A new TrialWatch report released today finds that a 16-year-old autistic child was “stripped … of the protections to which he was entitled as a child with disabilities” when he was convicted of incitement and insult for social media messages critical of the government.
Kak Sovannchhay the son of two opposition figures, could barely speak until the age of seven, and he criticized participants in a Telegram group after they said he was “the son of a traitor.” For this, he spent nearly five months in detention. The proceedings against him were assigned a grade of ‘D.’
In June 2021, Kak Sovannchhay was arrested by heavily armed police, charged, and sent to a detention facility without access to his family. His mother says she visited the prison every five days to bring her son food, but the authorities did not allow her to see or communicate with him.
The prison authorities also provided no specialized accommodations, services, or care to account for his disabilities, as required under international standards. Meanwhile, Kak Sovannchhay’s father, a prominent opposition figure, has been in prison since May 2020 and is one of a group of defendants facing charges of ‘incitement’ and other alleged crimes.
“The entire State-driven process – from arrest, indictment, incarceration while awaiting and during trial, to the trial and conviction – was flawed and involved serious violations of the right to a fair trial, with completely inadequate accommodation of Kak Sovannchhay’s disability and of his status as a child,” said Alex Conte, Executive Director of Child Rights Connect and the TrialWatch Expert who authored the report along with staff at the ABA Center for Human Rights.
At Kak Sovannchhay’s trial, which was monitored by the ABA Center for Human Rights as part of TrialWatch, the court denied defense requests to call several witnesses, including a medical expert who could have testified to Kak Sovannchhay’s disabilities. This would have helped determine his ability to stand trial, potential accommodations necessary for him to effectively participate in the proceedings, and his culpability. Instead, without such testimony, and without any support, Kak Sovannchhay “struggled to understand questions asked of him.”
The report found that “[t]he State’s lack of inquiry into the support required by Sovannchhay and corresponding failure to ensure the provision of disability-appropriate accommodations at trial violated his rights to exercise legal capacity and access justice” as well as “his right to an inquiry into his fitness to stand trial.”
The Clooney Foundation for Justice stresses the need for Cambodia to reform its ‘incitement’ law immediately and uphold the rights of children and persons with disabilities in conflict with the law.
Kak Sovannchhay’s prosecution and conviction were neither necessary nor proportionate, and violated his right to freedom of expression, the report concluded. TrialWatch and Debevoise & Plimpton LLP previously challenged the application of Cambodia’s ‘incitement’ law before the UN Working Group on Arbitrary Detention, which found that it was “vague and overly broad” and incompatible with international human rights standards. Yet Cambodia continues to use this law—even going so far as to extend its application to children like Kak Sovannchhay.
Kak Sovannchhay is the autistic son of two opposition figures. He was held back three grades due to developmental delays. He was previously arrested in 2020 for entering the headquarters of Cambodia’s banned opposition party, where his father used to work, to pick up party flags he saw on the floor while walking by. Following this arrest, the police reportedly punched and slapped him and detained him for two days before releasing him without charge. In April 2021 he was attacked by two men on a motorbike who fractured his skull by hitting him with a brick.
On June 24, 2021, six police officers armed with AK-47s entered then-16-year-old Kak Sovannchhay’s house without a warrant, handcuffed him, and took him away in a car, while officers restrained his mother and as his terrified 84-year-old grandmother cried hysterically. He was then kept in detention until his trial began on September 29, 2021.
UN human rights experts described Kak Sovannchhay’s detention as “particularly disturbing,” stating that “[c]hildren with disabilities accused of breaking the law should be treated in line with the best interests of the child, and every effort should be made to keep them out of jail,” especially “in a case such as this of free and peaceful expression.”
At trial, the court denied the defense’s request to call a medical expert, who would have testified about Kak Sovannchhay’s autism symptoms, as well as the defense’s request to call the police officers who had led the investigation into Kak Sovannchhay’s alleged offenses and who had prepared the relevant police reports. The prosecution said—without any medical evidence—that Kak Sovannchhay was fully rehabilitated, meaning that he was not affected by a disability, and could be tried and convicted.
On November 1, 2021, Kak Sovannchhay was convicted of all charges and sentenced to eight months in prison. The time he spent in detention was credited as ‘time served,’ and the remaining three and a half months of his sentence were suspended. He was released on November 10, 2021.
The ABA Center for Human Righs previously monitored the trials of activist Kong Raiya and journalist Ros Sokhet as part of TrialWatch, both of whom were also convicted of ‘incitement’ for Facebook posts. TrialWatch has identified “a pattern in which Cambodian authorities have used incitement charges to target dissenting voices and have issued convictions despite scant evidence.”
For a full analysis of the case and grade that has been provided, read the report here.