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Presentation on

“ New Developments; Child Friendly Courts and Child Friendly Laws in Cambodia ”

in

The World Congress on Family Law and Children’s Righs (Sydney from 17-20 March 2013)

byH.E Chan Sotheavy Secretary of State Ministry of Justice Cambodia

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Table of ContentTable of Content

I.I. Royal Government’s PolicyRoyal Government’s Policy

II.II. Legal Instruments related with Children with Conflict the Law Legal Instruments related with Children with Conflict the Law (CICL)(CICL)

III. III. Structure of the CourtsStructure of the Courts

IV.IV. Minor and Criminal ResponsibilityMinor and Criminal ResponsibilityV.V. Procedures of dealing with criminal case for the minorProcedures of dealing with criminal case for the minor

VI.VI. Legal Reform and Development of Legal FrameworkLegal Reform and Development of Legal Framework

VII.VII. Cooperation with Development partnersCooperation with Development partners

VIII.VIII. Future ObjectiveFuture Objective

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I. Royal Government’s PolicyI. Royal Government’s Policy

The Royal Government of Cambodian formulated the specific policy The Royal Government of Cambodian formulated the specific policy

for promoting the child’s rights laid down in:for promoting the child’s rights laid down in:

-Rectangular Strategy;-Rectangular Strategy;

-Legal and Judicial Reform Policy (reform of some domestic -Legal and Judicial Reform Policy (reform of some domestic legislation legislation

for further improvement with a view to strengthening the protection of child’s for further improvement with a view to strengthening the protection of child’s

rights) .rights) .

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II.II. Legal Instruments related with Children with Conflict the Law (CICL)

1. 1. International LawInternational Law

- The Convention on the Rights of the Child (CRC): Cambodia - The Convention on the Rights of the Child (CRC): Cambodia signed and ratified this Convention in 1992. signed and ratified this Convention in 1992.

The CRC is recognized in Article 31 of the Constitution of the The CRC is recognized in Article 31 of the Constitution of the Kingdom of Cambodia.Kingdom of Cambodia.- Beijing Rules 1985- Beijing Rules 1985- Riyadh Guidelines 1990- Riyadh Guidelines 1990- Havana Rules 1990- Havana Rules 1990

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2. 2. National LawNational Law

- The Constitution of the Kingdom of Cambodia 1993- The Constitution of the Kingdom of Cambodia 1993

- The Code of Criminal Procedure 2007- The Code of Criminal Procedure 2007

- The Criminal Code 2009- The Criminal Code 2009

- Other Regulatory Framework- Other Regulatory Framework

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III. Structure of CourtsIII. Structure of Courts

Supreme Court(01)

Appeal Court(01)

Capital/Provincial First Instance Courts(23)

Military Court(01)

Higher CourtsHigher Courts

Lower CourtsLower Courts

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IV. Minors and Criminal ResponsibilityIV. Minors and Criminal Responsibility

1-Definition of minor1-Definition of minor

Based on the National Laws and CRC Convention minors : Based on the National Laws and CRC Convention minors :

means that the person whose age under 18 years old.means that the person whose age under 18 years old.

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2. Criminal Responsibility of Minors2. Criminal Responsibility of Minors

Based on article 38 of CC, the age of criminal responsibility shall be eighteen Based on article 38 of CC, the age of criminal responsibility shall be eighteen

and over.and over.

and article 39 of criminal code stipulate the age of criminal responsibility of and article 39 of criminal code stipulate the age of criminal responsibility of

minors shall be fourteen and over. But minors who commits offences shall be minors shall be fourteen and over. But minors who commits offences shall be

subject to :subject to :

•• SupervisionSupervision

•• EducationEducation

•• ProtectionProtection

•• And assistanceAnd assistance

Article 40 of Penal Code; the types of measures are:Article 40 of Penal Code; the types of measures are:-Returning the minor to his or her parents, guardian, Returning the minor to his or her parents, guardian, custodian, or to another person who is trustworthy;custodian, or to another person who is trustworthy;-Committing the minor to a social service agency which Committing the minor to a social service agency which cares for minors;cares for minors;-Committing the minor to a private organization that is Committing the minor to a private organization that is qualified to receive minors;qualified to receive minors;-Committing the minor to a specialized hospital or Committing the minor to a specialized hospital or institution;institution;-Placing the minor under judicial protection (Article 41 Placing the minor under judicial protection (Article 41 of Penal Code)of Penal Code)

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3. Separate prison facilities for minors (Article 166 of Penal Code)3. Separate prison facilities for minors (Article 166 of Penal Code)

Minor imprisoned shall be housed in special units separate from Minor imprisoned shall be housed in special units separate from adults. adults.

