Law on Criminal Procedure
- CHAPTER I GENERAL PROVISIONS
- Article 1.
- Article 2.
- Article 3.
- Article 4.
- Article 5.
- Article 6.
- Article 7.
- Article 8.
- Article 9.
- Article 10.
- Article 11.
- Article 12.
- Article 13.
- Article 14.
- Article 15.
- Article 16
- Article 17.
- Article 18.
- Article 19.
- Article 20.
- Article 21.
- Article 22.
- Article 23.
- Article 24
- Article 25.
- Article 26.
- Article 27.
- Article 28.
- Article 29.
- Article 30.
- Article 31.
- Article 32.
- Article 33.
- Article 34.
- CHAPTER II JUDICIARY POLICE
- CHAPTER III PROVINCIAL PUBLIC PROSECUTOR DEPARTMENT
- CHAPTER IV THE INVESTIGATING JUDGE
- Article 68.
- Article 69.
- Article 70.
- Article 71.
- Article 72.
- Article 73.
- Article 74.
- Article 75.
- Article 76.
- Article 77.
- Article 78.
- Article 79.
- Article 80.
- Article 81.
- Article 82.
- Article 83.
- Article 84.
- Article 85.
- Article 86.
- Article 87.
- Article 88.
- Article 89.
- Article 90.
- Article 91.
- Article 92.
- Article 93.
- Article 94.
- Article 95.
- CHAPTER V PROVINCIAL OR MUNICIPAL TRIBUNALS
- Article 96.
- Article 97
- Article 98.
- Article 99.
- Article 100.
- Article 101.
- Article 102.
- Article 103.
- Article 104.
- Article 105.
- Article 106.
- Article 107.
- Article 108.
- Article 109.
- Article 110.
- Article 111.
- Article 112.
- Article 113.
- Article 114.
- Article 115.
- Article 116.
- Article 117.
- Article 118.
- Article 119.
- Article 120.
- Article 121.
- Article 122.
- Article 123.
- Article 124.
- Article 125.
- Article 126.
- Article 127.
- Article 128.
- Article 129.
- Article 130.
- Article 131.
- Article 132.
- Article 133.
- Article 134.
- Article 135.
- Article 136.
- Article 137.
- Article 138.
- Article 139.
- Article 140.
- Article 141.
- Article 142.
- Article 143.
- Article 144.
- Article 145.
- Article 146.
- Article 147.
- Article 148.
- Article 149.
- Article 150.
- Article 151.
- Article 152.
- Article 153.
- Article 154.
- Article 155.
- CHAPTER VI The Appeal Court
- Article 156.
- Article 157
- Article 158.
- Article 159.
- Article 160.
- Article 161.
- Article 162.
- Article 163.
- Article 164
- Article 165.
- Article 166.
- Article 167.
- Article 168.
- Article 169.
- Article 170.
- Article 171.
- Article 172
- Article 173.
- Article 174.
- Article 175.
- Article 176.
- Article 177.
- Article 178.
- Article 179.
- Article 180.
- Article 181.
- Article 182.
- Article 183.
- Article 184.
- Article 185.
- Article 186.
- Article 187.
- Article 188.
- Article 189.
- Article 190.
- Article 191.
- Article 192.
- Article 193.
- Article 194
- Article 195.
- Article 196.
- Article 197.
- Article 198.
- Article 199.
- Article 200.
- Article 201.
- Article 202.
- Article 203.
- Article 204.
- Article 205.
- CHAPTER VII THE SUPREME COURT
- Article 206.
- Article 207.
- Article 208.
- Article 209.
- Article 210.
- Article 211.
- Article 212.
- Article 213.
- Article 214.
- Article 215.
- Article 216
- Article 217.
- Article 218.
- Article 219.
- Article 220
- Article 221.
- Article 222.
- Article 223.
- Article 224.
- Article 225.
- Article 226.
- Article 227.
- Article 228.
- Article 229.
- Article 230.
- Article 231.
- Article 232.
- Article 233.
- Article 234.
- Article 235.
- Article 236.
- FINAL PROVISIONS
L A W
SOC LAW ON CRIMINAL PROCEDURE 1993
Law adopted by the National Assembly of the State of Cambodia on 28 January 1993 and promulgated by Decree No. 21 of Council of State of the State of Cambodia, dated 8-3-1993, as follows:
D E C I D E S :
To promulgate the Law on Criminal Procedure which was adopted by the National Assembly of the State of Cambodia on 28 January 1993, at its 24th Session of its First Legislature.
Made in Phnom Penh on 8 March 1993.
For The Council of State,
signed and sealed by : HENG SAMRIN.
The law on criminal procedure has the purpose of establishing the rules that shall be respected and strictly implemented in order to determine by law the existence of a criminal offense.
Any criminal offense may give rise to two separate legal actions: public action and civil action.
The penal action is for the purpose of condemning all acts disrupting social order and breaching the peace and the offenses provided by the law.
Therefore, public actions strive to prevent these offenses from re-occurring by imposing on offenders punishments provided by the law.
Only officials appointed by law may initiate public actions.
The civil action is for the purpose of claiming reparation for damages caused by an act of offense, to the injured party who, for this purpose, shall receive an award proportionate to the damages incurred to him/her.
Both actions, public and civil, even though closely inter-related, can always be separately filed.
A public action may not be settled by any arrangement. The court of repressive jurisdiction provided in further articles, when seized upon knowledge of any penal infraction, shall decide on the case. Non-compliance with this principle shall be considered as a miscarriage of justice and punishable with disciplinary measures or imprisonment from 6 days to 1 month.
The exercise of a penal action and putting it into process are the responsibilities of the prosecution department.
In principle, at the prosecution department, the deputy general prosecutor and prosecutor perform their duties on behalf and under the responsibilities of the general prosecutor, whether or not in his/her presence.
At the municipal and provincial prosecution department, the deputy prosecutor performs his/her duties on behalf and under the responsibilities of the prosecutor, whether or not in his/her presence.
Any person who believes that he/she has been injured by an infraction may lodge a complaint along with the prosecution proceedings in order to obtain an award.
Where any plaintiff claims that he/she has been injured by an act that he/she thinks constitutes a criminal offense and the representative of the prosecution department does not respond, or files it without follow-up, the plaintiff may submit the case to the Appeal Court.
A penal action can be exercised against any person in the State of Cambodia without discrimination on the basis of race, nationality, religion, sex or social class.
A civil action may be grounded only on any felony, misdemeanor or minor offense. However, in order to judge whether or not a civil action is relevant, the fact constituting the criminal offense that gives rise to civil reparation shall be clearly and appropriately indicated according to the law.
On the other hand, the criminal offense shall have really caused damages even though the damage is a moral one.
It is not sufficient just to have a criminal offense and damages caused by the offense but there shall also be a relationship between the two elements: cause and effect, or in other words the damage is the direct result of the offense and it really and currently occurs.
In principle, only the person who is personally injured by the offense may file a civil action.
Those who have legal guardianship of the injured person or those who, by law, have the authority to represent the victim, may also file a civil action on behalf or for the benefit of the person injured by the offense.
A civil action can be exercised against all those who are liable for the reparation of damages resulting from the offense; that is to say principals, co-principals and accomplices as well as those liable for the civil action on that offense.
A civil action may be exercised against a person because that person is civilly liable for the conduct of another, in accordance with the provisions of the civil law. However, such civilly liable person shall not be subject to direct or sole condemnation.
The civil action may be filed together with the penal action at the same time and before the same judge.
The civil action may also be filed separately. In the latter case, the exercise of the civil action shall be suspended as long as the penal action is not finally decided.
The victim of any offense who has lodged a complaint for damages before the civil judge and who has already received reparation shall not be a plaintiff claiming damages in the public prosecution of the same case.
This principle can only be applied when the civil and penal jurisdictions receive the same case; that means there is identity of subject, of cause and of parties.
The criminal jurisdiction, upon receiving a complaint for damages from an injured party, shall not continue only with the criminal case and put off the civil action to another session. It shall hear the two actions together; but if the civil action is not sufficiently clarified it shall put off the trial to a later time.
Nevertheless, in any particular case when the amount of damages cannot be evaluated at the present time, the jurisdiction shall just recognize the rightfulness of the claim for damages and delay assessing the amount of compensation, which will later be furnished by the plaintiff claiming damages.
Even though, in principle, a judge who hears a case may hear all issues arising from the case, in other words any criminal judge has the competence to adjudicate all questions raised by parties before him; but at the same time and during the same criminal proceeding there may happen a question called a "preliminary question" which is a question necessary to establish an offense, and that the criminal jurisdiction cannot resolve. It is so when the question raised is a question of pure civil law.
