Article 2: Effecting rights under the Covenant

2. Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

i. No law exists to proscribe torture and prescribe penalties. Article 31 of the 1997 Constitution prohibits torture in accordance with article 7 of the Covenant; however, there is no criminal law prohibiting torture. Section 289(5) of the Penal Code, which has been identified by the State party as addressing cases of a cruel nature (para. 186), is a subsidiary clause with reference to murder, not torture. Similarly, other provisions contained in the Penal Code make reference to acts of cruelty; however, none address torture as a criminal act as envisaged by article 7 of the Covenant and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The State party has not ratified the Convention against Torture. Under the circumstances, it is not possible to effect article 7 of the Covenant in accordance with article 2.

ii. No procedures exist to investigate acts of torture. There is no specialised agency or avenue to investigate whether somebody has been tortured. The National Human Rights Commission, identified by the State party as the agency “to oversee matters of human rights according to this article of the Covenant?(para. 187), does not have judicial authority, and therefore it must be omitted from discussion with reference to article 2. No procedure exists for judicial officers to make enquiries into acts of torture, or for quick medical examination of the alleged victim specifically in order that the same can be submitted to the courts to establish whether or not an act of torture has been committed. Section 243 of the Constitution stipulates that, “Any statement of a person obtained from inducement, a promise, threat, deceit, torture, physical force, or any other unlawful act shall be inadmissible in evidence." Section 226 of the Criminal Procedure Code contains a similar provision. However, in the absence of procedures and speedy interventions to establish whether or not a confession submitted to the court has been obtained through use of torture, it is extremely difficult for the accused to invoke this section. For instance, when counsel for Messrs Metta Saiphan and Anucha Siriporn na Ratchasima in Ayutthaya Provincial Court argued that his clients had been tortured to extract confessions, and presented documentation of institutionalised torture by the police, his argument was rejected by the court for lack of evidence. As the alleged victims had been detained for the full duration of the statutory period of 84 days before being charged, and as they lacked the means to obtain medical treatment and access to competent lawyers in the interim period, evidence of the alleged torture had been lost.

iii. No law exists to proscribe forced disappearance and prescribe penalties. There are no criminal provisions against the act of forced disappearance under the law of Thailand. The Penal Code recognises only acts of kidnapping in order to obtain ransom (section 313). Where the body of a disappeared person is never recovered, even if the alleged perpetrators are identified there is no corresponding offence under which they can be charged. The case of prominent disappeared human rights lawyer Mr Somchai Neelaphaijit speaks to this point: the accused police officers have been charged only with coercion and armed gang-robbery (under sections 309[2], 340 and 340 ter. of the Penal Code).

v. No enabling law exists to bring complaints of human rights violations to the high courts. A person who has been tortured or otherwise had their human rights violated cannot lodge a claim directly in a high court to the effect that rights have been breached. Section 28 of the 1997 Constitution holds that “a person whose rights and liberties?are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court? However, no special provisions exist for writ applications to the high courts to show cause that a right enshrined in the Constitution or Covenant has been violated, in order that the court may afford a remedy.

vi. No specialised agency exists to receive and investigate complaints of serious rights violations against the police. Where the police commit gross abuses of human rights, or fail to perform their duties as required by law to the same effect, there are no other institutions available in Thailand to initiate steps for redress as envisaged by article 2. Although the largest numbers of public complaints about state agents are against police officers, no specialised agency exists that is capable of registering complaints and initiating investigations that may lead to criminal prosecution of police. The shooting of a school bus in Ratchburi province during 2002 speaks to this point. Although the families of victims have alleged that a police officer was one of the persons behind the attack, they have been unable to do anything to have an investigation opened against the alleged perpetrator, while the Office of the Attorney General has pursued an innocent man through the courts. Again, with regards to agencies for complaints under article 2 the National Human Rights Commission must be omitted from discussion in view of its limited mandate.

