LEGAL ANALYSIS:
THE CASE OF EVICTIONS IN BOREI KEILA
This legal analysis was
written for the use of Housing Rights Task Force (HRTF), a non profit, non
partisan coalition of international and Cambodian organizations and individuals
committed to promoting the right to adequate housing and ending the practice of
forced evictions in Cambodia.
For more information, please
contact:
Office Address: #2A, St. 271,
Sangkat Beung Tompun, Khan Meanchey, Phnom Penh, Kingdom of Cambodia.
Telephone/Fax: +855 23 996
531
P.O.Box 1247
Website: www.hrtfcambodia.org
Introduction
• The purpose of this Housing Rights Task force report
is to analyze the facts and legal implications of eviction of the Borei Keila
community, in Phnom Penh, Kingdom of Cambodia (Cambodia). This Report is not
intended to be a conclusive or authoritative account of what has happened in
this community, rather it is a starting point for further investigations into
and analysis of this eviction.
• The Report considers the events and disputes which
have occurred which have occurred in Borei Keila case from 2004 to 2012.
• The Report finds that Cambodian authorities and Phan
Imex Company have acted without respect for human dignity or the basics rights
of the Borei Keila residents. Furthermore Authority’s representatives have
failed in their duties as guarantors of equality, basic freedom and as
protective body toward the Cambodian citizens, such as described in the Universal
Declaration on Human Rights (UDHR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR), the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD) and the Constitution of the Kingdom of Cambodia State.
• This report is made using the press testimonies of
human rights organizations witnesses and by the ground investigation made by
HRTF and others human rights groups.
I- Facts
1)
Background
In the recent years, the global increase in land
prices has given rise to widespread and systematic violations of land rights in
Cambodia. Since 1990, in Phnom Penh alone, 133,000 people have been evicted[1].
In 2004, a land sharing deal was proposed by the
local real estate developer, Phan Imex, which would allow the company to
develop the Borei Keila community’s land in Phnom Penh[2].
The Company signed an
agreement with the Community to construct ten six-floor buildings on two
hectares of land to house 1,776 displaced families, in exchange for the right
to develop the remaining 2.6 hectares[3]. The agreement provided that all the owners
living permanently at Borei Keila would be eligible to get an apartment in the
new buildings.
In March 2007, three
buildings «A,B,C» were constructed and the authorities began to allocate
apartments to 87 residents in building A and B. In the following months, more
families were given room.
However, during this process,
there were allegations of corruption[4]
and discrimination. For instance, in March 2007, 160 families, including 31
affected by HIV/ AIDS were evicted from their homes and the houses were
demolished in order to clear the land for construction of the next
building. Evictees were screened to
determine their eligibility to get an apartment in the brand new structures. Families
affected by HIV/ AIDS were excluded from this screening process due to their
«HIV/AIDS status»[5].
In April 2007, many
criticisms were raised about the treatment of the HIV+ evictees, who were
living on the ruins of their destroyed homes.
The Phnom Penh municipality, concerned about the local elections, gave
them temporary shelter with the promise to find an adequate solution later.
Thus, the families were moved into the «Green Buildings» which were initially
made for the construction workers building the apartments. Their living
conditions during the two years were difficult due to the metal component of
the structures and the poor sanitation system. However, the residents remained
because these Green Buildings were close to medical and social facilities, work
and schools. By the end of 2008, several
years after the social land concessions were first established, 1,254 families
were still awaiting apartments. Only 522 families have received apartments from
the Phnom Penh municipality.[6]
In 2009, the Municipality
expressed its intention to move the families to the permanent relocation site
of Tuol Sambo and Phnom Bat Villages, which are far outside the city. On top of
that the Ministry of Tourism planned to build a new headquarters on the Borei
Keila site with a garden, which implied the demolition of the Green Buildings.
More than 15 local and international organizations wrote to the Municipal
Governor and to the Prime Minister and his wife[7],
protesting against forced relocation to Tuol Sambo. Human rights organization
stressed that this relocation site would not provide enough health care
facilities for the HIV/AIDS affected families and would threaten their access
to appropriate treatment. People advocated and protest again about the hardship
caused due to the long distance from the work, schools and other necessary
facilities. For instance, a round trip fare to Phnom Penh by motorcycle taxi,
to go to work or to visit hospitals, costs the equivalent of about US$5 – for
families who only earn about $1.50 to $3 a day.[8]
Since 2007, many families who
have tried to prove their eligibility to receive an apartment have failed to
achieve enforcement from legal authorities.
However, in April 2009, after hard and long advocacy by the evictees and
human rights organizations, the local officials acknowledged that some of the
families were eligible for occupancy in the new building. In May 2009, 31
families were put on a waiting list to acquire an apartment. However, even
families who have arguable cases for eligibility to an apartment were excluded.
None of the families on the list immediately received apartments and after some
time the list was shortened to 11 families.
In mid-June 2009, HIV/AIDS
families were evicted despite the numerous protest and appeals from the
residents, non-governmental organizations and UN agencies. The Government did
not work closely with the UN agencies who sought to create a fair eviction
plan. Indeed, the UN Country Team could not even meet the Phnom Penh Municipal
Governor, Mann Chhoeun. On the morning
of June 18th, local officials arrived without notice at the Green Building to
tell twenty families to pack their possessions to be moved to Tuol Sambo. To
entice them to accept the move without resistance, donations were given to each
family: $250 provided by the Ministry of Tourism, and $25, a 50kg bag of rice,
bottles of soy sauce and fish sauce, and two buckets provided by the Phnom Penh
Municipality[9].
Three days later, the
remaining 11 HIV/AIDS families in the Green Buildings, who were supposed to be
eligible for new apartments at Borei Keila were also evicted. They were told
that they would have to wait three more months to get room in one of the new
apartments. In the meantime, each family was given $90 in order to rent a place
somewhere else and an oral guarantee that they would receive an apartment.
In 2010, the company had
constructed only eight buildings, leaving nearly 400 families without housing.
Some families have accepted offers of compensation and housing in two resettlement
areas: Tuol Sambo village and Phnom Bat village ; but very few remained in
Borei Keila.
These sites are largely
outside the capital (20-45 km far) and they lack decent facilities[10].
The rooms in the six metal buildings at the Tuol Sambo site do not meet
international minimal standards for even temporary emergency housing in terms
of size, fire safety and sanitation.[11]
The rooms measure 3.5 x 4.8 meters, and some of them are overcrowded with up to
8 people in the same room. The rooms are very hot in the daytime, due to the
metal walls and roof, and are poorly ventilated because of lack of space
between the buildings. The sewage and drainage system is rudimentary, with open
sewers.
