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1 Presentation on “ New Developments; Child Friendly Courts and Child Friendly Laws in Cambodia ” in The World Congress on Family Law and Children ’ s.

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Presentation on theme: "1 Presentation on “ New Developments; Child Friendly Courts and Child Friendly Laws in Cambodia ” in The World Congress on Family Law and Children ’ s."— Presentation transcript:

1 1 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 March 2013) by H.E Chan Sotheavy Secretary of State Ministry of Justice Cambodia

2 2 Table of Content I.Royal Government’s Policy II.Legal Instruments related with Children with Conflict the Law (CICL) III. Structure of the Courts IV.Minor and Criminal Responsibility V.Procedures of dealing with criminal case for the minor VI.Legal Reform and Development of Legal Framework VII.Cooperation with Development partners VIII.Future Objective

3 3 I. Royal Government’s Policy I. Royal Government’s Policy The Royal Government of Cambodian formulated the specific policy for promoting the child’s rights laid down in: -Rectangular Strategy; -Legal and Judicial Reform Policy (reform of some domestic legislation for further improvement with a view to strengthening the protection of child’s rights).

4 4 II. II. Legal Instruments related with Children with Conflict the Law (CICL) 1. International Law - The Convention on the Rights of the Child (CRC): Cambodia signed and ratified this Convention in signed and ratified this Convention in 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 Riyadh Guidelines Havana Rules 1990

5 5 2. National Law - The Constitution of the Kingdom of Cambodia The Code of Criminal Procedure The Criminal Code Other Regulatory Framework

6 6 III. Structure of Courts Supreme Court (01) Appeal Court (01) Capital/Provincial First Instance Courts (23) Military Court (01) Higher Courts Lower Courts

7 7 IV. Minors and Criminal Responsibility 1-Definition of minor 1-Definition of minor Based on the National Laws and CRC Convention minors : means that the person whose age under 18 years old.

8 8 2. Criminal Responsibility of Minors 2. Criminal Responsibility of Minors Based on article 38 of CC, the age of criminal responsibility shall be eighteen and over. 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 subject to : Supervision Supervision Education Education Protection Protection And assistance And assistance Article 40 of Penal Code; the types of measures are: -Returning the minor to his or her parents, guardian, custodian, or to another person who is trustworthy; -Committing the minor to a social service agency which cares for minors; -Committing the minor to a private organization that is qualified to receive minors; -Committing the minor to a specialized hospital or institution; -Placing the minor under judicial protection (Article 41 of Penal Code)

9 9 3. Separate prison facilities for minors (Article 166 of Penal Code) Minor imprisoned shall be housed in special units separate from adults. They shall be subject to a specific and personalized regime with a large emphasis on education and vocational training.

10 10 V. Procedures dealing with criminal cases of minors The procedures in dealing with criminal case of minors, there are 5 stages as states in Criminal Procedure Code Case file in Judicial Police stage : For Judicial Police - Article 96 of Criminal Procedure Code stipulates the term of police custody due to the types of offences committed by minors. 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. 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. 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. 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. 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. 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. 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. 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. 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 notify by all means the parents, the legal representative or any person who is responsible for that minor. notify by all means the parents, the legal representative or any person who is responsible for that minor.

11 11 2. Action of Prosecutor : Any rules implemented in judicial police stage is also be involved with the prosecutor. 3. Action of Investigating Judge : Investigating Judge: - Article 212 of CCP stipulates that a minor under 14 years old may not be temporarily detained. The investigating judge can decide to send the minor temporarily to his parents/guardians or to a Provisional Education and Care Center until the competent judge has made his decision on this issue. Education and Care Center until the competent judge has made his decision on this issue. - Article 213 of CCP stipulates the duration of provisional detention for felonies committed by minor from 14 to under 18 years old. felonies committed by minor from 14 to under 18 years old. - Article 214 of CCP stipulates the duration of provisional detention for misdemeanors committed by minor from 14 to under 18 years old.

12 12 4. Hearing : - Article 39, 40, 41 of CC stipulates the measures of supervision, education, protection and assistance for the minors. - Article 160 of CC stipulates Principal penalties applicable to minors from the age of fourteen and over. - Article 163 of CC stipulates that Minor are not subject to provision pertaining to repeated offences. 5. Execution of Criminal Judgement :

13 13 VI. Reform and Development of Legal Framework - The draft law on “ The functioning of the court “ has stipulates about chamber in each section of the court for example Criminal Chamber, Chamber of Civil, Chamber of Commerce, Chamber of Labor and Chamber of Minor. - The draft law on “ Juvenile in Conflict with the Criminal law “ will be finalized soon.