vii. No effective mechanism exists for external scrutiny of abuse committed by the police during investigations. As criminal investigations are in most cases left entirely in the hands of the police, and in the absence of an agency to deal with police abuses, they are free to pervert investigations without scrutiny. Perverting of cases may include many different acts or omissions with particular aims. During the 2003 ‘war on drugs?it was widely observed that the police deliberately failed to investigate killings of alleged drug dealers. Where they did attend the murder scenes, investigations and questions were typically directed towards establishing the victims?guilt, rather than take action to arrest the murderers. Where evidence of drug trading was uncovered, it was also used to justify the murder and effectively close the case. Evidence of drug trading was considered sufficient grounds to justify the death. The police were also widely accused of having planted drugs on the bodies of victims of killings to fabricate cases against them. In ordinary criminal cases referred to the Asian Legal Resource Centre, police have been variously accused of failing to provide access to lawyers and doctors, failing to conduct line-ups, stacking of records, sending of false police witnesses to court, failing to investigate, refusing to record witness statements, and refusing to give information as required by law.

vii. The Office of the Attorney General has no critical role in ordinary criminal investigations. The Office of the Attorney General does not become involved in ordinary criminal investigations at present unless the police request it. This is a systemic weakness recognised both by the Minister of Justice and the Attorney General, who have recently announced reforms to give the Office of Attorney General a joint investigatory function with the police in special cases, where deemed in the public interest. While this measure is appreciated—and almost universally recognised as a necessary step to stem criminal activities by the police—it is insufficient. In particular, the limiting of a joint role in investigations to the Attorney General on cases of public interest is dissatisfactory, as most abuses of rights under the Covenant occur in ordinary criminal cases, when day-to-day procedure is treated with contempt. Another concern is that as the Office relies upon the police for the obtaining of documentation and presenting of evidence that will secure convictions, it is inevitable that there is a close relationship between police officers and public prosecutors working under the Attorney General. This is particularly the case in smaller towns and cities where the police and public prosecutor may know one another personally. This relationship may be seen in the case of Mr Chanon Suphaphan, who was convicted for robbery by the Singhburi Provincial Court, after the public prosecutor presented evidence that did not take into account witness statements for the defence which had been recorded by the police.

ix. The Forensic Science Institute has lacked necessary support. The Forensic Science Institute was established out of recognition that an independent and professional body be able to undertake independent enquiries into suspicious deaths in Thailand, in order that there be redress for the families of dead victims of rights violations under the Covenant. As such, it is an integral agency for the application of article 2 provisions in Thailand. However, it has been consistently challenged by the police and forced to fight to establish its mandate and reputation. Most recently, it has been alleged that volunteers working with the Institute have been kidnapped by police and forced to reveal information about the agency’s operations. The Institute has not obtained the necessary cooperation from government agencies to secure its mandate.

x. Victim compensation is still rudimentary. The report of the State party makes reference to the initiative for a compensation fund to be established in accordance with Section 246 of the Constitution (paras 265?8). The Office of Public Compensation for Criminal Cases was recently established under the Compensation for Crime Victim Act 2544 (2001). While compensation in cases of human rights abuse must always be understood as supplementary to—and not a substitute for—criminal prosecutions, it is nonetheless an important element in effective redress as stipulated under article 2 of the Covenant. This compensation should especially take into account the physical and psychological needs of victims of torture and other gross abuses. To date, where the director general of the Department of Rights and Liberties Protection has spoken publicly on possible compensation for victims, it has been reported in terms of financial compensation. This must also be accompanied by compensation for medical treatment, including physical and mental rehabilitation. Additionally, the question of timely compensation with minimum difficulties for the victim is also yet to be addressed. At present, it is necessary for victims first to obtain medical treatment for injuries suffered due to torture or other abuses, and then seek compensation through the procedure established by law. As many of the victims of torture and other police abuses are poor persons who may not be able to afford a day away from work—let alone the cost of medical bills—this places an undue burden on the victim impinging upon article 2 rights. This was recently illustrated in the publicised case of torture victim Mr Ekkawat Srimanata. In that instance, the victim's friends rushed him directly from a police station to hospital with severe burns all over his penis, testicles and groin. Immediate emergency treatment was needed. However, when police officials were asked about giving assistance, they observed that no provision exists for such an arrangement, and advised that the victim could seek compensation through the established channel. The concern for the police was that should they provide assistance it would amount to an admission of guilt. Therefore, emergency arrangements are yet to be established in cases such as this whereby the victim of abuse may obtain prompt assistance from the government without otherwise jeopardising the due process rights of the alleged perpetrator.