Phan Imex’s owner Suy Sophan
sent, to Prime Minister Hun Sen in 2010, a letter requesting permission to
forgo the construction of the remaining two buildings citing expensive
construction cost, and asking that the land be granted to the company outright.[12]
2) Recent events
As of the beginning of 2012,
few residents remain in Borei Keila. 1343 families have been given an apartment
in the 8 buildings but 384 remains without any lands. On the early morning of
the 3rd of January 2012, police officers and security guards hired by the local
developer Phan Imex tried to dismantle some of the remaining houses in Borei
Keila. However, they were blocked by the residents who threw bricks and
petrol-filled bottles at them. These authorities shortly withdrew from the area
while residents gathered materials (bricks, logs, branches and tires) in order
to block the road leading to the village, expecting the police to come back
soon.
Approximately one hour later,
police, military police reinforcement, and security guards of the company
returned with fire trucks, an excavator, a bulldozer, guns and tear gas. This equipment was used to breach the
blockage, to keep residents at bay by using electric batons and to destroy the
remaining houses of Borei Keila’s community. Many of the houses were bulldozed
before their inhabitants could gather their personal effects from inside and so
were left with nothing. Officials fired tear gas on the residents who were
burning rubbish and throwing lit petrol-filled bottles and bricks. During this
process many residents were injured, as well as, authorities’ representatives.
(see annex).
At the end of the clash, ten
people were arrested by the police and taken to Prey Sar Prison. Two were
released soon afterwards because they were minors[13]
and another one as well because of his health problems. The others were charged
in court on the 5th of January 2012.
The evictees have been sent
to the relocation sites where other former BK residents were located. Phan Imex
director, Suy Sophan argued that the people who were evicted were without legal
documents and that the eight buildings completed were sufficient for all the
former residents who were legally waiting to be accommodated.[14]
Following these events, the
Borei Keila residents decided to protest and to send petitions in order to get
the promised compensation, to obtain the releases of the eight detainees and to
express their disapproval of the forced eviction. On the January 11, 2012, 30
protesters were arrested in front of the City Hall by the police and forced
into a bus to be detained in the Prey Speu Social Affairs Center. The
authorities held these women and children for several days without any legal
justification, until 22 of them escaped on the January 18, 2012[15].
On the February 1, 2012, the
residents held another protest in front of City Hall which ended as the
previous one: six women were arrested without legal charges and violently
mistreated, having "five security guards or police on each woman.[16]
During the demonstration, women tore off their shirts and bottles of water were
launched toward the Police. On the February 2, all six women were released
under the condition that they stop protesting and work authorities to resolve
the problems.[17]
On February 17th, the 7
detainees from the eviction have been «temporally» released after 44 days at
Prey Sar Prison but are still under the prospect to be called in court.[18]
Recently, the construction of
a ninth and 10th building started but it will not be for the evictees according
to the Company.[19]
II-Legal
Analysis of the Borei Keila Eviction
The following legal analysis
will study the implications of the Borei Keila eviction from different angles.
The laws that apply to the recent events are Cambodian law, international laws
and treaties which the Kingdom of Cambodia has ratified.
On the 10 July 2007, the
Constitutional Council concluded that courts shall consider “international
conventions that Cambodia has recognized as domestic law along with the
Constitution and other applicable law». Moreover, Article 31 from the Constitution
of Cambodia[20]
provides that Cambodia «recognize and respect human rights as stipulated in the
United Nations Charter, the Universal Declaration of human rights, the
covenants and conventions related to Human rights, women’s and children's
rights»
Cambodian law does not
include a clear prohibition on forced eviction and only provides a limited and
weak degree of protection against forced evictions. According to Article 8 of the Constitution of the Kingdom of Cambodia: «The King shall be the
guarantor of the national independence, sovereignty, and territorial integrity
of the Kingdom of Cambodia, the protector of rights and freedom for all
citizens and the guarantor of international treaties».
Consequently, the authorities
have to comply with human rights standards and promote the welfare of its
Cambodian citizens’. However, in this case basic human rights were not
respected nor enforced by any legal entity.
1) Rights of property and protection against illegal evictions
In 2007, 160 families were
evicted from their homes because the Company needed more space to finish the
construction of the new building. They have not all been rehoused. On the 3rd
of January 2012, police officers and security guards from Phan Imex tried to
dismantle the remaining houses in Borei Keila and evict the last residents.
These citizens were not allowed to take any belongings from their homes.
According Article 17 of the Universal Declaration of Human Rights (UDHR) (1948) : « Everyone
has the right to own property alone as well as in association with others. No one
shall be arbitrarily deprived of his property». Moreover, Article 44 of the Constitution
of the Kingdom of Cambodia provides that « All persons, individually or
collectively, shall have the right to ownership», «Legal private ownership shall be protected
by the law» and, «The right to confiscate possessions from any person shall be
exercised only in the public interest as provided for under law and shall
require fair and just compensation in advance».
In this case no legal
document, authorizing an eviction was issued by a competent legal
authority.
General
Comment No. 7 of the Committee on
Economic, Social and Cultural Rights states that “the State itself must refrain from forced evictions
and ensure that the law is enforced against its agents or third parties who
carry out forced evictions”. It also provides that “Evictions should not result
in individuals being rendered homeless or vulnerable to the violation of other
human rights”; and prescribes protective mechanisms for evictees in the highly
exceptional circumstances where eviction is unavoidable.
According to the Law, no
eviction should be conducted without a Court Order, even if the current
resident is living on someone else’s property.
Article 35 of the 2001 Cambodian Land Law states that only
the real owner can claim the property and seek an eviction. According to this stipulation, only competent
authorities are allowed to take legal eviction. « Only the competent
authorities may, on behalf of the State and public legal entities, force occupants
without title or insufficient titles to vacate the immovable property.
Individuals or authorities not acting on behalf of the State or public legal
entities are not competent to remove forcibly a peaceful occupant holding valid
title. Removal can only be made by court’s order upon the claim of the person
who claims the property».
Moreover, Article 299 and Article 300 of the Cambodian
Penal Code[21]
states that: «Entering the dwelling place of another person by acts of
violence, or by coercion, threats or manoeuvres, except where authorized by
law, shall be punishable by imprisonment from one month to one year and a fine
from ten thousand to two million Riels.» And that: «Entering the dwelling place
of another person against the person's will by a public official in the
performance of his or her duties or in connection therewith, except where
authorized by law shall be punishable by imprisonment from one year to two
years and a fine from two million to four million Riels.»