There are two kinds of preliminary questions: the preliminary question for action and the preliminary question on judgment.
The preliminary question for action exists where the prosecution cannot be carried out as long as this preliminary question has not been definitely resolved.
The preliminary question on judgment is the question that causes the stay of proceeding of prosecution. That is to say the criminal judge has received a valid prosecution but he cannot decide on the merits unless he has received a preliminary decision from the civil jurisdiction.
Preliminary questions for action are those which can occur on the issue of a felony or a misdemeanor relating to a taking away or a concealment of a newborn baby.
No prosecutions can be instituted on a felony or a misdemeanor of the suppression of the status of birth of a person if there is no judgment previously recognizing the filiation of the child whose status bas been suppressed.
The preliminary questions to judgment are incidental pleas relating to the right to proprietorship or another real estate right, and the plea concerning the existence of marriages in bigamy cases.
To be considered a preliminary question relating to the proprietorship right or another real estate right, such as usufruct, use or easement, the real estate right, put forward as means of defense in the criminal proceeding, shall be a realty right. If it is only a personal right the criminal judge is always competent to adjudicate and there is no preliminary question to be decided by the civil jurisdiction.
The right of possession will constitute a preliminary question only if it is substantiated by a valid title or by a title of which the nature is sufficiently serious for consideration. On the other hand, if it is only invoked by using witnesses to establish the right, the case then remains subject to the consideration of the penal jurisdiction.
The preliminary question relating to the right to proprietorship or other right of real estate shall not be automatically raised by the jurisdiction, but only by the accused him/herself.
The preliminary question can be raised at any stage of the case even in the stage of appeal.
Where the prosecution relates to polygamy, the nullity of one of the two marriages may be raised but on the condition that the alleged facts raised make the nullity possible.
When the preliminary question is raised and considered admissible by the criminal judge, the judge, under penalty of nullity, shall stay the judgment and set up a time allowing the party who raises the preliminary question to submit it to a competent jurisdiction.
In any case, the judge shall not discharge any defendant without hearing.
If the judge considers that the incidental plea is not admissible he will simply reject it and continue the hearing and must indicate it in the grounds of his decision. If the judgment does not indicate the ground in this regard, it is vitiated by absolute nullity.
At the expiration of the time set up as specified in article 29, if the accused justifies having submitted to a competent civil jurisdiction about the preliminary question, a new time limit may be granted in order to obtain judgment on the question. The competent civil jurisdiction is notified of the date of expiration of this time limit by the representative of the prosecution department.
If, at the expiration of the time limit, a final decision is taken on the preliminary question, the normal procedure shall resume. Without the decision and if the delay is imputed to the negligence of the accused, the latter is considered as having renounced the exercise of the interlocutory question. The criminal tribunal shall continue the proceeding.
If the accused is the applicant of the incidental plea and if she/he receives a judgment in his/her favor on the preliminary question, the criminal jurisdiction shall recognize this decision and discharge the accused.
If the accused loses in the process of the preliminary question, the penal jurisdiction shall proceed with the public action as if the incidental plea had not occurred.
The renunciation of the civil action may neither stop nor suspend the prosecution.
The prosecution may be extinguished in the cases below:
- the death of the offender, - the expiration of the statute of limitation for the offense, - an amnesty, - the withdrawal of the injured party in a number of penal offenses, such as the taking away of minors above 14 years of age with consent, or insulting ancestors.
The judiciary police searches felonies, misdemeanors and minor offenses, gathers evidence and hands over perpetrators to the jurisdiction in charge of punishment. But the offenders can be arrested and handed over to the court by the judiciary police only in the case where they commit obvious felonies or misdemeanors caught red-handed in the act or when there is an order to appear or a warrant of arrest.
The judiciary police or those who can perform the duty of judiciary police are:
prosecutors and magistrates in charge of investigation "on duty only",
directors and deputy directors of the departments of the judiciary and economic police,
directors and deputy directors of the department of counter terrorism,
commissioners and inspectors of municipal and provincial police,
chairman of the office of criminal and economic police,
chairman of the office of counter terrorism,
chairman of the office of security police,
district, provincial and Khan political inspectors,
chairman of administrative police station "in regards to criminal offenses",
commissioners of traffic police or traffic violation section "for traffic violations",
chairman and officers of military police "for military offenses",
border police officers,
customs inspectors "for customs violations"
officers of the forestry and fishing,
All operations of the judiciary police are under the direct guidance of the prosecutors and under supervision of the prosecutor general of the Appeal Court.
The officers of the judiciary police competent to perform are the following: - the judiciary police officers at the place where the criminal offense occurs, - the judiciary police officers at the residence of the offender, - or the judiciary police officers at the place where the offender is found.
The officers of the judiciary police
- receive denunciations and complaints as well as judiciary police reports relating to felonies, misdemeanors and minor offenses. - gather evidence - can request the assistance of the public force. - make reports. - may accept rogatory commission. - may decide to detain for a maximum of 48 hours.
In cases of felonies or misdemeanors caught red-handed in the act, the judiciary police may interrogate witnesses, search and confiscate objects to be produced in evidence, assign experts, and decide to detain offenders for 48 hours.
The officers of the judiciary police shall write down their findings and the result of their searches in the document called "report".
In principle, the police reports are not necessarily the basis for prosecution. They simply provide elements of appraisement for prosecutors and judges.
The reports shall indicate first and last names and function of the reporter who shall sign and date the report which shall be made without delay. The erasures and writing over the existing text must be approved.
In principle, the reports worth only as information. In other words, the police reports possess the value of simple reports and do not obligate the jurisdiction or judges to believe.
Nevertheless, the reports of the judiciary police shall be considered as authentic evidence to the contrary when they are drawn up by the officers of the judiciary police. In this case, judges shall consider the essence of the report truthful and accurate as long as contradictory evidences are not brought up. These contradictory evidences may be freely brought to the judge by all legal means.
For minor offenses, the report of the judiciary police shall always be considered as authentic until the showing of contradictory evidence. There is only one condition: police officers who make the reports shall have the quality to conduct the inquiry on minor offenses.
The officers of the judiciary police shall, in the shortest period of time, submit their reports, with any objects produced in evidence, to the prosecutor of the competent jurisdiction.
The officers of the judiciary police have the right to directly conduct official inquiries on all penal offenses, except some offenses for which the law requires a complaint from the injured party prior to the inquiries.
The officers of the judiciary police also have the right to collect evidence and the right to also conduct house-searches, but this right of house-search may only be conducted when felonies or misdemeanors are flagrante delicto.
The officers of the judiciary police have the right to arrest offenders only in cases of felonies or misdemeanors caught red-handed in the act. They shall bring the alleged offenders to the competent jurisdiction within 48 hours without counting necessary transportation time by the quickest transportation means possible.
In case of non-compliance with this strict rule, the officers shall be punished in accordance with articles 22 and 57 of the interim penal code.
In any case, the officers of the judiciary police have no right to file without continuation any penal case that they have received, even though already coming to terms. They shall always forward their reports to the competent prosecutor.
PROVINCIAL PUBLIC PROSECUTOR DEPARTMENT
There is one public prosecutor department in each provincial court. In each public prosecutor department there is one prosecutor and one assistant prosecutor.
In principle, the prosecutor has the same rank as the president of the court.
The court adjudicating penal actions as well as civil actions is considered as plenary only if there is the participation of the representative of the public prosecutor department.
Concerning the penal jurisdiction, the prosecutor shall be always the "principal party". In other words, the prosecutor files the prosecution in the court, by accusing and asking for the application of the law upon the accused.
Concerning the civil jurisdiction, the representative of the public prosecutor department is only a joint-party; that is, he/she may express his/her opinion if he/she wishes. As a joint party in a civil case, the representative of the public prosecutor may not appeal the case to the Appeal Court or to the Supreme Court.
Concerning civil actions that are related to public law and order or to the interest of a minor or a disabled person etc, the representative of the public prosecution department shall consider herself/himself as principal party. In this case, the public prosecutor department takes action automatically.
Once the perpetration of any felony or any misdemeanor is known, the prosecutor shall proceed immediately to the investigation measures which are provided to him/her by the law and which are necessary to find the truth. Where the committed felony or misdemeanor is exceptionally serious, the prosecutor shall inform immediately the general prosecutor at the Appeal Court and the Minister of Justice. The prosecutor shall carry out the instruction he/she receives from them in this matter.
Where the prosecutor is unavailable because of sickness or other reason, the assistant prosecutor shall be in charge in his/her place. If there are many assistant prosecutors, the one who is senior in rank shall replace the prosecutor.
If there is no assistant prosecutor the Minister of Justice shall decide immediately to appoint any judge from the jurisdiction to replace the prosecutor. In case of extreme emergency, the president of the jurisdiction may designate a judge to temporarily replace the prosecutor and shall inform immediately the Minister of Justice.