xi. Witness protection is still rudimentary. The Protection of Witnesses in Criminal Cases Act 2546 (2003) came into force in Thailand during 2004 when the Office of Witness Protection under the Ministry of Justice started its work. As a consequence, a number of victims of police abuses, including torture and cruel and inhuman treatment, were afforded short-term security. As one of the gravest obstacles to the prosecution of perpetrators of human rights abuses is the fear of witnesses in speaking out against the police and other state security officers, the Office is a critical step for the future protection of human rights in Thailand. However, the concern is that if the Office is not given adequate resources and widely promoted within a short period of time it may not realise its full possibility. As the management of protection for victims under this Office is setting a precedent for cases yet to come, it is necessarily cause for considerable public interest. Recently it was reported in the domestic media that three persons in the south of Thailand who had been afforded protection were killed. If such persons coming forward now to be protected under the Act are still subjected to threats or death, it will damage public confidence in the new protection regime at an early and crucial stage in its development.

12. Some additional observations flow from the above.

13. The police in Thailand are at every level influenced by outside parties. In cases where influential people are involved, whether political or business figures—and increasingly in Thailand this amounts to the same—the police are discouraged from pursuing the case through payments or otherwise. It is well known that the police in Thailand are both highly corrupt and highly politicised. This is public knowledge. During 2003, a nightclub kingpin who has now turned politician went so far as to hold a series of press conferences during which he played guessing games with the media about how much he had paid entire police stations to run illegal businesses. In November 2004 a group of academics reported on a study of police stations across Bangkok that found every rank in every police station engaged in some kind of graft on a daily basis. Public prosecutors are also known to be corrupt. In September 2004 a television station broadcast footage of a deputy provincial head of the Office of the Attorney General offering to be lenient on the defendant in a criminal case in exchange for a bribe. The prosecutor was dismissed and an inquiry established. By contrast, police are rarely disciplined for such wrongdoing. These universally corrupt practices inevitably eat into all criminal cases that relate to the protection of rights under the Covenant.

14. How the police operate to protect influential persons may be seen in the numerous cases of murdered environmental activists in recent years. As natural resources in Thailand have become increasingly scarce there have been a growing number of conflicts over their use and protection. Powerfully connected businesspeople have been implicated in numerous killings of local environmental activists—mostly ordinary villagers—but are never investigated or prosecuted. At most, the hired killers are arrested; the police, however, do not pursue the investigations further. Summaries of some cases speaking to this point are contained as Annexe 1. In most of these cases the police have been accused of acting in some way to protect the perpetrators or masterminds of the killings for reasons of their money and influence. The families of victims and communities for whom they were working have few expectations of seeing justice performed.

15. The police in Thailand protect one another from prosecution. Police are the largest perpetrators of human right abuse in Thailand, and the largest numbers of complaints received by quasi-independent agencies—such as the National Human Rights Commission and the Ombudsman—relate to police abuses. However, there is no specialised agency for receiving and investigating complaints against police officers, and commencing prosecution. The Department of Special Investigation under the Ministry of Justice handles certain cases at the discretion of a special committee; however, the police investigate most cases themselves.

