캄보디아 정부는 인권옹호자들의 표현의 자유를 침해하는 형법 305조를 폐지하라
참여연대, 포럼아시아를 비롯해 아시아 시민사회단체들은 캄보디아 정부가 인권옹호자인 Sam Chankea를 명예훼손죄로 기소한 사건에 대해 국제 성명서를 제출하였습니다. [성명서 요약] 캄보디아 인권 및 개발 연합 (ADHOC)의 지역 운동가이며 인권옹호자인 Sam Chankea는 KDC International Company에 의해 신형법 305조의 명예훼손죄로 고소당했다. 그 이유는 2009년 12월 26일에 있었던 자유아시아방송(Radio Free Asia:RFA)과의 인터뷰 중 그가 KDC International Company와 캄퐁츠낭의 백 여덟 가구 사이에 일어나고 있는 토지관련 분쟁 사건에 대해 그의 의견을 표현했기 때문이다. Sam Chankea의 발언이 합법적이고 단순한 의사 표현 이였음에도 불구하고 2011년 1월 25일 캄퐁츠낭 주 법원은 Sam Chankea에게 1백만 리엘의 벌금과 3백만 리엘의 보상금을 내라고 명령했다. 4백만 리엘(약 1000달러)을 지불하지 못한다면 그는 투옥될 것이다.
캄보디아는 시민적 및 정치적 권리에 관한 국제 협약 (the International Convenant on Civil Rights: ICCPR)의 가입국이고 헌법에 표현의 자유를 명시하고 있는 국가이다. 그러나 형법 305조는 표현의 자유를 제약하는데 광범위하고 모호하게 이용되고 있다. 우리는 항소법원이 이 사건을 국제적인 인권기준에 따라 다시 판결해 줄 것을 강력히 요청한다. 또한 캄보디아 정부가 자신의 의사를 표현했다는 이유로 보복에 직면한 인권옹호자를 보호할 것과 자유로운 의사표현을 가로 막는데 이용되고 있는 형법 305조의 폐지를 촉구한다. (2011.2.14)*요약정리: 참여연대 7기 인턴 최준홍
[성명서 영어원문]
14 February 2011
Asian civil society condemns the conviction of Mr. Sam Chankea, a Cambodian human rights defender, for the exercise of his right to freedom of expression
We, the undersigned human rights NGOs, human rights defenders and women human rights defenders of Asia, deeply regret the conviction of Mr. Sam Chankea, provincial coordinator of the Cambodian Human Rights and Development Association (ADHOC). Mr. Chankea is a human rights defender active in land rights issues in Kampong Chhnang province. He was charged with defamation under Article 305 of the New Penal Code by the KDC International Company, a development company allegedly owned by Lauk Chumteav Chea Kheng, the wife of the Minister of Mining and Energy in Cambodia. On 25 January 2011, the Kg. Chhnang Provincial Court ruled against Mr. Sam Chankea and ordered him to pay a 1 million Riel fine and an additional 3 million Riel in compensation. If he does not pay the 4 million Riel (approximately 1,000 USD), he faces imprisonment.
Mr. Sam Chankea was charged for defamation by the KDC International Company because of a statement he made during a radio interview on Radio Free Asia (RFA) on 26 December 2009. In this interview he expressed his opinion on an ongoing land case in Kampong Chhnang between 108 families and the KDC International Company. There is a pending case between the families of Kampong Chhang and the KDC International Company, but still, the KDC International Company sent in its machinery to undertake land levelling. Mr. Sam Chankea considered the activity of land levelling by the KDC Company as an unlawful act. He stated that “what the company has done is an act of violation since the court has yet to rule on the merits of the case. Therefore the company should suspend the activity and await the ruling on the merits of the case”.
Mr. Sam Chankea was well within his rights as a human rights defender to speak publicly on his opinion on a human rights issue. Under Article 6(b) of the UN Declaration on Human Rights Defenders, he has the right to freely impart his views on all human rights and fundamental freedoms. Furthermore, Cambodia is a State party to the International Covenant on Civil and Political Rights (ICCPR), and the right to freedom of expression is protected under Article 19(2) of the Covenant. It is expressly stated there that “everyone shall have the right to freedom of expression.” The right to freedom of expression is also protected under Article 41 of the Constitution of Cambodia, which states that “Khmer citizens shall have freedom of expression, press, publication, and assembly.” This right, however, can be subject to certain limitations, such as those provided by law and those that are necessary “for the protection of national security or of public order.”