14 14 * Draft Law on “ Juvenile in Conflict with the Criminal law ” This draft law consists of 108 articles classified into 16 chapters : Chapter 1: “ General Provisions ” consist of 4 articles (article 1 to 4) Chapter 2: “ Principal and basic rights of Children in Conflict with the Criminal law ”consists of 2 articles (article 5 to 6) Chapter 3: “ Criminal and Civil Responsibility of Children in Conflict with the Criminal law ” consists of 5 articles (article 7 to art 11) Chapter 4: “ Judicial Police and Investigation ” consists of 11 articles (article 12 to 22) Chapter 5: “ Prosecution ” consists of 8 articles (article 23 to 30) Chapter 6: “ Investigation ” consists of 15 articles (article 31 to 45) Chapter 7: “ Competency of Court of First Instance ” consists of 11 articles (article 46 to 56) Chapter 8: “ Competency of Supreme Court ” consists of 9 articles (article 57 to 65) Chapter 9: “ Diversion ” consists of 13 articles (article 66 to 78)

15 15 Chapter 10: “ Principal of Sentencing and imprisonment ” consists of 3 articles (article 79 to 81) Chapter 11: “ Rehabilitation by law ” consists of 2 article (article 82 to 83) Chapter 12: “ Detaining the minor ” consists of 8 articles (article 84 to 91) Chapter 13: “ Establishment and management of youth rehabilitation center ” consists of 8 articles (article 92 to 99) Chapter 14: “ Release with condition ” consists of 5 articles (article 100 to 104) Chapter 15: Inter-Provision consist of 3 articles (article 105 to article 107) Chapter: 16 “ Final Provision ” consists of 1 article (article108)

16 16 The objective of this Draft Law : - Complement and consistent with CC and CCP - Ensuring the respect the rights of Children in Conflict with the Law - Define the special procedures to deal with criminal case of CICL - Stipulate the procedures of Juvenile Diversion

17 17 Key Principals of this Draft Law : This Draft Law is written to comply with National and International law, especially the CRC with the key principals as of the followings: 1.The best interest of CICL is guarantee 2. Guarantee the treatment with the minors in a way of humanitarian and dignity. 3. Guarantee the freedom of expression of the minors 4. Police custody, pre-trial detention and imprisonment is the last resort with the shortest period of time. 5. Guarantee of the judgment of the diversion within the legal framework framework 6. Guarantee the functioning of child friendly procedures in minor cases.

18 18 VII. Cooperation with Development partners. Ministry of Justice has cooperated with CRI, UNICEF, UNODC, CCJAP and LAC on Juvenile Justice. 1. The Capacity Building of Law enforcement officers - Workshop conducted in BTB (MOJ + CRI + LAC) and National Workshop conducted by (MoJ + Unicef) on Juvenile Justice to judges and prosecutors which mainly focus on : + To promote the understanding of Juvenile Justice and the procedures of dealing with CICL + Alternative measures are applied instead of custody. + Child Friendly is applicable at the court. + Strengthening the meeting and cooperation of Judicial Police led by prosecutor in each municipal and provincial. - Training workshop on Case Registration (MOJ + CCJAP) through the 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.

19 19 - Study visit to Australia: (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 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 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 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 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 the process of dealing the minor cases. Battambang Court First of Instance has strengthened the solution of minor case in a child friendly procedures. Battambang Court First of Instance has strengthened the solution of minor case in a child friendly procedures.

20 20 2. Pilot implementation of child friendly procedure - 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 MOJ over juvenile justice. MOJ over juvenile justice. - 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.

21 21 3. Monitoring and evaluation : 3. Monitoring and evaluation : - Data collection of the minor cases in municipal and provincial courts (MOJ + CCJAP) courts (MOJ + CCJAP) - Organizing Case File Registration in municipal and provincial courts throughout the country through the model courts in order to courts throughout the country through the model courts in order 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 (Database) which is more convenient to collect data and follow up. which is more convenient to collect data and follow up.

22 22 VIII. Future objective - Case management with Database system should be exist in all levels of the courts (MOJ and CCJAP are currently in the process of researching) - Video Conference is strengthened and expanded to all courts through out the country. - Promote the service for the minors (minor victims and CICL) - Youth Rehabilitation Center is strengthened and expanded for diversion mechanism before trial. - Promote the understanding of the people in community about the reintegration of CICI. - MoJ + CRI + LAC continue the closed cooperation in strengthening the law enforcement officers in dealing with CICL (3 years proposal proposed by CRI) consists of : Study visit to exchange the experience Study visit to exchange the experience Organize training and national conference Organize training and national conference Continue strengthening the implementation of child friendly Continue strengthening the implementation of child friendly procedures in BTB court. procedures in BTB court.

23 23 Thank You ! Thank You !


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