Public Statement: A summary of the statement by the commissaire du gouvernement during the first hearing on torture against Yala students
Note: The conclusion made by the commissaire du gouvernement is not a verdict made by the Court and it bears no obligation on the verdict to be delivered after the trial and a copy can be obtained by either of the parties. A following summary may thus contain some inaccuracies and it is not purported for any further reference.
On 13 January 2015, the Supreme Administrative Court conducted the first hearing at Court Room 12, 3rd Floor of the Supreme Administrative Court in case between Mr. Isama-ae Tae, plaintiff no.1 and Mr. Amizi Manak, plaintiff no.2 V. the Royal Thai Army, defendant no.1 and Ministry of Defense, defendant no.2 concerning the invocation of the 1914 Martial Law Act by the military to hold the two students from Yala Rajabhat University in custody.
The judges with the commissaire du gouvernement were present with the plaintiffs no.1 and 2 and their legal representatives plus a group of 15 friends and relatives from the three Southern Border Provinces in the court room. The plaintiff no.1made his oral statement affirming the fact that he had been subject to an act of torture and physical assault committed by the military officials as supported by a letter of certificate from a medical doctor and asked the Court to order a payment of damages for the physical assault and the act of torture invoking Section 32 of the 2007 Constitution of the Kingdom of Thailand. It was followed by a conclusion of the case orally and with a written statement made by the commissaire du gouvernement, which can be summarized as follows;
(1) First section, whether the military officials were authorised to hold in custody the plaintiffs since the beginning or not, the commissaire du gouvernement opined that;
As for the power to hold a person in custody, it is decided that the military officials had the power to hold the persons in custody. Even though the two plaintiffs argued in their submitted motion that the military officials had failed to produce to the Court evidence they had claimed to find in the house of the plaintiffs including the Ministry of Defence’s Ministerial Regulation regarding the designation of firearms that warrant permission, information about weapons, documents concerning the unrest situation, photos of the operations of officials, photos of the police officials from Yala Muang Police Station, photos of how to make a Claymore anti-personnel mine and files containing data of various kinds of explosives, but given that there were people under arrest warrants staying in the residence of the two plaintiffs at the time, it sufficed it for the military officials invoke the legal power to conduct a search and to hold the two plaintiffs in custody.
Second section, the holding in custody by the military officials invoking Section 15 bis of the 1914 Martial Law Act which provides for a detention no longer than seven days, but in reality the two plaintiffs had been held in custody for altogether nine days. Therefore, the act of the officials was unlawful and was an infringement on the rights of the two plaintiffs. The defendant no.1 argued that during the holding in custody, new evidence emerged and it had prompted them to lengthen the detention of the two plaintiffs. The Court found the argument unreasonable since they were obliged to act in accordance with the law. Also, the defendant claimed they should not be held liable invoking Section 16, the Court decided that the act that warrants immunity as per Section 16 must be the one that has been conducted lawfully. Since the holding in custody has taken place longer than the time permitted by the law, the act could not be considered legal and shall not warrant any immunity as far as Section 16 is concerned. And therefore, the act was an infringement on the two plaintiffs.
(2) Whether the two plaintiffs should be awarded the damages as per the request in the plaint or not? The Court decided that even though the Administrative Court may apply Section 438 of the Civil and Commercial Code mutatis mutandis and determine the compensation proportionate to the gravity of the infringement. But given that there is an existing Ministerial Regulation to determine the procedures, methods, and rates of compensation to be awarded to aggrieved parties and the accused in criminal cases B.E. 2546, in (3), which has been issued by the virtue of the Act for the Granting of Compensation to Aggrieved Parties and the Accused in Criminal Cases B.E. 2544 (2001), a law which purports to provide remedies and to ensure social justice, and it can be applied in the case to provide for justice of both the plaintiffs defendants. The Court also deemed that it has been settled that during the holding of the two plaintiffs for interrogation, injuries sustained on the body of the plaintiff no. 1 have occurred while he was held in custody by the government agency and it has been proven that while conducting the interrogation, the officials have inflicted the injuries on the plaintiff. That the Songkhla Administrative Court ruled that it was an infringement was already correct, but this Court deemed that the verdict of the Songkhla Administrative Court failed to determine the correct damages that should be awarded. Therefore, the Court decided to alter the verdict of the Songkhla Administrative Court and ordered the defendant no. 1 to provide compensation as required by the aforementioned Ministerial Regulation including 30,000 baht each for medical expense and physical and mental rehabilitation (the Ministerial Regulation stipulates that actual expenses shall be covered, but not more than 30,000 baht and not more than 20,000 baht for physical and mental rehabilitation). As for the damages stipulated in Section 32 of the Constitution, it is cited in 3 (4) regarding other compensation to provide for 15,000 baht each (the Ministerial Regulation provides that no more than 30,000 baht can be paid as compensation.)
(3) That the defendant no.1 argued that they were ordered by the Songkhla Administrative Court to provide the compensation for the amount of 250,000 baht each for the holding in custody of the persons longer than the time permitted by the law and that the compensation was too high or not. This Court deemed that since the two plaintiffs had been held in custody two days longer than the time permitted by law and in light of the aforementioned Ministerial Regulation which determines the compensation for the lack of opportunity to earn one’s living for not more than 200 baht per day, therefore, this Court deemed that the plaintiffs should be awarded the compensation on this regard for 400 baht each (the Ministerial Regulation provides for paying the compensation for 200 baht per day for not longer than one year).
In total, the defendant no.1 is obliged to provide the two plaintiffs with 45,400 baht each plus 7.5% interest per annum from the day the complaint has been filed until all the expenses are paid off.
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Human rights Lawyers Association (HRLA)
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