Article 305 of the New Penal Code is meant to be a limitation of this right. However, calls have been made by several human rights groups for the review of this defamation law on the ground that it is not a lawful derogation of the right to freedom of expression. A close inspection of Article 305 of the Penal Code reveals that it is too broad and ambiguous. This means that there would be great potential for the misuse and abuse of this law, which would lead towards an unlawful infringement of the very right itself. The UN Human Rights Committee, in its General Comment No. 10, explains that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.”
We, the undersigned human rights defenders and women human rights defenders, believe that the present case is an example of the abuse of the defamation law by a non-state actor. The statement of Mr Sam Chankea is a mere expression of opinion and a legitimate criticism of the acts of KDC International Company. A final verdict against Mr. Sam Chankea will have a chilling effect upon human rights defenders who work to expose abuses committed by businesses in Cambodia, especially those involved in land-grabbing and other acts in violation of the rights of Cambodian citizens. This case is a clear illustration of the defamation laws being used to silence dissenting and critical voices of human rights defenders.
We strongly urge the Appeal Court to promptly review the case of Mr. Sam Chankea in conformity with relevant international human rights standards, and therefore overturn the verdict issued by the Kg. Chhnang Provincial Court and acknowledge the fact that the defamation charge against Mr. Sam Chankea was clearly intended to hinder his work as a human rights defender.
14 February 2011
Asian civil society condemns the conviction of Mr. Sam Chankea, a Cambodian human rights defender, for the exercise of his right to freedom of expression
We, the undersigned human rights NGOs, human rights defenders and women human rights defenders of Asia, deeply regret the conviction of Mr. Sam Chankea, provincial coordinator of the Cambodian Human Rights and Development Association (ADHOC). Mr. Chankea is a human rights defender active in land rights issues in Kampong Chhnang province. He was charged with defamation under Article 305 of the New Penal Code by the KDC International Company, a development company allegedly owned by Lauk Chumteav Chea Kheng, the wife of the Minister of Mining and Energy in Cambodia. On 25 January 2011, the Kg. Chhnang Provincial Court ruled against Mr. Sam Chankea and ordered him to pay a 1 million Riel fine and an additional 3 million Riel in compensation. If he does not pay the 4 million Riel (approximately 1,000 USD), he faces imprisonment.
Mr. Sam Chankea was charged for defamation by the KDC International Company because of a statement he made during a radio interview on Radio Free Asia (RFA) on 26 December 2009. In this interview he expressed his opinion on an ongoing land case in Kampong Chhnang between 108 families and the KDC International Company. There is a pending case between the families of Kampong Chhang and the KDC International Company, but still, the KDC International Company sent in its machinery to undertake land levelling. Mr. Sam Chankea considered the activity of land levelling by the KDC Company as an unlawful act. He stated that “what the company has done is an act of violation since the court has yet to rule on the merits of the case. Therefore the company should suspend the activity and await the ruling on the merits of the case”.
Mr. Sam Chankea was well within his rights as a human rights defender to speak publicly on his opinion on a human rights issue. Under Article 6(b) of the UN Declaration on Human Rights Defenders, he has the right to freely impart his views on all human rights and fundamental freedoms. Furthermore, Cambodia is a State party to the International Covenant on Civil and Political Rights (ICCPR), and the right to freedom of expression is protected under Article 19(2) of the Covenant. It is expressly stated there that “everyone shall have the right to freedom of expression.” The right to freedom of expression is also protected under Article 41 of the Constitution of Cambodia, which states that “Khmer citizens shall have freedom of expression, press, publication, and assembly.” This right, however, can be subject to certain limitations, such as those provided by law and those that are necessary “for the protection of national security or of public order.”
Article 305 of the New Penal Code is meant to be a limitation of this right. However, calls have been made by several human rights groups for the review of this defamation law on the ground that it is not a lawful derogation of the right to freedom of expression. A close inspection of Article 305 of the Penal Code reveals that it is too broad and ambiguous. This means that there would be great potential for the misuse and abuse of this law, which would lead towards an unlawful infringement of the very right itself. The UN Human Rights Committee, in its General Comment No. 10, explains that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.”
