Interim Report - REPORT_NO346, June 2007

356. The Committee last examined this case on its merits at its June 2006 session, where it issued an interim report, approved by the Governing Body at its 296th Session [see 342nd Report, paras 235–256].

1. 357. The complainant submitted additional information in support of its allegations in communications dated 3 October 2006 and 30 January and 27 April 2007.
2. 358. The Government provided its observations in communications dated 17 October 2006 and 2 March 2007.
3. 359. 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). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 360. In its previous examination of the case, the Committee made the following recommendations [see 342nd Report, para. 256]:
2. (a) The Committee deplores the absence of reply from the Government to its previous recommendations and urges it to be more cooperative in the future.
3. (b) The Committee emphasizes once again the seriousness of the allegations pending which refer to the murder of trade union leaders Chea Vichea and Ros Sovannareth. The Committee deeply deplores these events and draws the Government’s attention to the fact that such a climate of violence leading to the death of trade union leaders is a serious obstacle to the exercise of trade union rights.
4. (c) The Committee firmly urges the Government to take measures in order to reopen the investigation into the murder of Chea Vichea and to ensure that no one is deprived of their liberty without the benefit of a normal procedure before an impartial and independent judicial authority.
5. (d) The Committee urges the Government to institute immediately an independent judicial inquiry into the murder of Ros Sovannareth and to keep it informed of the outcome.
6. (e) With regard to the reported agreement on no future marches in which Chea Mony and his fellow representative of the FTUWKC were forced to promise to make garment workers stop the strike and refrain from further marches, the Committee expects that the Government will declare this agreement null and void and requests the Government to ensure in the future the right of workers to peaceful demonstration to defend their occupational interests.
7. (f) With regard to the physical assaults that particularly concern Lay Sophead and Pul Sopheak, both presidents of unions affiliated to the FTUWKC, the Committee urges the Government to institute independent judicial inquiries into these assaults and to keep it informed of the outcome.
8. (g) The Committee firmly urges the Government to take measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.
9. (h) The Committee expresses its deep concern with the extreme seriousness of the case, and calls the Governing Body’s special attention on the situation.
10. B. The complainant’s new allegations
11. 361. In its communication of 3 October 2006, the complainant, ITUC (formerly the International Confederation of Free Trade Unions (ICFTU)), deplores the absence of any initiative by the Government to reopen the investigation into the murder of Chea Vichea and to conduct an independent inquiry into the killing of Ros Sovannareth, stating that the failure to carry out an investigation aimed at discovering the true perpetrators of these acts only adds to the climate of impunity and sends a strong message to workers and trade unionists in Cambodia that trade union membership and trade union activism puts their safety and lives at risk.
12. Additional information in respect
13. of the Chea Vichea case
14. 362. With respect to Born Samnang, who along with Sok Sam Oeun was given a 20-year prison sentence in the case of Chea Vichea’s murder despite proceedings marked, as the complainant had previously alleged, by numerous procedural irregularities in the investigation and prosecution phases, the complainant states that additional information obtained by its researcher in a 2 August 2006 interview with Born Samnang’s mother, Noun Kim Sry, provides further support of his innocence. According to Noun Kim Sry, the police had beaten her son to make him confess that he killed Chea Vichea, whom he did not even know. Noun Kim Sry states that Born Samnang had told her that the police were pushing him to say that he was the killer of Chea Vichea and had told him that his girlfriend was also in jail, and that his mother had declared in public that he was no longer her son. Noun Kim Sry adds that, according to her son, two important policemen spoke with him and threatened to severely beat him if he refused to put his fingerprint on a letter they were going to give him. The police then beat him again before forcing his fingerprint onto the letter; soon after, he was presented to the media as one of the murderers of Chea Vichea. The complainant alleges that Noun Kim Sry remains greatly concerned for her son’s health and visits him regularly in prison. She pays the wardens extra money to provide him with food on account of his weakened state. A copy of Noun Kim Sry’s statement is attached to the communication.
