Journalists

In mid-2019, the American Bar Association (ABA) Center for Human Rights monitored the criminal trial of former Radio Free Asia (RFA) journalists Yeang Sothearin and Uon Chhin in Cambodia as part of the Clooney Foundation for Justice’s TrialWatch initiative. The process was marred by serious fair trial violations and constituted a violation of the defendants’ right to freedom of expression. The court ultimately reopened the investigation instead of reaching a verdict. Due to the severe ramifications for the defendants and in anticipation of the defendants’ appeal, the Center is releasing this report now as opposed to awaiting final disposition of the case, which could be years away.

Mr. Sothearin and Mr. Chhin worked for RFA in Phnom Penh until September 2017, when the station terminated its operations, "citing ‘unprecedented’ government intimidation of the media."1 RFA is a private, nonprofit corporation funded by the United States Agency for Global Media (USAGM) but protected by a legislative firewall that bars U.S. government interference.2

In November 2017, Mr. Chhin and Mr. Sothearin were charged with espionage, an offense that carries a sentence of up to 15 years in prison. Specifically, the authorities alleged that following RFA’s departure from Cambodia, Mr. Chhin and Mr. Sothearin continued to share information about local events with RFA and installed broadcasting equipment in a hotel in Phnom Penh to send news reports to RFA’s Washington D.C. headquarters. Both Mr. Chhin and Mr. Sothearin acknowledged having shared publicly available information about local events with RFA. With respect to the alleged broadcast studio, Mr. Chhin claimed that the equipment was intended for his new karaoke business. The defendants denied having committed espionage or undermined national security in any way.

Following their arrests, Mr. Chhin and Mr. Sothearin spent approximately 9 months in pretrial detention. During this period, the government additionally charged both men with producing pornography.3 Because the hearings on the pornography charge were closed to the public, this report addresses only the charge of espionage.

The pretrial stage of the proceedings was plagued by significant due process abuses, including violations of the right to be informed of the reasons for arrest, the right to communicate with counsel, and the prohibition against cruel, inhuman, or degrading treatment. Further, the detention of Mr. Chhin and Mr. Sothearin was arbitrary. The justifications provided for imposing detention - that the journalists posed a flight risk and threatened public order - were inadequately supported. The evidence suggests that the men were actually detained on the basis of their work for RFA, which entailed reporting critical of the government.

The trial itself was marked by fair trial violations.

First, the defendants’ right to be informed of the factual basis of the charges against them was violated. At trial, the prosecution introduced evidence regarding Mr. Chhin’s delivery of a hard drive to the U.S. embassy in Phnom Penh at the behest of his boss at RFA. However, according to defense counsel, information regarding the hard drive was not included in the criminal complaint or the investigating judge’s indictment.4

Second, the court’s conduct evinced bias, as it appeared to improperly promote the interests of the prosecution over the interests of the defense. Notably, the court limited its questions to those favorable to the prosecution’s theory of the case and failed to pursue inquiries into the gaps and inconsistencies revealed in documents and witness testimony. In addition, the court permitted a junior police officer to repeatedly whisper to a senior police officer testifying for the prosecution. This allowance demonstrated partiality and likewise implicated the defense’s right to call and examine witnesses. The prosecution’s witnesses - who, as evidenced by the coaching of the senior police officer, were ill-equipped to speak to the facts of the case - relied almost entirely on out-of-court statements by individuals who were not made available for the defense to cross-examine.

Third, the evidence put forth by the prosecution, as evaluated by a review of court documents and the prosecution’s presentation at trial, failed to prove that the defendants had committed espionage. The espionage provision under which the accused were charged is Article 445 of the Cambodian criminal code, which proscribes providing or making accessible to a foreign state or its agents information that undermines the national defense. At no point, however, did the prosecution attempt to explain the impact of any alleged transmissions on Cambodia’s national security, or address which foreign state - or agents thereof - was involved.5 Despite the prosecution’s failure to meet its burden, the court refused to acquit the defendants, instead reopening the investigation. Given the lack of evidence against the defendants, this decision was inconsistent with the presumption of innocence.

Fourth, the proceedings against Mr. Chhin and Mr. Sothearin contravened their right to freedom of expression. There are clear indicia - including the insufficiency of the evidence, statements made by the Cambodian authorities, and the government’s reported crackdown on independent media - that the aim of the case was to silence the free press.

