residence or at the Khum or district offices of the people's committee broadcast on national radio or published in the official newspaper.
This decision may also be applicable for the civil reparation when the plaintiff claims for it. Article 118.
When there is a protest on the notification of the judgement by default, for example: in the case when the original copy of the notification is lost, this notification shall be considered as undone.
Article 119.
The notification shall preferably be made in person. If the accused cannot be found, after diligent effort, measures shall be taken as provided in article 116.
Article 120.
In principle, the opposition shall be filed at the court clerk's office, nevertheless, it may also by made by certified or regular letter or by a declaration made before any judiciary police officer who shall urgently forward it to the concerned court clerk office.
Article 121.
The opposition suspends the enforcement of the judgement and remits the facts and the parties as in the stage where the default judgement is rendered. Thereafter, the court receiving the opposition of the accused recovers full power to proceed and may augment or reduce the criminal or civil punishment pronounced in the judgement by default.
Upon opposition of the accused, the court may raise the aggravating circumstance that was not done in the default judgement or discharge the accused in accordance with the law.
Article 122.
The court examines whether or not the opposition is relevant. If the court consider that the opposition is relevant, it shall declare that it is admissible and decide on the merits as if it were before the court for the first time.
Article 123.
If the party who opposes does not appear at the time set by the court, the judgement by default put down by the court shall be considered as having the presence of the party.
Article 124.
The judgement rendered on the opposition may be brought before the court of appeal by any party.
Article 125.
The evidences of a criminal offence may be produced by any means in order to convince the judge, for example by confession, by witness's appropriate and convincing testimony, by examination on all indications, by expertise or by other legal means such as the on-site visit etc...
To ascertain its conviction, the criminal jurisdiction may examine all document put forward for questioning during the hearing and examinations between parties and attorneys in order to render judgement. Judges shall not base their conviction on personal knowledge he/she might acquire outside the hearing.
Article 126.
In any criminal jurisdictions, the clerk shall be responsible for writing a summary report of the hearing for allowing the Appeals Court to control the effectively the lawfulness of the proceeding, and to have a knowledge as compete as possible of the oral investigation during the hearing. The clerk shall try the best he/she can to carefully write down the progress of the proceedings, and all statements of the witness and the answers of the offender.
The above summary report shall be signed by the clerk, and certified by the judge after a detailed review in the period of ten days after the hearing during which the judgement was pronounced. The clerk will receive an administrative discipline, if he/she fails to perform this task.
Article 127.
The summary report signed by the clerk and certified by the judge is considered a valid of its content until there is evidence to the contrary. In the case of a discrepancy between the summary report and the original judgement, the latter will be considered as valid.
Article 128.
The investigation during the hearing shall be in public, if not, it will be considered as null and void. The proceedings in open court are required not only for the pronouncement of the judgement, but, also for the investigation, and the hearing. Therefore, the judgement shall mention the proceedings in open court, because without it, the judgement shall be considered as null.
Article 129.
Nevertheless, the hearing can be conducted in camera, if the proceedings in open court might deem dangerous to the public order and good tradition. The in camera hearing may only conducted on part of the investigation. In another sense, the time for the in camera proceeding is limited to the investigation of the case. The pronouncement of the judgement shall be in public, if not it shall be considered as null.
Article 130.
The judge is the person who keeps the hearing in order, and who conducts the interrogation.
During the interrogation, the judge can stop or reject anything that may unnecessarily delay the interrogation, without contributing to the revelation of the truth.
When there is a protest between the representative of the prosecution's office or the plaintiff with an accused person or the civilly responsible person concerning the usefulness of any interrogation's measures: hearing of witness asking questions, or other issues, the judge may decide by order and simply mention it in the hearing report, in order to know which measures are accepted or refused.
Article 131.
The injured party may always become a plaintiff as long as the judge has not yet issued a judgement. He/he does not need to submit the hearing that he/she wants to b a plaintiff, claiming damages and requests it to be recorded in the minute book, and then starts to make conclusion on the action instituted by him/her.
Article 132.
At the opening of the hearing, the judge calls the case to be judged. The clerk calls the parties, the witnesses in the case, and checks their identification. Each party seats in the reserved place in the courtroom. The witnesses shall withdraw into a waiting room that was reserved for them from which they cannot see, or hear anything from the courtroom and in which they cannot communicate to each other.