They shall be subject to a specific and personalized regime with a They shall be subject to a specific and personalized regime with a large large

emphasis on education and vocational training.emphasis on education and vocational training.

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V.V. Procedures dealing with criminal cases of minorsProcedures dealing with criminal cases of minors

The procedures in dealing with criminal case of minors, there are 5 stages as states in The procedures in dealing with criminal case of minors, there are 5 stages as states in Criminal Procedure Code 2007 Criminal Procedure Code 2007

1. 1. Case file in Judicial Police stageCase file in Judicial Police stage : For Judicial Police : For Judicial Police- Article 96 of Criminal Procedure Code stipulates the term of police custody due - Article 96 of Criminal Procedure Code stipulates the term of police custody due to the types of offences committed by minors. to the types of offences committed by minors. • • In case of felony, a minor aged between 14 years old and less than 16 In case of felony, a minor aged between 14 years old and less than 16 years old may not be placed in police custody for more than 36 hours. years old may not be placed in police custody for more than 36 hours. • • In case of misdemeanor, a minor aged between 14 years old and less In case of misdemeanor, a minor aged between 14 years old and less than 16 years old may not be placed in police custody for more than 24 hours.than 16 years old may not be placed in police custody for more than 24 hours. • • In case of felony, a minor aged between 16 years old and less than 18 In case of felony, a minor aged between 16 years old and less than 18 years old may not be placed in police custody for more than 48 hours. years old may not be placed in police custody for more than 48 hours. • • In case of misdemeanor, a minor aged between 16 years old and less than In case of misdemeanor, a minor aged between 16 years old and less than 18 years old may not be placed in police custody more than 36 hours. 18 years old may not be placed in police custody more than 36 hours.

A minor who is less than 14 years old may not be placed in police custody.A minor who is less than 14 years old may not be placed in police custody.

- Article 100 of Penal Procedure Code stipulates about the judicial police officer - Article 100 of Penal Procedure Code stipulates about the judicial police officer

notify by all means the parents, the legal representative or any person who is notify by all means the parents, the legal representative or any person who is responsible for that minor. responsible for that minor.

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2. 2. Action of ProsecutorAction of Prosecutor : : Any rules implemented in judicial police stage is also Any rules implemented in judicial police stage is also

be involved with the prosecutor. be involved with the prosecutor.

3. Action of Investigating Judge : Investigating Judge:3. Action of Investigating Judge : Investigating Judge:

- - Article 212 of CCP stipulates that a minor Article 212 of CCP stipulates that a minor under 14 years under 14 years old old may not may not be temporarily detained. The investigating judge can decide to send be temporarily detained. The investigating judge can decide to send the the minor temporarily to his parents/guardians or to a Provisional minor temporarily to his parents/guardians or to a Provisional

Education and Care Center until the competent judge has made his Education and Care Center until the competent judge has made his decision on this issue. decision on this issue.

- - Article 213 of CCP stipulates the duration of provisional detention Article 213 of CCP stipulates the duration of provisional detention for for

feloniesfelonies committed by minor from 14 to under 18 years old. committed by minor from 14 to under 18 years old.

- - Article 214 of CCP stipulates the duration of provisional detention Article 214 of CCP stipulates the duration of provisional detention for for misdemeanorsmisdemeanors committed by minor from 14 to under 18 years old. committed by minor from 14 to under 18 years old.

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4. Hearing :4. Hearing : - - Article 39, 40, 41 of CC stipulates the measures of supervision, Article 39, 40, 41 of CC stipulates the measures of supervision, education, protection and assistance for the minors. education, protection and assistance for the minors.

- - Article 160 of CC stipulates Principal penalties applicable to Article 160 of CC stipulates Principal penalties applicable to minors minors from the age of fourteen and over. from the age of fourteen and over.

