Informe provisional - Informe núm. 405, Marzo 2024

1. 208. The Committee has already examined the substance of this case (submitted in January 2004) on numerous occasions since June 2005, and most recently at its October–November 2022 meeting where it issued an interim report, approved by the Governing Body at its 346th Session [see 400th Report, paras 206–221]. 
2. 209. The Committee, by virtue of its authority as set out in paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, invited the Government to come before it to provide information on the steps taken in relation to the pending matters. The Government provided information in a written communication dated 28 October 2023 and made an oral presentation before the Committee during its October– November 2023 meeting.
3. 210. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 211. In its previous examination of the case, while deeply deploring the fact that, despite the time that had elapsed since it last examined the case, the Government had not provided any observation, the Committee made the following recommendations [see 400th Report, para. 221]:
   • (a) The Committee must once again firmly urge the Government to take all necessary measures to expedite the process of investigation into the murder of trade union leader Chea Vichea, and to keep the Committee duly informed of any concrete action in this regard.
   • (b) The Committee requests the Government to provide a copy of both the first instance court decision and the court decision releasing Chan Sophonn in order to enable the Committee to consider the interlinkages between the trade union activities of Hy Vuthy, violence in the country at the time of his murder, the efforts made to investigate the matter and the degree of impunity in the country. The Committee urges the Government to provide any further information available about the investigation into the circumstances of the murder of Hy Vuthy and its outcome which led to the conviction of Phal Vannak. The Committee also requests the Government to provide any further information in relation to the situation of Phal Vannak.
   • (c) In the absence of information from the Government, the Committee is bound to, once again, urge the Government to indicate whether a full and independent investigation into the circumstances of the murder of Ros Sovannareth was carried out in order to bring all relevant information before the courts and, if so, to provide to the Committee details on its outcome.
   • (d) In the absence of information, the Committee again firmly urges the Government to ensure that an investigation into the allegations of torture and ill-treatment of Born Samnang and Sok Sam Oeun while in detention is thoroughly undertaken, under the monitoring of the NCRILC. It firmly urges the Government to provide tangible information on the outcome of the investigation and on any measure of redress provided for the wrongful imprisonment of those two men.
   • (e) The Committee must again express its deep concern over the apparent lack of efforts on the part of the Government to bring the requested investigations to a conclusion in a transparent and impartial manner, and to report satisfactorily to the Committee. The Committee must again express its firm expectation that the Government will take meaningful action in this regard and emphasizes the importance that it fully uncover the underlying facts and circumstances of these murders of trade union leaders, identify those responsible and punish the guilty parties, as this necessarily has an impact on the social climate and the exercise of freedom of association rights of all workers in the country.
   • (f) In light of the seriousness of the matters raised in this case and the lack of efforts on the part of the Government to bring the requested investigations to a conclusion in a transparent and impartial manner, the Committee invites the Government, by virtue of its authority as set out in paragraph 69 of the procedures for the examination of complaints alleging violations of freedom of association, to come before the Committee at its session in May–June 2023 so that it may obtain detailed information on the steps taken by the Government in relation to the pending matters.
   • (g) The Committee once again draws the Governing Body’s attention to the extremely serious and urgent nature of this case.

