INTRODUCTION

In Cambodia, the Judiciary guarantees and upholds impartiality and protects the rights and freedoms of the citizens. The Judiciary covers all lawsuits including administrative ones. The authority of the Judiciary is granted to the Supreme Court and to lower courts of all sectors and levels.
Judges and prosecutors both are magistrates. Only judges may adjudicate. Prosecutors are responsible for penal actions, which only they may initiate. They file indictments in court and in all other fora provided for in this text.

ORGANIZATION STRUCTURE AND APPOINTMENT

 
In Cambodia, provincial, municipal courts and military courts are lower adjudicating courts, and Appeals Court and Supreme Court are higher courts. Beside each lower adjudicate court there shall be a prosecutor, and a general prosecutor to each higher adjudicate court. The competence of the general prosecutor covers the entire territory of the State of Cambodia. The Supreme Council of the Magistracy makes proposals to the King on the appointment of judges and prosecutors to all courts.

PROSECUTORS TO PROVINCIAL AND MUNICIPAL COURTS

In each Provincial public prosecutor department there are one prosecutor and one deputy prosecutor. The prosecutor to the provincial or municipal court shall be equal in rank with the Deputy President of the People's Committee of the province or municipality. Deputy prosecutor to the provincial or municipal court shall be equal in rank with the Permanent member of the People's Committee of the province or municipality.

PROSECUTORS TO THE APPEALS COURT

At the Appeals Court, prosecution department is composed of a general prosecutor, a deputy general prosecutor and a prosecutor. The general prosecutors to the Appeals Court, shall consist of a General prosecutor, a deputy general prosecutor and prosecutors, who shall be appointed to perform function, transferred , promoted or demoted by a Kret, following the request of the Minister of Justice. General prosecutor to the Appeals Court shall be equal in rank with the minister. The Deputy prosecutor to the Appeals Court, shall be equal in rank with what of the deputy minister. Prosecutors to the Appeals Court, shall be equal in rank with the chiefs judge/ presidents of the courts of the provinces and municipalities.

 
PROSECUTORS TO THE SUPREME COURT

The general prosecutors to the Supreme Court, shall consist of a general prosecutor, a deputy general prosecutor to the Supreme Court and prosecutors. Deputy general prosecutor and prosecutors to the Supreme Court, shall be appointed to perform functions, transferred, promoted or demoted by a Kret, following request of the Minister of Justice upon there is approval from the general prosecutor. The general prosecutor to the Supreme Court shall be appointed, transferred, promoted and demoted by a kret, following a vote by the Parliament for electing among 3 judges who have been elected by their colleague judges. General prosecutor to the Supreme Court shall be equal in rank with the Deputy President of the Council of Ministers. Deputy prosecutor to the Supreme Court shall be equal in rank with the ministers. Prosecutors to the Supreme Court, shall be equal in rank with what of the judges of the Appeals Court and the prosecutors to the Appeals Court.

DUTIES

 

In principle, at the prosecution department, the deputy general prosecutor and prosecutor perform their duties on behalf and under the responsibilities of the prosecution department. In principle, at the prosecution department, the deputy general prosecutors perform their duties on behalf and under the responsibilities of the general prosecutor, whether or not in his/her presence.
At the municipal and provincial prosecution department, the deputy prosecutor performs his/her duties on behalf and under the responsibilities of the prosecutor, whether or not in his/her presence.