Afterward, the judge hears the accused person about the accusations made on him/her. After listening to the oral statement of the accused person, the judge starts to ask him/her questions useful to the case. This question shall be completed by the other party's questions through the judge. If there is no objection from any party, including the representative from the prosecution's office, the judge asks questions which are requested through him/her. If there was an objection, the judge shall decide through an order whether he shall ask the question. All the questions shall be asked through the judge, except the questions by themselves after obtaining the permission from the judge.
After the accused, the judge hear the civilly responsible know and especially on the causal connection of his/her liability.
Next, the judge hears the plaintiff claiming damages if they exist, having properly submitted the complaint. The judge hears the plaintiff, his knowledge of the fact, especially the element of the evidence that shows the damage made upon him/her in addition to the cost and the causal connection between himself/herself and the offence.
Article 133.
Then the judge hears the witness's testimony in the following order: prosecutor's witness, plaintiff's witness and accused's witness. This order may if there is an important reason (Cambodian version missing. I translate from French version). The judge may not necessarily hear any testimony when he/she considers that it does not help to reveal the truth. In the event of objection, the judge shall decide this case by order that shall be recorded in a report of the hearing.
Article 134.
Any witness who did not take an oath during the investigation shall take an oath before answering. Any witness who testified in accordance with the discretionary power of the judge, may no take an oath. After the testimony, the witness may remain in the hearing room. at the witness's request, the judge may allow him/her to stay outside if his/her hearing is no longer necessary.
Article 135.
All objects produced in evidence shall be shown to the witness and the parties for one more time but if this process was not done, it does not cause the judgement to be null.
Article 136.
If the accused or the witness is mute, deaf but know how to write, the clerk shall write down the questions and various remarks for them in order to get back the answer in written form. If they do not know how to write, the judge shall assign automatically by himself a person who used to communicate with them by using sign language as interpreter.
Article 137.
Article questions and answers, the judge successively allows the plaintiff, the civilly responsible person, the accused, the lawyer or the defender of the civilly responsible person and the last one, the lawyer or the defender of the accused to speak. The accomplishment of the above formalities shall be indicated in the report of the court hearing and the court order, otherwise it shall be considered as null.
Article 138.
The representative of the prosecution department shall have the opinion not only on the merits of the hearing but also on any incidental plea and if he declares that he agrees with the court decision, thus the decision is considered as sufficient in accordance with the law.
Article 139.
As long as, the judge still has not yet begun to read the judgement, the parties may always be allowed to submit to the court their briefs and documents they think useful.
Article 140.
The court shall render interlocutory judgement on all incidental pleas usefully raised by the representative of the prosecution office, the plaintiff, the civilly responsible person and the accused.
If the incidental plea is related to incompetence, the court shall decide beforehand the incompetence incidental plea.
But if, in order to evaluate the grounds for the incompetence incidental plea, the court has to, first, examine the merits, then the court may decide to join the incidental plea to the merit. The court shall then, decide on the competency by a decision that is separate from the decision on the merits. If the court decides in favor of the incompetence, it does not have to examine the merits.
Article 141.
After the hearing, the prosecutor's charge and the counsel pleading, the judge withdraws into the secret chamber for discussion. From this stage on, neither request nor argument shall be presented to the court.
Article 142.
All judgements shall be pronounced in public. That means it shall be read aloud by the judge. A judgement shall be rendered in the soonest time possible. If the judgement cannot be rendered immediately, the judge shall announce at the hearing and the date of the next hearing in which the judgement shall be pronounced so that the interested party of the case can be present.
Article 143.
All judgements shall consist of two parts: the record of proceedings before judgement and judgement itself.
The record of proceedings which is written on the top of the judgement shall consist of: surname, name, profession, domicile and the role of the parties, the surname and first name of the lawyer or the defender, the charge and the request of the parties, if any, the reminder of the procedure with indication of the principal acts and different incidents from the hearing.
The judgement itself shall be sub-divided into two parts: the ground and the enacting term of judgement.
a - the grounds of judgement are the reasons on which determine the decision of the court.
b - the enacting terms of judgement express measures taken or the sentence pronounced by the court.
Article 144.
All judgements shall be grounded on each of the counts of accusations as well as on each of the parties' requests. The ground of the decision shall be precise, that means expressing unequivocally and uncontradictorily the thought of the judge.
The enacting terms that is the essential part of the judgement, shall also be as precise as the grounds. In the enacting terms of judgement, there shall be references to all legal texts on which the decision is based.
Article 145.
The judgement shall be drawn up right away and b read to the audience when the judge comes back from the secret chamber.