16. How the police act to protect one another—sometimes in collusion with other state agencies—can be seen in the case of an attack on a school bus in Ratchburi province during June 2002. The parents of the children on the bus—three children were killed and 12 injured—have alleged that a policeman was behind the attack. However, a local forest villager by the name of Jobi—who was subsequently also accused of being an illegal immigrant—was instead indicted for the crime, and by his account forced to admit to the crime through threats against his family. Although he has been found innocent, and despite a petition to the Crime Suppression Division by local villagers on 9 August 2004 supporting his claim and blaming the police, the Office of the Attorney General has appealed against his acquittal. This move to pursue the case against an obviously innocent man has been made all the more unfortunate in light of the fact that Jobi’s poor state of health after being held in atrocious conditions since 2002 attracted the sympathy and patronage of Her Majesty the Queen. On 27 September 2004, the Asian Human Rights Commission wrote to the Minister of Justice of Thailand regarding the case, calling for the appeal against Jobi to be dropped, compensation to be paid for wrongful prosecution and imprisonment, and an investigation to be undertaken against the accused police officer. However, to date the Office of the Attorney General has chosen to pursue the case, claiming that sufficient evidence exists to secure a conviction. On the surface, this fruitless pursuit of an innocent man serves no obvious purpose. However, for as long as the case is in the courts the Crime Suppression Division is able to use it as a pretext to not reopen the investigation into the case, thereby guaranteeing the alleged perpetrators continued impunity. Meanwhile, a lawyer working with the accused has also spoken to the Asian Legal Resource Centre of being intimidated by persons behind the killing.

17. Cases before the courts are used as a pretext for non-action by state agencies, even when the matter in the court and that being brought to the attention of the responsible officers are different. The Asian Human Rights Commission has recently approached the Ombudsman expressing concern with regards to a complaint lodged by a relative of a torture victim with the Ombudsman. A copy of that letter is contained as Annexe 2. In that instance, the matter brought to the attention of the Ombudsman related to the alleged torture of a young man, Mr Anek Yingnuek, and his friends at a police station in Ayutthaya province. The Ombudsman declined to investigate the complaint on the grounds that it is being decided in the courts. However, the complaint brought to the attention of the Ombudsman relates to a different issue from that being addressed by the courts: specifically, whether or not the men were tortured, not whether or not they committed a number of criminal offences. The refusal of the Ombudsman to entertain the case is of concern, as it speaks to a tendency to interpret too narrowly the mandate of the office, and perhaps with the deliberate intent of avoiding difficult cases such as this. Under those circumstances, what is the purpose of the office? In this case, if the alleged torture victim must wait until the conclusion of a series of criminal enquiries against him, which may last for years, then what hope does he have of getting a complaint of rights abuse entertained in the manner envisaged by article 2 of the Covenant?

18. The government of Thailand has at each opportunity deliberately sabotaged the limited role of the National Human Rights Commission. The National Human Rights Commission (NHRC) is an important agency for the protection of human rights in Thailand, although it does not have the capacity to effect compliance of rights as envisaged by article 2. The mechanics of the NHRC have been aptly summarised in the report of the State party (paras 187?9). It is a subsidiary body that lacks the legal power to enforce its decisions: it may only propose and refer matters to the concerned agencies and parliament. Where its recommendations have been ignored, it lacks the means to do anything further. Unfortunately, the NHRC has not only had its recommendations ignored but has been subjected to attacks that have seriously compromised its position. During the ‘war on drugs?in 2003 at least one of its commissioners was subjected to slander from the Prime Minister and a senior military official after speaking out on extrajudicial killings at a UN function abroad. He also received death threats. As a result, the NHRC was forced to spend much of its time defending its mandate and reputations of its members, rather than addressing violations of rights themselves. The Prime Minister also refused to meet with the commissioners. The Prime Minister has similarly aimed to sideline the NHRC at each time of crisis by establishing ad hoc competing bodies. After considerable national and international criticism over the large number of deaths in the ‘war on drugs? rather than permit the NHRC to investigate alleged extrajudicial killings freely—and equip it with the resources to do so—the Prime Minister established two committees to report directly to him. Likewise, after each of the mass-killings in the south of Thailand during 2004, the Prime Minister established a proxy committee to report confidentially to him, and ignored the efforts of the NHRC to investigate properly and report to the government and public alike on its findings. The work of the House Committee on Justice and Human Rights, mentioned in the State party report (para. 190), was similarly circumscribed by the actions of the Prime Minister in these instances.

[1] Section 75 of the 1997 Constitution of Thailand corresponds: The State shall ensure the compliance with the law, protect the rights and liberties of a person, provide efficient administration of justice and serve justice to the people expediently and equally and organise an efficient system of public administration and other State affairs to meet people's demand.