Human Rights Committee

Report on follow-up to the concluding observations of the Human Rights Committee *

Addendum

Evaluation of the information on follow-up to the concluding observations on Thailand

Concluding observations (119th session):CCPR/C/THA/CO/2, 23 March 2017

Follow-up paragraphs:8, 22 and 34

Follow-up reply:CCPR/C/THA/CO/2/Add.1, 18 July 2018

Committee’s evaluation:Additional information required on paragraphs 8[C], 22[B ] [C] and 34[ B ]

Information from non-governmentalCentre for Civil and Political Rights and others; organizations: International Commission of Jurists, Thai Lawyers

for Human Rights and Cross-Cultural Foundation; Fortify Rights; International Federation for Human Rights Leagues, Union for Civil Liberty and Internet Law Reform Dialogue (iLaw); Cross-Cultural Foundation; People’s Empowerment Foundation;and International Service for Human Rights

Paragraph 8: Constitutional and legal framework

The State party should review all measures adopted under the interim Constitution of 2014, in particular under sections 44, 47 and 48, in the light of its obligations under the Covenant, and make sure that all measures to be adopted under the new draft Constitution, including section 279, will be consistent with its obligations under the Covenant, including the obligation to provide effective remedies to victims of human rights violations.

Summary of the State party’s reply

The Constitution of Thailand was promulgated on 6 April 2017, replacing the interim Constitution of 2014. The drafting of the 2017 Constitution had placed emphasis on public participation.

As with previous Constitutions, the current Constitution guarantees the rights and liberties of the people, focuses on equality of persons before the law, and prohibits discrimination on any ground, in accordance with the Covenant.

The duties and powers of the Head of the National Council for Peace and Order and the National Council for Peace and Order itself, as well as orders and announcements, including those issued under sections 44, 47 and 48 of the interim Constitution, remain legally intact by virtue of sections 265 and 279 of the current Constitution.

The State party refers to the purpose of section 44. The laws or regulations under section 44 may be repealed if and when deemed to be no longer necessary. Furthermore, anyone may file a claim to the Constitutional Court if he or she believes that any law or regulation enacted under section 44 is inconsistent with legal and procedural requirements. Section 279 of the current Constitution was not intended for the purpose of restricting the rights and liberties of the people.

As Thailand is approaching the final phase of a three-stage road map, the National Council for Peace and Order plans to review all of the laws, regulations and measures enacted under the interim Constitution.

Information from non-governmental organizations

Joint submission: International Federation for Human Rights Leagues, Union for Civil Liberty and iLaw

Despite the Committee’s recommendation, none of the key decrees issued by the National Council for Peace and Order that are inconsistent with the State party’s obligations under the Covenant has been repealed or brought into line with the Covenant.

Section 265 of the current Constitution authorizes the Head of the National Council for Peace and Order to continue to exercise absolute power under section 44 of the 2014 interim Constitution until a new Government takes office following the next general election. Despite the Government’s claim that the National Council has used section 44 “only when there is absolute necessity”,it is apparent that the Head of the National Council, General Prayuth Chan-ocha, has continued to invoke section 44 when issuing orders relating to a broad range of matters.

Despite the information provided by the State party on the possibility of filing a claim to the Constitutional Court, no such legal challenge to orders issued under section 44 has been successful.

Fortify Rights

All measures and orders adopted under the interim Constitution, in particular under sections 44, 47 and 48, remain in place and are further guaranteed by sections 265 and 279 of the current Constitution.

The orders include Order No. 3/2558 (A.D. 2015) of the National Council for Peace and Order – also referred to as Order No. 3/2015 – which bans political gatherings of more than five people and has severely restricted the rights to freedom of expression, peaceful assembly and association.The National Council continues to invoke this order to restrict basic rights. Following the constructive dialogue held in March 2017, the Government has not relaxed its restriction and prosecution of dissidents.

Fortify Rights also refers to Orders No. 13/2559, 39/2557, 97/2557 and No. 103/2557 of the National Council, which remain in place and are used to restrict basic rights. It notes with concern that section 279 of the current Constitution effectively guarantees that all actions and measures, including orders and announcements, taken by the National Council are deemed “constitutional” and “lawful”.Officials who carry out such actions are therefore exempted from all liability and accountability, as stated in section 48 of the interim Constitution.