The prosecutor has the duty:
- to receive the complaint and the denunciation related to the felony or the misdemeanor even though the complaint is from any person, from any officer of the judicial police or from any official competent for the penal action. - to receive the report made by the officer of the judiciary police who ascertains felonies, misdemeanors or minor offenses. - to proceed to preparatory investigation by himself/herself, where the offense is a felony or a flagrante delicto misdemeanor. - to call out the public force for the performance of his/her duty.
The prosecutor has no duty to search for minor offenders but when the penal court judges on a minor offense, the prosecutor may ask for the punishment related to that minor offense.
When the prosecutor receives a complaint, denunciation or report, he/she shall immediately register or ask someone to register it in a registration book called "order register" which consists of different columns as follows: - first column is for the case number and the date of the registration into the book - second column is for the offender's surname and name - third column is for the plaintiff's surname and name if there is any - fourth column is for the nature, the date and the place of the offenses - fifth column is for miscellaneous.
Once the complaint, denunciation or report have been received, and if the prosecutor thinks that it does not constitute a penal offense, he/she shall file that case without processing and with his/her remarks written on that complaint denunciation or report and also on the order register. In that case, the prosecutor shall inform the plaintiff of his/her decision within a period not longer than two months starting from the date he/she received the complaint. The plaintiff may appeal his/her decision to the Appeal Court.
The decision to file without processing by the prosecutor has no res judicata. This means the prosecutor may always change his/her decision, unless the prosecution expires due to the statute of limitations or due to the other cases provided by law.
If the complaint pertains to a felony or misdemeanor, the prosecutor shall immediately open a judicial enquiry; this means, the prosecutor makes a charge called an introductory requisition which indicates the offense in accordance with the law and the person presumed to be responsible for the offense and sends it to the judge.
In case of misdemeanor, the prosecutor may accuse the offender and send him/her directly to the penal court for judgment or proceed the same way as described in article 60 above.
The prosecutor accuses and sends the offender to the court for judgment when the file is completed and there are sufficient factors that constitute the offense.
The prosecutor has also the right to make additional inquiry before sending the case to the court. In this case, he/she may ask for necessary information from a judiciary police officer. Once all the information is obtained, the prosecutor sends the case to the court for judgment which is based on the full knowledge of the facts.
In the case where the committed crime is flagrante delicto, and if the investigating judge did not receive the case, the prosecutor may issue an order for a suspect to appear through arrest.
The prosecutor shall immediately interrogate that person. If that person is accompanied by a human rights defender, the prosecutor shall interrogate him/her in the presence of his/her human rights defender. The prosecutor may interrogate any witness who is present and issue an order to take temporary measures, in order to ensure the sufficiency of the evidence.
The prosecutor may search the criminal offender's house and confiscate any object to be produced in evidence and necessary for finding the truth.
The prosecutor may interrogate any person who may provide useful information but may not order him/her to be a witness or to take an oath. The prosecutor has the right to assign an expert to evaluate any object produced in evidence that the prosecutor thinks necessary.
The prosecutor has the right to forbid any person from leaving the scene of the crime. If the prohibition is not respected, the prosecutor may issue a requisition to detain that person for 24 hours.
Once the report on the scene of the crime is completed, the prosecutor shall immediately send the file and the introductory requisition to the judge who will continue to gather some more information or review all the documents if he/she feels there is a need. When the investigating judge receives the case and is present at the scene of the offense, the prosecutor or the judiciary police officer shall give the whole investigation process to the judge.
Where the accused has been arrested and sent, together with a proper report, to the prosecutor, the prosecutor shall examine immediately whether or not the charge on the offender is sufficiently established.
If the charge is related to a flagrante delicto offense punishable by imprisonment, the prosecutor interrogates the offender as follows: - Identity card with the surname and name, age, profession, the domicile place and date of birth of the offender; - Surname and name of the offender's parents; - Summary of the offender's biography, especially on the past judiciary record.
After that, the prosecutor asks questions on:
- The offense that is charged on the offender; - All circumstances related to the offense
The prosecutor shall make and sign the report written by a clerk.
This report shall also be signed by the offender. If the offender does not know how to sign the prosecutor shall mention it in the report and have the offender fingerprint the report.
Upon receiving a misdemeanor case, the presiding judge decides on the detention and asks to bring the accused for the next hearing. If the judge finds that the file is incomplete, he may postpone the hearing to a later date which is not longer than four months counting from the date of detention.
If the presiding judge thinks that the accused may be temporarily released, with or without bail, he/she shall decide on this issue before examining the merits. He/she shall act the same way if the accused requests it in writing.
If the presiding judge thinks the case that he receives does not constitute a flagrante delicto misdemeanor as determined in the accusation, he/she cancels this procedure and sends it back to the public prosecutor for action in accordance with the law. The prosecutor issues an investigative requisition and sends it to the investigating judge who shall continue the procedure as stated by the law.
The prosecutor shall apply the procedure directly to the court in case where the convicted person is liable to a punishment of imprisonment not more than one year as the maximum term; if not, the prosecutor shall send the case to the investigating judge.
THE INVESTIGATING JUDGE
In each provincial and city court, there is one or many judges is responsible for investigating criminal cases depending on the workload and the court's needs.
No judge may participate in the judgment of a case in respect of which he/she has been involved in the investigations.
The investigating judge cannot make any investigative acts if he/she did not receive the introductory charge from the representative of the prosecution office.
Where the investigating judge has directly been submitted a complaint, he/she shall, before instituting any investigation, forward the complaint and attached documents to the public prosecutor who will process in accordance with the provisions of the preceding chapter.
The referral to the investigating judge is for the prosecution of a determined act. Therefore, the investigating judges shall investigate only in the area of the criminal act specified in the introductory charge from the prosecution office.
During the investigation, if a new punishable act arises, the investigating judge shall have a new introductory charge for investigation in order to be able to investigate this new punishable act.
If the new act was only an aggravating circumstance of the former one for which the judge is referred, the same obligation regarding the introductory charge is not required.
The investigating judge has the right to visit the scene of the offense always accompanied by a clerk. In this case, previous notice of the visit shall be given to the public prosecutor.
If the imputed act investigated by the judge does not have the misdemeanor character and is only a minor offense, the investigating judge continues the investigation, then forwards the case file to the court.
In the case of a conflict among many investigating judges in different territorial circumscriptions who receive the same criminal case, the conflict shall be directed to the Appeal Court which decides without appeal.
When the accused person appears for the first time, the investigating judge shall record his/her identity, inform him/her of the imputed act, and receive his/her statement after informing him/her of the right to answer or not to answer without the assistance of a lawyer or defender chosen by him/her or appointed automatically.
At this first appearance and after recording the identity and informing the accused of his/her imputed act, if the accused tells the judge that he/she chooses a lawyer, or requests that a lawyer shall be automatically appointed by the government for his/her defense, then the investigating judge shall suspend the interrogation and call the counsel shortly in order to interrogate the accused in the presence of the counsel.
The automatic appointment of a lawyer shall be made by the presiding judge in the following cases: - the victim is a minor without defense, - the accused person is a minor without defense, - the accused person is mute, deaf, blind, or has a mental disorder, - the accused person is accused of committing any crime and is not able to afford a defender.
In other cases as mentioned above, the investigating judge may interrogate the accused person when he/she accepts to defend by him/herself.
If the lawyer or the defender does not show up at the indicated date and time, the investigating judge has the right to interrogate without the presence of the lawyer. The investigating judge shall mention this absence in the report.
The case file shall be put at the disposal of the lawyer or the defender at any time.
The communication of the case file shall be made at the clerk's office or, if possible, in the investigating judge's office.
The lawyer or the defender may be authorized to make copies of all pieces of the documents contained in the case file by his/her clerk under his/her entire responsibility.
Right after the first appearance of the accused person, the investigating judge has the right to decide whether the accused person shall be put in liberty or in temporary detention. This decision is enforceable immediately, even if there is an appeal, unless the appeal is from the public prosecutor.
All parties have the right to appeal the above decision to the Appeal Court within 15 clear days from the date of receiving the notification of the decision rejecting their request.
The Appeal Court shall decide the case within 15 days, at the most, from the date of receiving the appeal request.
If the accused person is in detention and has a lawyer or a defender, the lawyer or the defender may freely communicate with his/her client.
The conversation between the lawyer or the defender with his/her detained client shall not be listened to, nor recorded. The lawyer or the defender has the right to tell his/her client about all documents h/she has seen or copied from the file, and that he/she thinks useful for his/her client's defense. Nevertheless, the lawyer shall not hand over any documents or objects to his/her client without the investigating judge's special authorization.
