MUTUAL LEGAL ASSISTANCE ANDRECOVERY OF PROCEEDS OF CORRUPTION
Ku Khemlin *I.

INTRODUCTION

In the five mandates issued by the government of Cambodia the core of achieving social
justice and sustainable and equitable socio-economic development was clearly identified. Inorder to further strengthen good governance, the Royal Government has firmly implemented
key reform programmes, including: (1) fight against corruption; (2) legal and judicial reform; (3)public administration reform; and (4) reform of the armed forces. The ultimate objective of thereforms, as well as that of other reform programmes, including public financial management
reform, land reform, and forestry and fisheries reform, is to strengthen the capacity, efficiency
and quality of public services to raise public confidence in the government and respond to theneeds and aspirations of the people and business community.
In Cambodia, there is a strong government commitment to combat the criminals andtransnational crimes in the context of cooperation and mutual legal assistance among theASEAN members and international community through bilateral and multilateral agreements.
The government has developed legislation and policies aimed at prevention, criminalization ofcorrupt conduct and capacity building of judges, prosecutors and law enforcement officers
through national and international training courses and workshops. These measures are importantbecause addressing the issues of mutual assistance in combating corruption and recovery ofproceeds of corruption leads not only to building trust for investors but also to promoting
investment in Cambodia.
II.

CURRENT LEGISLATION IN CAMBODIA

A.

Criminalization and Penalties for Corrupt Conduct
The Penal Code of Cambodia contains protection against corruption and clearly identifies
the criminal offences namely: the offences in article 278 (bribe taking by employees), article 279(bribe offered to employees), article 280 (bribe taking by governor), article 283 (criminal
responsibility by legal entity), article 387 (improper bidding), article 404 (definition of money
laundering), article 405 (sentence to be served), article 406 (aggravating circumstance), article
409 (criminal responsibility by legal entity), article 517 (bribe taking by judges), article 518(bribe offered to judges), article 519 (criminal responsibility by legal entity), article 547 (bribetaking by witnesses for false testimony), article 548 (bribe offered to witnesses), article 553(bribe taking by interpreter), article 554 (bribe offered to interpreter), article 555 (bribe taking byexperts), article 556 (bribe offered to experts), article 559 (criminal responsibility by legal entity),*

Deputy Director General, MOJ, Cambodia.

- 67 -article 592 (definition of misappropriation), article 593 (sentence to be served), article 594 (bribetaking), article 595 (definition of passive business influence), article 597 (definition ofembezzlement), article 598 (sentence to be served), article 599 (definition of favouritism), article
600 (sentence to be served), article 601 (intentional destruction and dishonest embezzlement),
article 605 (bribe offering), article 606 (active business influence), article 607 (extortion), article
608 (destruction and embezzlement), article 625 (criminal responsibility by legal entity), article
637 (bribe offered to person who has competence to issue false certificate), article 639 (bribetaking by member of professional board of medicine to issue false certificate), article 640 (bribe
offered to member of professional board of medicine to issue false certificate), article 641(execution of misdemeanour of articles 639 and 640 for all medical professions), article 644(criminal responsibility by legal entity).
The law on anti-corruption provides a comprehensive set of criminal offences relating tocorruption. The law aims to guide as a fundamental tool against corruption within the country
and promote effectiveness of all forms of service and strengthen good governance and the rule oflaw in leadership and state governance as well as to maintain integrity and justice, which isfundamental for social development and poverty reduction.
B.

Conventions and Agreements
Cambodia has ratified several conventions and agreements, namely: the Convention on theRights of the Child (1989) and its Optional Protocol on the Sale of Children, Child Prostitution
and Child Pornography 2000, the United Nations Convention against Transnational Organized
Crime 2000 and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, EspeciallyWoman and Children 2005, and the International Labour Organization’s (ILO) Convention 182
concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms ofChild Labour 1999. Agreements or conventions between Cambodia and ASEAN (Treaty on
Legal and Mutual Assistance in Criminal Matters, Cambodia ratified 2010) each underpin
increased border cooperation in anti-corruption matters. These instruments may assist withguiding efforts to strengthen frameworks for regional cooperation to target a wider range ofoffences; however, they provide little guidance for cooperation to specifically combat corruption.
Moreover, Cambodia has already ratified the essential convention, the United Nations
Convention against Transnational Organized Crime on 12 December 2015, and has acceded tothe United Nations Convention against Corruption on 5 September 2007.
III. MUTUAL LEGAL ASSISTANCE
Procedures for implementing mutual legal assistance shall be in agreement with theprinciples stated in treaties or bilateral and multilateral agreements, and national law in force.
A.

