Interim Report - Report No 370, October 2013

1. 144. The Committee has already examined the substance of this case on eight occasions, most recently at its November 2012 session where it issued an interim report, approved by the Governing Body at its 313th Session [see 365th Report, paras 282–290].
2. 145. The complainant submitted additional information and new allegations in a communication dated 30 May 2013.
3. 146. As the Government has not replied, the Committee has been obliged to adjourn its examination of this case on several occasions. At its 21 June 2013 meeting [see the Committee’s 368th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the observations or information requested had not been received in due time. To date, the Government has not sent any information.
4. 147. 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. 148. In its previous examination of the case, regretting the fact that, despite the time that had elapsed, the Government had not provided any observation, the Committee made the following recommendations [see 365th Report, para. 290]:
   • (a) The Committee deeply deplores that, despite the time that has passed since it last examined this case, the Government has not provided its observations, although it has been invited on a number of occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urges the Government to be more cooperative in the future. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
   • (b) As a general matter regarding all the subsequent issues, the Committee once again strongly urges the Government to take measures to ensure that the trade union rights of all 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, and that of their families.
   • (c) The Committee once again urges the Government to take the necessary measures to ensure that Born Samnang and Sok Sam Oeun are exonerated of the charges brought against them and that the bail be returned to them. Furthermore, the Committee once again strongly urges the Government to ensure that thorough and independent investigations into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy are carried out expeditiously, so as to ensure that all available information will finally be brought before the courts in order to determine the actual murderers and instigators of the assassination of this trade union leader, punish the guilty parties and thus bring to an end the prevailing situation of impunity as regards violence against trade union leaders. The Committee requests to be kept informed in this regard.
   • (d) As concerns trade union leader Hy Vuthy, the Committee requests the Government to confirm that the Supreme Court ordered the Phnom Penh Municipal Court to reopen the investigation into his death on 3 November 2010.
   • (e) Recalling the importance it attaches in this case to capacity building and the institution of safeguards against corruption necessary for the independence and effectiveness of the judicial system, the Committee strongly urges the Government to indicate the steps taken in this regard.
   • (f) The Committee strongly urges the Government, once again, to institute without delay independent judicial inquiries into the assaults on trade unionists Lay Sophead, Pul Sopheak, Lay Chhamroeun, Chi Samon, Yeng Vann Nuth, Out Nun, Top Savy, Lem Samrith, Chey Rithy, Choy Chin, Lach Sambo, Yeon Khum and Sal Koem San, and to keep it informed of the results of these inquiries.
   • (g) The Committee strongly requests the Government to indicate the steps taken to prevent the blacklisting of trade unionists.
   • (h) With regard to the dismissals of Lach Sambo, Yeom Khun and Sal Koem San following their convictions for acts undertaken in connection with a strike at the Genuine garment factory, the Committee once again strongly urges the Government to inform it of the status of their appeals proceedings and to indicate their current employment status.
   • (i) The Committee continues to express its profound concern with the extreme seriousness of the case and the repeated absence of information on the steps taken to investigate the above matters in a transparent, independent and impartial manner, a necessary prerequisite to creating a climate free from violence and intimidation necessary for the full development of the trade union movement in Cambodia.
   • (j) Given the lack of progress on these very essential points, the Committee is bound, once again, to call the Governing Body’s special attention to the extreme seriousness and urgency of the issues in this case.