15. 363. According to the complainant, on the day of Chea Vichea’s murder, Born Samnang was celebrating the Chinese New Year 60 kilometres away from where the murder took place. In spite of this strong alibi, the authorities refused to consider witnesses’ accounts of Born Samnang’s whereabouts on the day of the murder, even though they had made their observations public.
16. 364. Further to its previous allegations respecting Va Sothy, the owner of the newspaper stand where Chea Vichea was murdered, who could identify the real murderers but was too afraid to attend the trial, the complainant states that she fled the country and, on 10 August 2006, submitted a four-page statement on the killing of Chea Vichea, certified by a notarial services attorney and member of the Law Society of Thailand, Mr Nol Sunghondhabirom; a copy of her testimony translated into English is attached to the complainant’s communication.
17. 365. Ms Va Sothy describes in her testimony how Chea Vichea was reading a newspaper at her stand when two men on a motorbike stopped in front of her stand. The man at the back of the motorbike came towards the stand and the other drove slowly to the north. After about 20 minutes of reading and looking around, suddenly the man faced Chea Vichea. Va Sothy states that she then heard three loud gunshots fired very close to her and saw Chea Vichea fall to the ground; she also describes seeing the shooter then put a black pistol into his trouser pocket and calmly walk away, heading northwards. In her statement Va Sothy gives a description of the murderer, the motorbike and the motorbike driver.
18. 366. She testifies that she had initially been afraid of being killed as a witness, and therefore gave a false description of the motorbike, denied remembering the face of the killer, and did not confirm the sketch of the killer shown to her by the police. She also called Mr Heng Pov, the police official in charge of the investigation, to ask him how the sketch shown to her could be based on eyewitness accounts, as she had been the only witness and did not remember the shooter’s face. She was then informed that the police had arrested two persons for Chea Vichea’s murder; upon seeing their faces on television, Va Sothy states that she realized that they were not the actual murderers, whose faces she could clearly recall.
19. 367. One month after the shooting, Chea Vichea’s murderer returned to her news-stand again, which frightened Va Sothy deeply. She states that she feared, given that fake murderers were in prison while the real murderers went unpunished, that she would be killed if she continued to live in Cambodia and would never have the opportunity to tell the truth about the murder of Chea Vichea. She decided, therefore, to leave Cambodia.
20. 368. The complainant alleges that the two testimonies confirm the direct involvement of the authorities in ensuring that two innocent men were convicted for Chea Vichea’s murder. Both independently testify to the role of the police in pressuring the two to confess to the crime. Heng Pov, the Phnom Penh police chief at the time of the murder, has since left Cambodia. In an interview published in the 18 August 2006 issue of the Belgian weekly magazine “Le Vif/L’Express”, Heng Pov confirms his direct involvement in Chea Vichea’s case. In the interview, Heng Pov confirms that pressure was put on innocent men to confess to the murder, and is quoted in the article as stating that it did not take him long to realize that Born Samnang and Sok Sam Oeun had nothing to do with the murder. However, Heng Pov denies his own responsibility in exerting this pressure, indicating that it came from persons highly placed in the military hierarchy. A copy of the magazine interview is attached to the complainant’s communication.
21. 369. These testimonies, the complainant states, point to the direct responsibility of the Government in hiding the true course of events and preventing the murderer of Chea Vichea and those who instigated his killing from being found and held accountable. This, in turn, has created an atmosphere of great insecurity among trade unionists in Cambodia.
22. Violence, threats of violence, and arrests
23. 370. The complainant alleges that, since its last submission in September 2005, it has received additional news with respect to the continued repression of trade unionists, in particular the following information:
24. – On 4 July 2006, Mr Lay Chhamroeun, Vice-President of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) at the Phnom Penh garment factory, was shot in his left leg by an unidentified person in front of the Kung Hong factory. The FTUWKC considers this to be a failed attempt to murder Lay Chhamroeun so as to intimidate and instil fear in trade unionists. No investigation was launched into this incident.
