SECURING PROTECTION AND COOPERATION OF
WITNESSES AND WHISTLE-BLOWERS
Ms. Philippe Nil＊

I. INTRODUCTION
Witnesses and whistle-blowers’ cooperation is a signiﬁcant component in the conviction of offenders,
especially in cases of corruption and organized crime, which damage the development of a country, its
national economy, the rule of law, and the security and values of society. Witnesses and whistle-blowers give
evidence and information in the investigation and trial of criminal offences and sometimes require protection
due to the intimidation or threat of harm they may face in cooperating with the authorities to prosecute
dangerous or powerful persons involved in corruption or organized crime. The government should pay more
attention to this issue and provide effective laws and regulations and strengthen law enforcement, while
fulﬁlling its fundamental legal obligations to its citizens. Especially, the government should establish effective
mechanisms to protect both witnesses and whistle-blowers, including building the capacity of law
enforcement personnel who implement these mechanisms.

II. EFFECTIVE LEGISLATION AND MEASURES
A. Effective Legislation
1. Legal and Judicial Reform
The Legal and Judicial Reform Strategy is a priority reform programme of the government ofCambodia. The strategic objectives of the Legal and Judicial Sector, in accordance with Constitutional values
and the overall goals of supporting development and poverty reduction, are identiﬁed as:– Improve the protection of personal rights and freedoms;– Modernize the legislative framework;– Provide better access to Legal and Judicial information;– Enhance the quality of legal processes and related services;– Strengthen judicial services, i.e. the judicial power and the prosecutorial services;– Introduce alternative dispute resolution methods;– Strengthen Legal and Judicial sector institutions to fulﬁll their mandates.
2. Fundamental Laws
In response to The Legal and Judicial Reform Strategy, Cambodia adopted fundamental laws toimprove the legal system, such as the Law on Civil Procedure, the Law on the Civil Code, the Law on
Criminal Procedure, and the Law on the Criminal Code. Other laws adopted were the Law on AntiCorruption, the Law on Anti-Human Trafﬁcking, and the Law on Terrorism.
Currently, some other necessary laws are being drafted and amended to national and international
standards. The amending Law on Anti-drug Trafﬁcking is currently under such amendment. Moreover, theMinistry of Justice will draft the Law on Protection of Witnesses as soon as possible.
3. Ratiﬁcation of Conventions
Cambodia has already ratiﬁed or acceded to essential conventions: it ratiﬁed the the United Nations＊Director, Legal Education and Dissemination Department, Ministry of Justice, Cambodia.

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Convention against Transnational Organized Crime on 12 December 2005, and acceded to the United Nations
against Corruption on 5 September 2007.
4. Effective Mechanisms to Protect Witnesses and Whistle-blowers
Cambodian law does not mention in detail securing the protection of witnesses and whistle-blowers.
But the law does provide for police protection of witnesses and whistle-blowers as well as other ways ofensuring their safety. Furthermore, Article 24 of the United Nations Convention against Transnational
Organized Crime (UNTOC) speciﬁes that States Parties shall take appropriate measures to protect witnesses
from potential retaliation or intimidation. As a result, measures for witness protection are identiﬁed as:– Procedures for the physical protection of witnesses;– Relocation and non-disclosure;– Limiting the disclosure of information concerning their identity;– Evidentiary rules to permit witnesses to testify in a manner that ensures their safety; such as via
video link or other adequate means.
Articles 32 and 33 of the United Nations Convention against Corruption (UNCAC) also require States
Parties to take appropriate measures to provide effective protection for witnesses. Article 33 requires States
Parties to consider incorporating into their domestic legal systems appropriate measures to protect whistleblowers from any unjustiﬁed treatment as they are frequently important in detecting offences in the publicand private sectors.
B. Measures
There are several measures to protect witnesses to serious crime:– Measures to protect witnesses should include whistle-blowers, victims, and individuals who havebeen involved in criminal activity but who cooperate with police, prosecution, or the court, as wellas their families;– Police carefully protect witnesses from intimidation;– Procedural protection of witnesses needs to be implemented via the Law on Criminal Procedure orin speciﬁc legislation or speciﬁc provisions (to allow for trial detention of the alleged perpetrator; toprevent interference with the witnesses and others by alleged perpetrator; to order non-disclosureand testimony from witnesses);
The Law on Criminal Procedure and Law on the Criminal Code of Cambodia mention the procedureof witness protection, but not in great detail. Mention is restricted to the appearance of witnesses andinvestigation of evidence.

