Informe provisional - Informe núm. 391, Octubre 2019

1. 96. 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 2018 meeting where it issued an interim report, approved by the Governing Body at its 334th Session [see 387th Report, paras 128–140].
2. 97. The Government sent its latest observations in a communication dated 4 June 2019.
3. 98. 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. 99. In its previous examination of the case, the Committee made the following recommendations [see 387th Report, para. 140]:
   • (a) The Committee urges the competent authorities to take all necessary measures to expedite the process of investigation of the murders of Mr Chea Vichea, Mr Ros Sovannareth and Mr Hy Vuthy. It requests the Government to report on concrete progress in this regard and to provide information on the activities and progress of the Investigation Taskforce of the National Police Commissariat related to these heinous crimes. It further requests the Government to take any measures necessary to guarantee the safety of Mr Chea Vichea’s brother and that of those who may be in a position to assist these investigations.
   • (b) The Committee expects that the NCRILC or other appropriate body will thoroughly review and ensure an investigation into the allegations of torture and other ill treatment by police of Mr Born Samnang and Mr Sok Sam Ouen, intimidation of witnesses and political interference with the judicial process and requests the Government to keep it informed of the outcome and any measure of redress provided for the wrongful imprisonment of those two men. It requests the Government to provide further information on the nature of their release from prison, indicating whether this release is temporary.
   • (c) Recalling that it had previously deplored the fact that Mr Thach Saveth was arrested and sentenced for the premeditated murder of trade unionist Mr Ros Sovannareth in a trial characterized by the absence of full guarantees of due process necessary to effectively combat impunity for violence against trade unionists, the Committee expects that the NCRILC or other appropriate body will thoroughly investigate the circumstances surrounding his trial so as to ensure that justice has been carried out and that he has been able to exercise his right to a full appeal before an impartial and independent judicial authority. It requests the Government to keep it informed of developments in this regard, including the outcome of the legal proceedings currently before the Court of Appeals and the outcome of the investigations.
   • (d) The Committee once again urges the Government to keep it informed of any developments with respect to the murder of Mr Hy Vuthy, including the outcome of the legal proceedings of the Phnom Penh Municipal Court and the outcome of any work undertaken thereon by the NCRILC. It also requests the Government to provide information as to why no reinvestigation of the case has been ordered.
   • (e) Recalling that it has been raising, since 2007, the alleged assault of 13 trade union activists of the FTUWKC and of the FTUSGF and the alleged dismissal of three trade union activists of the FTUWGGF, the Committee expresses once again its concern over the lengthy delay and the lack of progress made in the investigation into these matters. Emphasizing the importance of taking concrete steps to investigate these matters without delay, the Committee expects the Government to keep it informed of meaningful progress in this regard.
   • (f) The Committee firmly expects that the Government will take swift action and will be able to report on meaningful progress concerning the long-standing issues under examination in this case, as this necessarily has an impact on the social climate and the exercise of freedom of association rights of all workers in the country.
   • (g) The Committee invites the complainant organisation to provide an update on the issues raised in this case, particular as regards the workers that had been allegedly assaulted and those dismissed.
   • (h) 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. 100. Regarding the investigations on the murders of trade union leaders Chea Vichea, Hy Vuthy and Ros Sovannareth, the Government reports that the relevant ministries and institutions involved with the investigations have been working very closely since it is not in the interest of the Government to delay these investigations. However, the long pending nature of the cases and the lack of cooperation from victims’ families rendered the conduct of the investigations even more difficult and it has therefore not been possible to conclude them. Additionally, the Government assures that Mr Chea Vichea’s brother and those who may be able to assist in the investigation are living happily without fear for their personal safety. The Government has never received any report of concern over their safety. Regardless of the challenges, the Government remains highly committed to bringing the perpetrators to justice as quickly as possible. Hence, the issue of these investigations was also brought to the attention of the National Committee on Reviewing the Application of the International Labour Conventions ratified by Cambodia (NCRILC) during its annual meeting of December 2018. The NCRILC convened a full member meeting on 30 January 2019 and inter-ministerial meeting on 27 February 2019 to follow-up and determine the mechanism to conclude the murder cases.
