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their contents. The Office has started monitoring the implementation of the Code of Penal
Procedure and is exploring avenues of cooperation with the relevant institutions to support the
training of judges in this regard.
24. The Office maintains working relations with judges and prosecutors and, with full respect
for their independence, has continued to discuss with them concerns related to individual cases
going through the system. One long-standing concern raised by numerous judges has been the
harsh and disproportionate effect on minors of article 8 of the Law on Aggravating
Circumstances for Felonies. This law, passed in 2002, removed both the discretion that judges
previously had under the criminal provisions of the 1992 Provisions Relating to the Judiciary and
Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (commonly
known as the United Nations Transitional Authority in Cambodia (UNTAC) law) to consider the
age of an offender in mitigation and the obligation judges had to halve any prison sentence for
persons under 18 years of age. As such, the 2002 law, insofar as it is applied to minors,
constitutes a prima facie violation of article 37 (b) of the Convention on the Rights of the Child
(CRC), which is guaranteed under articles 31 and 48 of the Constitution. As a result, some
judges in some provinces have continued to apply the UNTAC law, creating a situation of
inconsistent and non-uniform application of the law. The Office participated in a workshop
organized by the Ministry of Justice and the United Nations Children’s Fund (UNICEF) on the
draft juvenile justice law where this issue was discussed.
25. In this regard, the Office and UNICEF provided support and advice to a group of legal aid
and child rights NGOs to prepare a submission recommending that the Constitutional Council
consider the constitutionality of the 2002 Law in the light of Cambodia’s constitutionally
guaranteed obligations under CRC. Cambodian citizens have no direct right of petition to the
Constitutional Council, and therefore the submission was addressed to the more than
200 individuals who, ex officio individually or collectively, have the right of petition, including
His Majesty the King, who graciously forwarded the petition to the Constitutional Council.
26. The Constitutional Council’s subsequent ruling of 10 July 2007 constitutes a landmark in
the protection of human rights in Cambodia. Although the Council decided that the Law on
Aggravating Circumstances for Felonies was constitutional, it did so on the basis that the law
was not intended to abrogate the protections provided to child offenders in the UNTAC
provisions, since this would have violated the Constitution and CRC. Furthermore, the Council
clarified in its decision that the international human rights treaties to which Cambodia is party
are part of Cambodian domestic law and as such are directly applicable by judges in the courts.
The Office publicly welcomed this key decision and has worked to disseminate and explain it,
including through a national seminar for judges and prosecutors jointly organized with the
Ministry of Justice and UNICEF. The Office is pleased that judges are now applying the
Council’s decision in their judgements. The Constitutional Council is a very important, but often
marginalized, institution whose role in the protection of constitutional and human rights in
Cambodia should be more widely recognized and respected.
27. At the end of the year, the Office met representatives of the Council for Legal and Judicial
Reform to explore with them ways in which cooperation could be developed. Several such areas
were identified, including the establishment of a database on human rights; education and
training; support to the Ministry of Education in the field of human rights education; and
assistance to the Planning Management Unit of the Council.
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