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Logo of Phnom Penh Post newspaper Phnom Penh Post - Is the evidence there in the Adhoc Case?

Khom Chandaraty (centre) enters Phnom Penh Municipal court last month with her attorney, Try Chhun (left), and Adhoc staffer Nay Vanda.
Khom Chandaraty (centre) enters Phnom Penh Municipal court last month with her attorney, Try Chhun (left), and Adhoc staffer Nay Vanda. Pha Lina

Is the evidence there in the Adhoc Case?

In the last week of April and the first of May, the Cambodian Anti-Corruption Unit (ACU) and a state prosecutor arrested and charged five people with bribing a witness under Article 548 of the Criminal Code.

As far as can be determined from information revealed by the ACU, the media and civil society groups, the legal case depends on whether statements made by Khom Chandaraty (also referred to Srey Mon by the media) to investigators are true.

Chandaraty was investigated in March for soliciting prostitution following public allegations that she is the mistress of Sokha, the deputy head of the political opposition. When first questioned by state investigators, Chandaraty denied having a sexual relationship with Sokha.

She later appeared before the state prosecutor in the Phnom Penh Municipal Court and claimed that she did have a sexual relationship with Sokha. In an open letter published after her statement in court, she accused multiple Adhoc staff, among other people, of persuading her to deny her relationship with the opposition leader when questioned by investigators.

The ACU arrested five people in connection with Chandaraty’s accusations in her open letter. Four of the five are Adhoc employees and one is a former Adhoc employee. The Adhoc employees have been charged with bribing of a witness, while the former Adhoc employee has been charged as an accomplice.

That the case appears at this time to be sustained on the incriminating statements of Chandaraty is remarkable. Chandaraty admitted to lying to investigators during questioning.

Then she offered her revised statement incriminating Adhoc staff in return for apparent immunity from the potential criminal charges against her. Despite Chandaraty’s admissions, the current prosecution appears to depend on Chandaraty’s subsequently given statement being true.

Fair trial standards in Cambodian law require a conviction be based on more than a statement equally likely to be true or false. A prosecution and conviction in this case would require substantial evidence supporting the truth of Chandaraty’s statement. But as yet, none has been made public. Evidence made public so far appears to contradict Chandaraty’s statements.

Chandaraty claims that Adhoc told her to lie, yet the defendants have publicly denied doing so, and no other witnesses have provided any evidence to the public supporting Chandaraty’s claims.

There appears no motive for Adhoc to offer her a bribe, yet there would be motive for Chandaraty to lie. Adhoc is generally a respected and well-known NGO, and it does not and has not publicly endorsed the CNRP or any of its members.

It appears that Adhoc receives no funding from the CNRP or Sokha, and none of its members appear to be associated with the CNRP or Sokha. It is unclear what, if anything, Adhoc stands to gain from protecting Sokha.

It is still unclear what Adhoc offered Chandaraty that would constitute a bribe. Considering the evidence publicly available, the bribery charge might be connected to $204 given by Adhoc to Chandaraty.

But even Chandaraty does not claim that she was offered a bribe. Chandaraty claimed that Adhoc employees told her to lie but not that any bribe was paid for the purpose of influencing her statements.

Further, Adhoc staff has said that small payments are provided to clients that request financial assistance during their representation by Adhoc.

If the $204 is routine financial assistance and not connected to Chandaraty’s statements, it is not a bribe. Evidence as to the routine nature of such payments has not been made public but could eliminate suspicion regarding such payment.

If the charges are to be proved using the publicly available evidence, it would mean that the accused Adhoc staff risked up to 10 years of imprisonment to protect a person they have no apparent connection with, and apparently used only $204 to accomplish this goal. Considering that Adhoc staff are legal aid providers and likely know the anti-corruption laws, this would be incredible.

At this time, the prosecutor and the ACU are not required to publicise evidence in their possession so it is unclear whether there is evidence not made public that supports Chandaraty’s statements.

However, even if there is no further evidence supporting Chandaraty’s statement, a just outcome may still be possible. The ACU and the state prosecutor are entitled to investigate allegations of corruption, and they appear to have done so in this case.

But if evidence uncovered by such investigation does not support the charge, the matter could easily be resolved with a statement from the prosecutor as follows: “After conducting thorough investigation into the allegations made by Ms Khom Chandaraty, we have concluded that the evidence does not support the charges of bribing a witness.”

Eric Arbizo is a legal adviser in Phnom Penh.



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GeorgeM's picture

The ACU should generally have no jurisdiction in such cases, which does not concern "corruption" in context of a public elected official.

See Anti-Corruption Law, Section 25 para 3 ("Article 25: Investigative power of Anti-corruption Unit")

'The Anti-corruption Unit cannot investigate other offences except corruption ones unless the unit is ordered by the court to do so.'

Neither the Criminal Code nor the Law on Suppression of Human Trafficking and Sexual Exploitation contain any provisions criminalising the act of a client visiting a prostitute in exchange of payment.

So even if we assume, for the sake of argument, that the concerned individual was, in fact, her client and was receiving sexual favours in exchange for payment, there can be no case made against him just on this basis.

To be objective, though, the court has only asked Mr Kem Sokha to remain present for conducting preliminary enquiries. This is provided for in the Code of Criminal Procedure (see Book 3, Title 3: Preliminary Inquiry). Article 114 u/B3, T3 of the Code of Criminal Procedure requires a summonsed individual to appear before the court. In the event of non-compliance with the first summons issued by a judicial police officer, the Royal Prosecutor may issue an order summonsing an individual to be present. Judicial police officers are empowered by such order to use police force to compel appearance by such person.

Refusal to appear when summonsed before a prosecuting authority is a misdemeanour, and may attract punishment as prescribed in the Criminal Code (see Article 538: "Refusal to appear"; prescribing imprisonment from one month to six months and a fine from one hundred thousand to one million riel).

In order for the judicial police to arrest Mr Kem Sokha, who possesses parliamentary immunity, they would need to have the justification that the crime was committed by him _in flagrante delicto_ (the constitutional exception for effecting arrests of sitting legislators) as per the provisions Book 3, Title 2 ("Enquiry of Flagrante Delicto cases").

Misdemeanours or felonies are qualified as flagrant (a) during the commission of the crime; and (b) immediately after the commission of a crime (see Article 86 of the Code of Criminal Procedure). Given that Mr Kem Sokha was not arrested immediately after he did not comply with the summons, the judicial police may not arrest him now, though he may be arrested and charged later once his immunity is revoked or his term as a sitting legislator expires.

What would happen were Mr Kem Sokha to appear on his own volition? He may be asked to bear witness in the case of Ms Chandaroty who stands accused of, inter alia, soliciting under the Law on Suppression of Human Trafficking and Sexual Exploitation (prescribed maximum punishment of six days' imprisonment and a fine of 10,000 riel). While charged defendants have the right to remain silent under the provisions of the Code of Criminal Procedure (also, other Cambodian laws and international law), witnesses do not appear to have any such right.

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