25. – As of July 2006, FTUWKC activists Chi Samon, Yeng Vann Yuth, Out Nun, Top Savy and Lem Samrith, who work in the Bright Sky factories located in Tra Paing Kkhleung, Sangkat Chaum Chao, Khan Dang Kor and Phnom Penh, were all subject to beatings. On 3 May 2006, Mr Chi Samon, who had been elected President of the FTUWKC branch of the Bright Sky garment factory, was attacked by seven persons 30 metres from the factory while walking home from his night shift. He sustained serious head injuries, as well as injury to his arms and legs and was taken to hospital by friends; the FTUWKC believes this was an attempt to murder him. Mr Yeng Van Yuth, a co-worker of Mr Chi Samon, was attacked on 12 May and was taken to an unknown clinic by the factory staff for head and rib injuries. Mr Chi states that he recognized one of the attackers as Mr Rot, a member of the rival trade union CUF, and believes that Mr Yuth was attacked because the assailants mistook Mr Yuth for him. Mr Chi reported the attack to the police and gave the names of his attackers to the local police authority and the Phnom Penh court, but to the best of the union’s knowledge no investigation had started. On the morning of 22 May 2006, Mr Chi Samon received another death threat; when leaving the factory he found 20 people waiting for him and so returned to the factory and waited until 7 a.m. before leaving. Chi Samon states that he is being followed and watched all the time, and that he fears for the safety of his family and friends.
26. – The FTUWKC union affiliate in the Bright Sky garment factory wished to hold elections on 20 May 2006. However, the CUF threatened the 15 candidates for office, and 14 of them subsequently withdrew their candidacy. The CUF had been the only trade union recognized by the company; however, the FTUWKC affiliate claims 2,000 members registered with the authorities and are now recognized by the company.
27. – On 19 May 2006, Mr Chey Rithy, Vice-President of the Free Trade Union of the Suntex garment factory, was attacked by two unidentified men. The Suntex garment factory is adjacent to the Bright Sky factory and owned by the same proprietor. Chey Rithy’s attackers threw stones at his head while he was riding his motorbike home from work, causing him to sustain head wounds.
28. – On 8 June 2006, Mr Lem Samrith, Treasurer of the FTUWKC branch in the Bright Sky garment factory, was beaten by a group of men.
29. – On 19 September 2006, Mr Choy Chin, Secretary-General of the Suntex union, was attacked by two unidentified men who threw stones at him and beat him with a metal pipe on his head and hands.
30. 371. The complainant states that it has received different reports with respect to the potential identities of the attackers. Some sources suspect that the assaults took place with the consent of the management, whereas others confirm that the company paid Mr Chi Samon’s medical costs and granted him passage through the main gate of the adjacent Suntex factory when his safety so required. According to the complainant, the involvement of the rival CUF union and the degree to which their actions were condoned or encouraged by the authorities and/or management is unclear. The FTUWKC had reported each of the assaults to the authorities, but thus far no investigations into any of the incidents had been initiated.
31. 372. The complainant alleges that there were numerous instances where violence was used against workers on strike. On 3 July 2006, the authorities of Kandal Province arrested Ms Lach Sambo, Ms Yeom Khun and Mr Sal Koem San at their homes. All three are activists of the Free Trade Union of Workers of the Genuine Garment Factory (FTUWGGF), which is an FTUWKC affiliate in the Genuine factory situated in Veal Village, Angsnouri district, Kandal Province. The three activists were accused of “illegal detention of workers”. Their arrest took place after the Genuine Garment Factory workers had been on strike for nine days; the strikers are accused of having blocked the gate to prevent workers willing to work from going in and out of the factory.
