During the performance of their duties, all public authorities or officers who learn about a felony or misdemeanor will immediately report this incident to the prosecutor or the judicial police officers by forwarding all information, minutes, records and evidences relating to that offense (Article 42 of the Criminal Procedure Code). Also, the court has the right to take additional measures including ordering the police to act if the court thinks it is necessary to protect or provide the safety, health and welfare of the victims when issuing the protective orders (Article 18 of DV Law).
If the accused is put in police custody, where the period of 24 hours from the starting of the police custody has lapsed, the detainee (accused) may request to talk with a lawyer or other person they select to speak to, provided that the selected person is not involved in the offense (Article 98 of the Criminal Procedure Code).
When an accused person appears for the first time, the investigating judge will inform the accused of their rights to choose a lawyer or to have a lawyer appointed according to the Law on the Statute of Lawyers. An accused minor will have a lawyer at all times. If the accused minor does not choose a lawyer, a lawyer will be appointed according to the conditions of the Law on the Statute of Lawyers (Article 143 of Criminal Procedure Code).
The proof or evidence is the means by which any alleged fact may be established or proved wrong. To enable prosecution of violence against women and children it is of the utmost importance to have evidence, since these cases mostly depend on the statements of the victim(s) and suspect(s).
The Criminal Procedure Code states that any decision of the court will be based only on the evidence that it has in the file or that has been presented at the hearing. According to law and regulations, for criminal cases, there are strict requirements for evidence and documents, including but not limited to records on investigation and inquiry, interview records, records of police custody, etc.
Article 351 of Criminal Procedure Code explicitly states "beyond reasonable doubts shall be the benefits of the accused." Therefore, this principle of "beyond reasonable doubt" has applied in the standard of proof in all criminal cases including the domestic violence matters. The standard of proof is definitely stricter than the requirements for ex parte orders or even regular protection orders.
Regarding sexual violence, the Criminal (New Penal) Code of Cambodia explicitly operates with the absence of consent in respect of indecent assault cases. The definition of rape provides that it should be committed by violence, coercion, threat or by being opportunistic (Article 239 of the Criminal (New Penal) Code of Cambodia). This provides for a possible defense of the accused by referring to the consent of the victim (that must be 15 years or older to be able to consent). According to information from open sources, the court may tend to recognize implied consent if a victim did not actively resist the crime.[16]
Please see Section 5.2.1 entitled "Is proof required by any legal means?"
Affirmative defenses are available to the accused. Self-defense is a basic right to the accused (under certain conditions provided in the law). Apart from that, the Cambodian Criminal (New Penal) Code excludes or diminishes criminal responsibility in the case of the accused's mental disorder (insanity), authorization by law or competent authority, defense of necessity, and effect of irresistible force or compulsion. However, if the mental disorder is a result of the consumption of alcohol, drugs or prohibited substances, the accused will still be criminally responsible.
In cases of domestic violence that have been repeated and are in violation of the penal law, the courts will charge the perpetrators in accordance with the penal procedures, even if there is a request not to proceed from the victims again.
False accusations are punishable for the victim, as any disclosure of false information with a view to inducing a belief that a destruction, defacement or damage dangerous to other persons will be carried out will be punishable by imprisonment according to Criminal (New Penal) Code.
Please see Section 5.3.1 entitled "Are affirmative defenses available to the accused?"
Please see Section 5.3.2 entitled "Are affirmative defenses available to the accused?"
All witnesses will swear that they will tell the truth according to their belief or religion, except the family related witnesses and children under 14 years of age.
The prosecutor, lawyers and all parties can raise an objection to a witness if they find that it is not conducive to ascertaining the truth. In cases of objection, the chair of the hearing will decide discretionarily whether to listen to the witness.
According to DV Law, the complaint to ask for the protection order from the courts can be made by any person who has learned about the incident of domestic violence if the victims are children. Moreover, in cases where the violence is related to children, the authorities in charge who have the role to serve the interests and protect the welfare of the children will be responsible for any follow ups. In severe cases, the authorities in charge will file a case to the courts. Any responsible person assigned by the courts, including the prosecutors, will take charge of doing the follow up on the situation of the children and make a report about this situation to the courts. The courts can grant a mandate to the institutions in charge to seek assistance and support for the victims of domestic violence as well as to protect the safety and welfare of the victims when the courts are handling the proceedings.
The DV Law is silent regarding the specific excuses of a witness from testifying in a domestic violence case, and are there no special means of protection to children testifying, apart from the general instruction for judges to act in the best interests of the children.
Any person who has been subpoenaed by the investigating judge will appear. In the case of refusal to appear, the investigating judge can request that the public bodies force a witness to appear. The investigating judge will issue an order to appear. This order will include the identity of the witness and will be dated and signed by the investigating judge with a stamp. A charging witness who has not yet been questioned by the accused person will also be summoned to attend the hearing.
There are few laws protecting witnesses, including children as witnesses, in Cambodia.
Please see Section 5.4.1 entitled "What is a witness's duty to testify honestly and completely?"
Please see Section 5.4.1 entitled "What is a witness's duty to testify honestly and completely?"
Please see Section 5.4.1 entitled "What is a witness's duty to testify honestly and completely?"
Please see Section 5.4.1 entitled "What is a witness's duty to testify honestly and completely?"
For first-time domestic violence offenses, the authorities in charge can issue the administrative decisions and take temporary measures in accordance with existing laws to protect the victims. Along with the intervention by the authorities in charge, the victims can also file a complaint to provincial/municipal courts asking for a protection order, which is a civil measure.
In instances of a violation of an existing order for protection, the authorities in charge can arrest the perpetrator who is violating the courts' orders without an authorized warrant from the courts (Article 18 of DV Law).
If found guilty, the court will sentence the accused person in accordance with the law. In addition to incarceration and liberty restrictions, the court can decide any civil remedies. The court will judge the acceptability of the civil party and make a decision on the lawsuit of the civil party against the accused person and the civil responsible person.
Please see Section 5.5.1 entitled "What are the penalties and sentencing laws for first-time domestic violence offenses?"