B. The complainant’s new allegations

1. 149. In its communication of 30 May 2013, the International Trade Union Confederation (lTUC) provided an update on the Chea Vichea murder trial and also reported on other matters relating to freedom of association in Cambodia. The ITUC reported that Born Samnang and Sok Sam Oeun have been sent back to prison. The two men initially were convicted and imprisoned in 2005 for the 2004 murder of Chea Vichea, then President of Cambodia’s Free Trade Union (FTUWKC). Human rights organizations raised concerns about the lack of due process and evidence leading to the convictions, and campaigned for their release. On 31 December 2008, the Supreme Court ordered a retrial and released them on bail. Their return to prison follows the retrial by the Appeals Court in which it upheld the original verdict on 27 December 2012. The two men have appealed this decision.
2. 150. The ITUC called for an independent and impartial investigation into the prosecution of the two men, including allegations of torture and other ill-treatment by police, intimidation of witnesses and political interference with the judicial process. The ITUC also called for a new investigation, and the arrest and prosecution of the real killers.
3. 151. The ITUC also alleged that Chhouk Bandith, former Governor of the town of Bavet, fired shots into a group of mainly women workers employed at the Kao Way Sports Ltd Factory. Three women were shot and seriously wounded. According to the Coalition of Cambodian Apparel Workers’ Democratic Union (C.CAWDU), many of the 6,000 workers employed at the factory had engaged in a strike on 17–18 February 2012. When the strike resumed on 20 February, Chhouk Bandith emerged from a vehicle with a body guard and a policeman and fired shots from a high-powered gun. After firing, he is said to have fled in another vehicle and truckloads of police then moved in to quell the strike.
4. 152. According to the ITUC, Bandith was charged in April 2012 with “unintentional injury” despite the overwhelming eyewitness evidence of an intentional attack on the striking workers with a gun. The investigating judge in Svay Rieng Provincial Court dropped the charges against him in December 2012. The Prosecutor General attached to the Court of Appeal appealed this decision. In March 2013, the Court of Appeal ordered the Svay Rieng Provincial Court to reinvestigate the case. This decision came after two days of hearings that included over two dozen witness testimonies, all but one of whom supported Bandith’s side of the story. The one witness who challenged Bandith’s version of accounts, Prasat commune Deputy Police Chief Long Phorn, said he was just seven meters away from Bandith when the former governor opened fire.
5. 153. The ITUC reported that victims, unions and human rights organizations were pleased that the case had been re-opened, but sceptical of the prospects for a fair investigation at the lower court. In addition, they were disappointed that the “unintentional” charge remained, rather than a stronger “intentional” charge. The unintentional injury offence covers injuries resulting from “imprudence, carelessness or negligence”, which in no way ref1ects the nature of what is alleged by many eyewitnesses to have occurred. Further, if convicted, the sentence would range from six days to two years’ imprisonment, and a fine of between 1 and 4 million Cambodian riels, which, according to the ITUC, would be insufficient penalty for the crime. The ITUC submitted that he should be charged with attempted murder due to his actions, which demonstrated a clear intention to seriously injure, if not kill, the protestors.
6. 154. Reports indicate that rights groups have criticized the authorities for not bringing Bandith to justice, saying it is typical of the impunity that occurs in Cambodia. Police have stated that the search is ongoing.
7. 155. In addition to the allegations of violence directed towards unionists, along with the failure to hold those responsible accountable, the complainant raised a number of other allegations relating to the draft trade union law, and fixed-duration contracts.

C. The Committee’s conclusions

1. 156. The Committee deeply deplores that, despite the time that has passed since it last examined this case, the Government has not provided its observations, although it has been invited on a number of occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urges the Government to be more cooperative in the future. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
2. 157. Hence, in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government.
3. 158. The Committee once again reminds the Government that the purpose of the whole procedure established by the International Labour Organization (ILO) for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them [see the Committee’s First Report, para. 31].
4. 159. The Committee is compelled, once again, to express its deep concern and regret at the seriousness of this case that concerns, inter alia, the murder of trade union leaders, Chea Vichea, Ros Sovannareth and Hy Vuthy. 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. The Committee is deeply concerned by the climate of impunity that exists surrounding acts of violence directed towards trade unionists, and the seriously flawed judicial processes evident throughout this case.
5. 160. The Committee notes with grave concern the complainant’s allegations contained in its communication of 30 May 2013 that Born Samnang and Sok Sam Oeun had been sent back to prison for the murder of Chea Vichea following a retrial by the Appeals Court on 27 December 2012, despite the lack of new evidence to support the convictions.
6. 161. While recalling that it had previously expressed serious misgivings as to the regularity of the trial concerning Chea Vichea’s murder, and of the proceedings leading to it, the Committee welcomes the judgment on appeal by the Supreme Court which has definitively acquitted Born Samnang and Sok Sam Oeun and the dropping of all charges against them.
7. 162. The Committee notes that according to the information provided by the Government to the Committee on the Application of Standards in 2013 during the discussion of the application of Convention No. 87, following meetings with representatives from the ILO, and upon the initiative of the Minister for Labour and Vocational Training, the Prime Minister issued an order through the Cabinet of the Council of Ministers on 6 March 2013 (No. 397) to establish a Coordinating Committee that will include the Ministry of Justice, Ministry of Interior, and the Ministry of Labour and Vocational Training with the exclusive mandate to coordinate the ministries involved to respond to the questions put forth by the ILO relating to this case. The Committee further notes that the Government has subsequently sent to the ILO a decision of the Government granting permission to the Ministry of Interior, the Ministry of Justice and the Ministry of Labour and Vocational Training to cooperate to give clarification to the Committee concerning the murders of trade union leaders, Chea Vichea, Hy Vuthy and Ros Sovannareth, but nevertheless observes that no detailed information has yet been provided in this regard.
8. 163. The Committee further notes with concern the complainant’s latest grave allegations regarding another act of violence against trade unionists, namely the shooting, by former Governor Chhouk Bandith, of workers engaged in a strike, and the circumstances related to Chhouk Bandith’s subsequent trial. The Committee notes that these events further contribute to the concerns raised by the complainant about a climate of impunity in relation to acts of violence directed towards trade unionists and urges the Government to provide detailed information in reply to these allegations.
9. 164. The Committee once again stresses 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 again emphasizes that acts of violence directed towards trade union leaders and trade unionists require the prompt institution of independent judicial inquiries in order to fully uncover the underlying facts and circumstances, identify those responsible, punish the guilty parties, and prevent the repetition of similar events.
10. 165. The Committee urges the Government to bring to an end the climate of impunity in the country, including, in particular, impunity in relation to violent acts against trade unionists. The Committee requests the Government to reopen the investigation into the murder of Chea Vichea and to ensure that the perpetrators and the instigators of these heinous crimes are brought to justice. The Committee further calls on the Government to conduct an independent and impartial investigation into the prosecution of Born Samnang and Sok Sam Oeun, including allegations of torture and other ill-treatment by police, intimidation of witnesses and political interference with the judicial process and to keep it informed of the outcome and the measures of redress provided for their wrongful imprisonment.
11. 166. Furthermore, the Committee once again strongly urges the Government to ensure that thorough and independent investigations into the murders of Ros Sovannareth and Hy Vuthy are carried out expeditiously and to keep it informed of the progress made in this regard. As concerns trade union leader Hy Vuthy, the Committee requests the Government to confirm that the Supreme Court ordered the Phnom Penh Municipal Court to reopen the investigation into his death on 3 November 2010 and to keep it informed of any progress made in this regard.
12. 167. Finally, as regards the new allegations relating to the draft labour code and fixed-duration contracts, the Committee considers that the vastly different nature of these allegations should be dealt with in a separate case and intends to come back to this matter at its next meeting.