PROSECUTORS TO PROVINCIAL AND MUNICIPAL COURTS

Provincial and municipal courts shall have competence to proceed with trials and to open access for appeals in all the criminal, civil, commercial cases, and litigation of administrative or labor cases.
Provincial and municipal courts when proceed hearings, shall be headed by a judge, complemented by a prosecutor or a deputy prosecutor and a court clerk.
The provincial prosecutor has the duty:
•to receive the complaint and the denunciation related to the crime or the misdemeanor even though the complaint is from any person, from any officer of the judicial police or from any official competent for the penal action.
•to receive the report made by the officer of the judiciary police who ascertains crimes, misdemeanors or the minor offenses.
•to proceed to preparatory investigation by himself/herself in case where the offense is a crime or a flagrante delicto misdemeanor.
•to call out the public force for the performance of his/her duty.
The prosecutor has no duty to search for the minor offender but when the penal court judges on the minor offense, the prosecutor may ask for the punishment related to that minor offense.
When the prosecutor upon receiving a complaint, denunciation or report, shall immediately register or ask someone to register it in a registration book called "order register" which consists of different columns as follows:
•first column is for the case number and the date of the registration into the book
•second column is for the offender's surname and name
•third column is for the plaintiffs surname and name if there is any
•fourth column is for the nature, the date and the place of the offenses
•fifth column is for miscellaneous.
Once the complaint, denunciation or report have been received, and if the prosecutor thinks that it does not constitute a penal offense, he/she shall file that case without processing and with his remark written on that complaint denunciation or report and also on the order register. In that case, the prosecutor shall inform the plaintiff on his/her decision within a period not longer than two months starting from the date he/she received the complaint. The plaintiff may appeal his/her decision to the Appeals Court.
The decision to file without processing by the prosecutor, has no res judicata. This means the prosecutor shall inform the plaintiff on his/her decision, unless the prosecution expires due to the statute of limitation or due to the other cases provided by law.
If the complaint pertained to the crime or the misdemeanor, the prosecutor shall immediately open a judicial inquiry, this means, the prosecutor makes a charge called introductory requisition which indicates the offense in accordance with the law and the person presumed to be responsible for the offense and sends it to the judge.
In case of misdemeanor, the prosecutor may accuse the offender and send him/her directly to the penal court for judgment or proceed the same way as described in article 60 above.
The prosecutor accuses and sends the offender to the court for judgment when the file is completed and there are sufficient factors that constitute the offense.
The prosecutor has also the right to make additional inquiry before sending the case to the court. In this case, he/she may ask necessary information from the judiciary police officer. Once all the information is obtained, the prosecutor sends the case to the court for judgment that is based on the full knowledge of the facts.
In the case where the committed crime is flagrante delicto, and if the investigating judge did not receive the case, the prosecutor may issue order to the suspect to appear through arrest.
The prosecutor shall interrogate immediately that person. If that person is accompanied by a human right defender, the prosecutor shall interrogate him in the presence of his human right defender. The prosecutor may interrogate the witness who is present and issue an order to take temporary measures, in order to ensure the sufficiency of the evidence.
The prosecutor may search the criminal offender's house and confiscate the object produced in evidence necessary for finding the truth.
The prosecutor may interrogate any person who may provide useful information but may not order him/her to have witness or order to take an oath. The prosecutor has right to assign an expert to evaluate the object produced in evidence that the prosecutor thinks necessary.
The prosecutor has the right to forbid any person from leaving the scene of the crime. If the prohibition is not respected, the prosecutor may issue a requisition to detain that person for 24 hours.
Once the report on the place of the accident is completed, the prosecutor shall send immediately the file and the introductory requisition to the judge who will continue to gather some more information or reviewed all the documents if he/she feels there is a need. When the investigating judge receives the case and is present at the scene of the offense, the prosecutor or the judiciary police officer shall give the whole investigation process to the judge.
The prosecutor shall examine immediately whether or not the charge on the offender is sufficiently established. If the offender is detained and with proper send to him.
If the charge is related to a flagrante delicto offense punishable by imprisonment, the prosecutor interrogates the offender the following firstly:
•Identity card with the surname and name, age profession, the domicile place and date of birth of the offender
•Surname and name of the offender's parents
•Summary of the offender's biography especially on the past judiciary record.
After that, the prosecutor asks the questions on:
•The offense that is charged on the offender
•All circumstances related to the offense
The prosecutor shall make and sign the report written by a clerk.
This report shall also be signed by the offender. If the offender does not know how to sign the prosecutor shall mention it in the report and have the offender's to fingerprint.
Upon receiving a misdemeanor case, the presiding judge decides on the detention and asks to bring the accused for the next hearing. If the judge finds that the file is incomplete, he may postpone the hearing to a later date which is not longer than four months counting from the date of detention.
If the presiding judge thinks that the accused may be temporarily released, with or without bail, he/she shall decide on this issue before examining the merit. He/she will act the same way if the accused requests it in writing.
If the presiding judge thinks the case that he receives, does not constitute a flagrante delicto misdemeanor as determined in the accusation, he/she cancels this procedure and send it back to the public prosecutor for action in accordance with the law. The prosecutor issues an assumed order of for the investigation and send it to the investigating judge who shall continue the regulations as stated by the law.
The prosecutor shall apply the procedure directly to the court in case where the convicted person is liable to a punishment of imprisonment not more than one year as the maximum term, if not, the prosecutor shall send the case to the investigating prosecutor.

PROSECUTORS TO THE APPEALS COURT

The important role of the general prosecutor at the Appeals Court is to give his conclusion during the hearings of the Appeals Court and appeal to the Supreme Court against the judgment of the Appeals Court that he thinks rendered in error or in violation of law. In case the impediment due to sickness or other causes, the general prosecutor at the Appeals Court shall be substituted by the deputy general prosecutor who is senior among all of them if there are more than one deputy general prosecutors.
The Appeals Court may decide may on the prosecutor's appeal, all the accessory penalties that the judge of the first jurisdiction forgot to decide on. Nevertheless the prosecutor's appeal will have such effect if it is general.
If the prosecutor's appeal is restricted, the Appeals Court may decide, only within the limit determined by the appeal. The prosecutor's appeal will be considered as general, when the prosecutor appeals against too mild a sentence. Whatever the extent of the appeal effects, the appeal can only be applied to the prosecutor's appeal and may not have effect on the plaintiff's claim.