The only parts that shall be read in public are the grounds and enacting terms of judgement.
Before reading the judgement, the judge shall sign it first.
Article 146.
The acquitted accused may immediately submit the claim for damages. However, to be admissible, the claim hall justifies the plaintiff is at fault and the fault results from the mala fide or careless action. Only the court that has decided on the case has the competence to decide on this claim.
Article 147.
Concerning the restitution of object produced in evidence, in the case when the accused is acquitted, the court shall only order the restitution when it is certain that the object belongs to the accused. If there is the least doubt, the judge shall declare that the object produced in evidence be restituted to its legitimate owner. This will open to interested parties willing to claim for it, to file before the civil court that determines the legitimate owner.
Article 148.
Even in the case of acquittal, if provided by law, the object in evidence shall be confiscated, for example, in the case of illegal possession of arms or counterfeit etc...
Article 149.
If the fact is only minor offence, the court shall apply the minor punishment and decide on the damaged, if there is a claim for it.
Article 150.
In its enacting terms, after declaring the guilt of the accused, and the responsibility of the civilly responsible person, the judgement shall determine the principal penalty and the accessory penalty, if there is any. On the other hand, the judgement shall mention the text of the law applied.
Article 151.
Together with the decision on the punishment, the court shall also decide on the reparation and the damages.
Article 152.
The acquitted accused shall be immediately released, if the decision is not appealed right away. If the court decides on punishment and the detained accused appeals the judgement, the accused shall remain in temporary detention.
Article 153.
In case of sentencing, the judgement shall be enforced and insured by the prosecutor, concerning the imprisonment and the collection of fin. Regarding the payment of the reparation, it shall b enforce at the request of each plaintiff claiming for his/her damages.
Article 154.
If the accused is put in liberty the appeal temporarily suspends the enforcement of judgement, which means the accused shall remain in liberty.
Article 155.
All contradictory judgement of the criminal jurisdiction can be appealed within two clear months from the day when the judgement is rendered.
CHAPTER VI
THE APPEALS COURT
Article 156.
The Appeals Court is located in Phnom Penh.
The competence of the Appeals Court covers the entire territory of the State of Cambodia.
Article 157.
In the penal case as well as in the others, the Appeals Court has competence for the appeals against all decisions made by the military court, the provincial or municipal court, as well as those made by the public prosecutor department of these inferior courts.
Article 158.
During the judgment, the Appeals Court shall be composed of three judge one of which is the president, a representative of the prosecutor office and a clerk.
Article 159.
At the appeals court, there is a prosecution department that is composed of a general prosecutor, a deputy general prosecutor and a prosecutor.
The competence of the general prosecutor covers the entire territory of the State of Cambodia.
In case the impediment due to sickness or other causes, the general prosecutor at the Appeals Court shall be substituted by the deputy general prosecutor who is senior among all of them if there are more than one deputy general prosecutors.
Article 160.
The important role of the general prosecutor at the Appeals Court is to give his conclusion during the hearings of the Appeals Court and appeal to the Supreme Court against the judgement of the Appeals Court that he thinks rendered in error or in violation of law.
Article 161.
Those who have the right to appeal are:
- the accused or the civilly responsible person
- the plaintiff claiming damages
- the prosecutor
Article 162.
The accused, the civilly responsible person or the plaintiff who want exercise their rights to appeal, shall use it by themselves or by proxy. The power given to that proxy shall be special.
Only the father or the mother of a minor child may appeal on behalf of his/her child without using special power of attorney, it the same of the tutor.
Article 163.
The appeal has devolving effect that means that submits to the second jurisdiction (Appeals Court) all points of the fact and law that were examined by the inferior jurisdictions.
Article 164.
During the trial of the appeal submitted by the accused, the Appeals Court shall not add more punishment. It may modify the judgment in the sense that it benefits the accused.
The Appeals Court may change the qualification of the offenses which were decided by the judge of the first jurisdiction but with the condition that no punishment is added to the accused.
The Appeals Court also may, in maintaining the same punishment decided by their criminal court, apply to the fact, a penal text different from the one mentioned in the appealed judgement.
Article 165.
Deciding on the accused's appeal, the Appeals Court shall no add to the principal penalty the accessory penalty that the judge of the first jurisdiction forgot to decide on.
Nevertheless, in case where the accessory penalty shall be applied, the Appeals Court must explain it is impossible for the court to correct the omission made by the judge of the first jurisdiction without the appeal from the department of the public prosecutor.
