A/HRC/33/62
Publication of decisions online with a summary of reasoning would undoubtedly strengthen
the judicial process in Cambodia by rendering judgments more transparent. Moreover,
understanding the legal reasoning behind judicial decisions will allow the public to develop
more informed views about the independence (or lack thereof) of the judiciary and the
consistency of judgments. It would also be a useful resource for students and those studying
for admission to the professions.
48.
The Special Rapporteur notes several positive measures taken during the past year,
notably the increase in salary for judges and prosecutors and the effort of the Ministry of
Justice to work with the Anti-Corruption Unit to monitor qualification exams for judges and
prosecutors, which may help to redress the lack of transparency and apparent consistency of
process in the training, recruitment and discipline of judicial officials. The Special
Rapporteur recommends that, in order to strengthen transparency, the salaries of judges be
reviewed annually and made public. Similar work is required on prosecutors.
49.
Everyone using the judicial system encounters a range of requests for payments
related to lodging complaints, filing documentation, copying materials and other work by
court clerks. Although many fees are fixed, they may vary considerably and therefore have
an impact on equality of access to justice. The Special Rapporteur recommends that the
approved schedule of fees and any permitted additional payments be publicly displayed in
all courts and at court clerk offices to eliminate unofficial overpayment. In this way,
elements of corruption could be eliminated, while the actual and perceived independence of
the system would be strengthened.
50.
At present, most people arrested are held in pretrial detention. Accurate statistics are
apparently not available, given that cases are not systematically recorded. The Ministry of
Justice confirmed, however, that pretrial detention is the normal practice. In its general
comment No. 35 (2014), the Human Rights Committee noted that detention in custody of
persons awaiting trial should be the exception rather than the rule (CCPR/C/GC/35, para.
38). Extensive use of pretrial detention compounds the challenges acknowledged by
Cambodia on prisons (see CCPR/C/KHM/Q/2/Add.1, para. 14) and commented on by the
Committee on overcrowding in prisons (see CCPR/C/KHM/CO/2, para. 14). Cambodian
law provides for judicial supervision as an alternative to pretrial detention. Although the
Special Rapporteur was informed about the cultural barriers to judicial supervision, she
suggests the Government consider taking steps at the local level to support the expansion of
judicial supervision for those charged with a minor crime. Even though pretrial detention is
appropriate in some cases, its prevalence is difficult to justify from the viewpoint of
international human rights law (see ibid.).14 The Special Rapporteur suggests that
consideration be given to greater use of judicial supervision as provided for in the Code of
Criminal Procedure. When courts consider that pretrial detention is appropriate, a full trial
should follow swiftly, consistent with the rights of defence, the presumption of innocence
(see A/HRC/26/16, para. 119.20) and the Code of Criminal Procedure.
51.
Three sets of cases are ongoing at the Extraordinary Chambers in the Courts of
Cambodia. The appeal of case 002/01 against Nuon Chea and Khieu Samphan began in
July 2015. The hearing of case 002/02, the second against both, began on 17 October 2014
on charges including genocide of Cham and Vietnamese minorities, forced marriages and
rape. Cases 003 against Meas Muth and 004 against Im Chaem, Ao Am and Yim Tith are
progressing slowly. Investigations in these cases have gone ahead on the international side,
without any cooperation from the national police in implementing orders. On 5 February
2016, case 004/01 was severed from 004 to expedite the trial process. As at May 2016, the
financing of the Extraordinary Chambers was stable, with $32.3 million secured.
14
See also CCPR/C/GC/35, paras. 36-38.
15
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