In this case, security guards
and other people from the Real Estate Company Phan Imex, illegally took action
in the destruction of the Borei Keila properties. The authorities did not have
any legal order or document authorizing destruction of the Borei Keila’s homes. Moreover, the other people who helped the
Police did not have the right to violate someone else property. They were
trespassing and should be held criminally liable for the destruction of
property. Article 410 of the Cambodian
Penal Code (2009) provides that: «Intentionally destroying, defacing or
damaging property belonging to another person shall be punishable by
imprisonment from six months to two years and a fine from one million to four
million Riels». The workers who helped to evict the Borei Keila resident helped
as well to the destruction of the houses and thus destroyed property of others
illegally.
The Police also exceeded
their power by taking action without legal justification or a court order and
by allowing civilians to help them. According to Article 263 of the 2001 Cambodian Land Law: «The authority, who
ignores or allows private individuals to act wrongfully against the rights of
owners, possessors, or peaceful occupants, shall be subject to a fine[22]
and also to administrative sanctions.»
Furthermore, Article 5 of the 2001 Land Law says that in a state expropriation case, the
eviction should only be done to further a public interest and not to create a
private benefit: «No person shall be deprived of his ownership, unless it is in
the public interest». Here, the «beneficiary» of the eviction is a private
company, which had an initial plan to develop and improve the area. However,
following the recent events we can think that this Company also had business
purposes, in violation of the law.
In this case, some of the
Borei Keila residents could offer legal title documenting their land ownership
but many could not. However, even this second group could prove legal ownership
entitling them to have received property title under the law. If the residents
have not previously requested the land title from the government, other
documents like family books, medical records, election ballots and electric or
water bills can prove their residency over time[23]. Indeed, following the 2001 Land Law, anyone living on a plot of land for more than five
years owns the land:
«Any person who, for no less
than five years prior to the promulgation of this law, enjoyed peaceful,
uncontested possession of immovable property that can lawfully be privately
possessed, has the right to request a definitive title of ownership. In case
the granting of a definitive title to ownership is subject to an opposition, the claimant has to prove that
he himself fulfills the conditions of peaceful, uncontested possession for no
less than five years over the contested immovable property or to prove that he
purchased the immovable property from the original possessor or his legal
beneficiary or from the person to whom the ownership was transferred, or from
their successors». (Art. 30, 2001 Land
Law)
NGOs have highlighted concerns about the failure
of the government to grant titles to people claiming it under this provision.
Due to low rights education among Cambodian
communities, families who are eligible for legal ownership after five years of
possession are often unaware of the procedure for claiming this right. This lack of knowledge is critical,
especially for poor families living on land that is subject to a concession.
The issue of property title is particularly urgent when urban poor communities
are earmarked for development because such areas are often treated as “informal
settlements,” a classification which prevents such communities from applying
for title without permission from the authorities. In addition, the fact that authorities
destroyed their homes before the inhabitants could take their belongings,
including personal documents, creates an obstacle to proving legal residency
and to enforcing their legal rights.
In this case, no legal court
order was granted and there was no legal basis for this eviction. Following
international and national law, forced evictions are illegal and considered a
violation of the universal human rights.
Moreover, in this process, the government has repeatedly helped the private
company carry out this eviction. It
shows that the government lacks the will to protect these citizens, who have
few resources and become further disenfranchised politically.
2) Right to just and equitable compensation
Compensation is defined as
money or something of value that is given to a person when someone else damages
or takes their property. A just
compensation amount given should be equal to the fair market value (FMV)[24]. If the property taken is worth X riels, they
should get money and/or land valued at X riel in return. Given the value of the land in Borei Keila,
centrally located prime real estate, the developer should offer relocation
sites and/or monetary compensation that is equal to the value of the land they
are leaving.
During the eviction process,
compensation and resettlement were provided to some Borei Keila residents. For
instance, in 2009, HIV/AIDS families were enticed with « donations »
to accept a move without resistance. These donations were given to each family:
$250 provided by the Ministry of Tourism, and $25, a 50 kg bag of rice, bottles
of soy sauce and fish sauce, and two buckets provided by the Phnom Penh
Municipality[25].
Clearly, $275 and the food supplies « donated « to some families in
2009 was inadequate.
Over the years many families
were taken to one of two resettlement areas: Tuol Sambo village and Phnom Bath
village in Kandal province. These sites are outside the capital (20 to 45 km
away) and do not comply with the criteria for decent human living standards,
according human rights observers. The sites lack clean water, electricity,
access to health care facilities or schools[26].
On top of that, the Borei Keila evictees report that the site is now
overcrowded.[27]
Safe shelter is considered a
basic need for human life. At a minimum, shelter has to provide protection
against the stresses of the physical environment as well as satisfying people’s
psychological requirements for a «place» or territory of their own and a focus
for their family.[28]
Article 5 of the 2001 Land Law provides
that «No person may be deprived of his ownership, unless it is in the public
interest. An ownership deprivation shall be carried out in accordance with the
forms and procedures provided by law and regulations and after the payment of
fair and just compensation in advance». Thus, compensations should be given
before the relocation occurs.
Neither the monetary amounts
offered nor the value of the homes at the relocation sites meet the principles
of just compensation. The Company didn’t propose a fair compensation. Indeed in
the center of Phnom Penh, a plot of land worth between 1000 and 1600$ per
square meters[29]
which is far from the compensation proposed by Phan Imex to the evictees.
3) Right to adequate housing
International law recognizes
the right to adequate housing and the responsibility of State parties to insure
that right.[30]
Article 11 of the Committee
on Economic, Social and Cultural Rights (CESCR, 1991) defines more
precisely the right to adequate housing. It underlines a number of factors
which must be taken into account in determining whether particular forms of
shelter can be considered to constitute "adequate housing" for the
purposes of the Covenant. They include the following:
(a) Legal security of tenure. Notwithstanding
the type of tenure, all persons should possess a degree of security of tenure
which guarantees legal protection against forced eviction, harassment and other
threats.
(b) Availability of services, materials,
facilities and infrastructure. Adequate housing should have sustainable
access to natural and common resources, safe drinking water, energy for
cooking, heating and lighting, sanitation and washing facilities, means of food
storage, refuse disposal, site drainage and emergency services;
(c) Affordability. Personal or household financial
costs associated with housing should be at such a level that the attainment and
satisfaction of other basic needs are not threatened or compromised;
(d) Habitability.