- - Article 163 of CC stipulates that Minor are not subject to Article 163 of CC stipulates that Minor are not subject to provision provision pertaining to repeated offences. pertaining to repeated offences.

5. Execution of Criminal Judgement : 5. Execution of Criminal Judgement :

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VI. Reform and Development of Legal FrameworkVI. Reform and Development of Legal Framework

- - The draft law on “ The functioning of the court “ has stipulates The draft law on “ The functioning of the court “ has stipulates

about chamber in each section of the court for example Criminal about chamber in each section of the court for example Criminal Chamber, Chamber of Civil, Chamber of Commerce, Chamber Chamber, Chamber of Civil, Chamber of Commerce, Chamber

of of Labor and Labor and Chamber of Minor.Chamber of Minor.

- - The draft law on “ Juvenile in Conflict with the Criminal law “ The draft law on “ Juvenile in Conflict with the Criminal law “

will will be finalized soon. be finalized soon.

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* * Draft Law on “ Juvenile in Conflict with the Criminal lawDraft Law on “ Juvenile in Conflict with the Criminal law ” ”

This draft law consists of 108 articles classified into 16 chapters :This draft law consists of 108 articles classified into 16 chapters :Chapter 1: “ Chapter 1: “ General ProvisionsGeneral Provisions ” consist of 4 articles (article 1 to 4) ” consist of 4 articles (article 1 to 4)Chapter 2: “ Chapter 2: “ Principal and basic rights of Children in Conflict Principal and basic rights of Children in Conflict

with with the Criminal law the Criminal law ”consists of 2 articles (article ”consists of 2 articles (article 5 to 6)5 to 6)

Chapter 3: “ Chapter 3: “ Criminal and Civil Responsibility of Children in Criminal and Civil Responsibility of Children in Conflict Conflict with the Criminal law with the Criminal law ” consists of 5 articles ” consists of 5 articles (article 7 to (article 7 to art 11) art 11)

Chapter 4: “ Chapter 4: “ Judicial Police and InvestigationJudicial Police and Investigation ” consists of 11 ” consists of 11 articles articles (article 12 to 22) (article 12 to 22)

Chapter 5: “ Chapter 5: “ ProsecutionProsecution ” consists of 8 articles (article 23 to 30) ” consists of 8 articles (article 23 to 30)Chapter 6: “ Chapter 6: “ InvestigationInvestigation ” consists of 15 articles (article 31 to 45) ” consists of 15 articles (article 31 to 45)Chapter 7: “ Chapter 7: “ Competency of Court of First InstanceCompetency of Court of First Instance ” consists of 11 ” consists of 11

articles (article 46 to 56) articles (article 46 to 56)Chapter 8: “ Chapter 8: “ Competency of Supreme CourtCompetency of Supreme Court ” consists of 9 articles ” consists of 9 articles

(article 57 to 65) (article 57 to 65)Chapter 9: “ Chapter 9: “ DiversionDiversion ” consists of 13 articles (article 66 to 78) ” consists of 13 articles (article 66 to 78)

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Chapter 10: “ Chapter 10: “ Principal of Sentencing and imprisonmentPrincipal of Sentencing and imprisonment ” consists of 3 ” consists of 3 articles articles (article 79 to 81) (article 79 to 81)

Chapter 11: “ Chapter 11: “ Rehabilitation by lawRehabilitation by law ” consists of 2 article (article 82 to 83) ” consists of 2 article (article 82 to 83)

Chapter 12: “ Chapter 12: “ Detaining the minorDetaining the minor ”” consists of 8 articles (article 84 to 91) consists of 8 articles (article 84 to 91)

Chapter 13: Chapter 13: “ Establishment and management of youth rehabilitation “ Establishment and management of youth rehabilitation centercenter”” consists of 8 articles (article 92 to 99) consists of 8 articles (article 92 to 99)

Chapter 14: “ Chapter 14: “ Release with conditionRelease with condition ”” consists of 5 articles (article 100 to consists of 5 articles (article 100 to 104)104)

Chapter 15: Inter-Provision consist of 3 articles (article 105 to article 107)Chapter 15: Inter-Provision consist of 3 articles (article 105 to article 107)

