Additionally, judges often do not use alternative non-custodial solutions that are available under
the law, which leads to severe penalties for non-violent offenses and prison overcrowding. 94 For
example, Article 38 states that “once the investigating judge decides to divert, he/she shall stay
proceeding and issue order to pre-trial release of the minor immediately if the minor is in pre-trial
detention.”95 Since diversion and restorative justice mechanisms do not yet exist, it is difficult for a
lawyer to argue for an alternative to prison.96 In fact, most offenders are detained in Prey Sar prison
near Phnom Penh due to the lack of youth shelters or other centers offering rehabilitative services. 97
If a judge is to recommend services, it must be in the context of what is actually available. It would
be beneficial to obtain recommendations from social workers and NGOs such as Transcultural
Psychosocial Organization (TPO), to identify what services are currently available to juveniles. 98
While Cambodian law provides for these diversion plans, there must be guidelines that further
develop mechanisms for action.
B. The Need for Multiple Juvenile Courts and Prisons
The law also seeks to create separate facilities for juveniles because the lack of a separate system
or facilities for juveniles leads to prosecution alongside adults and imprisonment in the same cells as
adults, subjecting them to dangerous environments that are filled with more violence and crime. 99
Rachel Watkins, who works with TLC’s Children and Families Department, stated that incarcerating
children alongside adults leaves an already vulnerable group open and exposed to potential
exploitation and abuse. 100 In her annual report to the UN in late 2017, Special Rapporteur Rhona
Smith wrote that the Ministry of Social Affairs confirmed that a sub-decree would soon be issued to
establish the country’s first juvenile court and prison. 101 However, Smith and others working for
juvenile rights in Cambodia are concerned that one facility in the country’s capital is not sufficient. 102
IBJ suggests that opening centers in the provinces will allow children to remain in contact with their
families, since the majority of people do not have the finances to travel to Phnom Penh. The lack of
specificity in the new law is worrying for human rights organizations because “such
ambiguity...leaves us highly concerned about the reality of how the youth rehabilitation centers would
operate in practice and whether they serve to further (intentionally or otherwise) isolate and
disconnect disenfranchised youth from their families, communities and society at large.” 103
94 Australian Department of Foreign Affairs and Trade, CAMBODIA JUSTICE SECTOR DELIVERY STRATEGY 1, 1 (Apr. 26,
95 JUV. JUST., supra note 8, art. 38.
96 UNICEF, supra note 31.
97 While this prison is located in the capital, it is often very distant for those from rural provinces. Kong Meta and Janelle
Retka, Government to build rehab centre for juveniles, PHNOM PENH POST (Oct. 27, 2017)
98 See generally About Us, TPO CAMBODIA, http://tpocambodia.org/tpo-about/ (last visited Mar. 4, 2018).
99 Tina Verstraeten, THE STATUS OF CHILDREN IN CONFLICT WITH THE LAW IN CAMBODIA AND VIETNAM 1, 32 (2016).
100 Erin Handley, Cambodia to soon establish juvenile prison: Social Affairs, THE PHNOM PENH POST (Aug. 18, 2017),