Search and seizure - national proceedings

Cambodia

Cambodia - Criminal Procedure Code 2007 EN

CAMBODIA – CRIMINAL PROCEDURE CODE

BOOK THREE THE INVESTIGATIONS

TITLE 2 - INVESTIGATION OF FLAGRANTE DELICTO CASES

CHAPTER 2 - Investigative Measures

Article 91. Searches

Judicial police officers may conduct a search. In this case, the judicial police officer shall first obtain authorization from the prosecutor, even verbal authorization.

Judicial police officers shall conduct the search in front of the owner of the place or in front of two witnesses if there is no owner. The witnesses shall be appointed by the judicial police officers. The witnesses shall not be members of police or a member of the Royal Gendarmeries who are under joint search operation forces.

Judicial police officers may not conduct searches before 6:00 a.m. or after 6:00 p.m., except:

In the case as provided for in Article 86 (Definition of Flagrant Felony or Misdemeanor) of this Code;

In the case as provided for in Article 88 (Considering As Flagrant Felony or Misdemeanor) of this Code;

In the case when there is a call for help from inside the place;

In the case the search is conducted at the time that is open to the public;

In the case the search is conducted at a place where drugs are produced, kept, circulated, distributed or used.

Judicial police officers shall write a record of the search, which shall include:

The authorization by the prosecutor by indicating the date and time of such authorization;

The identification of the owner or of each witness.

Judicial police officers may not search the office of a lawyer. Only prosecutors or investigating judges may conduct a search at an office of a lawyer and only in the presence of the president of the Bar Association, or a delegate of the president of the Bar Association, or the concerned lawyer.

Judicial police officers may conduct a search of the building of a newspaper, news publishing enterprises or news broadcasting enterprises only in the presence of a prosecutor or an investigating judge who shall guarantee that the search shall not affect the freedom of the press and their professions nor unreasonably delay the broadcasting or publishing of the news.

CAMBODIA – CRIMINAL PROCEDURE CODE

BOOK THREE THE INVESTIGATIONS

Title 3 - PRIMARY INVESTIGATIONS

Single Chapter - Primary Investigations

Article 113. Search

When the primary investigation involves a felony or misdemeanor, judicial police officers may conduct a search and seize relevant exhibits.

Judicial police officers shall seek an expressed and real consent from the owner of the premises. The consent shall be hand-written by the owner of the premises. If the owner is illiterate, the judicial police officer shall state clearly in the record that the owner of the premises is illiterate and approves the search.

Where the owner of the premises is absent or denies the search, the president of the court of the first instance who has territorial jurisdiction may issue authorized search order upon request from the prosecutor. The prosecutor shall personally direct the search. The search shall be conducted with the presence of the owner of the premises, or with the presence of two witnesses if the owner is absent. The witnesses shall be selected by the prosecutor. The witnesses cannot be judicial police or Royal Gendarmeries who are in the joint operating forces in the search. The search cannot be conducted before six (6) o’clock in the morning and after six (6) o’clock in the evening.

The provisions of Article 92 (Affixation of Stamp on Exhibits) of this Code shall apply to the seized objects.

CAMBODIA – CRIMINAL PROCEDURE CODE

BOOK 4 INVESTIGATIONS

TITLE 1 - Investigating Judge

CHAPTER 2 - INVESTIGATION BY AN INVESTIGATING JUDGE

SECTION 5 - Search and Seizure of Exhibits

Article 159. Rules to be applied in Searching The investigating judge can conduct a search.

An investigating judge shall conduct a search in the presence of the occupant of a place or if there is no presence of the occupant, the search shall be conducted in the presence of two (2) witnesses to be selected by the judge. The witnesses cannot be police or Royal Gendarmeries which is under the joint operation forces of the search.

An investigating judge cannot begin a search before 6:00 A.M and after 6:00 P.M., except in the case of searching:

At a place that is open to the public;

At all places where drugs are produced, stored, trafficked, distributed or used.

The search of a lawyer’s office shall only be conducted in the presence of the president of the Bar Association or his/her delegates.

The investigating judge shall prepare the search record to be signed by him/herself and the court clerk together with the occupant of the place or two (2) witnesses.

The record shall include the identification of the occupant of the place, or each witness. If the search is conducted in a lawyer’s office, the record shall note the presence of the president of the Bar Association or his/her delegates.

Article 160. Affixation of Stamp on Exhibits

An investigating judge may seize exhibits. The investigating judge shall affix stamp on the exhibits.

After showing the seized exhibits to the occupant of the place or to the two (2) witnesses, the investigating judge shall make a record on the seizure, including an inventory list of the seized exhibits. The record of such seizure shall be signed by the investigating judge and court clerk together with the occupant of the place or two (2) witnesses. The record shall include the identification of the occupant of the place or of each witness.

Article 161. Return of Seized Items to Owner by an Investigating Judge

When a settlement warrant has not been issued, the investigating judge shall have the competence to
return the seized items to the owner if there is no clear dispute over the ownership of the seized items.

The investigating judge shall make a well motivated decision after receiving an opinion from the prosecutor. The decision shall be immediately notified to the complainant and his/her appointed lawyer, if any.

The items shall not be returned to the requesting person if this measure may create obstacles to ascertaining the truth.

Objects which cause danger to human-being or property, such as weapons, explosives, or items illegally possessed, shall not be returned to the owner. Such objects shall be confiscated as state property.

CAMBODIA – CRIMINAL PROCEDURE CODE

BOOK 4 INVESTIGATIONS

TITLE 1 - Investigating Judge

CHAPTER 2 - INVESTIGATION BY AN INVESTIGATING JUDGE

SECTION 8 – Rogatory Commissions

Article 181. Search and Seizure Conducted by a Judicial Police Officer

Judicial police officers can search and seize objects according to the provisions of Articles 91 (Search) and 92 (Affixation of Stamp on Exhibits) of this Code. However, authorization as stated in the second phrase of paragraph 1 of Article 91 (Search) of this Code shall be provided by the investigating judge.

Cambodia - Provisions relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period 1992 EN

SECTION II: CRIMINAL PROCEDURE

Article 20: searches

1. Searches must be conducted in the presence of the suspect and two witnesses, preferably neighbors or owners of the building.
2. Except in cases of cognizable offenses, searches must be authorized by one of the judges of the competent court or by the prosecutor. They may take place only between the hours of 6:00 a.m. and 6:00 p.m. They should take place in the presence of the suspect if possible, and two witnesses from among the suspect's family members. Proof obtained in violation of the present Article is not admissible in court.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(h) The execution of searches and seizures;