|
3.1 Legal provisions relevant to the practice of torture
Torture is forbidden under article 38 of the Constitution:
The law guarantees there shall be no physical abuse against any individual. The law shall protect the life, honor and dignity of the citizens. The prosecution, arrest, or detention of any person shall not be done except in accordance with the law. Coercion, physical ill-treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited. Persons who commit, participate or conspire in such acts shall be punished according to the law. Confessions obtained by physical or mental force shall not be admissible as evidence of guilt.
However, torture has not been made an offence in Cambodia. There is also no legal procedure to establish whether a confession has been obtained “by physical or mental force”.
The legal provisions for criminal cases are stipulated in a document adopted as the ‘Transitional Criminal Procedure’ in September 1992 by UNTAC. This document, intended to provide a temporary criminal code, is now popularly known as the UNTAC Code (see Appendix C). No criminal procedure code has since been instituted in Cambodia.
3.2 Institutions in the justice system
Cambodia’s court system is very similar to those of other former communist countries. Though Cambodia has adopted a liberal democratic constitution, the court system introduced by the Vietnamese regime (1979-1987) has remained intact. In 1993 a Court of Appeal was introduced.
The court system has three levels: municipal and provincial courts, the Court of Appeal, and the Supreme Court. The courts have jurisdiction over both criminal and civil cases. Even in the Court of Appeal and the Supreme Court, cases are heard all over again, as in the courts of first instance.
There are no legal provisions to bring action against state agencies. The Supreme Court does not offer any opportunity for a citizen to come before it to complain against then.
Prosecutors exercise considerable power. They decide on detentions and prosecution of cases.
The police have only 48 hours in which to investigate cases. Once a case has been filed, further investigations are left to investigating judges and prosecutors. However, in general further investigations do not take place.
There are no courts with jurisdiction over administrative matters.
All matters relating to appointments, dismissals, promotions and disciplinary control of the judiciary are addressed in the Supreme Council of Magistracy.
The Council for Judicial and Legal Reforms may initiate or encourage reforms and follow up on policy. This Council is under the direct control of the Prime Minister.
3.3 Legal education of judges
Understanding the nature of legal education is essential to understanding the legal system and actual practice of law in Cambodia.
The Royal School of Magistrates started admitting students for the first semester during 2003, in accordance with the sub-decree on Establishment of the Royal School of Magistrates (No. 09 ANKR B.K.) issued in 2001. The School’s objective is to select and ensure high quality judges and prosecutors through professional continuous training and refresher courses.
The Board of Directors of the School is composed of the Senior Minister in charge of the Council of Ministers (chairman) and the Minister of Justice (vice chairman). The dean is a member of the Board and is appointed by a royal decree on a proposal from the Prime Minister.
The independence of the School is questionable. The links between future magistrates and the government will remain tight and will continue to undermine independence of the judiciary, as one of the tasks of the Board is to nominate the chief and members of the Board of Examiners.
Posted on 2005-03-21
remarks:2 |