We, the undersigned human rights defenders and women human rights defenders, believe that the present case is an example of the abuse of the defamation law by a non-state actor. The statement of Mr Sam Chankea is a mere expression of opinion and a legitimate criticism of the acts of KDC International Company. A final verdict against Mr. Sam Chankea will have a chilling effect upon human rights defenders who work to expose abuses committed by businesses in Cambodia, especially those involved in land-grabbing and other acts in violation of the rights of Cambodian citizens. This case is a clear illustration of the defamation laws being used to silence dissenting and critical voices of human rights defenders.
We strongly urge the Appeal Court to promptly review the case of Mr. Sam Chankea in conformity with relevant international human rights standards, and therefore overturn the verdict issued by the Kg. Chhnang Provincial Court and acknowledge the fact that the defamation charge against Mr. Sam Chankea was clearly intended to hinder his work as a human rights defender.
We strongly urge the government of Cambodia to guarantee the protection of human rights defenders who face reprisals from state and non-state actors because of their exercise of the right to freedom of expression. We also call on the government to repeal Article 305 of the Penal Code which makes defamation a criminal offence and which has clearly been used largely to silence the voices of human rights defenders.
The following groups endorse this statement:
1. Alliance of Independent Journalists Indonesia (AJI), Indonesia
2. Asian Centre for Human Rights (ACHR)
3. Asian Forum for Human Rights and Development (FORUM-ASIA)
4. Cambodian Human Rights and Development Association (ADHOC), Cambodia
5. Cambodian League for the Promotion and Defense of Human Right (LICADHO), Cambodia
6. Centre for Human Rights and Development (CHRD), Mongolia
7. Friends’ Association for Rural Reconstruction (FARR), India
8. Globe International, Mongolia
9. The Indonesian Human Rights Monitor (IMPARSIAL), Indonesia
10. Indonesia’s NGO Coalition for International Human Right Advocacy ? Human Rights Working Group (HRWG), Indonesia
11. Indonesian Human Rights Committee for Social Justice (IHCS), Indonesia
12. INFORM Human Rights Documentation Centre (INFORM), Sri Lanka
13. Informal Sector Service Center (INSEC), Nepal
14. Judicial System Monitoring Programme (JSMP), Timor Leste
15. Korean House for International Solidarity (KHIS), South Korea
16. Law and Society Trust (LST), Sri Lanka
17. National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
18. Odhikar, Bangladesh
19. People’s Solidarity for Participatory Democracy (PSPD), South Korea
20. People’s Watch, India
21. Philippine Alliance of Human Rights Advocates (PAHRA), Philippines
22. Sudhanthra, India
23. Tanggol Kalikasan, Philippines
24. The Observatory (FIDH-OMCT)
25. Think Centre, Singapore
26. Women’s Rehabilitation Centre (WOREC), Nepal
27. World Forum for Democratization in Asia (WFDA)
The following groups endorse this statement:
1. Alliance of Independent Journalists Indonesia (AJI), Indonesia
2. Asian Centre for Human Rights (ACHR)
3. Asian Forum for Human Rights and Development (FORUM-ASIA)
4. Cambodian Human Rights and Development Association (ADHOC), Cambodia
5. Cambodian League for the Promotion and Defense of Human Right (LICADHO), Cambodia
6. Centre for Human Rights and Development (CHRD), Mongolia
7. Friends’ Association for Rural Reconstruction (FARR), India
8. Globe International, Mongolia
9. The Indonesian Human Rights Monitor (IMPARSIAL), Indonesia
10. Indonesia’s NGO Coalition for International Human Right Advocacy ? Human Rights Working Group (HRWG), Indonesia
11. Indonesian Human Rights Committee for Social Justice (IHCS), Indonesia
12. INFORM Human Rights Documentation Centre (INFORM), Sri Lanka
13. Informal Sector Service Center (INSEC), Nepal
14. Judicial System Monitoring Programme (JSMP), Timor Leste
15. Korean House for International Solidarity (KHIS), South Korea
16. Law and Society Trust (LST), Sri Lanka
17. National Alliance of Women Human Rights Defenders (NAWHRD), Nepal
18. Odhikar, Bangladesh
19. People’s Solidarity for Participatory Democracy (PSPD), South Korea
20. People’s Watch, India
21. Philippine Alliance of Human Rights Advocates (PAHRA), Philippines
22. Sudhanthra, India
23. Tanggol Kalikasan, Philippines
24. The Observatory (FIDH-OMCT)
25. Think Centre, Singapore
26. Women’s Rehabilitation Centre (WOREC), Nepal
27. World Forum for Democratization in Asia (WFDA)
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