B. The Government’s reply

1. 212. In its communication dated 28 October 2023 and during its oral presentation to the Committee, the Government reiterates that the reinvestigation on the murder of trade union leader Chea Vichea, under the authority of the Phnom Penh Municipal Police, is not yet completed due to its complexity compounded by the fact that it took place nearly two decades ago. The Government remains committed to make progress and expresses the hope that the family of the victim will cooperate fully with the police as it is of no interest to prolong the case.
2. 213. Regarding the case of the murder of trade union leader Ros Sovannareth, the Government reiterates that the Court of Appeals issued in July 2019 a verdict sentencing Mr Thach Saveth to 15 years of imprisonment for the premediated murder. Since the perpetrator has been brought to justice, the Government requests for the removal of the case of the murder of Ros Sovannareth from the complaint.
3. 214. With regard to the murder of trade union leader Hy Vuthy, the Government reiterates that Mr Phal Vannak is still under an arrest warrant; however, the latter is still at large.
4. 215. In respect of the allegations that Mr Born Samnang and Mr Sok Sam Oeun (who were wrongfully convicted for Chea Vichea’s murder and acquitted in September 2013) had been tortured during their detention, the Government reiterates that such case should have long been filed to the court for proceedings, if proven. Nevertheless, none of the individuals has ever filed a complaint in this regard. Consequently, the court is unable to start any proceedings on these allegations.
5. 216. The Government recalls that, as a follow-up to the direct contacts mission of 2017, it established a National Commission on Reviewing the Application of the International Labour Conventions Ratified by Cambodia (NCRILC) in 2018, which is a national tripartite mechanism for the resolution of the present case and for the implementation of the ILO Conventions ratified by Cambodia. However, the outbreak of the COVID-19 pandemic, late 2019, has hampered any progress in the work of the NCRILC on this issue. The Government intends to revitalize the NCRILC.
6. 217. As a concluding remark, while it takes due note of the Committee’s concern on the exercise of freedom of association, the Government emphasizes that what happened 20 years ago does not reflect the contemporary situation of freedom of association in the country. Meaningful progress was made in terms of protection and promotion of trade union rights and the trade union movement has matured and participates in many bipartite and tripartite mechanisms. In the same line, the Ministry of Labour and Vocational Training has set as priority under the Strategic Labour, Social Security, and Vocational Training Development Plan 2023–2028 (SDP 2023–2028) to hold quarterly meetings with all federations and confederations to discuss about challenges they may face.
7. 218. Finally, the Government recalls the high increase in the number of professional organizations following the adoption of the Law on Trade Unions and its amendment in 2020. Presently, there are 6,222 professional organizations, including 5,890 local trade unions, 278 workers’ federations, 42 workers’ confederations, and 12 employers’ associations, which represent an increase of 71.69 per cent compared to 2016 figures. In the Government’s view, this is indisputable evidence that freedom of association is presently exercised in a conducive environment, in accordance with ILO Conventions.