III. CRIMINALIZATION AND PUNISHMENT
A. Criminal Prosecution of Offenders who threaten Witnesses and Whistle-blowers
Those who commit corruption and organized crime use their wealth and power to undermine justice.
Justice cannot be done if witnesses are threatened. Furthermore, serious crimes like corruption cannot be
detected and punished if the investigators, prosecutors and the courts cannot prove guilt because evidence issuppressed. Therefore, under the Law on the Criminal Code of Cambodia, offenders who threaten witnesses
are subject to criminal prosecution.
For example, in the Law on the Criminal Code of Cambodia Article 546 Intimidations against aWitness: “Any act of intimidation committed by a perpetrator alone or with consent of a third party toinstigate a witness not to give any statement or to provide false oral or written testimony is punishable by an
imprisonment from 2 (two) years to 5 (five) years and a fine from 4,000,000 (four million) Riels to10,000,000 (ten million) Riels.
It is punishable by an imprisonment from 5 (ﬁve) years to 10 (ten) years if the offence produces an― 64 ―

effect. (Unofficial translation)”
And Article 548 Bribery given to a Witness: “It is punishable by an imprisonment from ﬁve years to10 (ten) years any person who gives directly or indirectly donation, present, promise or any interest to awitness in order:
1. not to testify as a witness;
2. to provide false testimony. Unofficial translation”
Article 23 of the United Nation Convention against Transnational Organized Crime (UNTOC) andArticle 25 of the United Nation Convention against Corruption (UNCAC) require States Parties to address theproblem of “obstruction of justice” by enacting legislation or other measures to criminalize enforcement,threats, or inducements to interfere with witnesses.
Unfortunately, Cambodian law does not mention criminal prosecution of offenders who threatenwhistle-blowers.
B. Criminal Prosecution for Assisting Perpetrators, Co-Perpetrators, Instigators and Accomplices
The Criminal Code of Cambodia penalizes assistance to perpetrators, co-perpetrators, instigators andaccomplices. Involvement in criminal activities causes many dangers to society and the economy, and iscontrary to social values. Thus, the Law on the Criminal Code of Cambodia penalizes those who support
criminals.
For example, Article 544: “It is punishable by an imprisonment from one year to three years and a ﬁnefrom 2,000,000 (two million) Riels to 6,000,000 (six million) Riels for any act of providing to a perpetrator,co-instigators, instigator or accomplice of a felony with:
1. a lodging;
2. a hiding place;
3. means for living;
4. all means which facilitates the evasion or escape from an investigation (Unofficial translation).”C. Criminal Prosecution of Witnesses and Whistle-blowers for False TestimonyWitnesses can be prosecuted for giving false testimony and for accepting a bribe to produce falsetestimony. As these actions obstruct justice, the Law on the Criminal Code of Cambodia provides forprosecution of such actions.
For example, Article 545 Penalties for False Testimonies: “False testimonies made after taking anoath before the court or a judicial police ofﬁcer who acts under the framework of a rogation commission orderis punishable by an imprisonment from 2 (two) years to 5 (ﬁve) years and a ﬁne from 4,000,000 (four million)Riels to 10,000,000 (ten million) Riels. (Unofficial translation)”
And Article 547 Bribery taken by a Witness to Produce False Testimonies: “It is punishable by animprisonment from 5 (ﬁve) years to 10 (ten) years for the act of any witness who directly or indirectly solicits
or accept donation, present, promise or any interest in order:
1. not to testify as a witness;
2. to provide false testimony. (Unofficial translation)”