If the Appeals Court confirms the judgment without specifying as above, the judgement of the Appeals Court shall be considered as having the same defect as the first jurisdiction. For that reason, this decision is null.
Article 166.
The Appeals Court shall not decide on the accused's appeal, by increasing the amount of the damages which was already decided by the court of the first degree for the plaintiff.
Article 167.
The Appeals Court may increase of the rate of fine in suppressing the imprisonment. The court may change the imprisonment into the fine, whatever the short period of time the imprisonment and the rate of the fine, because the seriousness of punishment does not base on the duration or the amount. But on the determination of the rank in the penal scale that is meant the imprisonment is more serious than the fine.
Article 168.
In the contrary, the Appeals Court may at the accused's appeal, decides on the imprisonment for debt which was forgotten by the inferior court, because it is a punishment, it is measures of execution which shall be applied by right.
Article 169.
In the case where the court of the first jurisdiction dismisses the case and the plaintiff's appeals, the Appeals Court may decide all kinds of punishments including the accessory penalty and the fine.
Article 170.
The prosecutor's appeal and the appeal of the plaintiff, even though without the accused's appeal, throw back into question the decision made by the inferior court, including the charge and discharged or may dismiss the accused.
Article 171.
The Appeals Court may decide may on the prosecutor's appeal, all the accessory penalties that the judge of the first jurisdiction forgot to decide on.
Article 172.
Nevertheless the prosecutor's appeal will have such effect if it is general.
If the prosecutor's appeal is restricted, the Appeals Court may decide, only within the limit determined by the appeal.
Article 173.
The prosecutor's appeal will be considered as general, when the prosecutor appeals against too mild a sentence.
Article 174.
Whatever the extent of the appeal effects, the appeal can only be applied to the prosecutor's appeal and may not have effect on the plaintiff's claim.
Article 175.
The Appeals Court may change the qualification of the offense made by the judge of the first jurisdiction but shall not add any new element which the judge of the first jurisdiction has not received and made decision.
Article 176.
The appeal made by any party, in principle, shall be done at the clerk's office that issues the judgement. The appellant needs not inform other parties of his/her appeal. The clerk shall record the appeal in the register used only for this purpose. The clerk and the plaintiff shall sign or finger print on the recorded appeal. The appellant may be represented by a proxy having a special power.
Article 177.
The appeal may be sent by a certified letter or regular letter, addressed to the clerk of that court. This letter shall contain the willingness to appeal formally expressed.
Article 178.
The appeal may be lodge within a time limit of two months. When the judgement is contradictory, this time limit starts on the day of the judgement. When the judgement was made by default, the time limit shall be determined from the expired date of the opposition. The party who was not present, may appeal before the expiration of the time limit for opposition.
Article 179.
During the appeal and during the appeal judgement, the enforcement of the judgement made by the inferior jurisdiction shall be stayed.
Article 180.
The brief on appeal, the judgement, the case and the complaint that the appellant think should be added to his/her appeal, shall be forwarded to the clerk's office of the Appeals Court as soon as possible. Then the president of the Appeals Court forwards the case to the general prosecutor in order for him to make the charge during the hearing.
Article 181.
If the person against whom the judgement is rendered is arrested, he/she shall be sent as soon as possible by order of the prosecutor or the judge, from the house of arrest in the province, city, to the one in Phnom Penh.
Article 182.
The judgement by default on the appeal, may be attacked by the way of opposition in the same method of procedure and the same time limit as the judgement by default rendered by the penal court.
Article 183.
The opposition delays the summons to the next hearings. If the opponent does not appear, then the judgement of the Appeals Court that decides for the second time and makes the judgement by default reiteratedly, may not be attacked for the second time unless it is done before the Supreme Court.
Article 184.
The report made by a judge of the Appeals Court has the purpose to set forth in public various documents of the case, and then let the judges of the court know in the presence of the parties, not only the court decision which is referred, but also all the elements which were submitted to the first jurisdiction for examination and decision.
The accomplishment of this formality shall be under penalty of nullity, mentioned in the judgement.
Article 185.
If the Appeals Court orders one of its judges to make additional investigations, this judge shall prepare a new report once the investigation is finished. This report shall be enclosed in the case that the Appeals Court will consider during the hearings. otherwise, the report is considered as null.
Article 186.
The report shall be in writing and shall be enclosed in the case file.