The investigating judge subpoenas to appear before him/her all persons, whose names indicated in the complaint or denunciation complaint, witnesses called upon by the accused person, as well as all other persons the hearing of whom appears to be useful to the revelation of the truth.
In all cases, the investigating judge has the right to confront one party with another, or one witness with other witnesses, or the witnesses with the parties.
Before the interrogation, the witnesses shall take an oath in accordance with their religion or belief. The witnesses shall be interrogated separately one by one. The accused person may be brought in front of the witnesses whenever the judge thinks that the confrontation is required.
The deposition of the witness shall be signed by the judge, the clerk and the witness after reading this deposition to the latter. If the witness refuses to sign, this refusal shall be mentioned. Each page of the deposition shall be signed by the judge, the clerk, and the witness.
No blank space between lines is allowed. Any crossing out, deletion, and reference shall be approved and signed by the judge, clerk, and witness. The same procedure as mentioned above shall be applied to the depositions of other persons in the case.
All persons subpoenaed to be witnesses shall respond satisfactorily to the subpoena.
If, after receiving the subpoena, the witness does not appear before the judge, the judge may order him/her to appear enforceable through arrest.
In the case of absolute necessity, if the witness is sick or cannot travel, the judge may go to his/her domicile accompanied by his/her clerk to hear and record the witness's testimony.
If the witness lives in a city or province other than a city or province under the jurisdiction of the investigating judge, the investigating judge may issue a rogatory commission to the judge of the province or town where the witness is located to hear and write down his/her statement.
Besides hearing the witnesses, the investigating judge may take other actions deemed useful to the revelation of the truth. For example, the investigating judge may go to visit the accused person's domicile for a house search. In this case, the lawyer or the defender shall be informed and also invited to accompany the judge in the visit.
The investigating judge shall make a report describing, in detail, his/her performance and shall sign with the clerk and all other persons participating in the search.
The investigating judge shall also draw up a precise and detailed inventory of the things and papers that he/she has seized and keep them in a closed and stamped package on which the judge and the clerk sign.
The investigating judge may call for an expert whenever he/she thinks that this measure is necessary for the revelation of the truth. In this case, the investigating judge shall look for the persons deemed to be capable of evaluating the nature and circumstance of the offense, such as a physician, certified public accountant, jeweler, etc.
If there was a death with an unknown cause, the investigating judge shall have recourse to a physician specialist to establish the cause.
All expertise expenses shall be included into the court costs, which are in the accused person's charge if he/she is finally convicted. If there is no ground for prosecution or if the accused person is discharged, the state will be in charge of the expertise expenses.
The investigating judge may order a second expert appraisement to check the first one whenever he/she deems necessary.
If the investigating judge thinks that the investigation is complete, the case file shall be kept for the disposal of the accused person's lawyer for 24 hours. After that, the investigating judge shall issue an order "of discovery". Then, the file is forwarded to the public prosecutor.
Three days after the date of receiving the file, the public prosecutor shall make a charge in writing and refer it back to the investigating judge.
If the investigating judge thinks that the act does not constitute a felony, a misdemeanor, or a minor offense, or the charge on the accused offender is not sufficiently substantiated by evidence, the investigating judge has the right to issue a nonsuit order. In principle, the order of the investigating judge shall be well motivated.
This order and the file shall be immediately forwarded to the public prosecutor in order to allow him/her to file an opposition to the Appeal Court within 24 hours. If there is an opposition from the public prosecutor, the detained accused person shall remain in temporary detention. On the contrary, if there is no opposition from the public prosecutor and the accused person does not have other causes to be detained, the investigating judge issues an order to release him/her.
If there is a plaintiff claiming damages, he/she shall be informed of the "nonsuit" order made by the public prosecutor. Within 60 days from the date of receiving the information, the plaintiff has the right to make an opposition to the Appeal Court.
If the Appeal Court overrules the nonsuit order, the President of the Appeal Court can issue an order to re-arrest and provisionally detain the accused person, if he/she is temporarily released.
If the nature of the crime found is a misdemeanor or felony, the investigating judge shall send the accused person to the provincial/municipal court after receiving the charge from the public prosecutor.
The investigating judge is absolutely free to determine the qualification of the crime related to the imputed act. If the investigating judge believes that his/her qualification of the offense is different from that of the public prosecutor, he/she shall specify in the committal for trial the motives of this change of qualification.
In this case, the order of the change of qualification of the offense shall be forwarded to the public prosecutor who has the right to give notice of appeal to the Appeal Court within 48 hours.
In the case of change of qualification of the offense from misdemeanor to a felony, it is necessary to have a new charge and the person accused of the felony shall be reinterrogated on the new prosecuted act.
In all cases, the public prosecutor may appeal the decision of the investigating judge that he/she is not satisfied with.
When the plaintiff requests the detention of the accused person who is temporarily released, the investigating judge shall make the decision on this issue within 5 days and inform the plaintiff of the decision. The latter has the right to oppose the investigating judge's decision before the Appeal Court within 15 days from the date of notification.
PROVINCIAL OR MUNICIPAL TRIBUNALS
In each province or municipality there exists one court of which the territorial jurisdiction covers all territory of the province or municipality. As a "criminal tribunal", the provincial or municipal court has competence in all kinds of criminal cases.
To be validly constituted, the criminal court, as well as the civil court, requires the presence of a judge, an assistant prosecutor and the assistance of a court clerk.
The judge may be the president, the vice-president or the magistrate of the court.
Parents and relatives, by marriage until fourth degree included, shall not simultaneously be members of the same court, either as a judge or a representative of the prosecution department.
This principle is not only applied to provincial or municipal courts, but also to all jurisdictions irrespective of level.
In principle, there is an absolute incompatibility of office between a judge and a representative of the prosecution department.
The representative of the prosecution department who performs his/her duty in any proceeding may not be a judge in the same case.
There is also an incompatibility of office between an investigating judge and a trial judge.
Where the investigating judge or trial judge is absent or impeded, he/she may be replaced by another judge assigned by the presiding judge of the same court.
If a tribunal does not have a judge, the Minister of Justice shall appoint a replacement judge from an adjacent jurisdiction.
The absent or impeded prosecutor shall always be substituted by one of his/her assistants. In default of an assistant, a representative of the prosecution department of the adjacent provincial or municipal court shall be assigned by the general prosecutor to replace him/her.
If any misdemeanor occurs on the premises and during the hearing the judge shall make a report on the matter, hear the charge of the representative of the prosecution department, the declaration of the accused and of the witnesses then the tribunal shall apply the punishment provided by law and continues the process as usual without leaving the courtroom.
If a felony occurs the culprit shall be immediately arrested and, at the same time, a report shall be made. Objects produced in evidence and the accused shall be sent to the investigating judge with the charge of the prosecution office.
Criminal jurisdiction shall be referred: - by the direct summons of the prosecutor, - by the committal for trial of the investigating judge, - by a letter of transfer to the court of appeal or other jurisdiction, - by the immediate hand-over of the accused to the court, in a flagrante delicto case.
The criminal jurisdiction shall only decide on cases of the accused transferred to it. If a person, subpoenaed as a witness, is found to be a principal, co-principal or an accomplice, they shall not be judged unless there is a charge or a committal for trial issued against him/her in accordance with the ordinary formality and time limit provided by law.
The criminal jurisdiction may only decide on acts mentioned in the charge, in the committal for trial or the remand and on accessory circumstances truly related to the act resulting from the hearing.
If the court ascertains that the offense qualification cited in the referral paper is not proper, the court may change the qualification which shall be exactly imputed to the act, but on express condition that there shall be no addition to the elements that are closely related to the facts specified in the direct summons, the committal for trial or the remand.
Where the change is from a misdemeanor to a felony, the criminal court shall return the case to the prosecutor to proceed on a new charge in conformity with the time limit and formalities provided by law.
If the act which is referred for judgment seems insufficiently clear the court may proceed itself with a complementary investigation or return the case to the judge or the prosecutor.
The accused shall appear in person before the judge at all sessions either for additional interrogation or hearing. If the accused appears in court and has the opportunity to defend him/herself, judgment to be made shall be judgment after trial.
The civilly responsible person or the plaintiff may be represented by an attorney or defender.
They may be represented by his/her direct line parents or relatives by marriage with a written power of attorney.
The accused, the civilly responsible person and the plaintiff may read his/her case file at the clerk's office. The attorney or defender of each party may copy or have his/her secretary copy all the documents for the preparation of the defense of his/her claim.
If the accused, who is properly summoned, does not appear in court the judgment shall proceed by default. If the judge considers that the accused has not received the summons within the time limit, he/she may put off the hearing until the next session. The judge may render judgment by default if the accused does not appear by the new summons.
