In late 2020, the American Bar Association (ABA) Center for Human Rights monitored the criminal trial of journalist Ros Sokhet in Cambodia as part of the Clooney Foundation for Justice’s TrialWatch initiative. Mr. Sokhet was prosecuted and convicted for “incitement to disrupt social order.” The case against him stemmed from Facebook posts in which he criticized high profile political figures: among others, Prime Minister Hun Sen. The posts did not call for violence or acts of disorder and the prosecution did not adduce any evidence to show the posts would be understood to call for social disorder, that the posts might have the effect of creating social disorder, or that Mr. Sokhet had intended such effects. Consequently, the prosecution of Mr. Sokhet contravened his right to freedom of expression in addition to violating other rights, such as his right to the presumption of innocence - detailed below.
Mr. Sokhet is a Cambodian journalist known for his criticism of the ruling party. He is the founder of the independent news outlet, Khmer Nation. Between May and June 2020, Mr. Sokhet made a series of posts for Khmer Nation on his Facebook page. Among other things, the posts denounced the Telecommunications Minister for allegedly failing to confront corruption; criticized Prime Minister Hun Sen for promoting his son as his successor, for allegedly ordering the confiscation of the property of Cambodians struggling to pay back bank loans, and for allegedly targeting journalists; and accused various government officials of committing crimes. On June 25, Mr. Sokhet was arrested by police in Kampong Chhnang province and transferred to the Phnom Penh Municipal Police’s Cybercrime Bureau. According to the warrant for his arrest, Mr. Sokhet was alleged to have committed “incitement to provoke serious chaos in social security” for his Facebook comments about Prime Minister Hun Sen. Mr. Sokhet was interrogated on June 26 and transferred to pre-trial detention at Prey Sar Prison thereafter.
On June 28, Mr. Sokhet was charged with “incitement to disrupt social order” under Articles 494 and 495 of Cambodia’s Criminal Code. The charges were based not only on the Facebook posts about Hun Sen but also on the other posts mentioned above. Article 494 and Article 495 (entitled “incitement to commit a felony”) 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 thus the general requirements for proving intent apply.
Mr. Sokhet’s trial commenced before the Phnom Penh Municipal Court on October 27, 2020 and consisted of a half-day hearing. Two witnesses appeared before the court: Mr. Sokhet and a police officer who testified for the prosecution about the Cybercrime Bureau’s investigation into Mr. Sokhet’s Facebook posts. The police officer stated that although the Bureau had not received any complaints about the posts, it had determined that the posts constituted incitement to disrupt social order. The officer provided no further details. Mr. Sokhet testified that he never intended to incite disorder and that his primary aim was to generate traffic to his Facebook page. On November 11, the Municipal Court found Mr. Sokhet guilty of violating Articles 494 and 495 and imposed an 18-month sentence, with credit for time served.
Mr. Sokhet’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 expression of opinions about public figures 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. Sokhet’s case, even assuming the goal of the proceedings was to protect public order, the prosecution did not put forth any evidence concerning the potential for unrest, failing to demonstrate “in specific and individualized fashion the precise nature of the threat” and failing to demonstrate a “direct and immediate” connection between Mr. Sokhet’s posts and the threat.
Meanwhile, the Municipal Court’s conviction of Mr. Sokhet 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. Sokhet intended to incite social unrest. Notwithstanding such gaps, the court convicted Mr. Sokhet, 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, neglecting key defense arguments. This violated Mr. Sokhet’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, is inconsistent with international human rights standards.