Law on Expropriation

1 KINGDOM OF CAMBODIA NATION RELIGION KING LAW ON EXPROPRIATION Ministry of Economy and Finance 2010 2 LAW ON EXPROPRIATION 3 Notice: This translation in English of the Law on Expropriation is an unofficial translation. Thus, in case of discrepancy between the English version and the Khmer version, the exact meaning shall be interpreted according to the text of law in Khmer. 4 PREAH REACH KRAM No.NS/RKM/0210/003 We Preahkaruna Preahbath Samdech Preah Boromneath Norodom Sihamoni Samanphoum Cheatsasna Rakhatkhateya Khemrarothreas Puthinthreathoreamohaksat Khemreachnea Samohopheas Kampuchekreachroathboranaksanti Sopheakmonglea Sereivibolea Khemarasreypireas Preah Chao Krong Kampuchea Thipdey Having seen the Constitution of the Kingdom of Cambodia Having seen the Preah Reach Kret No. NS/RKT/0908/1055 of 25 September 2008 on the appointment of the Royal Government of the Kingdom of Cambodia Having seen the Preah Reach Kram No. 02/NS/94 of 20 July 1994 promulgating the Law on the Organization and Functioning of the Council of Ministers Having seen the Preah Reach Kram No. NS/RKM/0196/18 of 24 January 1996 promulgating the Law on the Establishment of the Ministry of Economy and Finance Having seen the Preah Reach Kram No. CS/RKM/0498/06 of 08 April 1998 promulgating the Law on the Organization and Functioning of the Constitutional Council Having seen the proposals of Samdech Akak Moha Sena Padei Techo Hun Sen Prime Minister of the Kingdom of Cambodia and Minister of Economy and Finance 5 HEREBY PROMULGATED The Law on Expropriation adopted by the National Assembly on 29 December 2009 at the third ordinary session of the fourth legislature and approved by the Senate to its entire form and legality on 14 January 2010 at the sixth plenary session of the second legislature; the constitutional council has reviewed its constitutionality and declared that it is conform to the Constitution by a decision No. 108/001/2010 KBTC dated on 04 February 2010; and whose the meaning is as follows: Chapter 1 General Provisions Article 1: This law aims to define an expropriation in the Kingdom of Cambodia by defining the principles, mechanisms, procedures of expropriation, and fair and just compensation for any public physical infrastructure construction, rehabilitation, and expansion project for the public interests, national interests and development of Cambodia. Article 2: This law has the following purposes: to ensure just and fair deprivation of legal rights to private property, to ensure prior fair and just compensation, to serve the national and public interest, and to develop public physical infrastructures. Article 3: This law shall be applied to any expropriation resulting from public physical infrastructure projects in the Kingdom of Cambodia. This law does not govern any expropriation regulated in any agreement or memorandum on supporting investment between the Royal Government of Cambodia and development partner countries. In case of no such agreement and memorandum or they do not deal with expropriation, any expropriation shall be governed under this law. 6 Article 4: Key terms used in this law are: Expropriation refers to confiscation of ownership of or the real right to immovable property of a natural person, private legal entity and legal public entity, which includes land, buildings, and cultivated plants, for the purpose of constructing, rehabilitating or expanding public physical infrastructure for the national and public interests with prior fair and just compensation. Owner of immovable property and/or holder of real right refers to any natural person, private legal entity, and public legal entity including owner, possessor and all holder of real right to land, to be affected by the expropriation project. Public or general interests refer to the use of land or property by the general public or agents or state or public institutions. The need of National Interests refers to activities or projects which are primarily: the construction, rehabilitation, preservation or expansion of buildings necessary for national defense or security; and the occupation of land or property for practical implementation of a policy on defending territorial integrity; Project implementing Agency refers to a state, enterprise and public establishment, contractor or investor. Tenant refers to natural person or legal entity who receives right from the owner to occupy and use the property. A hinderer refers to a natural person or legal entity that is a mastermind, an accomplice, or an inciter who does a direct or indirect activity with bad faith, with the intention of blocking the process of implementing an approved expropriation. Article 5: Public physical infrastructure project shall include: 7 a. construction or expansion of railways, roads, bridges, airports, ports and accompanying structures and equipment; b. construction or expansion of power stations, structures, equipment and transmission lines and distribution lines; c. construction or expansion of buildings and equipment for postal, telecommunication and information technology systems; d. construction or expansion of roads, city space, vehicle parking lots, markets, parks, and public squares; e. construction or expansion of irrigation systems, clean water supply systems, sewage systems, and public interest spaces; f. construction or expansion of buildings for education, training, science, culture, health care, social security, and stadiums for performances to public audiences; g. construction or expansion of refineries, treatment plant, buildings and equipment for protection of nature and the environment; h. construction or expansion of buildings and equipment for research and exploiting mines and other natural resources; i. construction or expansion of gas systems, fuel pipes, oil