Adequate housing must be habitable providing the inhabitants with adequate
space and protecting them from cold,
damp, heat, rain, wind or other threats to health, structural hazards, and
disease vectors;
(e) Accessibility. Adequate housing must be
accessible to those entitled to it. Disadvantaged groups, such as the elderly,
the physically disabled, HIV+ individuals, must be accorded full and
sustainable access to adequate housing resources;
(f) Location. Adequate housing must be in a
location which allows access to employment options, health care services,
schools, child-care centers and other social facilities. Similarly, housing
should not be built on polluted sites nor in immediate proximity to pollution
sources that threaten the right to health of the inhabitants.
These principles are recalled
in the Cambodian 2001 Land Law which
provides that having an adequate housing means to have access to all the basic
facilities such as water, sanitation, schools and hospitals and to have
livelihood opportunities, such as access to jobs or farmland.
In the Borei Keila case, the
relocation sites do not provide these conditions: there is no access to basic
facilities, infrastructure or job opportunities. The sites are remote from the
city and access to it is not easy for the residents. Moreover, most of the «houses» are in reality
tents constructed with wood sticks that do not offer proper shelter against the
climate or exterior threats (see annex). The criteria of adequate housing is
not fulfilled and the situation of the evictee is not adequate or legal under
either international and Cambodian law.
4) Right of equal access to water, sanitation and health
A) Right to
Sanitation and Health
The rooms in the six metal
buildings at the Tuol Sambo site do not meet international standards for even
temporary emergency housing in terms of size, fire safety and sanitation.[31]
The rooms measure 3.5 x 4.8 meters, and most of them are overcrowded. The rooms
are very hot in the daytime, due to the metal walls and roof, and poorly
ventilated because of lack of space between the buildings. On top of that, the
evictees who did not agree to the relocation solution proposed by the Company,
did not receive a plot of land and have to be accommodated under tents. The
sewage and drainage system reported by NGOs is rudimentary, including open
sewers which will likely be a breeding ground for infection and disease[32],
including mosquito-borne diseases[33]. At minimum, the state has a duty to prevent,
treat and control of epidemic, endemic, occupational and other diseases. They
also have a legal obligation to «create conditions which would assure medical
service and medical attention in the event of sickness»[34].
Furthermore,
health care facilities are not reasonably accessible from the relocation sites.
The cost of transportation, of the care and then the price of the medicines can
be prohibitive and discourage this population to look for treatments. A return trip to Phnom Penh
by motorcycle taxi, to go to hospitals, costs about US$5 for people who earn
$1-$3 per day.
Human rights are «interdependent,
indivisible and interrelated»[35].
It means that violating the right to health may often impair the enjoyment of
other human rights, such as the rights to education or work. The right to
health is dependent on, and contributes to, the realization of many other human
rights. Housing is intimately related to health. The structure, location,
facilities, environment and uses of human shelter have a strong impact on the
state of physical, mental and social well-being.
Article 25 of the Universal Declaration of Human Rights and the article 12 of the ICESCR
provides that everyone has the right to a standard of life which will ensure
healthy living conditions and well being[36],
and that the States should play an active role guaranteeing it[37]. Indeed the government must ensure the
access to an efficient health care system.
According a
joint publication from the World Health Organisation (WHO) and the Office of
the United Nations High Commissioner for human rights (UNHCHR) on the right to
health,[38]
«States
must guarantee the right to health to the maximum of their available
resources». The states must, within its resources protect and assure the full
enjoyment of the right of health for all its citizens.
The Borei Keila population
have been sent to an unstable, unsafe environment, threatening their health due
to onsite living conditions and the unreasonable distance medical assistance.
The fact that the government does not insure a minimally healthy environment or
access to healthcare is a violation of the right to health. Inaction by the government threatens the
welfare and the survival of these vulnerable residents.
Moreover, some of the
resident know at least one family member who is on anti-retroviral therapy
(ART) medication, and many have opportunistic infections or other HIV related health
problems (such as tuberculosis, kidney problems, ...). The poor sanitation,
overcrowding and other conditions pose special health risks for these
immune-suppressed residents. Thus, the risk of infection or epidemic among this
population is heightened.
B) Right to
healthy water:
In the two
relocation sites, sanitary and living conditions are dismal. In particular,
access to water is a challenge. Only two wells have been identified in Phnom
Bat village and one well in Tuol Sambo Village and the general quality of the
water is poor. Residents can not use this water for a drinking, cooking or
bathing without risking to have health issues. Even boiled, this water is not
reported potable and provokes skin problems and sickness[39].
Some of the Borei Keila evictees have to buy clean water from the area’s former
inhabitants.
The proximity
of unclean water may foster the development of diseases. According the WHO,
water can be a vector of several diseases such as bacterial and protozoal
diarrhea, hepatitis, typhoid fever, dengue fever, Japanese encephalitis,
cholera, leptospirosis, malaria, etc.[40]
Water and sanitation have been
formally recognized as human rights as they are indispensable for the full
enjoyment of the right to life, the right to health and the right to
dignity. The Resolution 64/292 was
adopted by the UN General Assembly in
July 2010 «recognizes the right to safe and clean drinking water and sanitation
as a human right that is essential for the full enjoyment of life and all human
rights».[41]
Cambodia specifically recognizes this right. According to Article 11 of the Cambodian Law
on Water Resources, « Every person has
the right to use water resources for his/her vital human needs including
drinking, washing, bathing and other domestic purposes (...)».
The General Comment N°15 of the ICESCR(2003)
clarifies that «every human being to sufficient, safe, acceptable, physically
accessible and affordable water for personal and domestic use». The Right to
water is seen as necessary for the enjoyment of other human rights including
the right to life and human dignity, the right to health, to adequate housing,
development and to a healthy environment.
The Borei Keila evictees are in a
precarious situation which affects their health and survival. The lack of clean
drinking water coupled with the lack of access to healthcare creates conditions
that
promote disease transmission.
5) Right to non discrimination
In 2007, 31 households
affected by HIV/ AIDS were evicted from their houses. They have also been excluded
from this relocation planning according to their «HIV/AIDS status»[42]
Indeed, according human rights witnesses, only the applications of
non-HIV+/AIDS residents have been considered.
Moreover, they experiences
segregation in temporary shelters with poor living conditions. Another
distinction has been made between the evictees: HIV+ residents were sent to
unstable accommodation in metal sheds) whereas those who do not suffer from
this disease have been affected in higher standard building (brick made)[43].
