Pre-Trial Detention and Its Alternatives in Cambodia: A Critical Study of National Practice, Criminal Procedure Code, and Its Adherence to International Human Rights Standards

Abstract

The unnecessary and disproportionate use of pre-trial detention is a global issue that affects developed and developing countries alike. According to World Prison Brief, Cambodia has ranked 12th (among 217 countries) making it become a country with one of the highest percentages of pre-trial detainees: 71.8 percent to be exact. The excessive and unnecessary use of pre-trial detention in the Kingdom of Cambodia continues to be one of the major concerns in Cambodian judiciary system. Such excessive and inappropriate use of pre-trial detention has resulted in many consequences including chaotic, overcrowded and often times violent detention centers and the breakdown of family ties often leaving the accused and their dependents in poverty.
Since there is a very high rate of pre-trial detainees in Cambodia, this paper is designed to examine and review the current practice of Cambodian courts and its regulations concerning pre-trial detention in order to understand when and why such detentions take place. This paper, in addition, will scrutinize whether Cambodian courts’ practice and its relevant regulations on pre-trial detention are compatible with the standards of relevant international human rights instruments which Cambodia has ratified. Last but not least, this paper further explores and examine how the existing alternatives to pre-trial detention in Cambodia are implemented.
The author found that the provisions governing the pre-trial detention and police custody in Criminal Procedural Code of Cambodia (CPCC) almost fully conforms with the international human rights standards except provisions on the determination of the length of the police custody and pre-trial detention. In this paper, the key finding indicates that the primary problem with the pre-trial detention in Cambodia does not lie with the laws but the practice and the application of the laws.
In practice, the court in Cambodia has focused almost entirely on imprisonment of the accused person and the decision to place the accused person in pre-trial detention tends to be automatic in flagrante delicto case with less consideration on personal circumstances and other surrounding factors. Since pre-trial detention is a common practice in Cambodia, any deviation from the practice may require justification from the judges before many actors (prosecutor, president of the court or even the police) and might be allegedly perceived that such decision is involved with corruption. As any deviation from the practice could adversely impact on judge, it is more convenient for him/her to just place the accused in pre-trial detention as requested by the prosecutor despite the availability of non-custodial measures. Apart from this, the author found that there are some judges in Cambodia who merely tick off boxes in the Court Order Form for the decision of pre-trial detention without providing substantial grounds to justify their decision in the Order.
This current practice suggests that some judges in Cambodia might not have factual nor concrete evidence to justify their decision and customarily utilizes pre-trial detention as the general rule and routine rather than a measure of last resort. Such practices are not compatible with the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a party.
Regarding the existing alternatives to pre-trial detention in Cambodia, the author found that the existing alternatives are not effectively implemented due to the lack of mechanisms for overseeing and monitoring the compliance of the accused with the imposed obligations, as well as the lack of cooperation with the local authorities involved. In this paper, the author has also suggested two new suitable alternatives from Mexico and Belgium and discuss the possibility of integrating these alternatives into Cambodian law.
Finally, the author is of the opinion that Cambodia should pay more attention to ensure that the use of alternatives is effectively implemented in judicial process and the pre-trial detention is used as the last resort. Once effective use of alternatives and the use of pre-trial detention as the measure of last resort are well implemented, the arbitrary detentions and the rate of pre-trial detention in Cambodia will be reduced accordingly.

Popular Abstract

The unnecessary and disproportionate use of pre-trial detention is a global issue that affects developed and developing countries alike. According to World Prison Brief, Cambodia has ranked 12th (among 217 countries) making it become a country with one of the highest percentages of pre-trial detainees: 71.8 percent to be exact. The excessive and unnecessary use of pre-trial detention in the Kingdom of Cambodia continues to be one of the major concerns in Cambodian judiciary system. Such excessive and inappropriate use of pre-trial detention has resulted in many consequences including chaotic, overcrowded and often times violent detention centers and the breakdown of family ties often leaving the accused and their dependents in poverty.
Since there is a very high rate of pre-trial detainees in Cambodia, this paper is designed to examine and review the current practice of Cambodian courts and its regulations concerning pre-trial detention in order to understand when and why such detentions take place. This paper, in addition, will scrutinize whether Cambodian courts’ practice and its relevant regulations on pre-trial detention are compatible with the standards of relevant international human rights instruments which Cambodia has ratified. Last but not least, this paper further explores and examine how the existing alternatives to pre-trial detention in Cambodia are implemented.
The author found that the provisions governing the pre-trial detention and police custody in Criminal Procedural Code of Cambodia (CPCC) almost fully conforms with the international human rights standards except provisions on the determination of the length of the police custody and pre-trial detention. In this paper, the key finding indicates that the primary problem with the pre-trial detention in Cambodia does not lie with the laws but the practice and the application of the laws.
In practice, the court in Cambodia has focused almost entirely on imprisonment of the accused person and the decision to place the accused person in pre-trial detention tends to be automatic in flagrante delicto case with less consideration on personal circumstances and other surrounding factors. Since pre-trial detention is a common practice in Cambodia, any deviation from the practice may require justification from the judges before many actors (prosecutor, president of the court or even the police) and might be allegedly perceived that such decision is involved with corruption. As any deviation from the practice could adversely impact on judge, it is more convenient for him/her to just place the accused in pre-trial detention as requested by the prosecutor despite the availability of non-custodial measures. Apart from this, the author found that there are some judges in Cambodia who merely tick off boxes in the Court Order Form for the decision of pre-trial detention without providing substantial grounds to justify their decision in the Order.
This current practice suggests that some judges in Cambodia might not have factual nor concrete evidence to justify their decision and customarily utilizes pre-trial detention as the general rule and routine rather than a measure of last resort. Such practices are not compatible with the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a party.
Regarding the existing alternatives to pre-trial detention in Cambodia, the author found that the existing alternatives are not effectively implemented due to the lack of mechanisms for overseeing and monitoring the compliance of the accused with the imposed obligations, as well as the lack of cooperation with the local authorities involved. In this paper, the author has also suggested two new suitable alternatives from Mexico and Belgium and discuss the possibility of integrating these alternatives into Cambodian law.
Finally, the author is of the opinion that Cambodia should pay more attention to ensure that the use of alternatives is effectively implemented in judicial process and the pre-trial detention is used as the last resort. Once effective use of alternatives and the use of pre-trial detention as the measure of last resort are well implemented, the arbitrary detentions and the rate of pre-trial detention in Cambodia will be reduced accordingly.

• author: Sun, Vannak
• supervisor: Karol Nowak
• organization: Department of Law; Faculty of Law
• course: JAMM07 20211
• year: 2021
• type: H2 - Master's Degree (Two Years)
• subject: Law and Political Science
• keywords: Pre-trial detention, Police custody, Duration of pre-trial detention, Duration of police custody, Grounds for pre-trial detention, Grounds for police custody, Alternatives to pre-trial detention, Cambodia, Practice, International Human Rights Standards, Criminal Procedure Code of Cambodia, ICCPR, Electronic Monitoring Bracelet, Non-custodial measures, Petty offense, Misdemeanor, Felony.
• language: English
• id: 9050134
• date added to LUP: 2021-06-15 15:05:06
• date last changed: 2021-06-17 18:06:18