When the civilly responsible person does not appear, this non-appearance shall be recorded in the minute-book of the clerk to the court. The court shall determine whether or not there is a legal connection that ties the responsible person to the accused. Where there is sufficient evidence of guilt against the accused, the court shall evaluate the consequences of the damages.
When the plaintiff does not appear in court and the guilt of the accused has been recognized, the court, based on its own judgment, shall determine the amount of the damage reparation when there is a claim in the plaintiff's file.
Even though the accused does not appear, the court shall proceed as if the accused is present by hearing the witnesses' testimony, examining all the documents and information that may lead the court to find out the truth. The court may dismiss the absent accused when it finds that there is not enough evidence. In case of sentencing, the court may also decide to allow extenuating circumstances for the accused. In other words, the non-appearance of the accused during the hearing shall not constitute an aggravating circumstance.
Sentencing an accused by default shall become null and void when the accused opposes the decision of the court within 15 days from the day of the reception of the decision notification.
But if the notification is not made in person or if there is no writ of judgment enforcement to be known to the accused, the decision may be opposed at any time until the terms of limitation for punishment expire.
If the accused no longer resides at the previously indicated location and if the judiciary police in charge of notifying cannot locate his/her new residence, the notification of the judgment by default shall be posted at the last known domicile of the accused. This notice shall also be posted at the Khum or district office of the people's committee and be announced on national radio and published in the official newspaper.
The notification of the judgment by default transforms this judgment into a true judicial decision having the effect of substituting the terms of limitation for punishment for terms of limitation for prosecution. The term of limitation is 3 years for a misdemeanor, 10 years for a felony.
This principle is also applicable when the court decision is notified by means of posting on the accused's residence or at the Khum or district offices of the people's committee, or broadcast on national radio, or published in the official newspaper.
This decision may also be applicable to civil reparations when the plaintiff claims for them.
When there is a protest on the notification of the judgment by default, for example where the original copy of the notification is lost, this notification shall be considered as undone.
The notification shall preferably be made in person. If the accused cannot be found, after diligent effort, measures shall be taken as provided in article 116.
In principle, the opposition shall be filed at the court clerk's office. Nevertheless, it may also by made by certified or regular letter or by a declaration made before any judiciary police officer who shall urgently forward it to the clerk's office of the concerned court.
The opposition suspends the enforcement of the judgment and remits the facts and the parties to the stage where the default judgment is rendered. Thereafter, the court receiving the opposition of the accused recovers full power to proceed and may augment or reduce the criminal or civil punishment pronounced in the judgment by default.
Upon opposition of the accused, the court may raise any aggravating circumstances that were not raised in the default judgment or discharge the accused in accordance with the law.
The court examines whether or not the opposition is relevant. If the court considers that the opposition is relevant, it shall declare that it is admissible and decide on the merits as if it were before the court for the first time.
If the party who opposes does not appear at the time set by the court, the judgment by default handed down by the court shall be considered as having the presence of the party.
The judgment rendered on the opposition may be brought before the Appeal Court by any party.
Evidence of a criminal offense may be produced by any means in order to convince the judge, for example by confession, by witness's appropriate and convincing testimony, by examination on all indications, by expertise or by other legal means such as the on-site visit, etc.
To ascertain its conviction, the criminal jurisdiction may examine all documents put forward for questioning during the hearing and examinations between parties and attorneys in order to render judgment. Judges shall not base their conviction on personal knowledge they might acquire outside the hearing.
In any criminal jurisdiction, the clerk shall be responsible for writing a summary report of the hearing to allow the Appeal Court to effectively control the lawfulness of the proceeding, and to have a knowledge as compete as possible of the oral investigation during the hearing. The clerk shall try the best he/she can to carefully write down the progress of the proceedings, and all statements of the witnesses and the answers of the offender.
The above summary report shall be signed by the clerk, and certified by the judge after a detailed review in the period of ten days after the hearing during which the judgment was pronounced. The clerk will receive an administrative discipline, if he/she fails to perform this task.
The summary report signed by the clerk and certified by the judge is considered as valid of its content until there is evidence to the contrary. In the case of a discrepancy between the summary report and the original judgment, the latter will be considered as valid.
The investigation during the hearing shall be in public; if not, it will be considered as null and void. The proceedings in open court are required not only for the pronouncement of the judgment, but also for the investigation and the hearing. Therefore, the judgment shall mention the proceedings in open court, because without it, the judgment shall be considered as null.
Nevertheless, the hearing can be conducted in camera if proceedings in open court might be deemed dangerous to public order and good tradition. The in-camera hearing may only conducted on part of the investigation. In another sense, the time for the in camera proceeding is limited to the investigation of the case. The pronouncement of the judgment shall be in public; if not it shall be considered as null.
The judge is the person who keeps the hearing in order, and who conducts the interrogation.
During the interrogation, the judge can stop or reject anything that may unnecessarily delay the interrogation, without contributing to the revelation of the truth.
When there is a protest between the representative of the prosecution department or the plaintiff with an accused person or the civilly responsible person concerning the usefulness of any interrogation measures, hearing of witness, asking questions, or other issues, the judge may decide by order and simply mention it in the hearing report, in order to know which measures are accepted or refused.
The injured party may always become a plaintiff as long as the judge has not yet issued a judgment. He/she does not need to submit the request containing the means of his/her intervention method. It is sufficient that he/she declares at the hearing that he/she wants to be a plaintiff, claims damages, and requests this to be recorded in the minute book, and then starts his/her submissions on the action instituted by him/her.
At the opening of the hearing, the judge calls the case to be judged. The clerk calls the parties, the witnesses in the case, and checks their identification. Each party sits in the reserved place in the court room. The witnesses shall withdraw into a waiting room that has been reserved for them from which they cannot see, or hear anything from the court room and in which they cannot communicate with each other.
Afterwards, the judge hears the accused person about the accusations made against him/her. After listening to the oral statement of the accused person, the judge starts to ask him/her questions useful to the case. This questioning shall be completed by the other party's questions through the judge. If there is no objection from any party, including the representative from the prosecution department, the judge asks questions which are requested through him/her. If there was an objection, the judge shall decide through an order whether he shall ask the question. All the questions shall be asked through the judge, except the questions of the representative of the prosecution department, the lawyer or the defender who may ask questions by themselves after obtaining permission from the judge.
After the accused, the judge hears the civilly responsible person relating to his/her plea of defense. The plea of defense shall be focused on the facts that he/she personally knows and especially on the causal connection of his/her liability.
Next, the judge hears the plaintiff claiming damages, if one exists, having properly submitted the complaint. The judge hears the plaintiff, his/her knowledge of the facts, especially the elements of evidence that show the damage suffered by him/her in addition to the cost and the causal connection between himself/herself and the offense.
Then the judge hears the witness's testimony in the following order: prosecutor's witness, plaintiff's witness and accused's witness. This order may be varied if there is an important reason. The judge may not necessarily hear any testimony when he/she considers that it does not help to reveal the truth. In the event of an objection, the judge shall decide the matter by means of an order which shall be recorded in the report of the hearing.
Any witness who did not take an oath during the investigation shall take an oath before answering. Any witness who testified in accordance with the discretionary power of the judge, may not take an oath. After the testimony, the witness may remain in the hearing room. At the witness's request, the judge may allow him/her to stay outside if his/her hearing is no longer necessary.
All objects produced in evidence shall be shown to the witness and the parties one or more times but if this process was not done, it does not cause the judgment to be null.
If the accused or the witness is mute and/or deaf, but does know how to write, the clerk shall write down the questions and various remarks for them in order to get back the answers in written form. If they do not know how to write, the judge shall assign automatically by himself a person who is able to communicate with them by using sign language as an interpreter.
After questions and answers, the judge successively allows the plaintiff, the civilly responsible person, the accused, the lawyer or the defender of the plaintiff, the representative of the prosecution department, the lawyer or the defender of the civilly responsible person and the last one, the lawyer or the defender of the accused, to speak. The accomplishment of the above formalities shall be indicated in the report of the court hearing and the court order, otherwise it shall be considered as null.
The representative of the prosecution department shall have the opinion not only on the merits of the hearing but also on any incidental plea and if he/she declares that he/she agrees with the court decision, thus the decision is considered as sufficient in accordance with the law.
As long as the judge still has not yet begun to read the judgment, the parties may always be allowed to submit to the court their briefs and documents they think useful.
The court shall render interlocutory judgment on all incidental pleas usefully raised by the representative of the prosecution office, the plaintiff, the civilly responsible person and the accused.
If the incidental plea is related to incompetency, the court shall decide beforehand the incompetency incidental plea.