C. The Committee’s conclusions

1. 219. The Committee recalls that it has considered this serious case on numerous occasions which relates, inter alia, to the murder of the trade union leaders, Chea Vichea (January 2004), Ros Sovannareth (May 2004) and Hy Vuthy (February 2007), and to the prevailing situation of impunity with regard to acts of violence against trade unionists.
2. 220. While regretting that it had to decide to apply a measure of special nature to obtain information from the Government on progress made on the present case, the Committee thanks the Cambodian Government for its engagement with the Committee’s procedures providing a written communication and an oral presentation. The Committee recalls the importance for all governments of providing within a reasonable time frame complete replies concerning allegations made against them or in follow-up to the Committee’s recommendations.
3. 221. In relation to the murder of Chea Vichea, the Committee had previously expressed the hope that the appointment of the Phnom Penh Municipal Police to conduct a reinvestigation of this long-lasting case would bring a speedy conclusion to it. It however notes the Government’s reiteration that the reinvestigation is not yet completed due to its complexity compounded by the fact that the murder took place nearly two decades ago. The Committee is compelled to express the firm hope that the investigation will be brought to a conclusion without further delay. The Committee recalls, once again, the need to bring to justice the perpetrators and the instigators of this crime in order to send an important message that any acts of violence against trade unionists will be punished and to prevent their recurrence [see 391st Report, para. 108; 396th Report, para. 168; and 400th Report, para. 215]. The absence of proper investigation or concrete decision from the authorities would create a situation of impunity, which may reinforce the atmosphere of mistrust and insecurity, prejudicial to the exercise of trade union activities. Consequently, the Committee must once again firmly urge the Government to take all necessary measures to expedite the process of investigation into the murder of trade union leader Chea Vichea, and to provide detailed information on the specific steps taken by the Phnom Penh Municipal Police to advance this investigation and how it proposes to resolve the obstacles encountered in the process.
4. 222. In the case of the murder of Hy Vuthy, the Committee recalls from the information previously provided by the Government that the Phnom Penh Court of First Instance had actually sentenced Mr Phal Vannak in absentia to 18 years’ imprisonment and issued an arrest warrant in 2017. In its latest communication, the Government reiterates that to date Mr Phal Vannak remains at large. The Committee is compelled to reiterate its request that the Government provide a copy of both the Court of First Instance decision and the court decision releasing Chan Sophonn, this to enable the Committee to consider the interlinkages between the trade union activities of Hy Vuthy, violence in the country at the time of his murder, the efforts made to investigate the matter and the degree of impunity in the country (see 400th Report, para. 216). It also once again urges the Government to provide information available about the investigation into the circumstances of the murder of Hy Vuthy and its outcome which led to the conviction of Mr Phal Vannak.
5. 223. In the case of the murder of Ros Sovannareth, the Committee recalls that it has previously referred to the trial of Mr Thach Saveth as being characterized by the absence of full guarantees of due process necessary to effectively combat impunity for violence against trade unionists. Following the release of Mr Thach Saveth on bail pursuant to the decision of the Supreme Court ordering the review of the case, the Committee requested that justice be carried out and that Mr Thach Saveth be able to exercise his right to a full appeal before the judicial authority. The Government then informed that the Court of Appeals issued on 14 July 2019 a verdict in absentia sentencing Mr Thach Saveth once again to 15 years of imprisonment subject to appeal. The Committee, observing that the proceedings of the Court of Appeals lasted nearly nine years before its conclusion, had urged the Government to provide a copy of the court decision sentencing Mr Thach Saveth and to inform of developments following the Court of Appeals’ decision, including any appeal filed against it (see 396th Report, para. 169). The Committee notes that, in reply, the Government merely requests this case to be closed as, in its view, the perpetrator was brought to justice. The Committee is bound to reiterate its request and to urge the Government to provide a copy of the court decision of July 2019 sentencing in absentia Mr Thach Saveth to 15 years of imprisonment for premediated murder, and to indicate any appeal filed against it. It once again urges the Government to provide, inter alia, details of any investigation into the circumstances of the murder of Ros Sovannareth which was brought before the court and which led to the conviction of Mr Thach Saveth.
6. 224. Additionally, with regard to the allegations that Born Samnang and Sok Sam Oeun – who were arrested in January 2004 for Chea Vichea’s murder, wrongfully sentenced to 20 years’ imprisonment and definitively acquitted in September 2013 by a judgment of appeal of the Supreme Court – were tortured and ill-treated by the police while in detention, the Committee recalls that it had previously requested the Government to conduct an independent and impartial investigation into their prosecution, including the allegations of torture and other ill-treatment, intimidation of witnesses and political interference with the judicial process regarding crimes against a trade unionist, and to inform of the outcome and the measures of redress provided for their wrongful imprisonment (see 374th Report, para. 122). The Government asserts that such case should have long been filed to the court for proceedings, if proven. Nevertheless, none of the individuals has ever filed a complaint in this regard. Consequently, the court is unable to start any proceedings on these allegations. In this regard, the Committee recalls that in cases of alleged torture or ill treatment while in detention, governments should carry out independent inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and the sanctioning of those responsible, are taken to ensure that no detainee is subjected to such treatment [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 112]. For many years, the Committee had regularly urged the Government to ensure that an independent investigation into these allegations is thoroughly undertaken, under the monitoring of the NCRILC, a body specifically setup to address inter alia the present case. Taking into consideration the time that has elapsed since the denunciation of the alleged acts of ill treatment and torture against those two men, the Committee expects that, in the event an investigation is requested by any of the parties to the NCRILC, the Government will take steps to ensure that such investigation is carried out without delay and that it will indicate any outcome and follow-up given.
7. 225. While acknowledging the engagement of the Government to provide updated information on the pending matters in the present case and appreciating that the Government met with the Committee in person to address these matters, the Committee must, however, express its deep concern over the lack of tangible elements provided in reply to its previous requests, in particular the failure to provide the requested official documents in relation to the court cases or to eventual related investigations. The Committee emphasizes the importance in the present case to uncover the underlying facts and circumstances of these murders of trade union leaders, identify those responsible and punish the guilty parties, to remove doubt about the persistence of a climate of impunity and mistrust, thus paving the way for the exercise of freedom of association rights of all workers in an atmosphere conducive to harmonious industrial relations. The Committee firmly expects that the Government will take action in this regard without further delay.
8. 226. Consequently, the Committee must once again draw the Governing Body’s attention to the extremely serious and urgent nature of this case.