The sanitation system was not efficient and the access to health care existed
but was not realistic due to the cost of the transportation to get it. There is
a high likelihood of stigmatization of the HIV/AIDS-affected families by others
who live in the area. The green metal buildings were distinctly different from
other housing at Tuol Sambo, and from normal houses in Cambodia. Even before
the evictees were resettled there, local people referred to the green sheds as
“the AIDS village”[44].
Discrimination
means any distinction, exclusion or restriction which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise of human
rights and fundamental freedoms. It is linked to the marginalization of
specific population groups and is generally at the root of fundamental
structural inequalities in society[45].
This, in turn, may make these groups more vulnerable to poverty and ill health.
Not surprisingly, traditionally discriminated and marginalized groups often
bear a disproportionate share of health problems. In this situation, the Borei
Keila evictees who are HIV+ have been gathered to create an «AIDS village», or
also called an «AIDS ghetto».[46]
Nondiscrimination
and equality are fundamental human rights principles and critical components of
the right to health. The article 2.2 of
the International Covenant on Economic,
Social and Cultural Rights identify the following non-exhaustive grounds of
discrimination: race, color, sex, language, religion, political or other
opinion, national or social origin, property, disability, birth or other
status. According to the Committee on
Economic, Social and Cultural Rights, “other status” may include health
status (HIV/AIDS). «States have an obligation to prohibit and eliminate
discrimination on all grounds and ensure equality to all in relation to access
to health care and the underlying determinants of health».
States should
adopt positive measures to ensure that specific individuals and groups are not
discriminated against. Indeed, following the Article 2 of the Law on the
Prevention and Control of HIV/AIDS (Cambodia, 2002): «AIDS is a
communicable disease caused by the HIV virus, which requires a multi-sectoral
response to be undertaken by the State in order to: prohibit all kinds of discrimination
against those persons suspected or known to be infected with or affected by
HIV/AIDS»
Discrimination
is also banned in the Cambodian Penal
Code: Article 265 provides that:
«Refusing to
supply goods or services to another person shall be punishable by imprisonment
or fine if the refusal is based on any of the following grounds: (...) (6) gender; (7) state of health; (8)
disability».
The fact that the evictees
suffering from HIV/AIDS are treated differently from the other people is
clearly a violation of their rights. Indeed, they should have access to the
same opportunities of accommodation, care and facilities. Apparently, the
allocation of housing, temporary shelter, and relocation sites depended here,
for the HIV+ families, of their health status. Protection is essential in order
to prevent the transmission and spread of HIV and reducing the impact of
HIV/AIDS on people’s lives.
These HIV+
families are now more stigmatized and isolated than before and are living a
challenge to get the care they need to be treated against HIV/ AIDS and
opportunistic infections. In the Borei Keila case, the states and
representatives of the authorities failed in protecting and guaranteeing
equality and the right of health. Discrimination towards poor families and
people who are HIV+ has clearly occurred, in total opposition of international
and national law.
6) Breach of contract
In 2004, representatives of
Borei Keila and delegates from the Company Phan Imex signed a contract defining
the conditions of relocation and compensation to the community. This agreement
states that two hectares of the land of the community will be for relocation
purposes. Indeed the Company agreed to construct ten buildings including two
structures to accommodate the Borei Keila’s families. The main point in this
agreement was that the Borei Keila residents would receive accommodation in the
new buildings in compensation for their land.
According to the Agreement
made between the Company (mentioned as Party B) and Borei Keila community
(Party A), Phan Imex had the responsibility to finish the entire construction
of the buildings within 30 months. On top of that, the contract provides that
the quality of the buildings would be inspected before assigning it to the
residents. In addition, if the Company delayed the completion of the
construction for more than two months, it would have to pay ten million riel
per month as a late fee.
As of 2010, the Company
developed the land but only built eight of the planned ten buildings. Phan Imex
requested permission from the government to cancel plans for the two other
edifices.
Recently, a new building has
been started to be built next to the 8 other structures. However, the company
claimed last year that it cannot allow to complete it for financial reasons.
Phan Imex did not respect the
contract on several points. First the time expected for the construction has
not been honored. The compensation for the delay of construction has not been
given to the residents. There are years of late payments overdue. Also, the
relocation compensation is not just and fair.
The relocation sites do not comply with even basic, minimum criteria for
adequate housing.
The difference between the
agreement made and the reality is significant. The Company misused the land,
only to develop a business at the expense of the community. It did not respect
the legal rights of the community under contract.
It is arguable that the
company committed fraud against the residents. Article 391 of the Cambodian Penal Code states that: « A
Breach of trust is committed when a person, to the prejudice of other persons,
misappropriates funds, valuables or any property that were handed over to him
or her and that he or she accepted subject to the condition of returning,
redelivering, presenting or using them in a specified way». The punishment for
the Breach of trust «imprisonment from six months to three years and a fine
from one million to six million Riels» (Article
392)
Furthermore, in February 2012, a ninth building has
been started in contradiction with the previous speech of the Company’s
representative arguing not being able to provide apartment for the evictees for
bankruptcy. A worker of Pan Imex said that the building is not for the Borei
Keila residents but didn’t explain the future use of this construction.
Phan Imex, here deny the right of the Borei Keila’s
evictees to receive the promised building. More than not respecting the
contract, the Company cancelled the construction of the 2 others edifices for
unreal reasons which is against the law. The coming building should be given to
the residents as planned in the 2004 contract.
Not only is the company in breach of a contract,
subject to civil redress but, Phan Imex misappropriated the land and did not
develop it as planned with blatant disregard for the rights of the residents.
According to the law, a breach of trust has occurred here.
7) Right of freedom of expression
After the eviction of January
3, 2012, the evictees tried to catch the attention of the government and the international
organizations by protesting peacefully in front of different building in Phnom
Penh City such as City Hall, the National Assembly and different Embassies[47].
At these several demonstrations, they have been pressured and threatened by the
authorities. On January 11, 2012,
several unarmed women and children were violently arrested for being part of
the protest. Police tried many times to make the protesters move. They then
forced them into a bus to take them to the Prey Speu center.
The right to freedom of expression is guaranteed to
all Cambodian citizens in Article 41 of
the Constitution and Article 19 of
the International Covenant on Civil and
Political Rights which states that: «Everyone shall have the
right to hold opinions without interference. Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media
of his choice».