Chapter: 16 “ Chapter: 16 “ Final ProvisionFinal Provision ”” consists of 1 article (article108) consists of 1 article (article108)

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The objective of this Draft LawThe objective of this Draft Law : :

- - Complement and consistent with CC and CCPComplement and consistent with CC and CCP

- - Ensuring the respect the rights of Children in Conflict with Ensuring the respect the rights of Children in Conflict with the Lawthe Law

- - Define the special procedures to deal with criminal case of Define the special procedures to deal with criminal case of

CICLCICL - - Stipulate the procedures of Juvenile DiversionStipulate the procedures of Juvenile Diversion

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Key Principals of this Draft Law :Key Principals of this Draft Law :

This Draft Law is written to comply with National and This Draft Law is written to comply with National and International International

law, especially the CRC with the key principals as of the followings:law, especially the CRC with the key principals as of the followings:

1.The best interest of CICL is guarantee1.The best interest of CICL is guarantee

2.2. Guarantee the treatment with the minors in a way of Guarantee the treatment with the minors in a way of humanitarian humanitarian and dignity. and dignity.

3. Guarantee the freedom of expression of the minors3. Guarantee the freedom of expression of the minors

4.4. Police custody, pre-trial detention and imprisonment is the last Police custody, pre-trial detention and imprisonment is the last resort with the shortest period of time. resort with the shortest period of time.

5.5. Guarantee of the judgment of the diversion within the legal Guarantee of the judgment of the diversion within the legal

frameworkframework

6.6. Guarantee the functioning of child friendly procedures in Guarantee the functioning of child friendly procedures in minor minor cases. cases.

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VII. Cooperation with Development partners.VII. Cooperation with Development partners.

Ministry of Justice has cooperated with CRI, UNICEF, UNODC, Ministry of Justice has cooperated with CRI, UNICEF, UNODC, CCJAP and LAC on Juvenile Justice.CCJAP and LAC on Juvenile Justice.

1. 1. The Capacity Building of Law enforcement officersThe Capacity Building of Law enforcement officers-- Workshop conducted in BTBWorkshop conducted in BTB (MOJ + CRI + LAC) and (MOJ + CRI + LAC) and National National

WorkshopWorkshop conducted by (MoJ + Unicef) on Juvenile Justice to judges and conducted by (MoJ + Unicef) on Juvenile Justice to judges and prosecutors which mainly focus on :prosecutors which mainly focus on :

+ + To promote the understanding of Juvenile Justice and the To promote the understanding of Juvenile Justice and the procedures procedures of dealing with CICL of dealing with CICL

+ + Alternative measures are applied instead of custody.Alternative measures are applied instead of custody.+ + Child Friendly is applicable at the court. Child Friendly is applicable at the court. + + Strengthening the meeting and cooperation of Judicial Police led Strengthening the meeting and cooperation of Judicial Police led

by by prosecutor in each municipal and provincial. prosecutor in each municipal and provincial.

-- Training workshop on Case RegistrationTraining workshop on Case Registration (MOJ + CCJAP) through (MOJ + CCJAP) through the the

pilot of project of model court to the court officials throughout the country. Data pilot of project of model court to the court officials throughout the country. Data collection of the minor cases are also included with this registration.collection of the minor cases are also included with this registration.

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- - Study visit to AustraliaStudy visit to Australia: (with the participation of representative of MOJ, Court of Appeal, Court : (with the participation of representative of MOJ, Court of Appeal, Court

of First Instance, Prosecution attached to BTB Court of First Instance, MOSAVY and LAC) from of First Instance, Prosecution attached to BTB Court of First Instance, MOSAVY and LAC) from 28 of July to 11 of August, 2012 (organized by CRI) in order to enhance the understanding of the 28 of July to 11 of August, 2012 (organized by CRI) in order to enhance the understanding of the role, responsibility and implementation of each institution working with Children in Conflict with role, responsibility and implementation of each institution working with Children in Conflict with the Law, and as well as to seek for good practice from Australia.the Law, and as well as to seek for good practice from Australia.