refineries, oil rigs, and other systems; j. construction or expansion of buildings/residences which are seriously destroyed by natural disasters such as earthquakes, floods, fires, and landslides etc., and for preparation for resettlement; k. construction or expansion of buildings for protecting and supporting residents; l. construction or expansion of border crossing posts; m. construction or expansion of or preparation for necessary structures for national defense or security; n. new area establishment for protecting of natural resources, forests, cultural and archeological sites or protection of the environment; and o. other public physical infrastructure as required by the nation in accordance with the determination made by the government; 8 Chapter 2 General Principles Article 6: Expropriation can be applied to part or all of an immovable property or to a real right to immovable property. Article 7: Only the State may carry out an expropriation for use in the public and national interests. Expropriation may only be carried out for the implementation of projects stipulated in Article 5 of this law. Article 8: The state shall buy any part of the immovable property remaining after the expropriation for fair and just compensation as proposed by the immovable property’s owner and/or holder of real right to the immovable property who cannot live near the project area or cannot build a residence or conduct any businesses. Article 9: The expropriated immovable property shall only be used for the purposes contemplated in a declaration on the expropriation project for the public interest or for the need of the national interest and may not be left unoccupied without reasonable justification or transferred to any other third party for private interest. The owner of and/or holder of real right to immovable property shall be given priority to buy the part of the expropriated immovable property left over from the required use at the compensation rate. In the case that the owner of and/or holder of real right do not accept to purchase the part of the expropriated immovable property remaining from the required use, it shall be kept as the state property. Article 10: In special and urgent cases necessitated by public safety such as combating fire, floods, forest fire, earthquake, imminent wars or 9 terrorist attacks and other situations determined by the Royal Government, the Royal Government may temporarily expropriate the immovable property or real right on immovable property without consultation and shall hand over the immovable property back to the owner and/or holder of real right when the temporary assumption of control was ceased. In an emergency and necessary case in which the national interest is involved, the government has the discretionary power to carry out the expropriation without arrangement of consultation in respect to procedures as set out in Chapter 4 of this law. Article 11: Prior to any expropriation process, the government shall prepare sufficient annual budgets and grant adequate and timely fund to the Expropriation Committee at the request of the Ministry of Economy and Finance for compensating the owner of and/or holder of real right to the immovable property affected by the expropriation. Chapter 3 Expropriation Mechanism Article 12: An Expropriation Committee shall be established and headed by a representative from the Ministry of Economy and Finance, and other representatives from concerned ministries/institutions. . The organization and functioning of the Expropriation Committee shall be determined by sub-decree. Article 13: An Expropriation Sub-Committee acting as the secretariat of the Expropriation Committee shall be established and headed by the provincial/municipal governor and composed of representatives from relevant specialized provincial departments and authorities. The organization and functioning of the sub-committee shall be determined by the sub-decree provided for in Article 12 of this law. 10 Article 14: A Grievance Redress Committee shall be established and led by a representative from the Ministry of Land Management, Urban Planning and Construction, and composed of representatives from relevant ministries/institutions. The organization and functioning of the Grievance Redress Committee shall be determined by a separate sub-decree. Chapter 4 Expropriation Procedures Section 1: Pre-expropriation procedure Article 15: An expropriation shall be carried out based on the public physical infrastructure project and shall be approved in principle by the Royal Government, according to the ministry’s/institution’s proposal. The Expropriation Committee shall prepare an expropriation project proposal and submit it to the Royal Government for review and approval. Article 16: Prior to making any expropriation project proposal, the Expropriation Committee shall conduct a public survey by recording of a detailed description of all entitlements of the owners of and/or of the holder of real right to immovable property and other properties subject to compensation as well as recording of all relevant issues. In conducting the survey, the Expropriation Committee shall organize public consultations at the Capital, Municipal-Provincial, and District-Khan authority levels with Commune/Sangkat councils and Village or community representative to be affected by the expropriation to provide specific and concise information and collect inputs from all stakeholders regarding the proposed basic public infrastructure project. In order to set a dateline for the expropriation or relocation or compensation, the Expropriation Committee shall conduct a 11 detailed interview with all concerned parties about the issues of immovable property to be affected by the public physical infrastructure project. Within 30 (thirty) working days after the