However, the Cambodian
Penal Code contains provisions of law which limit the scope of this freedom
of speech and can be used to limit the right to protest. The Penal Code extends the scope of
defamation to criminalize comments that are held to undermine the reputation of
institutions. Article 502 provides
for the imprisonment of individuals whose words, gestures, writing, sketches or
objects are held to undermine the dignity of a civil servant or “citizen
entrusted with public mandate by an election in office”, while Article 523 criminalizes any criticism
of court decisions which are said to “cause turmoil” or “endanger Cambodian
institutions”
Article 305 makes it a crime, to make a statement publicly
through speech, writing or audiovisual communications that undermines the
reputation of someone (defined as defamation). Article 511 also defines insult, as expression (words, gestures,
...) which undermines the dignity of someone. Insult directed against a civil
servant or elected official is punishable[48].
All these provision may dissuade the possible
protesters to express their opinion and their complains. Communities should
been taught about their rights and about the law in a way to know that even if
the scope of the freedom of expression tend to be narrowed, the right of
expression is a fundament of the democracy.
More, the distance from the
city, the cost of transportation, the lack of documentation affects the right
to vote. The residents who have been displaced cannot reach the polls in the
city and cannot registered themselves to vote in another areas due to the
absence of legal documents proving they own a land in the relocation sites.
Forced eviction and displacement of these populations creates further legal
issues related to voting rights and the freedom of expression.
The authorities have tried to
deny Borei Keila evictees their freedom of speech by interfering in these
demonstrations, by physically and orally threatening these citizens and by
arbitrary unwarranted arrests in a way to intimidate all evictees and to
discourage future protests.[49]
These citizens should not be
denied their freedom of speech by the authorities, even if this right is
subject to conditions according to the law. The right of freedom of speech is
for all and no one should be punished to express accurate and real facts.
8) Rights of human dignity and non cruel treatment
During evictions, residents
and authorities have been injured. Company guards and government
representatives used force and violence against the evictees in order to
dissuade them from protecting their properties and belongings. The Police used
tear gas, sticks, electric batons and fired warning shots at the population.[50]More
than 60 persons have been reported injured. During following protests,
authorities have used violence against unarmed women and kids to force them
into a bus or to make them leave the demonstration.
Cambodia has its foundations,
the principle of non-violence against its citizens. Indeed in the Article 38 of the Constitution of the Kingdom of Cambodia: «The law guarantees shall
be no physical abuse against any individual». Moreover, The International Covenant on Civil and Political Rights (ICCPR
ratified by Cambodia in 1992) in its Article
7 insists that «No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.»
Furthermore, Article 221 of the Cambodian
Penal Code provides that:
«Intentional acts of violence shall be punishable [even if] if it is committed
by a public official in the performance of his or her duties or in connection
therewith». Article 588 of the Penal Code states that « arbitrary act
of violation of personal freedom committed by a public official or a holder of
public elected office, acting in the exercise or on the occasion of his or her
function, shall be punishable.
The role of government
authorities is to protect citizens against any form of danger and to protect
their rights. Authorities must be neutral and show professional behavior in
carrying out their duties. (Article 37,
Law on General Status of Civil Servants
of the Kingdom of Cambodia, 1994). Violence and power abuses represent
behavior contrary to this law and constitute a professional and perhaps
criminal breach. In this eviction the
government representatives failed to accomplish their duty and abused their
powers violating the human rights of the Borei Keila residents.
According to the law, no
violence should be employed to defend property or to evict someone out of his
land. Following the Cambodian Land Law any
person who uses private force to protect a property title or to proceed to an
eviction shall be fined and/or imprisoned. [51]More,
any person using violence towards someone who owns land, even if that person
does not legally prove it, shall be fined and/or imprisoned and be liable for
civil damages in front of a Court[52].
Thus, the use of the force to evict is illegal and affects the human rights of
the residents. Violence is not allowed in any case and should not be employed
by authorities toward civilian or even between citizens.
In this case, women, children, sick persons, old
residents have been victims of violence not only during the eviction itself but
also afterward, during the protests. Violent acts have been perpetrated by
governmental representatives and civilians hired by the Company Phan Imex. During, several protests, demonstrators have
been pushed, hit, kicked and forced into a bus. According to the legal
provisions above, policemen officers and authorities denied the basic rights of
these resident to be safe and not be violated.
Due to their position as government representatives, these acts
represent a more severe outrage to the safety of Borei Keila civilian. The
coordination of the use of force, between company workers and government
representatives, toward vulnerable people aggravates the initial illegal use of
the violence.
9) Right of protection against arbitrary arrests and
detention
Borei Keila residents and
evictees have been arrested several times in the first months of 2012 alone:
- On January 3, 2012, during
an eviction, ten persons were imprisoned. Three were released afterwards.
- On January 11th, 30
protesters, women and children, were forced into a bus to be led to Prey Speu
Social Affairs Center[53].
No legal justification, charges, documents or warrants were used. NGOs and
civil society were particularly affected about this arrest and express their
concerns to the Government through a joint letter (see annex).
- On the 1st of February, 6
other residents were arrested while protesting in front of City Hall. The
residents were released the following day after agreeing to stop protesting and
to. No charges, documents or warrants
justifying their arrest were used.
Eight initial arrests, made
during the eviction, have been legally defined. Thirty-eight other arrests have
been arbitrary and without merit. The eight of the ten people arrested on
January 3rd, 2012 were legally charged under both Article 218 (“intentional acts of violence with aggravating
circumstances”) and Article 504
(“obstruction of public officials with aggravating circumstances”) of the Cambodian Penal Code on January 5, 2012.
However, thirty-eight arrests
have been made without the provision of legal documents, criminal charges or
warrant. The Cambodian Penal Code in
its Article 590 specifies that «The
reception or detention of a person by an agent of the prison administration,
without a warrant, a judgement, a detention order or a release order drafted in
conformity with the law shall be punishable. Indeed the Article 38 of the Constitution
of the Kingdom of Cambodia requires that principle of lawful justification.
It specifies that «The prosecution, arrest, or detention of any person shall
not be done except in accordance with the law». Moreover Article 589 provides that «unlawful deprivation of liberty, the
willful failure either to put an end to such deprivation when he or she has the
power shall be punishable.
The prohibition of unlawful
and arbitrary arrest is also mentioned in the international law and treaties
that Cambodia had ratified such as the UDHR[54]
and the International Covenant on Civil
and Political Rights[55].
The arrest and detention of the vast majority Borei
Keila protesters is illegal and arbitrary, due to the lack of lawful justification.