The appellant shall be interrogated after the reading of the report. In the simple case, this report may be summary. But if the case is complex, the report shall be more developed in order for the court to examine the case with full knowledge of the fact.
Article 187.
After the reading of the report, the Appeals Court hears the accused and the civilly responsible person. After that, the Appeals Court hears the plaintiff, if any.
If the parties who appeal are defended by attorneys, their attorneys shall be heard before the representative of the general prosecution department have.
If the prosecutor is the appellant, the representative of the general prosecution department shall be heard before the attorneys.
If the order established is not followed. It is not punished by penalty of nullity.
Article 188.
The procedure to submit evidence shall be the same as the procedure used by the provincial and municipal court.
Article 189.
The Appeals Court may, therefore, take all investigation measures which are used by the provincial, municipal court such as the expert evaluation, visit of officials to the scene of the occurrence, gathering of evidence...etc. which they think important to clarify the court.
Article 190.
Exhibiting the object produced in evidence at the Appeals Court is not necessary when it is shown that the exhibition was correctly done for the first time at the first jurisdiction.
Article 191.
The Appeals Court has the discretionary power to hear or not to hear for one more time, the witness whom the judge of the first jurisdiction has already heard.
The Appeals Court may decide to hear or not to hear new witnesses even at the request of the accused, the plaintiff, the attorney or the representative of the general procedure department. If the Appeals Court refuses their request, this means, if the Appeals Court thinks that the new witness would not bring more clarification to the hearing, the Appeals Court shall issue a preparatory judgement, including the above motives, otherwise it shall indicate the reason in the final judgement.
Article 192.
The Appeals Court has the right to order a complementary investigation in writing when it thinks that the last investigation was incomplete. In this case the Appeals Court designate one of its members to investigate.
The competency and the procedure to appoint a judge shall be the same as those of the judges in the first jurisdiction. The person that is appointed by the above procedure, if necessary, may sub-delegate his/her powers to a judge of lower level.
Article 193.
If there are many appeals simultaneously from the prosecutor, the accused, the attorney or the plaintiff, it is the representative of the prosecution department who first delivers his/her address to the court because his/her appeal throws back into question all issues of the charge.
If the plaintiff and the accused appeal, then the plaintiff delivers his/her statement first, then the accused states his/her defense.
Article 194.
All judgement shall be motivated. Nevertheless, if the Appeals Court considers that the decision of the first jurisdiction must be confirmed base on the motive indicated in its decision, the Appeals Court may purely and simply pronounce that it adopts them without having to write them.
If, before the Appeals Court, an incidental plea or a new brief is submitted, this court shall expressly make the decision on the incidental plea and the brief that makes this case a new aspect.
When the Appeals Court quashes the appealed decision it shall provide the reason which motive its decision.
Article 195.
Regarding the pronouncement, the wording, the authenticity, the signature and the interpretation of the judgement, the same rules as that of the provincial or municipal criminal court shall be applied.
Article 196.
When the judgement is overruled because the reputed fact is not a misdemeanor or a felony, the appeals court non-suits the accused.
Article 197.
When the judgement is confirmed and the fact is punishable by felony or misdemeanor penalty, the Appeals Court shall issue a committal order or a warrant for arrest, if any.
Article 198.
The Appeals Court has the right to try the case by themselves when they overrule the decision made by the first jurisdiction.
It is so when there is an unreparable violation or omission of the formalities required by law under the penalty of nullity or when that decision was wrongfully made on the incidental plea and specially the ability on the rationae materiae competence.
Article 199.
When the case is not complete, the Appeals Court shall take or shall cause to take all useful measures or shall make necessary investigation in order to discover the truth.
Article 200.
The Appeals Court may judge the case by itself when it decides to overrule the whole judgement.
Article 201.
The Appeals Court may not judge the case by itself when the Appeals Court overrule the decision of the provincial, municipal court which has wrongfully refused to judge based on competence ground because the first jurisdiction is not exhausted.
Article 202.
The Appeals Court is also competent:
- To judge the appeal on the decision made by the prosecutor of the military court and the prosecutor of provincial or municipal court.
- To judge the appeal on all the decisions made by the judge of the first instance in the matters of the detention awaiting trial, release on bail or no ground for prosecution.
Article 203.
If the Appeals Court overrule the decision of no prosecution made by the prosecutor or of non-suit directed by the investigating judge in the case where the accused is not detained, it may decide to detain the accused person awaiting trial. In this case the Appeals Court shall issue a warrant for arrest.