32. 373. According to the complainant, the FTUWGGF denies these accusations and maintains that it had only locked the main gate to prevent trucks with goods from leaving the factory. Workers and management were free to go in and out of the factory through the other gates. The union had tried to come to an agreement with the management to get permission to check outgoing trucks, to be sure that goods would not be transported outside the factory to be processed elsewhere. The management had initially agreed but then refused to implement the agreement. The complainant alleges that the strike was commenced in response to the dismissal of Ms Lach Sambo and three of her colleagues on 23 June 2005. After an earlier strike, in August 2004, eight trade unionists, among them Lach Sambo, Yeom Khun and Sal Koem San, were accused of damaging the company’s property. The trade unionists’ cases were heard on 20 June 2006 and they were sentenced to five months’ imprisonment. They appealed their convictions, but were nevertheless dismissed from their jobs. On 7 August 2006, Lach Sambo, Yeom Khun and Sal Koem San were released from custody, but not reinstated in their jobs, even though the union had requested the reinstatement of all dismissed union officials and activists.
33. 374. In its second communication, dated 30 January 2007, the complainant states that the appeal hearings for Born Samnang and Sok Sam Oeun were scheduled for 6 October 2006. Despite the fact that new information potentially indicative of Born Samnang and Sok Sam Oeun’s innocence was made public, in October 2006, the hearing was postponed due to the health of the judge, who was allegedly suffering from diarrhoea. The appeal hearing has not been rescheduled since.
34. 375. According to the complainant, all new and important evidence – including the sworn statement of the eyewitness, Va Sothy, and the interview with former police chief, Heng Pov, attached to its 3 October 2006 communication – was submitted to the court before 6 October 2006. The complainant expresses its grave concern that the hearings have yet to be rescheduled, despite this important new evidence, and that a new investigation into Chea Vichea’s murder has not been initiated. The complainant alleges that the Cambodian justice system lacks either the commitment or the ability to carry out a serious investigation and ensure a fair trial for alleged suspects, leading to an atmosphere of great insecurity amongst trade unionists in Cambodia.
35. 376. The complainant indicates that it is constantly informed of trade union rights violations in Cambodia. Most recently, it had been informed of the existence of a blacklist comprised of at least 17 trade unionists, which prevents the said unionists from obtaining employment.
36. 377. In a communication dated 27 April 2007, the ITUC expresses the great sadness and anger with which it witnessed the murder of yet another trade unionist in Cambodia, Mr Hy Vuthy. Hy Vuthy was a trade union leader for the FTUWKC at the Suntex garment factory. Mr Hy Vuthy had received a death threat three months earlier in connection with his trade union activities.
37. 378. On 20 February 2007, Hy Vuthy wrote a letter to the Suntex garment factory management in order to obtain a day off for the workers in connection with the celebration of the Khmer New Year. The FTUWKC had indicated that the very next day he was approached by two angry members of a rival union who condemned his request and, three days later, on 24 February 2007, he was shot down. He was shot three times by two unidentified assailants on a motorcycle on his way home from work at 5.15 a.m., only 1.5 kilometres away from the factory. Police have ruled out that it was a robbery since Hy Vuthy’s motorbike was not stolen by the perpetrators. The murder in fact carried many similarities to the ones committed against FTUWKC leaders Chea Vichea and Ros Sovannareth.
38. 379. In a protest letter to Cambodian Prime Minister Hun Sen on 26 February 2007, the ITUC reminded him that the impunity enjoyed by the murderers of Chea Vichea helps maintain a climate of intimidation and fear amongst trade union activists and impairs confidence in the Cambodian justice system. It added that, unfortunately, it also seems to invite further killings of opponents. The ITUC recalled that violent attacks on FTUWKC trade unionists have already occurred many times at Suntex and another factory owned by the Singaporean garment manufacturer Ocean Sky, Bright Sky.