completion of the survey, the Expropriation Committee shall produce a report with recommendations and submits it to the Royal Government for approval. Article 17: Based on the Royal Government's approval, the Expropriation Committee shall issue a Declaration on the expropriation project informing clearly the owner of and/or holder of real right to the immovable property about the immovable property subject to expropriation and stating the purpose of the expropriation of ownership and/or real right to the immovable property under the following procedures: a. Determine a subject of the public physical infrastructure project, project location and timeframe for project implementation, and the competent authority who has the right to expropriate ownership and/or real right or private property; b. Determine fair and just compensation; c. Determine a timeframe for lodging a complaint; d. Send the declaration accompanying a copy of this law to all owner and/or holder of real right; e. Erect a sign marking that the immovable property is subject to be expropriated for the public physical infrastructure project; f. Disseminate information about the declaration through the media; g. Post the declaration at the relevant Commune/Sangkat Office in which the location of the public physical infrastructure project is situated, and the declaration shall be disseminated to people whose immovable property is subject to expropriation by a Village Chief. 12 Article 18: Upon receiving the declaration of the expropriation project, the owner of and/or holder of real right to immovable property can file a complaint requesting an investigation to find out if the expropriation is a real need for public or national interest or if it can be moved to other locations. Such complaint can be lodged by their lawyer or representative. The complaint shall be filed in a written form with the Grievance Redress Committee as stipulated in Article 14 of this law within 30 working days following the receipt of the declaration of the expropriation project. The main contents of the complaint shall include: name of the owner of and/or holder of real right to the immovable property, address and telephone number; reason for the complaint; description of the legalities regarding the land; and Interests of the owner of and/or holder of real right to the expropriated land; However, the owner of and/or holder of real right to the immovable property cannot file a complaint requesting an investigation in case that the expropriation is for the development of main national roads, bridges, railway, connection and distribution of water and electricity systems, kerosene pipes, sewage pipes, drainage systems, networking or main drainage systems and irrigation systems. Within 30 (thirty) working days following the completion of the investigation, the Grievance Redress Committee shall write up a report including recommendations and submit it to the Royal Government to make a decision. Section 2: Expropriation Process Article 19: The expropriation of the ownership of immovable property and real right to immovable property can be exercised only if the Expropriation Committee has paid fair and just compensation in advance to the owner and/or holder of real right, in accordance with 13 the principles and procedures for compensation payment stipulated in Section 3 of Chapter 4 of this law. The expropriation may still be carried out despite any unresolved dispute. The owner of and/or holder of real right to the immovable property who has received compensation from the Expropriation Committee shall still have the right to file a complaint in accordance with complaint and resolution procedures stipulated in Article 34 under Chapter 6 of this law. Article 20: The expropriation of the ownership of and real right to other immovable property shall be made under the decision of the Expropriation Committee. The decision on expropriation shall contain the followings: Ownership of the immovable property and real right to immovable property to be expropriated; Compensation to be paid; Deadline for the owners of and/or holder of real right to the immovable property to vacate and hand over the immovable property to the Expropriation Committee. Article 21: The Expropriation Committee shall notify of the decision on expropriation and pay full compensation to the owner of and/or holder of real right to immovable property in advance prior to carrying out the expropriation. Section 3: Payment of Compensation for Expropriation Article 22: The amount of compensation to be paid to the owner of and/or holder of real right to the immovable property shall be based on the market price or replacement cost as of the date of the issuance of the declaration on the expropriation project. The market price or the replacement cost shall be determined by an independent committee or agent appointed by the Expropriation Committee. 14 Article 23: The owner of and/or holder of real right to the immovable property shall be entitled to compensation for any actual damage to the immovable property incurred from the date of the issuance of the declaration on the expropriation project, which is the cut-off date for being entitled to the fair and just compensation. Article 24: The compensation shall be made in cash, in kind or replacement rights, according to the actual situation with the consent from the owner of and/or holder of real right to the immovable property and the Expropriation Committee. The formality and payment procedures shall be defined by sub-decree at the request of the Ministry of Economy and Finance. Article 25: The amount of compensation shall be calculated as total amount of compensation minus the amount of stamp tax and/or tax on unused land that have not been paid to the State from the total amount of the compensation, and the