November 20, 2020

Trial Observation Report: Cambodia v. Kong Raiya

In August, the Phnom Penh Court of
Appeals upheld the Municipal Court’s decision denying bail to Mr. Raiva.

In August, the Phnom Penh Court of Appeals upheld the Municipal Court’s decision denying bail to Mr. Raiva.

In mid-2020, the American Bar Association (ABA) Center for Human Rights monitored the criminal trial of activist Kong Raiya in Cambodia as part of the Clooney Foundation for Justice’s TrialWatch initiative. Mr. Raiya was prosecuted and convicted for “incitement to disrupt social order.” The case against him stemmed from Facebook posts in which he advertised the sale of t-shirts commemorating a slain critic of the Cambodian government. The shirts did not bear any call for violence or disorder and, as documented by the monitor, the prosecution did not adduce any evidence to show the shirts would be understood to call for social disorder; that the shirts might have the effect of creating social disorder; or that Mr. Raiya had intended such effects. The case against Mr. Raiya thus contravened his right to freedom of expression in addition to undermining other rights, such as his right to the presumption of innocence - detailed below. 

Mr. Raiya is a prominent youth activist formerly affiliated with the now-banned Cambodia National Rescue Party (CNRP). Ahead of the three-year anniversary of the killing of Kem Ley, a popular political analyst and government critic who was murdered on July 10, 2016, Mr. Raiya printed t-shirts with the image of Kem Ley and two quotes from him: “Wipe your tears and continue your journey” on the front and “Although you do nothing, you may still be victimized. It’s just a matter of time until it’s your turn” on the back. On July 8, 2019, Mr. Raiya posted on Facebook advertising the t-shirts and relaying taxi information for a commemoration event. 

On July 9, 2019, the day after Mr. Raiya posted on Facebook, two plainclothes policemen went to his house posing as customers and arrested him. They also arrested his wife, infant, sister, and brother-in-law and took them to the police station. Mr. Raiya’s relatives were released later that day after signing a document promising they would not undertake further action related to the alleged offense. 

On July 11, 2019, Mr. Raiya was charged with incitement to disrupt social order under Article 494 and Article 495 (entitled “incitement to commit a felony”) of Cambodia’s Penal Code, which provide for a sentence ranging from six months to two years’ imprisonment and a fine from one to four million riels. Article 4 of the Code stipulates that unless stated otherwise, intent is a requisite element of criminal offenses. Articles 494 and 495 set forth no explicit mens rea and thereby mandate proof of intent. 

Subsequent to the filing of charges, Mr. Raiya was transferred to Phnom Penh’s Correctional Center (CC1). On July 24, 2019, two weeks after Mr. Raiya’s initial arrest, the Phnom Penh Municipal Court of First Instance (Municipal Court) denied Mr. Raiya’s bail application and imposed pretrial detention. In August, the Phnom Penh Court of Appeals upheld the Municipal Court’s decision denying bail, and in November the Supreme Court of Cambodia affirmed. That same month, in conjunction with the mass release of political prisoners ahead of a report potentially damaging to an important EU trade deal, the Municipal Court set Mr. Raiya free pending trial. 

Mr. Raiya’s trial commenced at the Municipal Court on May 20, 2020 and consisted of a half-day hearing. Only one witness appeared before the court: a police officer who testified for the prosecution about a department report on the undercover operation against Mr. Raiya. Statements of other witnesses, including Mr. Raiya, were admitted into evidence in writing. On June 19, the Municipal Court found Mr. Raiya guilty of violating Articles 494 and 495 and imposed a two-year suspended sentence, with credit for time served. 

Mr. Raiya’s arrest, prosecution and conviction violated his right to freedom of expression, guaranteed by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party. The imparting of information on social media, including commercial advertising, is protected speech. The United Nations Human Rights Committee, charged with interpreting the ICCPR, has delineated requirements that States party to the ICCPR must fulfil to restrict speech protected by Article 19: crucially, even if a State party “invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and … a direct and immediate connection between the expression and the threat.” In Mr. Raiya’s case, as set forth below, the prosecution failed to demonstrate the threat that allegedly justified criminal proceedings and failed to demonstrate a connection between the expression and the threat. 

Meanwhile, the Municipal Court’s conviction of Mr. Raiya appears to have violated the presumption of innocence guaranteed by Article 14(2) of the ICCPR, under which the prosecution must prove guilt beyond a reasonable doubt. At trial, the prosecution failed to prove the elements of Articles 494 and 495. The prosecution, for example, presented no evidence to show Mr. Raiya intended to incite social unrest. 

Notwithstanding such gaps, the court convicted Mr. Raiya, resolving all doubts in the prosecution’s favor. This violated his right to be presumed innocent. The court likewise provided scant reasoning for its verdict, omitting explanation of why it had rejected defense arguments on freedom of expression and why it found that Mr. Raiya possessed the requisite intent. This violated Mr. Raiya’s right to appeal under Article 14(5) of the ICCPR, which includes the right to a duly reasoned decision. 

More generally, international bodies have made clear that imprisonment for speech offenses should be reserved for exceptionally grave acts, such as incitement to genocide and terrorism. Article 495’s broad criminalization of speech perceived as inciting social unrest, without further specification or procedural safeguards, extends beyond the enumerated exceptions. As demonstrated by Mr. Raiya’s case, the authorities have used the provision to prosecute individuals for protected speech, chilling public discourse and further narrowing the already cramped civic space in which former CNRP members such as Mr. Raiya operate.

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