The authorities arrest and imprison Borei Keila residents have committed
illegal acts and violate their human rights. Detainees have been violently
forced to go to the Prey Speu Social affairs center, without knowing the
charges against them or access to legal advice and without being legally
registered in the Center[56]
(see annex). They have been detained for a week there with no formal charges
and no access to legal advices which is illegal. The staff of Prey Speu center
didn’t have the legal right to detain them against their will.
In Cambodian Law, according to the article 98 of the Cambodian Code of Criminal Procedure, a person can be detained for
24 hours before being granted the right to receive advices from a lawyer for a
30 minutes talk.
The identity of those
arrested and detained is also a subject of concern. 7 Children have been
arrested and detained with the adults[57]
in the Prey Speu Social Affaire Center. However, according to the Law, «minors
should be separated from adults when in prison» (Article 166 of the Penal Code).
The Government insisted that
the Borei Keila protesters were not detained but were “invited” to stay in
order to get «proper care and (...) vocational trainings»[58].
However, during their stay at Prey Speu, no training, advice, treatment or
assistance was provided. They were not allowed to receive visit from their
family in private but only able to see them through the bars of the center’s
main entrance.
More according detainees,
during this forced stay in the center, were visited by representatives of the
company who proposed them an agreement for a plot of land on the relocation
sites and a small compensation. This proposition, according to the testimony of
a detainee, was more a threat[59],
saying that: they «would stay in this center if (they) didn’t accept her (the
company’s owner) offer»[60].
According to the article 363[61]
of the Cambodian Penal code,
obtaining something by the using threat is illegal. Some of the Borei Keila
resident thumb-printed the agreement but the fact that they were detained at
this moment and that the contract was made a possible use of coercion, make it
illegal. Indeed, according the Cambodian
law on contracts (1988), a contract is valid only if it is ratified with «a
real and free agreement»[62].
A free and genuine consent can’t be reached when a party has an influence on
the other.
III-
Conclusion and recommendations
The eviction which occurred in the beginning of 2012, in Borei Keila has
been illegal on many angles. Indeed the initial agreement hasn’t been fully
respected, didn’t provide a fair and just compensation and jeopardize the
situation of the evictees. Violence and threats have been largely employed by
the Authorities which aggravate the precarious conditions of the former
residents of Borei Keila.
The modus operandi didn’t
respect the law and the human rights of the residents, the actors who were
involved were not competent to proceed to the displacement and the eviction
itself was not legally justified.
The compensation offered by
the Company is far to be just and adequate. Indeed, the evictees should get at
least the same amount as the real estate prices defined in Phnom Penh. The
evictees should get compensation for the loss of their land but also for all
the belongings they had lost, the transportation they have to do and the loss
of income.
The plots of land in the
relocation sites are not complying with the law and with the description of
adequate housing, nor with the idea of well fare. The shelters proposed are not
safe, not equipped with facilities and sanitation system or not wide enough to
accommodate comfortably a family.
The distance from the city is
a threat for the access to health care and job opportunity which may increase
poverty and diseases in the relocation sites.
During all the process of
displacement and eviction, discrimination and corruption have been reported
which is illegal. Indeed basic resettlement shouldn’t be based on your health
status or on your ability to pay a bribe. This discrimination jeopardizes the
access to health system and appropriate treatments and will increase the risk
to spread diseases and the risk of mortality.
The company breached the
contract made in 2004 and cancelled the construction of the last 2 buildings,
didn’t pay the indemnity for the delay of work and also denied the right to
obtain an accommodation in the new constructions for the former Borei Keila
residents.
The evictees were also denied
their right of freedom of expression while protesting against this unlawful
eviction. Indeed they have to be threatened by authorities’ representatives and
by workers of Phan Imex company. According to the Cambodian law the right of
speech is tightly defined and framed narrowly.
The former residents of Borei
Keila have been arbitrarily arrested and illegally detained during their
demonstration process. The rights of the detainees have been violated because
some of them were not allowed to see a legal adviser or to see the legal
document justifying their arrest. Force was used toward unarmed women and children
during the protest which is against the basic human rights.
Pressure from the Company
during the detention is also a great concern and a misbehavior.
Recommendation:
NGOs and media should help Borei Keila community to
catch the attention of international society in a way to pressure national
entities to solve the land disputes. As in the Boeung Kak Lake case where the
World Bank suspended financial aids, Borei Keila could benefits from an
international help.
Borei Keila Community should be united and try to
learn from the experiences of other evicted communities and try to be unified
to them.
The Government should respect and implement fully
international and national law and especially:
-
Initiate an investigation on the Borei Keila forced
eviction, examining the apparent use of excessive force and the use of
detention;
- Ensure that all
members of the security forces, authorities’ representatives and civilian who
took part of the destruction of the house and who used violence toward evictees
are held accountable in fair justice proceedings.
-Ban all use of
intimidation and violence, including arbitrary arrest and detention, against
Borei Keila evictees;
-
Initiate an investigation on the arrest of the
protesters on the 11 January 2012 and their unlawful detention at Prey Speu
Social Affairs Center;
-
Ensure all the essential human rights of the Borei
Keila citizen such as adequate housing, health, rights, and freedom of speech.
-
Ban all the discrimination process during the
resettlement procedure and ensure an equal access to the same right of adequate
housing
-
Ensure that Phan Imex company is respecting the
agreement ratified in 2004 with the Borei Keila community;
- Ensure that the
evicted resident from Borei Keila are provided a fair and just compensation
and an accommodation in a safe and
healthy relocation area, complying the criteria of adequate housing;
Furthermore, Phan
Imex Company should as well:
- Respect the
contract ratified in 2004 and construct the remaining buildings;
-
Ensure the payment of fair and just compensation to
the evictees;
-
Recognise the right of property of the former Borei
Keila residents;
-
Give concrete
answers and solutions for the issue of adequate housing in the relocation
sites; and
- Stop using
intimidation and coercion toward former resident of Borei Keila
[1] Housing and Land Rights
Issues in Cambodia, Annex to Parallel Report Submitted to the Committee on
Economic, Social and Cultural Rights, Concerning Article 11 of the Covenant,
April 2009
[3] «Bricks used to drive out
authorities» by Khouth Sophakchakrya, The Phnom Penh Post, 03 Jan 2012
[4] According to The Cambodia Daily, community
representatives and official had taken bribes to give apartment in the new
buildings to people from outside Borei Keila
«Anti-corruption unit gets
complaint from B Keila» by Cheng Sokhorng, The Cambodia Daily, February 21,2012
[5] LICADHO Brieffing paper HIV/
AIDS families evicted from Borei Keila, 26 June 2009
[6] LICADHO, Borei Keila:
Cambodia's Social Housing Project Five Years, December 19, 2008
[7] The Prime Minister’s wife,
Lok Chumteal Bun Rany, is president of the Cambodian Red Cross and has been
presented as an advocate for people living with HIV/AIDS.