Expropriation Committee shall deposit the withholding taxes into the State budget in accordance with procedures in force. Article 26: The amount of compensation for ownership of and real right to the immovable property shall not be taken into account any fluctuation in value occurring after the date of the issuance of the declaration on the expropriation project in which the fluctuation may involve changing land reserving measures, which are included in the urbanization plan determining land use area or approved land use plan, or because such fluctuation arises as a result of the declaration on the expropriation project. Article 27: After receiving full amount of compensation, the owner of and/or holder of real right to the immovable property shall continue to use, stay, possess and benefit from the immovable properties until they are taken by the Expropriation Committee. 15 Article 28: The Expropriation Committee may take over the immovable property or the right to the immovable property after: Having complied with the procedures and conditions stipulated in Sections 1 and 2 of Chapter 4 of this law; Compensation has been paid in compliance with the principles and procedures stipulated in Section 3 of Chapter 4 of this law. Article 29: A tenant of the immovable property with proper contract shall be entitled to allowance for disturbances as a result of the expropriation including the dismantling of structures, materials and transportation to the new relocation site. A tenant of the immovable property who is operating a business shall be entitled to compensation for the impact on their business operation and to additional assistance at fair and just compensation to the capital value actually invested for the business operation activities as of the date of the issuance of the declaration on the expropriation project. For the expropriation of a location that is operating business activities, the owner of the immovable property shall be entitled to additional compensation at fair and just compensation against the value of the property actually affected by the expropriation as of the date of the issuance of the declaration on the expropriation project. Chapter 5 Transitional Occupation and Management of the Immovable Property Article 30: From the date of the declaration of the expropriation project, the owner of and/or holder of real right to the immovable property shall not sell or transfer the immovable property to other persons. Any document and procedure contradictory to this provision are deemed to be null and void. 16 The transitional use of the land or immovable property shall maintain the condition and scope of use as they were at the declaration on the expropriation project, and there shall not be any additional construction on the land. For any activity contradictory to this provision, the owner of and/or holder of real right to the immovable property shall not be entitled to any compensation for such additional construction. Article 31: The owner of and/or holder of real right to the immovable property may not occupy the immovable property for more than 1 (one) month after the expropriation committee has provided the full compensation in accordance with the procedures stipulated in Chapter 4 of this law unless otherwise agreed or permitted. In case the owner of and/or holder of real right in the expropriated immovable property refuse to vacate it, the Expropriation Committee may request any competent institution or public authority to take measures to vacate the expropriated immovable property. Chapter 6 Dispute Resolution Article 32: The Expropriation Committee and the Grievance Redress Committee shall have the competence to review and resolve the complaint. Article 33: The owner of and/or holder of real right who disagree with a decision of the Expropriation Committee can bring their complaint to the Grievance Redress Committee. Article 34: In case of dispute with the decision of the grievance redress committee, the owners of and/or holder of real right may lodge a suit to a competent court against improper expropriation procedures, 17 expropriation that is not for the public or national interests, and unfair and unjust compensation. The formalities and procedures for filing the complaint shall be determined under a Sub-Decree. Chapter 7 Penalty Article 35: Any competent official who fails to comply with the provisions of this law shall be subject to administrative punishment without prejudice to other punishments in accordance with existing laws and regulations. Article 36: Any individual resisting the implementation of the expropriation decision with the ill intention of hindering the process of the implementation of project for the public or national interests shall be subject to an imprisonment from 1 (one) month to 1 (one) year and a fine from 100,000 (one hundred thousand) riels to 2,000,000 (two million) riels. Article 37: Anyone who infringes on the occupation and use of a site which is already expropriated shall be punished, according to existing criminal provisions. Chapter 8 Final Provisions Article 38: Any provisions contrary to this law shall be considered abrogated. Article 39: This law shall be declared as urgent. 18 Phnom Penh, February 26, 2010 On behalf and by order of the Royal Highness PRL.1002.18 (Signature and stamp) Samdech Akak Moha Thom Poutisal Chea Sim Has informed to his Royal Highness for signature Prime Minister (Signature) Samdech Akak Moha Sena Padei Techo Hun Sen Has informed to Samdech Akak Moha Sena Padei Techo Hun Sen Prime Minister of the Kingdom of Cambodia Deputy Prime Minister, Minister of Ministry of Economy and Finance (Signature) Keat Chhon No. 185 CL For copy and distribution Phnom Penh, March, 04th 2010 Deputy Secretary General of the Royal Government (Signature and seal) Khun Chin Ken