The Committee’s recommendations

1. 168. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply deplores that, despite the time that has passed since it last examined this case, the Government has not provided its observations, although it has been invited on a number of occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urges the Government to be more cooperative in the future. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
   • (b) As a general matter regarding all the subsequent issues, the Committee once again strongly urges the Government to take measures to ensure that the trade union rights of all workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free from intimidation and risk to their personal security and their lives, and that of their families.
   • (c) The Committee requests the Government to conduct an independent and impartial investigation into the prosecution of Born Samnang and Sok Sam Oeun, including allegations of torture and other ill-treatment by police, intimidation of witnesses and political interference with the judicial process and to keep it informed of the outcome and the measures of redress for their wrongful imprisonment.
   • (d) Furthermore, the Committee once again strongly urges the Government to ensure that thorough and independent investigations into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy are carried out expeditiously to ensure that all available information will finally be brought before the courts in order to determine the actual murderers of these trade union leaders and instigators, punish the guilty parties and bring to an end the prevailing situation of impunity as regards violence against trade union leaders. The Committee requests to be kept informed in this regard.
   • (e) As concerns trade union leader Hy Vuthy, the Committee requests the Government to confirm that the Supreme Court ordered the Phnom Penh Municipal Court to reopen the investigation into his death on 3 November 2010 and to keep it informed of any progress made in this regard.
   • (f) The Committee further urges the Government to provide detailed observations in relation to the latest allegations of the shooting of demonstrating workers by Chhouk Bandith and the impunity which has allegedly characterized his trial.
   • (g) Recalling the importance it attaches in this case to capacity building and the institution of safeguards against corruption necessary for the independence and effectiveness of the judicial system, the Committee strongly urges the Government to indicate the steps taken in this regard.
   • (h) The Committee strongly urges the Government, once again, to institute without delay independent judicial inquiries into the assaults on trade unionists Lay Sophead, Pul Sopheak, Lay Chhamroeun, Chi Samon, Yeng Vann Nuth, Out Nun, Top Savy, Lem Samrith, Chey Rithy, Choy Chin, Lach Sambo, Yeon Khum and Sal Koem San, and to keep it informed of the results of these inquiries.
   • (i) The Committee strongly requests the Government to indicate the steps taken to prevent the blacklisting of trade unionists.
   • (j) With regard to the dismissals of Lach Sambo, Yeom Khun and Sal Koem San following their convictions for acts undertaken in connection with a strike at the Genuine garment factory, the Committee once again strongly urges the Government to inform it of the status of their appeals proceedings and to indicate their current employment status.
   • (k) The Committee continues to express its profound concern with the extreme seriousness of the case and the repeated absence of information on the steps taken to investigate the above matters in a transparent, independent and impartial manner, a necessary prerequisite to creating a climate free from violence and intimidation necessary for the full development of the trade union movement in Cambodia.
   • (l) Given the lack of progress on these very essential points, the Committee is bound, once again, to call the Governing Body’s special attention to the extreme seriousness and urgency of the issues in this case.