But if, in order to evaluate the grounds for the incompetency incidental plea, the court has first to examine the merits, then the court may decide to join the incidental plea to the merits. The court shall then decide on competency by a decision that is separate from the decision on the merits. If the court decides in favour of the incompetency, it does not have to examine the merits.
After the hearing, the prosecutor's charge and counsel's pleading, the judge withdraws into the secret chamber for discussion. From this stage on, neither request nor argument shall be presented to the court.
All judgments shall be pronounced in public. That means it shall be read aloud by the judge. A judgment shall be rendered in the soonest time possible. If the judgment cannot be rendered immediately, the judge shall announce at the hearing the date of the next hearing in which the judgment shall be pronounced so that the interested parties of the case can be present.
All judgments shall consist of two parts: the record of proceedings before judgment and the judgment itself.
The record of proceedings which is written on the top of the judgment shall consist of: surname, name, profession, domicile and the role of the parties, the surname and first name of the lawyer or the defender, the charge and the request of the parties, if any, a reminder of the procedure with indication of the principal acts and different incidents that the court has already decided. This record of proceeding shall also contain the questions and the answers from the hearing.
The judgment itself shall be sub-divided into two parts: the grounds and the enacting terms of judgment.
the grounds of judgment are the reasons on which the decision of the court is determined.
the enacting terms of judgment express measures taken or the sentence pronounced by the court.
All judgments shall be grounded on each of the counts of accusation as well as on each of the parties' requests. The ground of the decision shall be precise, that means expressing unequivocally and uncontradictorily the thoughts of the judge.
The enacting terms, which are the essential part of the judgment, shall also be as precise as the grounds. In the enacting terms of judgment, there shall be references to all legal texts on which the decision is based.
The judgment shall be drawn up right away and be read to the audience when the judge comes back from the secret chamber.
The only parts that shall be read in public are the grounds and enacting terms of judgment.
Before reading the judgment, the judge shall sign it first.
An acquitted accused may immediately submit a claim for damages. However, to be admissible, the claim shall allege that the plaintiff is at fault and the fault results from the plaintiff's mala fides or careless action. Only the court that has decided on the case has competence to decide on this claim.
Concerning the restitution of an object produced in evidence, in the case when the accused is acquitted, the court shall only order the restitution when it is certain that the object belongs to the accused. If there is the least doubt, the judge shall declare that the object produced in evidence be restituted to its legitimate owner. This will make it possible for interested parties willing to claim for it, to file before the civil court which determines the legitimate owner.
Even in the case of acquittal, if provided by law, an object produced in evidence shall be confiscated, for example, in the case of illegal possession of arms or counterfeit items, etc.
If the fact is only minor offense, the court shall apply the minor punishment and decide on the damages, if there is a claim for it.
In its enacting terms, after declaring the guilt of the accused, and the responsibility of the civilly responsible person, the judgment shall determine the principal penalty and the accessory penalty, if there is any. Also, the judgment shall mention the text of the law applied.
Together with the decision on the punishment, the court shall also decide on the reparation and the damages.
The acquitted accused shall be immediately released, if the decision is not appealed right away. If the court decides on punishment and the detained accused appeals against the judgment, the accused shall remain in temporary detention.
In case of sentencing, the judgment shall be enforced and ensured by the prosecutor, concerning the imprisonment and the collection of fine. Regarding the payment of the reparation, it shall be enforced at the request of each plaintiff claiming for his/her damages.
If the accused is put at liberty the appeal temporarily suspends the enforcement of judgment; that means the accused shall remain at liberty.
All contradictory judgments of the criminal jurisdiction can be appealed within two clear months from the day when the judgment is rendered.
The Appeal Court
The Appeal Court is located in Phnom Penh.
The competence of the Appeal Court covers the entire territory of the State of Cambodia.
In penal cases, as well as in others, the Appeal Court has competence for appeals against all decisions made by the military court, the provincial or municipal courts, as well as those made by the public prosecutor departments of these inferior courts.
During the judgment, the Appeal Court shall be composed of three judges, one of which is the president, a representative of the prosecution department and a clerk.
At the Appeal Court, there is a prosecution department which is composed of a general prosecutor, a deputy general prosecutor and a prosecutor.
The competence of the general prosecutor covers the entire territory of the State of Cambodia.
In the case of impediment due to sickness or other cause, the general prosecutor at the Appeal Court shall be substituted by the deputy general prosecutor who is senior among all of them if there is more than one deputy general prosecutor.
The important role of the general prosecutor at the Appeal Court is to give his conclusion during the hearings of the Appeal Court and appeal to the Supreme Court against the judgment of the Appeal Court which he thinks was rendered in error or in violation of law.
Those who have the right to appeal are: - the accused or the civilly responsible person - the plaintiff claiming damages - the prosecutor.
The accused, the civilly responsible person or the plaintiff who want to exercise their rights to appeal, shall use it by themselves or by proxy. The power given to that proxy shall be special.
Only the father or the mother of a minor child may appeal on behalf of his/her child without using special power of attorney; it is the same for the guardian.
The appeal has a devolving effect; that means it submits to the second jurisdiction (Appeal Court) all points of fact and law that were examined by the inferior jurisdiction.
During the trial of the appeal submitted by the accused, the Appeal Court shall not add more punishment. It may modify the judgment in the sense that it benefits the accused.
The Appeal Court may change the qualification of the offenses which were decided by the judge of the first jurisdiction but with the condition that no punishment is added to the accused.
The Appeal Court also may, in maintaining the same punishment decided by the criminal court, apply to the fact a penal text different from the one mentioned in the appealed judgment.
In deciding on an accused's appeal, the Appeal Court shall not add to the principal penalty the accessory penalty that the judge of the first jurisdiction forgot to decide on.
Nevertheless, where an accessory penalty is prescribed by law, the Appeal Court must explain it is impossible for the court to correct the omission made by the judge of the first jurisdiction without an appeal from the department of the public prosecutor.
If the Appeal Court confirms the judgment without specifying as above, the judgment of the Appeal Court shall be considered as having the same defect as the first jurisdiction. For that reason, this decision is null.
The Appeal Court shall not decide on the accused's appeal, by increasing the amount of the damages which was already decided by the court of the first degree for the plaintiff.
The Appeal Court may increase the rate of fine in suppressing the imprisonment. The court may change the imprisonment into a fine, whatever the period of imprisonment and the rate of the fine, because the seriousness of punishment is not based on the duration or the amount. But on the determination of the rank in the penal scale that is meant the imprisonment is more serious than the fine.
On the contrary, the Appeal Court may, at the accused's appeal, decide on the imprisonment for debt that was forgotten by the inferior court, because it is not a punishment but a measure of execution that shall be applied by right.
Where the court of first jurisdiction dismisses the case and the plaintiff appeals, the Appeal Court may decide all kinds of punishments including the accessory penalty and the fine.
The prosecutor's appeal and the appeal of the plaintiff, even though without the accused's appeal, throw back into question the decision made by the inferior court, including the charged and discharged issues. Therefore the Appeal Court may increase the punishment pronounced by the inferior court or may dismiss the accused.
The Appeal Court may decide, on the prosecutor's appeal, all the accessory penalties that the judge of the first jurisdiction forgot to decide on.
Nevertheless the prosecutor's appeal will only have the effect described in article 171if it is a general appeal.
If the prosecutor's appeal is restricted, the Appeal Court may decide only within the limits determined by the appeal.
The prosecutor's appeal will be considered as general when the prosecutor appeals against too mild a sentence.
Whatever the extent of the appeal's effects, the appeal can only be applied to the prosecutor's appeal and may not affect the plaintiff's claim.
The Appeal Court may change the qualification of the offense made by the judge of the first jurisdiction but shall not add any new element which the judge of the first jurisdiction has not received and decided on.
The appeal made by any party, in principle, shall be lodged at the clerk's office that issued the judgment. The appellant need not inform other parties of his/her appeal. The clerk shall record the appeal in the register used only for this purpose. The clerk and the plaintiff shall sign or finger print on the recorded appeal. The appellant may be represented by a proxy having a special power.
The appeal may be sent by a certified letter or regular letter, addressed to the clerk of that court. This letter shall contain the willingness to appeal formally expressed.
The appeal may be lodged within a time-limit of two months. When the judgment is contradictory, this time-limit starts on the day of the judgment. When the judgment was made by default, the time-limit shall be determined from the expired date of the opposition. The party who was not present, may appeal before the expiration of the time-limit for opposition.
During the appeal and during the appeal judgment, the enforcement of the judgment made by the inferior jurisdiction shall be stayed.
The brief on appeal, the judgment, the case and the complaint that the appellant thinks should be added to his/her appeal, shall be forwarded to the clerk's office of the Appeal Court as soon as possible. Then the President of the Appeal Court forwards the case to the general prosecutor in order for him to make the charge during the hearing.