Joint submission: International Commission of Jurists, Thai Lawyers for Human Rights and Cross-Cultural Foundation

No steps have been taken by Thailand to review the measures adopted under the interim Constitution. On the contrary, the State party’s courts have repeatedly upheld their validity.

Article 279 of the current Constitution reaffirms the constitutionality and legality of all existing and future orders issued by the Head of National Council for Peace and Order and National Council orders, announcements and acts, and stipulates that they may be repealed or amended by the passage of legislation only.

Access to effective remedies for victims of human rights violations has been barred, despite the fact that article 25 of the current Constitution recognizes the right to remedy for all persons “injured from the violation of [their] rights or liberties”.

Certain orders, which impose severe restrictions on rights guaranteed under the Covenant, have remained in force since the review of Thailand, including Orders No. 3/2558, No. 5/2558, No. 13/2559 and No. 17/2558 of the National Council.

Joint submission: Centre for Civil and Political Rights and others

The preservation of the orders issued by the National Council for Peace and Order since the coup in 2014 and the frequent enactment of new orders by virtue of section 44 indicate that the National Council has no intention of revoking or amending this provision.

Fundamental rights such as freedom of expression, including press freedom, freedom of peaceful assembly and freedom of association are heavily restricted, which obstructs the work of human rights defenders and activists, academics, lawyers and civil society organizations in reviewing and reporting on human rights violations.

Cross-Cultural Foundation

Cross-Cultural Foundation expresses its concern at the broad executive power and lack of parliamentary and judiciary oversight over State security laws, in particular the Martial Law Act (1914) and the Emergency Decree on Public Administration in States of Emergency (2005).

The security laws have become commonplace in many areas of Thailand. In the southern border provinces, a state of emergency has been applied under the Emergency Decree since 20 July 2005.

Committee’s evaluation

[C]: The Committee regrets that the State party has taken no specific measures to implement the Committee’s recommendation. In this regard, the Committee requests information on claims filed with the Constitutional Court challenging the provisions referred to in the Committee’s recommendation, and the results of these cases. It also requires information on the timetable for the revision of laws, regulations and measures enacted under the Constitution that was promulgated on 6 April 2017. The Committee reiterates its recommendation.

Paragraph 22: Extrajudicial killings, enforced disappearances and torture

The State party should:

(a) Ensure that cases are reported and that prompt, impartial and thorough investigations are carried out into all allegations and complaints concerning the unlawful and excessive use of force by law enforcement officials and the military, including torture, enforced disappearances and extrajudicial killings, including in the context of the southern border provinces. It should also ensure that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions;

(b) Provide the truth about the circumstances of those crimes and, in cases of enforced disappearances, clarify the fate or whereabouts of the victims and ensure that their relatives are informed about the progress and the results of investigations;

(c) Ensure that the victims are provided with full reparation, including satisfaction and guarantees of non-repetition;

(d) Amend the Martial Law Act, Emergency Decree and Order 3/2015 to ensure that they comply with all the provisions of the Covenant, including with the guarantees against incommunicado detention enumerated in the Committee’s general comment No. 35 (2014) on liberty and security of person. The State party should also amend criteria with a view to lifting the Martial Law and Emergency Decree in the provinces currently under them without undue delay;

(e) Promptly set up an independent mechanism for the prevention and suppression of torture and enforced disappearances;

(f) Reinforce the training of law enforcement officials and military personnel on full respect for human rights, including on the appropriate use of force and on the eradication of torture and ill-treatment, ensuring that all training materials are in line with the Covenant and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Summary of the State party’s reply

(a) and (b)The State party repeats information provided in its reply to the list of issues (CCPR/C/THA/Q/2/Add.1, paras. 51–52) regarding the draft act on the prevention and suppression of torture and enforced disappearance, and informs the Committee that the draft act is currently the subject of public hearings to ensure that the interests of all stakeholders are considered and constitutional procedures observed. The State party is working expeditiously with a view to submitting the revised draft act to the Cabinet by September 2018;

Under Order No. 131/2560, dated 23 May 2017, the National Committee for Managing Cases Relating to Torture and Enforced Disappearance was established to address alleged cases of torture and enforced disappearance and to prevent the future occurrences of such cases. The National Committee will take all allegations of torture and enforced disappearanceinto consideration and will investigate whether such allegations meet the criteria of torture and enforced disappearance as set out in the respective conventions. Any officer found to have engaged in such acts will be prosecuted in accordance with the law. No legal immunity or exception of any kind will be granted.