Moreover, the prosecution never identified any information disclosed by the defendants excepting the aforementioned publicly available stories, which concerned protests and the closure of RFA’s office in Phnom Penh. This information falls well within the category of protected speech. Sharing such information with contacts in other countries, the defendants’ supposed "crime", is standard practice for journalists. The trial thus signals to journalists - and Cambodian society more broadly - that communications with foreign contacts, however innocuous, can result in arrest, jail time, smear campaigns, and job insecurity. The implications for press freedom and freedom of expression are troubling. 

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1. Voice of America, "2 Former Radio Free Asia Journalists on Trial in Cambodia", August 9, 2019. Available at https://www.voanews.com/press-freedom/2-former-radio-free-asia-journalists-trial-cambodia. See also State Department, "2018 Country Reports on Human Rights Practices: Cambodia", March 13, 2019, pg. 12. Available at https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/cambodia/ (discussing larger government crackdown on independent media).

2. Radio Free Asia, "About Radio Free Asia". Available at https://www.rfa.org/about/.

3. It is worth mentioning that the charge was not one of child pornography and that recent news reports concerning other Cambodian "pornography cases" show that such accusations can be very vague and may not involve conduct that would generally be regarded as criminal in other criminal justice systems. See BBC, "Cambodia: Briton given jail sentence over pornography", March 20, 2018. Available at https://www.bbc.com/news/world-asia-43469936.

4. Counsel relayed that he could not share either document with the Center due to regulations regarding ongoing investigations.

5. While the prosecution did not name a foreign state or agents, it is clear from the court’s decision to reopen the investigation that the theory is the United States.

In mid-2019, the American Bar Association (ABA) Center for Human Rights monitored the criminal trial of former Radio Free Asia (RFA) journalists Yeang Sothearin and Uon Chhin in Cambodia as part of the Clooney Foundation for Justice’s TrialWatch initiative. The process was marred by serious fair trial violations and constituted a violation of the defendants’ right to freedom of expression. The court ultimately reopened the investigation instead of reaching a verdict. Due to the severe ramifications for the defendants and in anticipation of the defendants’ appeal, the Center is releasing this report now as opposed to awaiting final disposition of the case, which could be years away.

Mr. Sothearin and Mr. Chhin worked for RFA in Phnom Penh until September 2017, when the station terminated its operations, "citing ‘unprecedented’ government intimidation of the media."1 RFA is a private, nonprofit corporation funded by the United States Agency for Global Media (USAGM) but protected by a legislative firewall that bars U.S. government interference.2

In November 2017, Mr. Chhin and Mr. Sothearin were charged with espionage, an offense that carries a sentence of up to 15 years in prison. Specifically, the authorities alleged that following RFA’s departure from Cambodia, Mr. Chhin and Mr. Sothearin continued to share information about local events with RFA and installed broadcasting equipment in a hotel in Phnom Penh to send news reports to RFA’s Washington D.C. headquarters. Both Mr. Chhin and Mr. Sothearin acknowledged having shared publicly available information about local events with RFA. With respect to the alleged broadcast studio, Mr. Chhin claimed that the equipment was intended for his new karaoke business. The defendants denied having committed espionage or undermined national security in any way.

Following their arrests, Mr. Chhin and Mr. Sothearin spent approximately 9 months in pretrial detention. During this period, the government additionally charged both men with producing pornography.3 Because the hearings on the pornography charge were closed to the public, this report addresses only the charge of espionage.

The pretrial stage of the proceedings was plagued by significant due process abuses, including violations of the right to be informed of the reasons for arrest, the right to communicate with counsel, and the prohibition against cruel, inhuman, or degrading treatment. Further, the detention of Mr. Chhin and Mr. Sothearin was arbitrary. The justifications provided for imposing detention - that the journalists posed a flight risk and threatened public order - were inadequately supported. The evidence suggests that the men were actually detained on the basis of their work for RFA, which entailed reporting critical of the government.

The trial itself was marked by fair trial violations.

First, the defendants’ right to be informed of the factual basis of the charges against them was violated. At trial, the prosecution introduced evidence regarding Mr. Chhin’s delivery of a hard drive to the U.S. embassy in Phnom Penh at the behest of his boss at RFA. However, according to defense counsel, information regarding the hard drive was not included in the criminal complaint or the investigating judge’s indictment.4

Second, the court’s conduct evinced bias, as it appeared to improperly promote the interests of the prosecution over the interests of the defense. Notably, the court limited its questions to those favorable to the prosecution’s theory of the case and failed to pursue inquiries into the gaps and inconsistencies revealed in documents and witness testimony. In addition, the court permitted a junior police officer to repeatedly whisper to a senior police officer testifying for the prosecution. This allowance demonstrated partiality and likewise implicated the defense’s right to call and examine witnesses. The prosecution’s witnesses - who, as evidenced by the coaching of the senior police officer, were ill-equipped to speak to the facts of the case - relied almost entirely on out-of-court statements by individuals who were not made available for the defense to cross-examine.