2. 101. The Government reiterates that the Supreme Court decided to drop the charges against Bom Samnang and Sok Sam Oeun on 25 September 2013 and ordered their release. The Government adds that their allegations of torture and ill treatment by the police during detention is baseless. The Government strongly encourages them to file a case to court so that an appropriate investigation could be initiated. The Government adds that all necessary legal support will be provided to them in case they decide to bring a formal complaint to court and have concrete evidence to support their case.
3. 102. With regard to the situation of Thach Saveth, the Government recalls that he had been sentenced to prison for 15 years by a judgment of the Phnom Penh Municipal Court in February 2005, and had filed an appeal to the Court of Appeals, which upheld the judgment of the Municipal Court. Thach Saveth subsequently filed an appeal to the Supreme Court in February 2009, which nullified the judgment of the Court of Appeals, ordered it to rehear the case and released Thach Saveth on bail. The Government indicates that the case is still under the legal proceedings of the Court of Appeals and that the Ministry of Labour and Vocational training (MLVT) will inform the Committee of any progress in this regard.
4. 103. The Government states that Chan Sophon, who was arrested in September 2013 in the case of the murder of Hy Vuthy, was released in February 2014 and the case is still under the legal proceedings of the Phnom Penh Municipal Court. The MLVT will keep the committee informed of any progress.
5. 104. With regard to the assaults of 13 trade union activists of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) of the Suntex Garment Factory (hereafter Factory (a)) and the case of dismissal of three trade union activists of the FTUWKC of the Genuine Garment Factory (hereafter Factory (b)), the Government indicates that the MLVT convened a meeting with the union and the workers concerned on May 2015, however, none of the workers came to the meeting. The Government further indicates that, based on confirmation received from the President of the FTUWKC on 30 January 2019, as well as information from the factories’ representatives, those workers had been reinstated following the decision of the Arbitration Council. Those workers are however no longer working in the factories or members of the FTUWKC. The President of the FTUWKC confirmed that it was unable to contact those workers. The Government is of the view that, as this case seems to have already been settled based on the decision of the Arbitration Council, it should be considered as closed.

C. The Committee’s conclusions

1. 105. 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, Ros Sovannareth and Hy Vuthy, and to the prevailing situation of impunity with regard to acts of violence against trade unionists.
2. 106. The Committee recalls that it had previously noted that a National Committee for reviewing the implementation of ratified International Labour Conventions (NCRILC) was established through governmental Decision No. 64 of 16 August 2017 which abrogated Decision No. 44 of June 2015 on the establishment of the Inter-ministerial Commission for Special Investigation on complaint No. 2318. It noted that the National Committee includes among its duties, inter alia, reviewing and managing research on practice and law, and collecting information and evidence on any complaint related to the implementation of International Labour Conventions and relevant International Treaties. The Committee further noted that the members of this tripartite National Committee were appointed by virtue of governmental Decision No. 111 of 6 December 2017. The members include, among others, representatives of the Ministry of Labour and Vocational Training, the Ministry of Justice, the Ministry of Interior, the National Police Chief, the Royal Gendarmerie and workers’ and employers’ organizations. The Committee had also noted the Government’s indication that on 30 July 2018 the NCRILC endorsed a road map on the implementation of the ILO’s recommendations concerning freedom of association which specifies inter alia time-bound actions aimed at providing conclusions to the pending investigations of the murder cases of trade unions leaders and that progress reports from designated institutions in charge would be regularly discussed by the NCRILC.
3. 107. The Committee takes note from the succinct report of the Government that the progress of the investigations was discussed by the NCRILC during its meetings of December 2018, its full-member meeting of 30 January 2019 and its inter-ministerial meeting of 27 February 2019. While the Government declares that it remains highly committed to bringing the perpetrators to justice as quickly as possible, it however asserts that these investigations were rendered difficult because of the long pending nature of the cases and the lack of cooperation from victims’ families. Additionally, with regard to the Committee’s recommendations on the need to guarantee the safety of Chea Vichea’s brother and that of those who may be in a position to assist these investigations, the Committee notes the Government’s indication that they all live without fear for their personal safety and that the authorities have never received any report of concern in this regard.