39. 380. On 12 April 2007, the ITUC once more wrote to Cambodian Prime Minister Hun Sen, this time to express its profound dismay at the confirmation by the Cambodian Appeals Court of the sentencing of two innocent men, Mr Born Samnang and Mr Sok Sam Oeun, to 20 years’ imprisonment for the murder of trade union leader Chea Vichea. The Cambodian authorities were well aware of the fact that a key eyewitness to the killing (Ms Va Sothy, newspaper vendor at the news-stand where Chea Vichea was shot) and the senior police official overseeing the investigation (Mr Heng Pov, at that time chief of the Phnom Penh police, who later on had to leave Cambodia) had both clearly and unequivocally testified that the two men were not responsible for the murder. Despite this, and the fact that both Mr Born and Mr Sok had strong and credible alibis for the time of the killing, no real attempt was ever made by the Cambodian authorities to properly investigate the crime and bring the real perpetrator(s) of this vicious crime to justice.
40. 381. This ruling by the Court of Appeal threw into further disrepute the independence of the judiciary in Cambodia, and reinforced the climate of impunity which exists in the country. The ITUC lamented that violent attacks against trade unionists, along with intimidation and harassment, have apparently become commonplace, and that unfortunately the Government appears to at best tolerate these abuses.
41. 382. The ITUC called upon Prime Minister Hun Sen to immediately take steps to ensure that genuine justice is done in this case. It demanded that the two innocent men be released from prison, and their safety guaranteed. It also called on the Government to ensure that full and proper investigations into this murder and other murders, such as the killing of Mr Hy Vuthy, be conducted without delay, and that Cambodia complies in full with its obligations under international law to ensure respect for trade union and human rights.
42. 383. In the light of these events, the ITUC suggests that the ILO consider sending its own mission to Cambodia to investigate these matters in an objective and impartial manner and make any recommendations it deems necessary.
43. C. The Government’s reply
44. 384. In a communication dated 17 October 2006, the Government states that it is following up on matters respecting the case’s allegations and would inform the Committee accordingly. In its communication of 2 March 2007, the Government indicates that it continues to follow up on the matters concerning the case, and that the case of Born Samnang and Sok Sam Oeun has yet to be heard by the Court of Appeal.

D. The Committee’s conclusions

1. 385. The Committee is compelled, once again, to express its deep concern and regret at the seriousness of this case that concerns the assassination of trade union leaders, Chea Vichea and Ros Sovannareth. The Committee deeply deplores these events and once again draws the Government’s attention to the fact that a climate of violence leading to the death of trade union leaders is a serious obstacle to the exercise of trade union rights.
2. 386. The Committee notes with deep concern the complainant’s allegations contained in its 3 October 2006 and 27 April 2007 communications, according to which additional information – namely the statements made by Born Samnang’s mother, Noun Kim Sry; Va Sothy, the owner of the newspaper stand by which Chea Vichea was murdered; and Heng Pov, the former chief of police in Phnom Penh – has arisen that lends further support to the innocence of Born Samnang and Sok Sam Oeun, the two men convicted and imprisoned for the murder of Chea Vichea.
3. 387. According to the complainant, although the above information had been submitted to the court for an appeal hearing, the convictions of these two men were upheld in apparent disregard of the evidence and in the absence of any real attempt by the Cambodian authorities to properly investigate the crime and bring its perpetrators to justice. The Committee recalls that it had previously expressed its serious misgivings as to the regularity of the trial concerning Chea Vichea’s murder, and of the proceedings leading to it. In this respect, and particularly in light of the new allegations respecting the Chea Vichea case, the Committee deplores the fact that the Government, other than stating that it is “following up on matters”, has provided no new information in its replies.
4. 388. Under these circumstances, the Committee must once again stress the importance of ensuring full respect for the right to freedom and security of persons and freedom from arbitrary arrest and detention, as well as the right to a fair trial by an independent and impartial tribunal, in accordance with the provisions of the Universal Declaration of Human Rights. The Committee yet again emphasizes, in the strongest possible terms, that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent, judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the greatest extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The absence of judgements against guilty parties creates, in practice, an atmosphere of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 48 and 52]. In light of these principles, the Committee once again strongly urges the Government to reopen the investigation into the murder of Chea Vichea and to ensure that Born Samnang and Sok Sam Oeun may exercise, as soon as possible, their right to a full appeal before an impartial and independent judicial authority.