Third, the evidence put forth by the prosecution, as evaluated by a review of court documents and the prosecution’s presentation at trial, failed to prove that the defendants had committed espionage. The espionage provision under which the accused were charged is Article 445 of the Cambodian criminal code, which proscribes providing or making accessible to a foreign state or its agents information that undermines the national defense. At no point, however, did the prosecution attempt to explain the impact of any alleged transmissions on Cambodia’s national security, or address which foreign state - or agents thereof - was involved.5 Despite the prosecution’s failure to meet its burden, the court refused to acquit the defendants, instead reopening the investigation. Given the lack of evidence against the defendants, this decision was inconsistent with the presumption of innocence.

Fourth, the proceedings against Mr. Chhin and Mr. Sothearin contravened their right to freedom of expression. There are clear indicia - including the insufficiency of the evidence, statements made by the Cambodian authorities, and the government’s reported crackdown on independent media - that the aim of the case was to silence the free press.

Moreover, the prosecution never identified any information disclosed by the defendants excepting the aforementioned publicly available stories, which concerned protests and the closure of RFA’s office in Phnom Penh. This information falls well within the category of protected speech. Sharing such information with contacts in other countries, the defendants’ supposed "crime", is standard practice for journalists. The trial thus signals to journalists - and Cambodian society more broadly - that communications with foreign contacts, however innocuous, can result in arrest, jail time, smear campaigns, and job insecurity. The implications for press freedom and freedom of expression are troubling. 

View Full Report

1. Voice of America, "2 Former Radio Free Asia Journalists on Trial in Cambodia", August 9, 2019. Available at https://www.voanews.com/press-freedom/2-former-radio-free-asia-journalists-trial-cambodia. See also State Department, "2018 Country Reports on Human Rights Practices: Cambodia", March 13, 2019, pg. 12. Available at https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/cambodia/ (discussing larger government crackdown on independent media).

2. Radio Free Asia, "About Radio Free Asia". Available at https://www.rfa.org/about/.

3. It is worth mentioning that the charge was not one of child pornography and that recent news reports concerning other Cambodian "pornography cases" show that such accusations can be very vague and may not involve conduct that would generally be regarded as criminal in other criminal justice systems. See BBC, "Cambodia: Briton given jail sentence over pornography", March 20, 2018. Available at https://www.bbc.com/news/world-asia-43469936.

4. Counsel relayed that he could not share either document with the Center due to regulations regarding ongoing investigations.

5. While the prosecution did not name a foreign state or agents, it is clear from the court’s decision to reopen the investigation that the theory is the United States.

In mid-2019, the American Bar Association (ABA) Center for Human Rights monitored the criminal trial of former Radio Free Asia (RFA) journalists Yeang Sothearin and Uon Chhin in Cambodia as part of the Clooney Foundation for Justice’s TrialWatch initiative. The process was marred by serious fair trial violations and constituted a violation of the defendants’ right to freedom of expression. The court ultimately reopened the investigation instead of reaching a verdict. Due to the severe ramifications for the defendants and in anticipation of the defendants’ appeal, the Center is releasing this report now as opposed to awaiting final disposition of the case, which could be years away.

Mr. Sothearin and Mr. Chhin worked for RFA in Phnom Penh until September 2017, when the station terminated its operations, "citing ‘unprecedented’ government intimidation of the media."1 RFA is a private, nonprofit corporation funded by the United States Agency for Global Media (USAGM) but protected by a legislative firewall that bars U.S. government interference.2

In November 2017, Mr. Chhin and Mr. Sothearin were charged with espionage, an offense that carries a sentence of up to 15 years in prison. Specifically, the authorities alleged that following RFA’s departure from Cambodia, Mr. Chhin and Mr. Sothearin continued to share information about local events with RFA and installed broadcasting equipment in a hotel in Phnom Penh to send news reports to RFA’s Washington D.C. headquarters. Both Mr. Chhin and Mr. Sothearin acknowledged having shared publicly available information about local events with RFA. With respect to the alleged broadcast studio, Mr. Chhin claimed that the equipment was intended for his new karaoke business. The defendants denied having committed espionage or undermined national security in any way.