[8] [8] LICADHO
Brieffing paper HIV/ AIDS families evicted from Borei Keila, June 26, 2009
[9] LICADHO Brieffing paper HIV/
AIDS families evicted from Borei Keila, June 26, 2009
[11] According to a 2008 Médecins
Sans Frontiers assessment done of the site while under construction.
[13] «Borei Keila 8 sent to Prey
Sar» by Kouth Sophak with additional report by Marc Kolovski/Cassandra Yeap,
The Phnom Penh Post, January 6, 2012
[14] «Police relocate last of Borei Keila
residents» by Cheng Sophorng and Olesia Plokhii, The Cambodia Daily, Jan.5,
2012
[15] «Borei Keila detainees scale wall,
flee»
by Shane Worrell and Khouth Sophak Chakrya, The Phnom Penh Post, 18 January
2012
[16] «Cambodia police arrest
women protesting against forced evictions» by Kate Hodal, The Guardian UK,
February 2, 2012
[17] «Phnom Penh authorities
agree to conditional release of Borei Keila residents», The Cambodia Herald,
February 2, 2012
[19] «Building not for evicteed»
by Khouth Sophakchakrya with additional reporting by Shane Worrell, The Phnom
Penh Post, Friday, 17 February 2012
[20] ‘The Constitution of
Cambodia (entered into force December 24, 1993, available at
[21] The Penal Code of the
Kingdom of Cambodia (adopted the 30 November 2009 and entered into force the 10
December 2010)
[23] «Forced eviction and
resettlement in Cambodia: case studies from Phnom Penh», Washington University
Global Studies Law Review, Vol. 9, p. 39, 2010, Fordham Law Legal Studies Research
Paper No. 1719134, December 03, 2010
[25] LICADHO Briefing paper HIV/
AIDS families evicted from Borei Keila, 26 June 2009
[27] «Evicted families told
relocation site is full» by Phok Dorn and Olesia Plokhii, The Cambodia Daily,
10 Jan 2012
[29] Cambodia Estates Agent online
[30] Under Article 25 of the Universal
Declaration of Human Rights (UDHR, 1948)
«Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security in
the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control».
The International Covenant on
Economic, Social and Cultural Rights (ICESCR), ratified by Cambodia in
1992) states that: «The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international cooperation based on free consent»
[31] According to a 2008 Médecins
Sans Frontiers’ assessment which was done of the site while under construction.
[32] «Skin conditions, diarrhea
hit B Keila evictees», Khouth Sophakchakrya, The Phnom Penh Post, 01 February
2012
[34] Article 12 from the
International Covenant on Economic, Social and Cultural Rights
[35] Vienna
Declaration and Program of Action (A/CONF.157/23), adopted by the World
Conference on Human Rights, held in Vienna, 14–25 June 1993.
[36] Article 25 of the UDHR: «Everyone has the right to a standard of
living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control».
[37] Article 12 of the ICESCR: « The States Parties to the present
Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health».
[39] «Skin conditions, diarrhoea hit B
Keila evictees» by Khouth Sophakchakrya, The Phnom Penh Post, 01 February 2012
[40] Water Related diseases:
information sheet, WHO website
[41] Resolution 64/292: The Human
Right to water and sanitation, Sixty-fourth session, Agenda item 48, 28 July
2010
[42] LICADHO Briefing paper HIV/
AIDS families evicted from Borei Keila, 26 June 2009
[43] «Cambodia: AIDS colony
violates rights», Human Rights Watch, 28 July 2009
[44] «Cambodia creating 'AIDS village'», ABC news
online, June 19, 2009
[46] LICADHO report: Land
Grabbing and poverty in Cambodia: the myth of development by Mann Chhoeun,
Phnom Penh, p 12, May 2009
[47] «Six More Borei Keila
Protesters Arrested» by Heng Reaksmey, VOA news, 1 February 2012
«Borei Keila residents
detained after protest» by Phok Dorn and Zsombor Peter, The Cambodia Daily, 12
January 2012
[48] Comment on the Draft
Cambodian Penal Code, ARTICLE 19, London, September 2009
[49] Article 19, Cambodia:
«Activists robbed of their homes & voices», 24 January 2012
[50] «A battle for Borei Keila» by Kouth Sophak
Chakrya/ Mary Kozlovski, The Phnom Penh Post, 04 Jan 2012
[51] Article 254 of the 2001 Land
Law: « Under no circumstances shall the use of private force be authorized
in order to protect a person’s title to property or to enforce a court order
for the expulsion or forced removal of an occupant ».
[52] Article 253 of the 2001 Land
Law: « Any person who uses violence against a possessor in good faith of an
immovable property ; whether or not his title has been established or it is
disputed, shall be fined from 1,500,000 Riel to 25,000,000 Riel and/or
imprisoned from six months to two years irrespective of the penalty for
violence against a person. In addition to the above penalty, the violator shall
be liable for civil damages that were caused by his violent acts. If the
violence was ordered by a person other than the perpetrator, who did not
personally participate in the commission of such violence, he shall be subject
to the same penalties as the perpetrators of the violence».
[53] In the past, Prey Speu has
been used by the authorities to detain homeless people, drug users, and sex
workers r. There have been abuses which occurred there, including suspicious
deaths, rape, torture, and beatings.
[55] Article 9 of International
Covenant on Civil and Political Rights:
«Everyone
has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by
law. Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges against
him. Anyone arrested or detained on a criminal charge shall be brought promptly
before a judge (...) Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in order that
that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful».Anyone who has been the
victim of unlawful arrest or detention shall have an enforceable right to compensation.
[61] Article 363 of the Cambodian Penal Code: Extortion is the act of obtaining by
violence, threat of violence or coercion: (1) a signature or fingerprint; (2) a
commitment or an abandonment; (3) the disclosure of a secret; (4) the handing
over of funds, valuables or of any asset.
[62] Article 3 of the decree referring to contract and other liabilities (October 1988): A
contract is valid provided that it: arises out of a real and free agreement; is
made by parties who have capacity to enter into a contract (...)».
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