The disappearance of Porlajee “Billy” Rakchongcharoen was announced in the Royal Gazette of 11 July 2018 to be a special case under investigation by the Department of Special Investigations, Ministry of Justice;

(c)The State party refers to legislation on reparations for victims of human rights violations. The legal provisions complement one another, as they provide for financial assistance, such as compensation for medical fees, physical and mental rehabilitation fees, loss of income and in case of death.

Under the National Justice System Reform Plan, published on 6 April 2018, a policy framework was established for the development of a mechanism to assist and further enhance access to justice in Thailand for the period 2018–2021. It highlights the need for timely and adequate protection, improvements in physical and psychological recovery, and better overall access to remedy for victims and witnesses in criminal cases.

As of March 2018, 46 persons had received compensation. The Southern Border Provinces Administrative Centre has also initiated a project to improve the quality of life of injured persons’ family members and to provide them with humanitarian assistance. As of March 2018, 26 families had been assisted. Similarly, the Internal Security Operations Command awards monthly support fund payments to the families of deceased persons or to injured persons with a disability;

(d)No information provided;

(e)No information provided;

(f)Since 2017, the Ministry of Justice has carried out training for soldiers, police officers, administrative officers, volunteers and ministry officials. In 2017, 1,920 individuals attended the training, and another 1,440 were expected to attend similar training sessions in 2018.

The State party referred to training provided by the Internal Security Operations Command; the Ministry of Defence in collaboration with the National Human Rights Commission, the Royal Thai Police, the Ministry of Justice and the Internal Security Operations Command; and the Ministry of Foreign Affairs.

Information from non-governmental organizations

Joint submission: International Federation for Human Rights Leagues, Union for Civil Liberty and iLaw

(a)The Government has failed to implement adequate measures to ensure that prompt, thorough, credible and impartial investigations are conducted into allegations of torture, enforced disappearance and extrajudicial killings, fuelling a climate of impunity for these crimes.

Deaths in police and military custody as a result of torture also continue to be documented. The organizations refer to the case of Suriya Supharak, convicted of drug-related offences, who died in April 2017 while imprisoned in Takua Pa District Prison, Phang Nga Province. They also refer to reported deaths of military cadets or conscripts as a result of torture. Military bases continue to be used for the arbitrary detention of civilians, with no effective safeguards in place to prevent human rights violations;

(b)Enforced disappearance, as defined in international standards, is still not recognized as a criminal offence in the national legal system. A draft act on the prevention and suppression of torture and enforced disappearance was completed after years of efforts by government authorities in consultation with non-governmental organizations and civil society. The adoption of the draft has been suspended since February 2017.

To date, the National Committee for Managing Cases Relating to Torture and Enforced Disappearance has failed to undertake any concrete or effective action to fulfil its mandate. The organizations refer to investigations into the cases of two members of ethnic minorities – Abe Sae Moo, a 32-year-old ethnic Lisu, and activist Chaiyaphum Pasae, a 17-year-old ethnic Lahu – killed by Royal Thai Army soldiers in Chiang Dao Subdistrict, Chiang Mai Province, which had not lead to any significant findings. In both cases, the perpetrators have yet to be held accountable, despite the fact that the killings were committed more than one year earlier.

Military officials have continued to file defamation lawsuits against those reporting on torture. The organizations refer to criminal and civil defamation complaints filed in February 2018 against Ismae Teh, founder of Patani Human Rights Organization.

Fortify Rights

(a)Little or no progress has been made towards accountability for attacks and harassment against human rights defenders and community leaders working on corporate accountability.Failure to prosecute perpetrators, despite the seriousness of the crimes, has created a persistent culture of impunity in Thailand that has reverberated through communities throughout the country.

