The International League Against Arbitrary Detention urges the Government of Cambodia to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 5/2023 concerning Seng Chan Theary starting for the Government of Cambodia to immediately and unconditionally release Ms. Seng and to accord her an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Seng Chan Theary (Cambodia) : Opinion No. 5/2023.
ARRESTED AND DETAINED FOR NINE POLITICAL FACEBOOK POSTS
The Working Group noted that the only evidence supporting Ms. Seng's arrest and detention were screenshots from nine Facebook posts that she had made. Most of those posts referenced the date 9 November 2019 and the intended return to Cambodia of the leader of the Cambodia National Rescue Party on that date, and some criticised the Prime Minister. Moreover, her detention appeared to result solely from her long-term, high-profile pro-democracy activism.
The Working Group recalled that article 19 of the Covenant protects the right of individuals to criticise or openly and publicly evaluate their Government without fear of interference or punishment, and that the Special Rapporteur on the situation of human rights in Cambodia and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression have expressed concern at an escalating trend of suppression by the Government of Cambodia of dissenting opinions in what appears to be an attempt to intimidate or silence political opinion, noting in particular the use of criminal law to target free speech, both offline and online.
The Working Group concluded that Ms. Seng’s detention resulted from her exercise of her right to freedom of opinion, expression, peaceful assembly and association, thus being contrary to articles 19 and 20 of the Universal Declaration and articles 19, 21 and 22 of the Covenant.
As such, the Working Group concluded that Ms. Seng’s detention was arbitrary under category II.
CONVICTED TO 6 YEARS OF IMPRISONMENT UNDER A VAGUE LAW USED TO SILENCE OPPOSITION
Ms. Seng was convicted under articles 453 (conspiracy to commit treason) and 494 and 495 (incitement to create social disorder) of the Criminal Code. The Working Group found that Articles 494 and 495 of the Criminal Code are incompatible with article 19 (3) of the Covenant because they were impermissibly vague and overly broad and fail to distinguish between violent acts and the peaceful exercise of fundamental freedom, and to define critical elements of the crime such as “incitement” and “social order”.
Therefore, the Working Group found that in the absence of parameters to regulate their use, these provisions were susceptible to being arbitrarily applied, as has occurred in the case of Ms. Seng. The Working Group concluded that articles 494 and 495 of the Criminal Code were incompatible with article 11 (2) of the UDHR and article 15 (1) of the ICCPR and could not be considered as defined with sufficient precision, due to their vague and overly broad language.
SENTENCED IN MASS TRIAL WITH OVER 100 OTHER POLITICAL DISSIDENTS WITH FAIR TRIAL VIOLATIONS
The Working Group emphasised that no trial of Ms. Seng should have taken place. However, on 14 June 2022, Ms. Seng was convicted and sentenced to six years’ imprisonment.
Ms. Seng was convicted in a mass trial with over 100 Cambodia National Rescue Party members, which underscores the reported political motivation of the trials. The Working Group recalled that the Special Rapporteur on the situation of human rights in Cambodia reported in 2021 that since June 2019, more than 150 people associated with the Cambodia National Rescue Party had been arrested, detained and subjected to judicial proceedings. As the Working Group has emphasised, such mass trials are incompatible with the interests of justice and do not meet the standards of a fair trial, given that it is impossible during such proceedings to conduct a specific assessment of individual responsibility. For these reasons, the Working Group found a violation of the right to an independent and impartial tribunal as set out in article 10 of the Universal Declaration and article 14 (1) of the Covenant.
Moreover, the Working Group found numerous violations of due process and her right to a fair trial such as :
Ms Seng’s right under article 14 (3) (a) of the Covenant to be informed promptly and in detail of the nature and cause of the charges against her;
Ms Seng’s right to present an effective defence through counsel of her choosing under article 14 (3) (d) of the Covenant, since her international lawyer was banned from returning to Cambodia;
Ms. Seng’s right to contact with the outside world was denied, since she was transferred clandestinely to a prison 300 km away, which also hindered her right to receive visitors.
The Working Group concluded that the above-mentioned violations of the right to due process and a fair trial are of such gravity as to render Ms. Seng’s deprivation of liberty arbitrary under category III.
A DISCRIMINATORY PATTERN BECAUSE OF HER ACTIVITIES AS A HUMAN RIGHTS DEFENDER
The Working Group found that Ms. Seng has been targeted, prosecuted and imprisoned for her outspoken criticism of the Government and peaceful advocacy for political change and democratic principles. Moreover, Ms. Seng’s detention is situated within a wider crackdown on freedom of expression that appears designed to suppress dissent.
The Working Group recalled previous opinions on Cambodia, in which it noted that the law was increasingly being used to restrict the democratic space and highlighted the widespread concern within the international community about the application of criminal law in Cambodia to restrict the exercise of human rights. The Working Group is cognizant of widespread concern within the international community about the application of criminal law in Cambodia to restrict the exercise of human rights, and emphasised that when detention has resulted from the active exercise of civil and political rights, there is a strong presumption that the detention also constitutes a violation of international law on the grounds of discrimination based on political or other views.
For these reasons, the Working Group concluded that Ms. Seng was deprived of her liberty on discriminatory grounds, on the basis of her political or other opinion. Her detention therefore violated articles 2 and 7 of the Universal Declaration and articles 2 (1) and 26 of the Covenant, therefore being arbitrary under category V.
Last but not least, the Working Group noted with alarm the harassment and intimidation violence faced by Ms. Seng over several years preceding her arrest and the physical violence she faced during the trial process. In regards to her clandestine transfer to Preah Vihear Prison, 300 km away from her home and family, and the dismal living conditions there where she reportedly shares a 5-metre-square cell with 19 other female prisoners, the Working Group reminded Cambodia that all persons deprived of their liberty must be treated with humanity.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Seng Chan Theary was arbitrary and fell under categories II, III and V because the deprivation of liberty of Ms. Seng was in contravention of articles 2, 3, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 2, 9, 14, 15, 19, 21, 22 and 26 of the International Covenant on Civil and Political Rights.
The United Nations Working Group on Arbitrary Detention recommended that the Government of Cambodia take the steps necessary to remedy the situation of Ms. Seng without delay and bring it into conformity with the relevant international norms. The Working Group considered that, given all the circumstances of the case, the appropriate remedy would be her immediate release and an enforceable right to compensation and other reparation, in accordance with international law.
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