- - The National Conference on The National Conference on 15-16 November, 2012 in Siem Reap to share knowledge and 15-16 November, 2012 in Siem Reap to share knowledge and

experiences following the study visit and in order to discuss the challenges of the previous experiences following the study visit and in order to discuss the challenges of the previous implementation and as well as to seek for better law enforcement in the future.implementation and as well as to seek for better law enforcement in the future.

* * Achievement after the National WorkshopAchievement after the National Workshop::

In the conference, there has been much recommendations and some recommendation have already In the conference, there has been much recommendations and some recommendation have already been applied such as: been applied such as:

•• The working group of model court MoJ have already created the Case File The working group of model court MoJ have already created the Case File Registration Book for the minors so that it is much convenient to collect data, follow up related with Registration Book for the minors so that it is much convenient to collect data, follow up related with the process of dealing the minor cases.the process of dealing the minor cases.

• • Battambang Court First of Instance has strengthened the solution of minor Battambang Court First of Instance has strengthened the solution of minor case in a child friendly procedures. case in a child friendly procedures.

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2. 2. Pilot implementation of child friendly procedurePilot implementation of child friendly procedure

- - Child Friendly Procedures are implemented pilot project in 5 target Child Friendly Procedures are implemented pilot project in 5 target

provinces supported by UNICEF and CRI (Phnom Penh, Siem Reap, provinces supported by UNICEF and CRI (Phnom Penh, Siem Reap,

Preh Sihanouk, Battambang and Banteaymeanchey)Preh Sihanouk, Battambang and Banteaymeanchey)

- - The 5 model courts have assigned focal point in order to coordinate with The 5 model courts have assigned focal point in order to coordinate with

MOJ over juvenile justice.MOJ over juvenile justice.

- - Court of Appeal which is the higher court has implemented the Child Court of Appeal which is the higher court has implemented the Child

Friendly Procedure and separate hearing room with video conference in Friendly Procedure and separate hearing room with video conference in

dealing with the minor cases to be the sample for municipal and dealing with the minor cases to be the sample for municipal and

provincial courts.provincial courts.

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3. 3. Monitoring and evaluationMonitoring and evaluation : :

- Data collection of the minor cases in municipal and provincial - Data collection of the minor cases in municipal and provincial

courts (MOJ + CCJAP) courts (MOJ + CCJAP)

- Organizing Case File Registration in municipal and provincial - Organizing Case File Registration in municipal and provincial

courts throughout the country through the model courts in order courts throughout the country through the model courts in order to to

manage the statistic of the case file and to follow up the manage the statistic of the case file and to follow up the

implementation of the judges and prosecutors at the beginning of implementation of the judges and prosecutors at the beginning of

case file until the case files closed (MOJ + CCJAP).case file until the case files closed (MOJ + CCJAP).

- - The Court of Appeal has organized case management The Court of Appeal has organized case management (Database) (Database)

which is more convenient to collect data and follow up.which is more convenient to collect data and follow up.

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VIII. Future objectiveVIII. Future objective

-- Case management with Database system should be exist in all levels of the Case management with Database system should be exist in all levels of the courts (MOJ and CCJAP are currently in the process of researching)courts (MOJ and CCJAP are currently in the process of researching)

-- Video Conference is strengthened and expanded to all courts through out the Video Conference is strengthened and expanded to all courts through out the country.country.

-- Promote the service for the minors (minor victims and CICL)Promote the service for the minors (minor victims and CICL)-- Youth Rehabilitation Center is strengthened and expanded for diversion Youth Rehabilitation Center is strengthened and expanded for diversion

mechanism before trial.mechanism before trial. -- Promote the understanding of the people in community about the reintegration Promote the understanding of the people in community about the reintegration

of CICI.of CICI.-- MoJ + CRI + LAC continue the closed cooperation in strengthening the law MoJ + CRI + LAC continue the closed cooperation in strengthening the law

enforcement officers in dealing with CICL (3 years proposal proposed by enforcement officers in dealing with CICL (3 years proposal proposed by CRI) consists of :CRI) consists of :

• • Study visit to exchange the experienceStudy visit to exchange the experience• • Organize training and national conferenceOrganize training and national conference• • Continue strengthening the implementation of child Continue strengthening the implementation of child

friendly friendly procedures in BTB court.procedures in BTB court.

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Thank YouThank You ! !