Mutual Legal Assistance in Civil Matters
The central authority has been established since 2011 within the Ministry of Justice tofacilitate mutual legal assistance in matters of criminal, civil, commercial, extradition, andtransfer of prisoners. For implementation of these activities the Ministry of Justice of Cambodia
has signed a bilateral Memorandum of Understanding on Cooperation between Cambodia andLao PDR and a Memorandum of Understanding on Cooperation between Cambodia and Viet- 68 -Nam for information exchange and capacity building among legal staff, judges and prosecutors.
Recently, in order to strengthen mutual judicial assistance between Cambodia and Viet Nam incivil matters, both parties have agreed to provide assistance in civil matters as a service of thejudiciary–extra of judicial documents, taking and transferring of evidence, summoning ofwitness and experts, recognition and enforcement of court judgement and decision, and exchangeof legal information and documents relating to judicial assistance 1.
B.

Mutual Legal Assistance in Criminal Matters
Cambodia’s legal framework for extradition is provided under the Criminal Procedures
2Code . The code provides a comprehensive set of requirements for carrying out extraditionproceedings in case of absence of an extradition treaty with Cambodia; diplomatic channels may
be used. On the other hand, a bilateral extradition agreement is more appropriate. Cambodia has
extradition agreements with Thailand, Lao, China, South Korea and Viet Nam.
In the case of corruption offences, the court authority of the Kingdom of Cambodia may
delegate power to the competent court authority of any foreign state and may also obtain powerfrom the court authority of any foreign state, in order to collect evidence and information relating
to the offence 3.

There is a strong basis under bilateral and multilateral treaties for Cambodia and othercountries to provide international legal cooperation to investigate and prosecute offences relating
to corruption. Under international legal standards, each country is required to facilitate crossborder cooperation for extradition and mutual legal assistance in criminal matters in cases
relating to transnational crime. A regional ASEAN treaty on mutual legal assistance in criminal
matters is also in place; however, all ASEAN members have not implemented it yet 4. Informalcooperation between law enforcement agencies is also an essential tool in fighting crime.
Informal cooperation—also “police to police” or “agency to agency” (along border) assistance—
typically does not require a legislative basis, and facilitates a wide measure of information
sharing between primary law enforcement agencies of different countries. Informal cooperation
allows police to share law enforcement intelligence (for example, criminal histories andmovement records) during the investigation stage, while evidence is still being gathered. The
importance of informal law enforcement cooperation is more appropriate because of its closer
link compared with the formal mechanism of extradition and mutual legal assistance.
IV.

RECOVERY OF PROCEEDS OF CORRUPTIONA.

Corruption Proceeds Offences
Corruption proceeds offences are acts to conceal, keep or transport any kinds of goods withknowledge that those are corruption proceeds as mentioned in the anti-corruption law. Acts thatcan be counted as corruption proceeds offences are as follows: acting as an intermediary for1

Agreement on mutual judicial assistance in civil matters between the Kingdom of Cambodia and the Socialist
Republic of Viet Nam 2013.
2
Criminal Procedure Code , Book, Article 566 to 595.
3Law on Anti-corruption, Article 51.
4
ASEAN Treaty on Mutual Legal Assistance in Criminal Matters (2004).

- 69 -transporting items with the knowledge that they are corruption proceeds; or an act that benefits
from corruption proceeds with clear knowledge 5 . If an employee is found guilty, he or sheshould be imprisoned from 6 months to 2 years 6.
B.

Liability for Corruption
When a person is found guilty of corruption, the court shall confiscate all his/hercorruption proceeds including property, materials, instruments that are derived from corruption,and the proceeds shall be transformed into state property. If the seized asset istransferred/changed into different property from the nature of the original asset, this transformed
asset will become the subject of seizure at the place where it is located. If the corruption
proceeds make more benefits or other advantages, all of these benefits and advantages will beseized as well. If the corruption proceeds disappear or lose value, the court may order thesettlement of the proceeds.

The hand-over of property is not mentioned clearly in the code. As a matter of practice,property is seized upon the extradition agreement and its requirement for the evidence of the caseat the time of arrest, and the seizure is based on the Investigation Chambers’ decision attached to
the Appeal Court in Phnom Penh.
V.

CONCLUSION

The current legal and policy framework demonstrates Cambodia’s firm commitment tofighting against corruption. The criminal code and criminal procedure code play a crucial role asfundamental laws in anti-corruption proceedings. The code provides a comprehensive set ofrequirements for carrying out the extradition and the procedures of asset recovery which shouldbe agreed to in the bilateral and multilateral agreements in principle.
The law on anti-corruption provides a comprehensive set of criminal offences relating tocorruption and confiscation of all corruption proceeds including property, material, andinstruments that are derived from corrupt acts, and the proceeds shall be transformed into state
property.
The essential alternative to legal assistance is informal cooperation—also “police to police”
or “agency to agency” (along border) assistance—typically does not require a legislative basis orreciprocity. Facilitating a wide measure of information sharing between primary law
enforcement agencies of different countries is the appropriate, successful way of handlingcorruption offences.

56The Anti-Corruption Law, Article 37.
The Criminal Code, Article 278.

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