IV. MITIGATION OF PUNISHMENTS AND/OR IMMUNITY GRANTS
A. Mitigation of Punishments of Witnesses
Witnesses to corruption and organized crime may include whistle-blowers, victims, and perpetrators
who have become state witnesses. All should receive mitigation of punishment.
For example, the Law on the Criminal Code of Cambodia provides for mitigating circumstances in― 65 ―

Articles 93-95, which leave decisions to the courts ’ discretion. Article 93 Definition of Mitigating
Circumstances: “When the nature of the offences or the personality of the perpetrator justiﬁes, the court may
provide the accused the benefit of mitigating circumstances. The mitigating circumstances may also begranted to the convicted person even he/she is declared as an individual who is in recidivism.” Article 94
Impact of Mitigating Circumstances: “When the court grants the accused the mitigating circumstances, theminimum of the principal penalties imposed upon for a felony or a misdemeanor is reduced according to thefollowing scale:
1. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 10 (ten)years, it is reduced to 2 (two) years;
2. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 5 (ﬁve)years and less than 10 (ten) years, it is reduced to 1 (one) year;
3. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 2 (two)years and less than 5 (ﬁve) years, it is reduced to 6 (six) months;
4. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 6 (six)days, and less than 2 (two) years, it is reduced to 1 (one) day;
5. The minimum of the ﬁne imposed upon is reduced to a half.”
Article 95 Penalty of Life Imprisonment and Mitigating Circumstances: “When an offender issentenced to life imprisonment, the judge who grants mitigating circumstances may pronounce the penalty ofimprisonment of between 15 (ﬁfteen) years and 30 (thirty) years. (Unofficial translation).”B. Immunity Grants with Witness Protection Measures
Witnesses to corruption and organized crime may include whistle-blowers, victims and perpetrators
who have become state witnesses. They and their families should get immunity from prosecution. Therefore,
current legislation on witness protection needs to be amended to include clear provision for immunity grants.

V. INSTANCES OF SUCCESSFUL AND UNSUCCESSFUL
IMPLEMENTATION
A. Implementation of Securing Protection of Witnesses and Whistle-blowers
As mentioned earlier, the Criminal Procedure Code and the Criminal Code of Cambodia briefly
mention legal protection of witnesses and whistle-blowers. Other measures to secure protection of witnesses
are also in place, but need to be elaborated.
Effective legislation and measures or mechanisms to protect witnesses and whistle-blowers areespecially necessary to protect against revelation of witnesses’ identity, ensure their permanent safety, andprotect their families.
B. Implementation of Cooperation of Witnesses and Whistle-blowers
Cooperation of witnesses, whistle-blowers, victims, as well as former perpetrators is essential toensure successful prosecutions and justice.

VI. RECOMMENDATIONS
Recommendations relate to securing protection and cooperation of witnesses and whistle-blowers:– Establish effective legal measures or mechanisms to protect witnesses and whistle-blowers toimprove the legal system and civil society of Cambodia;– Expedient law enforcement as well as upholding of the fundamental legal obligations of the State;– Build and strengthen the capacity of law enforcement personnel;– Protect witnesses and whistle-blowers as well as their families (make them safe);― 66 ―

– Witnesses and whistle-blowers protection programmes to be co-ordinated by the police;– Establish procedural protection measures;– Policy strategies (training in standard investigation; development of police ofﬁcers; and importanceof the investigation of witness reports).

VII. CONCLUSION
To sum up, the protection and cooperation of witnesses and whistle-blowers is essential to ensure
successful prosecution of corruption and organized crime. Cambodia already has legislation and othermeasures to protect witnesses and whistle-blowers and this is also a matter of government policy. In myopinion, existing Cambodian legislation and measures are insufﬁcient in dealing with these matters. Effective
legislation and measures to protect witnesses and whistle-blowers should be enacted as soon as possible, as
well as strengthening law enforcement and building the capacity of law enforcement personnel who will
implement these mechanisms.

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