5. 389. The Committee further deplores the recent murder of Hy Vuthy, trade union leader for the FTUWKC at the Suntex garment factory, and recalls that a situation of impunity fosters a climate of violence which is severely detrimental to the exercise of trade union rights and basic civil liberties. Observing, in addition, that the Government has provided no information on any steps taken to institute an independent judicial inquiry into the murder of Ros Sovannareth, the Committee strongly urges the Government to institute immediately independent inquiries into the murders of these two trade unionists and to keep it informed of the outcome.
6. 390. The Committee deplores the fact that, in spite of being reminded on previous occasions, the Government has yet again failed to provide information respecting the other aspects of the case and the Committee’s recommendations relating thereto. These aspects concerned the suppression of trade unionists, including assaults on trade union leaders, Lay Sophead and Pul Sopheak. This being the case, the Committee further deplores the fact that fresh allegations respecting the repression of, and assault on, trade unionists, particularly for having engaged in a strike action, continue to be reported. According to the complainant, trade union leader Lay Chhamroeun of the FTUWKC was shot in the leg and numerous other unionists – Chi Samon, Yeng Vann Yuth, Out Nun, Top Savy, Lem Samrith, Chey Rithy, Lem Samrith, Choy Chin, Lach Sambo, Yeon Khum, Sal Koem San – were attacked and beaten. In addition, the Committee notes with grave concern the complainant’s allegations that no action has been taken by the police or competent government authorities, despite the complaints lodged. The lack of the Government’s reply to these serious allegations would appear to testify to the general inaction in the face of such serious complaints. The Committee can only conclude, therefore, that a climate of violence, insecurity and impunity regarding the rule of law prevails in the country. Recalling that the Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for, and protection of, individuals [see Digest, op. cit., para. 34], the Committee strongly urges the Government to institute, without delay, independent judicial inquiries into the assaults on all of the trade unionists named by the complainant and to keep it informed of developments in this respect, as a matter of urgency.
7. 391. The Committee notes with concern the complainant’s indication that 17 trade unionists have been blacklisted, preventing the said individuals from obtaining employment. It recalls in this regard that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., para. 803]. Accordingly, the Committee requests the Government to take the necessary steps to combat all practices involving the blacklisting of trade union officials, and in particular to end the blacklisting of the 17 individuals as reported by the complainant.
8. 392. The Committee takes note of the complainant’s allegations that trade unionists, Lach Sambo, Yeom Khun and Sal Koem San were arrested on 3 July 2006 on charges of having illegally detained workers, and that the arrest took place after workers in the Genuine Garment Factory had been on strike for nine days. Although the strikers were accused of having blocked the gate to prevent workers willing to work from getting in and out of the factory, the FTUWGGF denies these accusations and maintains that it had only locked the main gate to prevent trucks with goods from leaving the factory. The Committee further observes that Lach Sambo, Yeom Khun and Sal Koem San were all dismissed, following their conviction in court on 20 June 2006, and have not been reinstated despite having appealed their convictions. The Committee requests the Government to transmit its observations concerning this matter, as well as any relevant court judgements as a matter of urgency.
9. 393. Noting with concern that many of the acts of repression reported by the complainant occurred in the context of the exercise of the right to strike, the Committee once again urges the Government to take measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.
10. 394. The Committee once again expresses its deep concern with the extreme seriousness of the case and, in the absence of any significant efforts on the part of the Government to thoroughly investigate all of the above matters in a transparent, independent and impartial manner, strongly suggests that the Government accept an ILO expert mission to carry out an investigation into the above allegations and thus assist the Government in redressing any violations of trade union rights and bringing to an end the emerging climate of impunity. The Committee calls the Governing Body’s special attention to the situation.