As part of the Clooney Foundation for Justice’s TrialWatch initiative, the American Bar Association’s Center for Human Rights monitored Theary Seng’s trial for charges of incitement of social disorder and conspiracy. Ms. Seng should never have been put on trial. Given the lack of evidence against her and the broader context of a mass crackdown against government critics, Ms. Seng appears to have been prosecuted solely for exercising her right to free expression, including criticizing the ruling political party and supporting the main opposition party. Notably, the prosecution never put forth evidence that she had engaged in anything other than non-violent political speech. The proceedings against her were also marred by procedural irregularities and violations at all stages: her right to be informed of the charges against her, her right to counsel, her right to adequate facilities to prepare for a defense, her right to the presumption of innocence, and her right to an independent and impartial tribunal. In light of the above, Ms. Seng’s conviction is untenable, and her resulting detention is arbitrary under international law.
Ms. Seng is a Cambodian-American lawyer who emigrated to the United States from Cambodia as a child after her parents died at the hands of the Khmer Rouge. She subsequently returned to Cambodia to work on social and political issues. Specifically, Ms. Seng is a human rights lawyer who has advocated on behalf of victims of the Khmer Rouge and served as the founding director of CIVICUS: Center for Cambodian Civic Education. She is also an outspoken critic of Prime Minister Hun Sen’s government.
In August 2020, Ms. Seng was charged with conspiracy under Article 453 of the Cambodian Criminal Code and incitement of social disorder under Articles 494 and 495. She was tried alongside dozens of other co-accused persons, including opposition leader-in-exile Sam Rainsy. Her trial occurred in the context of other mass trials of former members of the banned opposition Cambodian National Rescue Party, supporters of Sam Rainsy, and critics of Prime Minister Hun Sen.
From the outset, the authorities repeatedly violated Ms. Seng’s fair trial rights. The charging documents in her case only mentioned her name as part of a list of accused persons and failed to identify any specific acts underlying the offenses she was alleged to have committed. This violated her right to notice of the charges against her, as guaranteed by the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is party. Ms. Seng’s right to counsel of her own choosing and her right to adequate facilities to prepare her defense were also violated when the court denied her legitimate requests to represent herself and correspondingly prevented her from obtaining the casefile against her, attempting to question her before she had accessed any materials regarding her alleged criminal acts. Furthermore, Ms. Seng’s conviction despite the complete lack of evidence regarding the offenses alleged – in which the prosecution failed to prove key elements of the charges, such as an agreement under Article 453 or intent to incite under Article 495 – violated her right to be presumed innocent and indicated that the court hearing her case was neither independent nor impartial.
In addition, the proceedings were a stark violation of Ms. Seng’s right to freedom of expression. While Cambodia has the right to protect its national security, under the ICCPR it must refrain from levying charges against government critics on the pretext of security. In this case, the evidence against Ms. Seng was based on nine Facebook posts on her personal account (either her own posts or posts reshared from Sam Rainsy’s page) that expressed her support for Sam Rainsy and his planned return to Cambodia, and criticized the government. These posts were protected exercises of Ms. Seng’s right to freedom of expression under the ICCPR. Indeed, given the numerous mass trials against critics of Prime Minister Hun Sen and his regime, Ms. Seng’s prosecution and conviction are but one of many ongoing attempts by the Cambodian government to suppress dissent.
Underscoring these violations, Article 495 of the Cambodian Criminal Code – under which Ms. Seng was prosecuted for incitement to social disorder – has been found by the UN Working Group on Arbitrary Detention to violate the ICCPR for being vague and overly broad, and for failing to distinguish between violent speech and peaceful exercise of fundamental rights.
The Appellate Court must immediately overturn Ms. Seng’s conviction and order her release from detention. More broadly, the State must stop targeting individuals for exercising their right to free expression and must amend Article 495 of the Criminal Code, which has been repeatedly used as a tool for repressing dissent.