Joint submission: International Commission of Jurists, Thai Lawyers for Human Rights and Cross-Cultural Foundation

(a) and (b)Thailand has continued to fail to ensure that its legislation fully criminalizes acts of torture, other ill-treatment and enforced disappearance. In this regard, the organizations express deep concern about the recent amendments to the draft act on the prevention and suppression of torture and enforced disappearance. If adopted as currently formulated, the amendments will entrench the State party’s failure to comply with its obligations under the Covenant and other international human rights instruments.

The Government has also failed to promptly, effectively, independently and impartially investigate allegations of torture, enforced disappearance and extrajudicial killings.

Reports of torture, ill-treatment and extrajudicial killings continue to emerge from the southern border provinces, while investigations into such allegations, and provision of reparations, remain slow .

Human rights defenders, victims and family members face judicial harassment, reprisals and threats for working to bring to light cases of alleged torture, other ill-treatment and enforced disappearance.

While the organizations appreciate the Government’s efforts to combat torture and enforced disappearance, the effectiveness of Order No. 131/2560 in implementing the State party’s international human rights obligations has yet to be determined. It is not clear which legal framework – domestic and/or international – will apply without a law criminalizing torture, other ill-treatment and enforced disappearance.Furthermore, the Order’s remit does not appear to include the protection of complainants and witnesses from retaliation or reprisals. In addition, most members of the National Committee for Managing Cases Relating to Torture and Enforced Disappearance are not employed by independent civilian bodies;

(c)On 12 October 2017, the Southern Border Provinces Development Strategic Committee passed a resolution to provide compensation in the sum of approximately 1 million baht ($31,900) each to the families of the 17 persons killed as a result of security operations between 2005 to 2014,including the family of Mahkohsaeng Lasae, who was shot dead by a ranger in 2012;

(d)No amendments have been made to the Martial Law Act, the Emergency Decree or Order No. 3/2558. As a result, people are still being detained incommunicado under these laws.

Joint submission: Centre for Civil and Political Rights and others

(a)Since the previous review of the State party, in March 2017, six cases of extrajudicial killings have been documented in southern border provinces. Bringing the cases to court presents a number of challenges: it is difficult to prove that the executions have occurred, and family members of the victims are reluctant to rely on the justice system or to provide information for further legal prosecution.

Independent inquests into cases of torture, extrajudicial killings and enforced disappearance are crucially lacking;

(b)None of the cases of extrajudicial killings in the southern border provinces has been examined by autopsy owing to the lack of independent forensic physicians in Thailand. Another substantial hindrance to autopsies is the Islamic requirement that a body be buried within 24 hours of death;

(c)The psychological health of victims is not prioritized by government or other health-care institutes. It is difficult to keep track of cases in which reparation has been provided, let alone the requests that have been submitted to relevant institutions, such as the National Human Rights Commission of Thailand;

(d)The excessive use of the Martial Law Act and the Emergency Decree continues with no independent third-party review. Currently, the arbitrary enforcement of the Martial Law Act, the Emergency Decree and special laws in the southern border provinces cannot be subjected to public scrutiny;

(e)There is still a lack of political will to set up independent and efficient mechanisms to prevent torture and enforced disappearance. The authorities should end all criminal proceedings against civil society groups and others who report on allegations of torture.

Cross-Cultural Foundation

(a)The organization expresses its concern at the State party’s lack of progress in enacting legislation to suppress and prevent torture and enforce disappearance. The draft act on the prevention and suppression of torture and enforced disappearance might not yet fully comply with the State party’s international human rights obligations.

International Service for Human Rights

(a) and (b)Enforced disappearance is particularly prevalent in the southern provinces, contributing to the restrictive environment for human rights defenders. The steps taken by the Government to address enforced disappearance are slow and inadequate.