Following their arrests, Mr. Chhin and Mr. Sothearin spent approximately 9 months in pretrial detention. During this period, the government additionally charged both men with producing pornography.3 Because the hearings on the pornography charge were closed to the public, this report addresses only the charge of espionage.

The pretrial stage of the proceedings was plagued by significant due process abuses, including violations of the right to be informed of the reasons for arrest, the right to communicate with counsel, and the prohibition against cruel, inhuman, or degrading treatment. Further, the detention of Mr. Chhin and Mr. Sothearin was arbitrary. The justifications provided for imposing detention - that the journalists posed a flight risk and threatened public order - were inadequately supported. The evidence suggests that the men were actually detained on the basis of their work for RFA, which entailed reporting critical of the government.

The trial itself was marked by fair trial violations.

First, the defendants’ right to be informed of the factual basis of the charges against them was violated. At trial, the prosecution introduced evidence regarding Mr. Chhin’s delivery of a hard drive to the U.S. embassy in Phnom Penh at the behest of his boss at RFA. However, according to defense counsel, information regarding the hard drive was not included in the criminal complaint or the investigating judge’s indictment.4

Second, the court’s conduct evinced bias, as it appeared to improperly promote the interests of the prosecution over the interests of the defense. Notably, the court limited its questions to those favorable to the prosecution’s theory of the case and failed to pursue inquiries into the gaps and inconsistencies revealed in documents and witness testimony. In addition, the court permitted a junior police officer to repeatedly whisper to a senior police officer testifying for the prosecution. This allowance demonstrated partiality and likewise implicated the defense’s right to call and examine witnesses. The prosecution’s witnesses - who, as evidenced by the coaching of the senior police officer, were ill-equipped to speak to the facts of the case - relied almost entirely on out-of-court statements by individuals who were not made available for the defense to cross-examine.

Third, the evidence put forth by the prosecution, as evaluated by a review of court documents and the prosecution’s presentation at trial, failed to prove that the defendants had committed espionage. The espionage provision under which the accused were charged is Article 445 of the Cambodian criminal code, which proscribes providing or making accessible to a foreign state or its agents information that undermines the national defense. At no point, however, did the prosecution attempt to explain the impact of any alleged transmissions on Cambodia’s national security, or address which foreign state - or agents thereof - was involved.5 Despite the prosecution’s failure to meet its burden, the court refused to acquit the defendants, instead reopening the investigation. Given the lack of evidence against the defendants, this decision was inconsistent with the presumption of innocence.

Fourth, the proceedings against Mr. Chhin and Mr. Sothearin contravened their right to freedom of expression. There are clear indicia - including the insufficiency of the evidence, statements made by the Cambodian authorities, and the government’s reported crackdown on independent media - that the aim of the case was to silence the free press.

Moreover, the prosecution never identified any information disclosed by the defendants excepting the aforementioned publicly available stories, which concerned protests and the closure of RFA’s office in Phnom Penh. This information falls well within the category of protected speech. Sharing such information with contacts in other countries, the defendants’ supposed "crime", is standard practice for journalists. The trial thus signals to journalists - and Cambodian society more broadly - that communications with foreign contacts, however innocuous, can result in arrest, jail time, smear campaigns, and job insecurity. The implications for press freedom and freedom of expression are troubling. 

View Full Report

1. Voice of America, "2 Former Radio Free Asia Journalists on Trial in Cambodia", August 9, 2019. Available at https://www.voanews.com/press-freedom/2-former-radio-free-asia-journalists-trial-cambodia. See also State Department, "2018 Country Reports on Human Rights Practices: Cambodia", March 13, 2019, pg. 12. Available at https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/cambodia/ (discussing larger government crackdown on independent media).

2. Radio Free Asia, "About Radio Free Asia". Available at https://www.rfa.org/about/.

3. It is worth mentioning that the charge was not one of child pornography and that recent news reports concerning other Cambodian "pornography cases" show that such accusations can be very vague and may not involve conduct that would generally be regarded as criminal in other criminal justice systems. See BBC, "Cambodia: Briton given jail sentence over pornography", March 20, 2018. Available at https://www.bbc.com/news/world-asia-43469936.

4. Counsel relayed that he could not share either document with the Center due to regulations regarding ongoing investigations.

5. While the prosecution did not name a foreign state or agents, it is clear from the court’s decision to reopen the investigation that the theory is the United States.