PROSECUTORS TO THE SUPREME COURT

The General Prosecutor pleads before the Supreme Court in the interest of the law, reviews the legality of indictments by provincial prosecutors, and organizes and supervises their work.
The Supreme Court shall have competence to proceed hearings on grievance complaints against judgments of the Appeals Court by considering only on erroneous of law but not of facts. But in the lawsuits where there is a n grievance complaint submitted, such court shall proceed a hearing in joint groups, by considering at the same time on both the erroneous of law as well as of facts.
Composition when in the hearing of the Supreme Court, shall consist of 5 magistrates, one of whom is president. In case when proceeding a hearing in joint groups the composition of this court shall consist of 9 judges, in which one of them shall be president. This above court's composition shall be complemented a general prosecutor or deputy general prosecutor or a prosecutor and a court clerk.

 

THE SUPREME COUNCIL OF MAGISTRACY

 

Referred to the article 113 and 115 of the constitution of the kingdom of Cambodia, it is to establish a Supreme Council of Magistracy for guaranteeing the independence of the judiciary, discipline for judges or prosecutors, and the good functioning of the adjudicate courts of the Kingdom of Cambodia.
The Supreme Council of Magistracy shall have composition as follows:
1- H.M. the King of Cambodia, as Chairman.
2- Minister of justice, as Member.
3- Chief of Supreme Court, as Member.
4- General Prosecutor to the Supreme Court, as Member.
5- Chief of the Appeal Court, as Member.
6- General Prosecutor to the Appeal Court, as Member.
7- Three Judges elected by the judges, as Member.
The Supreme Council of Magistracy shall have three (3) other substitute members who are elected by the judges of the whole country, for replacing elected members who are absent. All members incompatibility of function of the minister of justice, shall be replaced by a senior official from the ministry of justice.
The minister of justice shall convene a meeting, upon consultation with the chief of the Supreme Court and the Appeal Court.
The initiative for convening a meeting may also be raised by the chairman or by at least three (3) members.
The meeting of the Supreme Council of Magistracy shall not be considered as valid (quorum), unless attended by at least 7 members.
Decisions of the Supreme Council of Magistracy must be done with respect to the majority of the voices through secret votes. The Chairman of the meeting shall not involve in casting the vote. But in case when upon the vote there is equal number of voices, the chairman of the meeting shall then make a decision thereof.
It is necessary to have consultation with the Supreme Council of Magistracy to gain its suggestion and recommendation on the proposed bill or draft of laws relevant to the organization of the judiciary field and the functioning of this field.
In urgent case, such above stated delay shall be decreased too only 10 days.
The Supreme Council of Magistracy shall decide and raise its recommendation of the matters of promotions of steps and ranks (grades) of all the judges and prosecutors.
The Minister of Justice shall prepare and submit the drafts of Decrees to His Majesty the King concerning this above matters
Concerning the matter of disciplinary actions to be taken against the judges and prosecutors, the Supreme Council of Magistracy shall meet in the form of a Disciplinary Council, and under the chairmanship of the Chief of the Supreme Court or the General Prosecutor to the Supreme Court, depending on whether such case of disciplinary action is to be dealt with the judge or with the prosecutor.
In such above cases, His Majesty the King and the Minister of Justice will not attend the meetings.
When any elected member is absent, shall be replaced by a substitute member.
In case when disciplinary action is to be taken against the chief of the Supreme Court or the General prosecutor to the Supreme Court, the Disciplinary Council shall be presided by His Majesty the King or his royal representative.
All the documents related to the concerned person, who is supposed to receive the disciplinary sanction, shall be sent to all the members of the Disciplinary Council, for examining thereof, at least 15 days before the meeting will take place.
The president of the Disciplinary Council shall indicate the date for the Meeting of the Council and convene such meeting.
The decision of the Disciplinary Council must be done the same as what of the Supreme Council of Magistracy.
The decision of the Disciplinary Council must be submitted to the Supreme Council of Magistracy for approval. This decision shall not open way for any appeal.
Members of the Supreme Council of Magistracy and all whom have attended the meeting must maintain secrecy of the meeting.
The Supreme Council of Magistracy shall assign one of the judges and one court clerk to assure function as secretaries, who shall have duties to make up the reports, minutes, to keep documents and to fulfill other works
The Supreme Council of Magistracy shall be entitled to receive the remuneration for the meeting at hourly rate, which will be specified by a common Proclamation (Prokas) of the Minister of Justice and the Minister of Finance.
The expenses for the functioning of the Supreme Council of Magistracy shall be planned in the budget of the Ministry of Justice.