If the person against whom the judgment is rendered is arrested, he/she shall be sent as soon as possible by order of the prosecutor or the judge, from the house of arrest in the province, city, to the one in Phnom Penh.
The judgment by default on the appeal may be attacked by way of opposition using the same method of procedure and the same time-limit as the judgment by default rendered by the penal court.
The opposition delays the summons to the next hearing. If the opponent does not appear, then the judgment of the Appeal Court that decides for the second time and makes the judgment by default reiteratedly, may not be attacked for the second time unless it is done before the Supreme Court.
The report made by a judge of the Appeal Court has the purpose of setting forth in public various documents of the case, and then letting the judges of the court know in the presence of the parties, not only the court's decision which is referred, but also all the elements that were submitted to the first jurisdiction for examination and decision.
The accomplishment of this formality shall be under penalty of nullity, mentioned in the judgment.
If the Appeal Court orders one of its judges to make additional investigations, this judge shall prepare a new report once the investigation is finished. This report shall be enclosed in the case which the Appeal Court will consider during the hearings. Otherwise, the report is considered as null.
The report shall be in writing and shall be enclosed in the case file.
The appellant shall be interrogated after the reading of the report. In a simple case, this report may be summary. But if the case is complex, the report shall be more developed in order for the court to examine the case with full knowledge of the facts.
After the reading of the report, the Appeal Court hears the accused and the civilly responsible person. After that, the Appeal Court hears the plaintiff, if any.
If the parties who appeal are defended by attorneys, their attorneys shall be heard before the representative of the general prosecution department.
If the prosecutor is the appellant, the representative of the general prosecution department shall be heard before the attorneys.
If the order established is not followed, it is not punished by penalty of nullity.
The procedure to submit evidence shall be the same as the procedure used by the provincial and municipal courts.
The Appeal Court may, therefore, take all investigation measures which are used by the provincial and municipals courts, such as the expert evaluation, visit of officials to the scene of the occurrence, gathering of evidence, etc, which they think important to clarify the court.
Exhibiting objects produced in evidence at the Appeal Court is not necessary when it is shown that the exhibition was correctly done for the first time at the first jurisdiction.
The Appeal Court has the discretionary power to hear or not to hear for one or more times, the witness whom the judge of the first jurisdiction has already heard.
The Appeal Court may decide to hear or not to hear new witnesses even at the request of the accused, the plaintiff, the attorney or the representative of the general prosecution department. If the Appeal Court refuses their request, this means that the Appeal Court thinks that the new witness would not bring more clarification to the hearing. The Appeal Court shall then issue a preparatory judgment, including the above motives; otherwise it shall indicate the reason in the final judgment.
The Appeal Court has the right to order a complementary investigation in writing when it thinks that the last investigation was incomplete. In this case the Appeal Court shall designate one of its members to investigate.
The competency and the procedure to appoint a judge shall be the same as those of the judges in the first jurisdiction. The judge who is appointed by the above procedure, if necessary, may sub-delegate his/her powers to a judge of lower level.
If there are many appeals simultaneously from the prosecutor, the accused, the attorney or the plaintiff, it is the representative of the prosecution department who first delivers his/her address to the court because his/her appeal throws back into question all issues of the charge.
If the plaintiff and the accused appeal, then the plaintiff delivers his/her statement first, then the accused states his/her defense.
All judgments shall be motivated. Nevertheless, if the Appeal Court considers that the decision of the first jurisdiction must be confirmed based on the motives indicated in its decision, the Appeal Court may purely and simply pronounce that it adopts them without having to write them.
If, before the Appeal Court, an incidental plea or a new brief is submitted, this court shall expressly make the decision on the incidental plea and the brief that makes this case a new aspect.
When the Appeal Court quashes the appealed decision it shall provide the reason which motivates its decision.
Regarding the pronouncement, the wording, the authenticity, the signature and the interpretation of the judgment, the same rules as that of the provincial or municipal criminal court shall be applied.
When the judgment is overruled because the reputed fact is not a misdemeanor or a felony, the Appeal Court nonsuits the accused.
When the judgment is confirmed and the fact is punishable by felony or misdemeanor penalty, the Appeal Court shall issue a committal order or a warrant for arrest, if any.
The Appeal Court has the right to try the case by itself when it overrules the decision made by the first jurisdiction.
It is so when there is an irreparable violation or omission of the formalities required by law under the penalty of nullity or when that decision was wrongfully made on the incidental plea and especially the ability on the rationae materiae competence.
When the case is not complete, the Appeal Court shall take or shall cause to be taken all useful measures or shall make such necessary investigations as are necessary in order to discover the truth.
The Appeal Court may judge the case by itself when it decides to overrule the whole judgment.
The Appeal Court may not judge the case by itself when the Appeal Court overrules the decision of the provincial or municipal court which has wrongfully refused to judge based on competence ground, because the first jurisdiction is not exhausted.
The Appeal Court is also competent:
To judge an appeal against a decision made by the prosecutor of a military, provincial or municipal court.
To judge an appeal against all decisions made by a judge of the first instance in matters of detention awaiting trial, release on bail, or no ground for prosecution.
If the Appeal Court overrules the decision of no prosecution made by the prosecutor or of nonsuit directed by the investigating judge in a case where the accused is not detained, it may decide to detain the accused person awaiting trial. In this case the Appeal Court shall issue a warrant for arrest.
The Appeal Court shall send the accused person to appear before the same criminal court when he/she considers that the file is complete.
When the Appeal Court overrules a decision of detention awaiting trial, it shall order that accused person be freed immediately.
When the Appeal Court overrules a decision not to detain, it shall order the detention of the accused person by issuing a warrant for arrest.
THE SUPREME COURT
The Supreme Court is located in Phnom Penh.
The competence of the Supreme Court extends over the whole territory and jurisdiction of the State of Cambodia.
The Supreme Court renders decisions on the law, not on the facts. Nevertheless, it also renders decisions on the facts of a case where there has been a second appeal to the Supreme Court as specified in the following articles.
The decision of the Supreme Court is sovereign, which means there is no remedy at law, except for an appeal for revision in certain restricted cases as provided by law.
The Supreme Court, judging penal as well as civil cases, shall have a president of that supreme jurisdiction, assisted by 4 judges, one representative from the prosecution department, and a clerk.
One vice-president will replace the president in case of his/her absence or preoccupation.
The cases which allow the Supreme Court to render a decision for annulment are:
- the composition of the jurisdiction is not legal, either because the number of the judges is insufficient, or some other reason resulting from the non-observance of the provisions of the law,
- the breach or omission of a required formality under penalty of nullity such as a hearing not in public,
- the refusal or the omission to decide on one or more requests or charges of any party, including the prosecution department, who properly use their rights or options as given by the law,
- lack of motives, or contradiction between motives and enacting terms,
- violation or misapplication of the substantive law,
- distortion of the facts,
- abuse of power.
In all cases, the statement of appeal shall be made in the clerk's office of the court which issued the judgment. This statement of appeal shall be recorded in the register at the clerk's office of the court which will decide on the appeal.
The statement of appeal shall be personally made by the interested person, or by a third person who receives a special power in writing, or by a person recognized by the law as the legal representative, such as a father represents his minor child.
The statement of appeal shall have the signature of the interested person or his/her representative, and that of the clerk. The date needs to be included. If the person does not know how to sign, he/she shall fingerprint the statement of appeal.
Even if there is neither clerk's signature, nor the date, the statement of appeal is still admissible, if no fraud is discovered, but the clerk shall be fined 5,000 riels by the Supreme Court in its judgment. This fine shall be imposed by the Supreme Court even if the appeal is not admissible in its form.
After receiving the statement of the appeal from the court which decided on the case, the clerk shall immediately prepare the file and forward it to the President of the Supreme Court.
Upon receiving the file, the President of the Supreme Court causes the file to be registered in numerical order in the Supreme Court clerk's office.
The clerk shall immediately notify the appellant, who shall, within twenty days from the date of receiving the notification, submit to the Supreme Court a statement in which he/she puts forward the legal grounds of his/her appeal.
If the appeal is from the general prosecutor's office, a conclusion raising all legal issues shall be made to the court.
If the appellant did not use his/her rights within the period mentioned above, the President of the Supreme Court forwards the case file to one of his/her judges for a report. If the appellant submitted a statement, the clerk shall inform the other party(ies) who must give a response within twenty days.
The same notification shall be addressed to the lawyer who, after signing the appeal, may notify the Supreme Court clerk's office of his/her representative capacity.
The file shall be kept in the clerk's office for the lawyer who causes his/her secretary to make copies as needed.