The draft act on the prevention and suppression of torture and enforced disappearance is under review by the National Legislative Assembly after the Assembly returned it to the Cabinet for further consultations in March 2017.While a special committee was set up in 2017 by the Prime Minister to handle complaints of torture and enforced disappearance, the committee’s progress is slow, and families have not been contacted or informed about any developments in the cases under the committee’s mandate. Currently, there is no legal framework to officially recognize the enforced disappearance of a person or to criminalize enforced disappearance. Without such official recognition, families of disappeared victims have no access to judicial processes, compensation or remedies specific to cases of enforced disappearance.

The organization refers to the case of Somchai Neelapaijit. More than 15 years had passed since his disappearance, and his fate and whereabouts are still unknown. It claims that Mr. Neelapaijit’s spouse, despite having received some financial compensation, has not received adequate reparation for the gross human rights violation committed, the enforced disappearance of her husband.

Committee’s evaluation

[B] (a), (b), (c) and (f): The Committee notes with interest order No. 131/2560 of 23 May 2017, but requires information on the measures taken by the National Committee for Managing Cases Relating to Torture and Enforced Disappearance, including the investigations carried out and the outcome of cases of torture and enforced disappearance. It requires information on the following: (i) the progress made on the adoption of the draft act on the prevention and suppression of torture and enforced disappearance, and whether the current draft complies fully with the Covenant; (ii) the case of Porlajee “Billy” Rakchongcharoen, which was announced in the Royal Gazette of 11 July 2018 as a special case under investigation by the Department of Special Investigations; (iii) the case of Somchai Neelapaijit; and (iv) the reported cases of defamation lawsuits filed by military officials against those reporting on torture. The Committee reiterates its recommendation.

The Committee takes note of the National Justice System Reform Plan, established in April 2018, and the measures taken to provide victims with financial reparation. It requires, however, information on the measures taken to guarantee full and systematic reparation, including psychological assistance, to all victims.

The Committee notes the information on training sessions conducted for law enforcement officials and military personnel, but requires updated information on the frequency and content of this training and on whether judges and prosecutors participate in such training.

[C] (d) and (e): The Committee regrets the lack of information on the measures taken to amend the Martial Law Act, the Emergency Decree and Order No. 3/2015 (No. 3/2558) to ensure that they comply with all provisions of the Covenant. It also regrets the reported excessive use of such legislation, in violation of the Covenant. The Committee reiterates its recommendation.

The Committee regrets the lack of information provided on the measures taken to set up an independent mechanism for the prevention and suppression of torture and enforced disappearance. It reiterates its recommendation.

Paragraph 34: Conditions of detention

The State party should continue to strengthen its efforts to improve conditions of detention by taking practical measures to reduce overcrowding, particularly by promoting alternatives to detention. It should also increase efforts to guarantee the right of detainees to be treated with humanity and dignity and ensure that conditions of detention in all of the country’s prisons are compatible with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

Summary of the State party’s reply

Thailand is committed to strengthening efforts to improve conditions of detention. In July 2017, the Department of Corrections under the Ministry of Justice and the Thailand Institute of Justice announced a collective commitment to pursue the full and effective implementation of the Nelson Mandela Rules in the country. The Department of Corrections has commenced the project with the Thonburi Remand Prison as a pilot penitentiary, and aims to implement the Nelson Mandela Rules fully in 2018.

The Medical Services Division of the Department of Corrections dedicates efforts and resources to ensuring that inmates received adequate medical services, such as through regular visits to external hospitals.

The Department of Corrections now operated pursuant to section 21 of the Penitentiary Act (2017), under which a higher standard is applied than that required by the Nelson Mandela Rules. The use of restraining devices on inmates is not allowed unless absolutely necessary. Any decisions to use restraining devices are reviewed every 15 days.

Thailand recognizes the problem of overcrowding in places of detention under the supervision of the Department of Corrections. However, detention centres under the supervision of the Department of Special Investigations, immigration detention centres under the supervision of the Immigration Bureau and military prisons operate within their respective capacities and are not overcrowded.

TheNational Justice System Reform Planaims to improve various aspects of the judicial system, including conditions in prisons and detention centres across the country.