4. 108. The Committee must express its deep concern over the evident lack of progress of the criminal investigations, despite the suggested lack of cooperation of victims’ families, and over the succinct report of the Government which does not provide any information on the content of the discussion of the NCRILC on the status of the investigations or any decision eventually taken with the aim of concluding them. Recalling the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes in order to send an important message that any acts of violence against trade unionists will be punished and to prevent their recurrence, the Committee expects that the Government will take all necessary measures to expedite the process of investigation into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy, and that it will keep the Committee duly informed of any concrete action that the NCRILC may have taken to follow up on these investigations to ensure that the perpetrators and the instigators of these heinous crimes are brought to justice without further delay.
5. 109. The Committee notes the indication from the Government that allegations from Bom Samnang and Sok Sam Oeun, who were wrongfully convicted for Chea Vichea’s murder and definitely acquitted in September 2013 by the Supreme Court, of their torture and ill treatment by the police during their detention, are baseless and that they are strongly encouraged to file a case to court so that an appropriate investigation could be initiated. The Committee notes with interest the Government’s indication that all necessary legal support will be provided to them in case they decide to bring a formal complaint to court and have concrete evidence to support their case. The Committee recalls, however, 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 has been calling for an independent and impartial investigation into the prosecution of Mr Born Samnang and Mr Sok Sam Oeun, including by the Inter-Ministerial Commission for Special Investigations (which ceased operating since the establishment of the NCRILC). The Committee 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, and requests the Government to keep it informed of the outcome of the investigation or any measure of redress provided for the wrongful imprisonment of those two men. The Committee emphasizes that, in this particular case, the absence of proper investigation or redress creates a situation of impunity, which may reinforce the atmosphere of mistrust and insecurity, prejudicial to the exercise of trade union activities.
6. 110. The Committee recalls that its previous recommendations also concerned the situation of Thach Saveth, arrested and sentenced for 15 years of imprisonment in February 2005 for the premeditated murder of Ros Sovannareth in a trial characterized, in the Committee’s view, by the absence of full guarantees of due process necessary to effectively combat impunity for violence against trade unionists. Following the release of 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 Thach Saveth be able to exercise his right to a full appeal before the judicial authority. The Committee notes the information from the Government that the case is still under proceedings of the Court of Appeals nearly eight years on. Observing that legal proceedings are overly lengthy in this case and, as justice delayed is justice denied, the Committee expects that the proceedings before the Court of Appeals will be concluded expeditiously and that the Government will keep it duly informed of developments in this regard.
7. 111. With regard to the case of the murder of Hy Vuthy, the Government reiterates that Chan Sophon, the suspect who was arrested in September 2013 in accordance with an arrest warrant issued by the Phnom Penh Municipal Court in April 2012, was released in February 2014. The Government indicates that the case is currently under the legal proceedings of the Phnom Penh Municipal Court. The Committee expects that the Government will keep it duly informed of developments in this regard, and specify whether an order has been made to the judicial police to conduct a reinvestigation given that the Government stated in 2017 that no order was made in this regard.
8. 112. With regard to the assaults of 13 trade union activists of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) of Factory (a) and the case of dismissal of three trade union activists of the FTUWKC of Factory (b), the Committee notes the indication that, based on confirmation received from the President of the FTUWKC on 30 January 2019, as well as information from the factories’ representatives, those workers had been reinstated following a decision of the Arbitration Council. They are, however, no longer working in the factories or members of the union and given that this case seems to have already been settled based on the decision of the Arbitration Council, the Government expresses its view that it should be considered as closed. In light of the above, unless the complainant provides specific follow-up information, the Committee will not pursue its examination of this matter.
9. 113. In conclusion, the Committee must express its deep concern over the absence of information from the Government on tangible developments concerning all the long-standing issues under examination in this case. The Committee must again express its firm expectation that the Government will take swift action in this regard and will be able to report on meaningful progress, as this necessarily has an impact on the social climate and the exercise of freedom of association rights of all workers in the country. Consequently, the Committee must once again draw the Governing Body’s attention to the extremely serious and urgent nature of this case.