The above formalities are under penalty of nullity, if they are not complied with. Any party injured by the omission of an above mentioned formality can request to restart the procedure for that omitted formality. If the required time limit appears insufficient, the appellant, the defendant or their lawyer may request an extension of ten days from the President. The request may be made by simple letter filed at the Supreme Court clerk's office.
After the expiration of required time limit, with or without response, the President of the Supreme Court forwards the file to one of his/her judges for report.
The report of the judge shall describe: - the facts and the acts of procedure, - the scrupulously objective summing up of the elements of charge and elements of discharge, and responses to all legal issues raised by the parties. The report shall point out different possible solutions to the judicial issues that the Supreme Court may solve.
This report shall be attached as an annex in the file which shall be forwarded to the general public prosecution department for charge. The charge of the general public prosecutor or his/her deputy performing on his behalf is required in each case. During the hearing, the conclusion may be oral. However, for any important judicial issues, the charge shall be in writing. The written charge shall be enclosed in the file before the hearing.
After examining the file, the general public prosecutor refers it back to the President of the Supreme Court. This file shall be registered in the list for the next hearing.
The hearing shall be held in public. The reporting judge shall read the report in public. After that, the representative of the prosecution department makes his/her conclusion, followed by the appellant, the defendant, and their lawyers.
At the end of the debates, the court goes to a meeting room for deliberation and to write the verdict. The verdict shall be delivered at the hearing time, or at other hearing determined by the Supreme Court.
In any case, as long as the hearing has not been held in public, the Supreme Court may not deliberate and issues a judgment on any case. All parties may be represented by their lawyers or submit a new statement to the Supreme Court if they consider raising some new legal issues as long as the hearing is not closed. The right of response shall always be respected.
The appeal to the Supreme Court and the time limit for the appeal has a suspensive effect. Therefore, the enforcement of the Appeal Court judgment shall be suspended during the time of appeal, if there is an appeal during the appeal period, until the date of the issuance of the Supreme Court judgment.
The appeal also has a devolving effect, which means it submits all issues in the attacked appeal to the Supreme Court, unless the appellant expressly and in a clear and precise manner limits the appeal to some determined issues of the judgment. In this case, the Supreme Court is competent to decide on issues determined in the appeal. The determined issues shall be recorded in the register in the clerk's office at the time of the appeal.
In principle, the Supreme Court shall judge within the period of three months, at the latest, from the date of receiving the file and documents in support of the case by the Supreme Court clerk's office.
The judgment of the Supreme Court shall absolutely be motivated. The Supreme Court quashes the attacked judgment, or it dismisses the appeal, or issues its own judgment replacing the attacked judgment after receiving the appeal for the second time.
If the appeal is dismissed, the attacked judgment acquires res judicata. The party with the dismissed appeal may not re-appeal for annulment on the same judgment, even with any supporting reasons or means, except in the case related to a request for revision as mentioned in the articles below.
If the judgment is entirely quashed, following an appeal which has general devolving effects, the judgment of the Supreme Court puts the parties back to the same situation as before the quashed judgment, and refers the case back to the same jurisdiction, but with different composition.
If the quashing is on some issues of the judgment of the lower level court, the other issues shall remain the same, and the quashing and the transfer for judgment shall affect only the issues stated in the appeal.
But, in the case of a limited appeal, the Supreme Court may examine the nullity of the entire judgment, whenever the quashing of some issues affects the entire judgment.
If the fact is not a felony, or a misdemeanor, or a minor offense, the Supreme Court only declares that no offense has been committed, and decides to acquit the accused, and allows the plaintiff, if he/she wants, to submit the case to the civil court.
The Supreme Court may decide on the same issues without transferring the file to the lower level of jurisdiction, such as in the case of wrongful application of accessory penalty, or a stay of proceeding unlawfully allowed by the inferior jurisdiction.
If the Supreme Court finds that the judgment is appropriate, but the committed acts are not related to the mentioned offense, but related to the offense which shall receive the same punishment, the Supreme Court may decide not to annul, but only to change it by maintaining the same punishment and the same amount of damages.
Where the Supreme Court finds that the facts constitute an offense requiring a higher or lower punishment, it shall annul and return the case for judgment to the same jurisdiction but with different composition, or to any other competent jurisdiction.
To avoid the unnecessary extension of the legal proceedings, after receiving the appeal from the representative of the prosecution department, the condemned person, or from the plaintiff, or his/her lawyer, the Supreme Court may sit en banc on the facts and on the law, when the lower court did not obey the first judgment in which it decided to dismiss and return the file to that lower court, then issues a final judgment.
The sitting en banc is composed of nine judges including the titular President of the Supreme Court who is a president. In the case of the impediment of the President, he/she will be replaced by one of the vice-presidents. There is no distinction for the composition of the Supreme Court sitting en banc between the judges who were involved in the case and in the first appeal, and the judges who have never been involved before. The judges who were involved in the case in different capacities may not be included in the composition of the Supreme Court.
The Supreme Court also has a special competence for judging the revision case.
The revision is a remedy at law against judgments which become final and which acquire res judicata.
The only purpose of the revision is to re-establish the innocence of a condemned person.
The revision may be requested in any criminal case, whichever court has rendered the decision and whatever punishment has been pronounced.
The revision may be requested in the following cases:
when, after the condemnation for manslaughter, there is sufficient evidence indicating that the victim is still alive.
when, after a condemnation for felony, or misdemeanor, there is another judgment condemning another accused person for the same fact, without any complicity or collaboration between them and the two condemnations are not related. This contradiction is a proof of innocence of one among the two condemned persons.
when, after the condemnation, one of the witnesses is charged and condemned for false testimony, and, if without such false testimony, the innocence of the condemned person shall be established.
when, after the penal condemnation, there are new facts just adduced or discovered or objects produced in evidence which were not known at the time of the hearing and those facts and the objects produced in evidence are of the nature to establish the innocence of the condemned person.
In all cases, the persons who have the right to ask for a revision are:
the Minister of Justice,
the condemned person, or a legal representative of the condemned person where the condemned person is disabled,
the spouse, parents or children of the condemned person; in other words, everybody who has a material or moral interest when the condemned person dies or disappears.
Upon receiving a request for revision, the Supreme Court shall, sitting en banc, decide whether to postpone the enforcement of the judgment of the court of first instance or Appeal Court for which the revision has been requested. The Supreme Court shall issue its decision within a period of 8 days, at most, and such decision shall have clear motives.
The request for revision has the effect of bringing the case to the Supreme Court for judgment.
Next, the President of the Supreme Court causes the clerk to inform the plaintiff and the lawyer, if there is any. The plaintiff has thirty days form the notification date to file the complaint.
The lawyer appointed for the revision shall receive the same notification as the plaintiff, and can cause his/her secretary to make copies from the file at the clerk's office.
At the expiration of the thirty days allowed for the plaintiff and his/her lawyer, the President of the Supreme Court forwards the file and all objects produced in evidence, and the revision request, to the general public prosecutor who shall make the charge in writing within the time limit of thirty days.
All these formalities are required under penalty of nullity.
When the file returns from the general public prosecutor, the President of the Supreme Court designates a judge to make a detailed report including all circumstances of the case.
At the hearing, after listening to the report of the judge, the charge of the prosecution department, the hearing of the plaintiff, and the plea of the plaintiff's lawyer, the case is open for consultation; then the Supreme Court will issue its judgment.
In any case, the Supreme Court shall not consult, or draft the judgment, as long as the hearing is not held in public.
If the Supreme Court considers that the case is ready, it sits en banc and gives judgment, which judgment is final. On the contrary, the Supreme may decide to order an additional investigation of the facts, by referring to a court chamber or appointing a judge of the Supreme Court, or, in a special case, by appointing an investigating judge of an inferior jurisdiction.
The Supreme Court shall inform the person who requested the revision and his/her lawyer of any information collected in this additional investigation.
The lawyer can assign his/her secretary to make copies of the documents.
After finishing this additional investigation, the President of the Supreme Court causes the case to be submitted to a public hearing, hears anew the report of the judge, the charge of the representative of the prosecution department, the statements of the person who requests the revision and the pleadings of his/her lawyer.
The judgment shall be declared in public.
Any reprieve or general amnesty that has been granted shall not be an obstacle to a revision judgment.
The judgment of the Supreme Court that establishes the innocence of the condemned person shall be posted at the office of the jurisdiction which decided on the case, and at the Khum or Sangkat's office of the People's Committee, where the condemned person resides.
The provisions of any law which contradict the provisions of this law shall be abrogated.
This law shall be proclaimed urgent.
This law was adopted by the National Assembly of the State of Cambodia on the 28th of January, 1993 at its 24th session of its First Legislature.