The Penitentiary Act provides the Department of Corrections with the tools necessary to solve the problem of overcrowding in an effective and practical manner. In this regard, the Ministry of Justice is drafting a ministerial regulation to specify six alternative criminal sanctions to imprisonment. In March 2018, the Court of Justice and the Department of Probation introduced an electronic monitoring system as an alternative to detention for prisoners who have been granted temporary release, rather than them having to post bail.

The State party also refers to the establishment in February 2018 of the Centre for Assistance for Reintegration and Employment, which aims to promote employment for inmates after their release; to the Management of the Rehabilitation of Child and Juvenile Offenders Act of B.E. 2561 (A.D. 2018), whichrequires the Government to prepare child and juvenile offenders for release; and to the measures taken regarding lesbian, gay, bisexual, transgender and intersex detainees.

Information from non-governmental organizations

Joint submission: International Federation for Human Rights Leagues, Union for Civil Liberty and iLaw

Heavy overcrowding remains a persistent problem in Thai prisons. Between March 2017 and August 2018, the prison populations increased by 25 per cent. Thailand currently has the sixth largest prison population and the fifth highest rate of incarceration in the world.

Aside from the granting of royal amnesties over recent years, no other effective measures have been taken to reduce the prison population.

To help to reduce overcrowding, in March 2018, the Office of the Judiciary and the Department of Probation under the Ministry of Justice launched a pilot project with 23 courts, under which the courts may order the fitting of electronic ankle devices to monitor suspects who cannot afford bail and who are not alleged to have committed serious offences.

Despite an initiative by the Department of Corrections and the Thailand Institute of Justice to bring prison conditions into line with international standards, heavy overcrowding remains a persistent problem. Ten “model prisons”, reported to have successfully implemented the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), remained hugely overcrowded.

The Government has made limited efforts to improve prison conditions, which remain well below international standards.

Fortify Rights

The Immigration Bureau continued to detain refugees as a matter of policy. Since March 2017, at least two detainees have died while in the custody of Thai immigration officials.

Starting in July 2017, as part of a pilot programme, the Immigration Bureau removed 11 children from a Bangkok immigration detention centre, where they were detained with one or both of their parents, and placed them in a privately-run shelter.At the time of writing, the parents remained detained and separated from their children. In October 2017, the Office of the United Nations High Commissioner for Refugees and the International Organization for Migration, together with three civil society organizations working with refugee children, developed a set of inter-organizational standard operating procedures for alternatives to detention for children, providing guidance on the determination of best interests and case management to facilitate the transfer of children from detention facilities to private shelters.The Government was in the process of developing memorandums of understanding with private shelters in Thailand to receive refugee children from detention facilities.

Joint submission: Centre for Civil and Political Rights and others

There is reportedly still no segregation between convicted inmates and persons in pretrial detention or detention pending trial. The unsolved situation of overcrowding has a negative impact on inmates’ overall quality of life, including both mental and physical health.

The organizations refer to restrictions on visits that detainees may receive in prisons, both in terms of frequency (five visits per month) and length (one minute per visit); the difficult conditions for pregnant women; and the strip-search procedures used, in violation of human rights standards.

People’s Empowerment Foundation

Lad Yao Prison, which has a capacity of 5,000 prisoners, currently houses as many as 10,000 prisoners, of which 95 per cent are serving their seventh or eighth prison term for drug-related offences. To solve the overcrowding issue, the Government has installed bunk beds, a measure that is expected to add approximately 50,000 spaces.

Some 30,000 electronic monitoring devices have been employed, with a target of 100,000 devices, in order to reduce the number of detainees. Shackles are still used to prevent escape by detainees while being brought to court.

Committee’s evaluation

[B]: The Committee notes the State party’s efforts to improve conditions of detention, particularly by theDepartment of Corrections under the Ministry of Justice and the Thailand Institute of Justice. It also notes the introduction of an electronic monitoring system as an alternative to detention. It is concerned, however, about the persistent reports of overcrowding and the poor conditions of detention. It requires further information on the impact of the measures taken by the State party to reduce overcrowding and to improve conditions of detention. The Committee reiterates its recommendation.

Recommended action:A letter should be sent informing the State party of the discontinuation of the follow-up procedure. The information requested should be included in the State party’s next periodic report.

Next periodic report due:29 March 2021.