EXECUTIVE SUMMARY
In Cambodia, the criminal prosecution and conviction of Kak Sovannchhay, the autistic child of two opposition activists, violated a range of rights that Cambodia is obligated to protect under both domestic and international law. The American Bar Association Center for Human Rights monitored Sovannchhay’s trial on charges of incitement of social disorder and insult of a public official as part of the Clooney Foundation for Justice’s TrialWatch initiative. In particular, from the police to the prosecution to the presiding judges, the Cambodian authorities showed little regard for the protections Sovannchhay was due as a child with disabilities, including accommodations in detention and at trial and the promotion of rehabilitation over traditional criminal justice objectives.
Sovannchhay’s conviction further shows the lengths to which the Cambodian government will go to silence dissenting voices as well as the urgent need to reform Cambodia’s ‘incitement’ law, which has been a crucial tool in the authorities’ crackdown on civil society and which the UN Working Group on Arbitrary Detention recently found was inconsistent with international standards.
In June 2021, a then 16-year-old Sovannchhay was arrested and detained based on a Facebook post and private Telegram voice messages, wherein he criticized the government in response to someone bullying him and calling his father a traitor. Sovannchhay’s father, Kak Komphear, is a prominent opposition party leader who has been in prison for over two years and whose trial recently commenced. Sovannchhay was likewise detained pending trial, spending five months in total in prison. His trial consisted of one hearing on September 29, 2021. On November 1, 2021, Sovannchhay was convicted and sentenced to 8 months in prison. He was released soon thereafter given the five months he had already served and the court’s suspension of the remaining months of his sentence.
From arrest to conviction, the authorities’ handling of Sovannchhay’s case stripped him of the protections to which he was entitled as a child with disabilities in conflict with the law, rights Cambodia is obligated to respect as a party to the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Rights of a Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). Among other things, the authorities prosecuted Sovannchhay in the adult criminal justice system as opposed to employing diversion measures geared towards rehabilitation or trying him in a separate juvenile justice system, in violation of the ICCPR and CRC; failed to take his best interests into account in holding him in detention for five months, as is required for both children and individuals with disabilities under the CRC and CRPD; failed to provide him with specialized accommodations, services, or care in prison, as is required for children with disabilities under the CRC and CRPD; and prosecuted him without providing him with reasonable accommodations based on his age and disability so that he could effectively participate in his trial, as is required under the CRC, CRPD, and ICCPR.
Indeed, in its haste to convict, the court actively obstructed the provision of assistance to Sovannchhay by denying the defense’s request to call a medical expert who could testify about Sovannchhay’s lack of culpability given his developmental delays as well about his fitness to stand trial, including potential accommodations required. Absent any support, Sovannchhay struggled to answer questions in court. Nonetheless, the prosecutor declared that Sovannchhay was not affected by any disability and the court promptly convicted him, wholly ignoring the requirement under the CRC that justice actors prioritize rehabilitation for children who come into conflict with the law. In sum, the authorities’ discounting of Sovannchhay’s needs as a child with disabilities was in stark contravention to international human rights standards.
Moreover, Sovannchhay’s arrest, detention, and conviction for incitement and insult of a public official violated his right to freedom of expression, as guaranteed by the ICCPR. As a threshold matter, the law criminalizing incitement to social disorder is overly vague, affording the authorities wide discretion that is ripe for abuse. Correspondingly, the law criminalizing insult of a public official violates the right to freedom of expression on its face: public officials, including heads of state, are legitimately subject to criticism, and freedom of expression cannot be restricted based on subjective feelings of offensiveness. Consequently, given these laws’ inconsistency with freedom of expression standards, the case against Sovannchhay was invalid from the outset.
In addition to the flaws in the laws on their face, the criminal proceedings against Sovannchhay were neither necessary nor proportionate, as required by the right to freedom of expression. In line with necessity and proportionality requirements, only the gravest of speech offenses warrant criminal prosecutions and penalties. The State must further prove that there is an imminent threat posed by the speech at hand in order to proceed with a criminal prosecution. Sovannchhay’s private Telegram voice recordings and Facebook picture did not come close to the level of gravity necessary to initiate criminal proceedings. Moreover, the prosecution did not even attempt to explain the potential threat posed by Sovannchhay’s posts, either to social order or to a public official. Instead, the prosecution relied on the court to rubberstamp its vague warnings of unrest, as the court indeed proved more than willing to do.
While Sovannchhay’s appeal of his conviction has been rejected, international actors, such as the U.S. government and the European Union, should continue to press the Cambodian government to cease targeting government critics, to amend its incitement legislation, and to uphold the rights of children and persons with disabilities who come into conflict with the law.