For Immediate Release March 21st , 2012
The Court of Appeals Rules in Favor of the First Court’s Decision to Confirm that Immigration Detention Exceeding Seven Days without a Court Authorization is Deemed Unlawful – as in the Case of Mr. Chalee Diyu, a Migrant Worker from Myanmar – however, it is Not Sufficient to Merit Monetary Compensation.
For more information please contact: Ms. Yada Hatthatummanoon (Human Rights and Development Foundation – HRDF’s Assistant to the Secretary-General): +66 891 309757, email firstname.lastname@example.org
March 20 th , 2012, 10:00 am – The Court of Appeals ruled in favor of the petition against the February 2011 detention of Mr. Chalee Diyu, a migrant worker from Myanmar. The Court agreed that the Immigration Bureau (the Bureau) unlawfully detained Mr. Chalee without first verifying his work-permit and his lawful right to reside in Thailand.
The Court established that while the Bureau had the duty to investigate whether Mr. Chalee was violating immigration law, they still required the Court’s permission to detain the individual for a period extending seven days. Considering the Immigration Bureau did not request the Court’s permission prior to the arrest and kept Mr. Chalee under custody for sixteen days, the detention was deemed unlawful. When the detention occurred Mr. Chalee was still in the hospital in grave medical condition and was transferred to the Police General Hospital where he was shackled to his bed and placed under 24-hour surveillance.
Concerning the shackling, the Court of Appeals ruled this act represents normal implementation duties of detention procedures and cannot be regarded as the act that unreasonably violates the rights of the petitioner. Furthermore, the court ruled that although this act violates the Bureau’s regulations which forbid bondage of the ill (those not able to escape with their own strength), Mr. Chalee was unchained just after three days which is considered to be an appropriate rectification of such mistake. Thus according to the Court of Appeals, any damages that might have resulted from this act are not sufficient to merit monetary compensation for Mr. Chalee.
The ruling came in succession of a previous decision made by the South Bangkok Court on February 15 th 2011, which ordered the Immigration Bureau to release Mr. Chalee Diyu from custody. Mr. Chalee had suffered serious injuries as a result of a work-related accident and was still in the hospital when he was detained by the Bureau who then transferred him to the Police General Hospital to await deportation.
The South Bangkok Court also ruled that the Immigration Bureau must pay compensation to the plaintiff considering he had been detained unlawfully and his rights, as prescribed by Section 32 of the Constitution, had been violated. The Bureau, however, appealed the Court’s order and petitioned to the Appeals Court asking them to reverse the ruling. The Bureau insisted they were authorized to hold Mr. Chalee in custody and were not obligated to investigate his residency status pending deportation.
The Bureau maintained they had the right to hold Mr. Chalee indefinitely without a Court order because the detention was lawful. They also argued that Mr. Chalee was unchained from his hospital bed and released from custody shortly after the Department of Employment confirmed Mr. Chalee had the right to stay in Thailand. Thus, according to the Bureau, the release proved that Constitutional provisions were observed and the rights and liberties of Mr. Chalee were not violated.
In the statement against the appeal motion submitted by the Bureau, HRDF contends that the detention of Mr. Chalee was unlawful because he was held in custody awaiting deportation despite a valid work permit and legal status to reside in Thailand. Additionally, during three of the sixteen-day detention period, Mr. Chalee’s legs were chained to his bed while receiving medical treatment in the hospital. Even after the Lawyers Council of Thailand requested Mr. Chalee’s release, the Bureau failed to respond.
Given these continuous violations HRDF requested that the Court review the lawfulness of the detention. The Bureau had arbitrarily held Mr. Charlie in detention without adhering to the established judicial review procedures which could be viewed as an abuse of the Immigration Act and in breach of the Criminal Procedures Code and Constitutional provisions. Mr. Chalee’s rights to fair treatment as an alleged offender and presumed innocence until proven guilty were also violated.
Although the February 15 th ruling for monetary compensation was reversed, HRDF considers this verdict an important step forward in making sure that policy implementation, especially when it concerns migrant workers, is carried out with due regard to human rights.