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1. 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.
2. 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.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
78. As noted by the State party in its report (para. 243), section 237 of the 1997 Constitution provides for the procedure of arrest in Thailand and rights of the arrested person, including to be sent to the court within 48 hours of arrest. With reference to provisions for arrest and detention, the State party has interpreted its obligations under the Covenant as follows (para. 3[d]):
“On the period of time to bring the arrested person to court, Paragraph 3 of Article 9 of the Covenant has used the term ‘promptly’, the Thai Criminal Procedure Code authorized the inquiry official to detain the accused for 48 hours before bringing the person to court. If the inquiry has not been completed he can further detain the person for seven days. This is not in line with the Covenant. Therefore, Thailand has made a declaration to explain that Thailand shall follow the commitment under this provision in the manner the law of Thailand so provides at the moment.”
79. Leaving aside the self-evident problems associated with selective application of the Covenant, it should be pointed out with regards to the above that this interpretative declaration does not cover the full scope of the law, which is outlined by the State party in paragraphs 249–254. As described in those paragraphs, in serious criminal cases application may be made to obtain seven consecutive extensions to the period of detention, totalling 84 days. The State party gives the impression in its report that a system of checks and balances exist to prevent unreasonable application of this provision and that “the court shall thus permit a detention of the accused during inquiry only when necessary”. However, the Asian Legal Resource Centre has observed that there are many problems associated with the periods of detention over which suspects may be held while an enquiry is ongoing.
80. Extended detention is routinely practiced in ordinary criminal cases under enquiry in Thailand. In particular, it may be applied in cases where the accused persons have been tortured or otherwise coerced into admitting guilt by the police, in order to allow sufficient period of time for fabrication of a case and the removal of evidence suggesting torture or wrongdoing. In each of the cases of torture by the police in Ayutthaya province documented by the Asian Human Rights Commission, for instance, the accused were held for the full statutory period before being charged. Despite requirements that the accused be brought to the court upon extension of the period of detention, as the courts have no particular procedures in place for quick intervention into cases of suspected torture, these provisions do not serve to protect the rights of the detained person.
81. Accused persons are often unable to exercise their rights as envisaged by the law. Most of the accused in criminal cases are ordinary people who lack knowledge about the legal system and their rights as laid out by the State party in paragraph 246 of its report. They may be intimidated in the court and in the presence of the police who may have abused them and extracted confessions by force. Their family members too may be threatened and denied access to them. In the cases of torture in Ayutthaya province, the relatives of the accused were afraid even to go to the police stations and attempt to meet their loved-ones, let alone lodge complaints about their treatment. The accused may not be able to obtain medical treatment while in detention, and are unlikely to meet with a lawyer until they have been charged and the court appoints one. In the case of Mr Chol Narapinit and Ms Siri-on Changluadlai in Lumpini Police Station, for instance, Ms Siri-on gave birth while in detention but received no medical assistance. After five days family members came to collect the child, but she continued to be held in detention in excess of the statutory period. When the couple was finally freed under a court order under section 90 of the Criminal Procedure Code, the police immediately set about issuing new charges against them. Similarly, four of the five alleged torture victims defended by missing human rights lawyer Mr Somchai Neelaphaijit were immediately re-arrested on new charges by the police upon expiration of their first 84-day period of statutory detention. Such practices defeat the purpose of the limited periods of detention stipulated under the Criminal Procedure Code, and again raise questions as to the contempt with which police in Thailand ordinarily feel inclined to treat criminal justice procedures, over which they exercise practical day-to-day control.
82. With reference to cases of compensation for wrongful imprisonment, difficulties arise when cases are still pending before the courts. In the case of the accused Mr Jobi in the 2002 Ratchburi bus shooting, his lawyer has proposed that he be entitled to compensation on this ground. However, as the Office of the Attorney General has appealed against the decision of the Court of First Instance, which dismissed the case against him, the question of compensation cannot be resolved until the matter pending before the courts is concluded. In the event that the matter goes to the Supreme Court, this would take some years.
83. Rights to liberty and security ordinarily available to persons in Thailand may be denied through application of restrictive security regulations. It should be noted that whereas the above-mentioned provisions apply under normal circumstances, Thailand has a number of laws that place additional more onerous restrictions on the rights of detainees. Among these, the State party has pointed to the Martial Law Act 2547 (1914), within the power of the Ministry of Defence, and the Administration under Emergency Situation Act 2495 (1952), within the power of Ministry of Interior (paras 121–22). Despite the State party’s happy assertion that no declaration of emergency has been necessary under article 4 of the Covenant, it has omitted to point out that martial law is operative in all of the border districts of the 20 border provinces of the country. Additionally, as of 5 January 2004, the entire three southern border provinces have been under the Martial Law Act; full implementation of martial law in the three provinces was authorised by the Prime Minister in February 2005. This act empowers the armed forces to detain persons for up to one week without charge or bringing them before another authority, and also to try certain persons under martial law provisions. Additionally, at the end of November 2004 the government of Thailand made the alarming proposal to introduce a new internal security law that would greatly expand the powers of police to detain persons without charge or having to bring them before the court. This proposal, had it succeeded, would certainly have placed the State party in flagrant violation of the Covenant. It was only after considerable and swift public opposition that the decision to introduce the new law was shelved.
Posted on 2005-03-22
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