Safeguards and enhanced legal protections for vulnerable group under Anti-Torture and Enforced Disappearance Act

Recommendation report: safeguards and enhanced legal protections for vulnerable group under the Anti-Torture and Enforced Disappearance Act B.E. 2565 (2022)

31 May 2023, Bangkok, Thailand ¹This data used in this report is collected from a training on 19 May 2023 hosted by Asylum Access Thailand (AAT) in collaboration with Cross Cultural Foundation (CrCF), namely “Anti-Torture and Enforced Disappearance Act: New Legal Protection Tools for Refugees”. The report shall be used in the project “Reducing Risky Practices Leading to Torture in Malaysia, Philippines and Thailand” or #SafeInCustody in partnership with Association for the Prevention of Torture, Cross cultural Foundation, Suara Rakyat Malaysia (SUARAM) and Task Force Detainees for the Philippines (TFDP).

Introduction

The fundamental safeguards embedded in the Constitution and Criminal Procedural Code, including access to lawyer, access to third parties, access to medical attention are proved to be effective to prevent acts of torture, ill-treatment, and further violence especially when applied in the first hours and days after a person is taken into custody, according to research on torture prevention strategy: “Does Torture Prevention Work?”. The preventive elements are crucial and have also been under the focus of the “Safe in Custody project”, in partnership with the Association for the Prevention of Torture (APT).

During the first quarter of the project, CrCF conducted extensive research on risky practices leading to torture and ill-treatment in Thailand. We found that immigrants, refugees, and especially migrant workers are among the most vulnerable groups to face detention and systematic extortion, but are more severe due to other problems involving brokers, employers, interpreters, local police, and immigration police. In these cases, they have virtually no protection of their basic legal rights. Even though these rights are stated in the Criminal Procedure Code, torture and ill-treatment often happen before the cases enter legal proceedings.

There are also problems with language barriers and knowledge about rights. The rights of detainees are clearly stated in the arrest record, but refugee detainees, being foreigners, cannot read and understand Thai and are usually asked to sign the document even though nothing on the paper makes sense to them. They are often neglected in this regard. Most of the cases involving refugees are minor offenses, such as petty thefts, not having the official identification documents or having wrong documents, or not having residence permits. The legal process of these cases is very fast. Police officers can act within 24 hours, giving the accused no opportunity to speak with lawyers and seek legal consultations before being arrested or prosecuted.

In addition, asylum seekers and refugees in Thailand are still subject to refoulement. The principle of non-refoulement is one of the essential protections safeguards against the forced return of individuals to a country where they may face risks of torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. While this is a fundamental principle in international law as part and parcel of the absolute prohibition against torture, there remains a gap in its adherence in Thailand. One such case was a Cambodian labor activist who was arrested and deported in 2018, despite the UNHCR already having determined her to be a refugee and was in the process of assisting with resettlement.. ²Refugee-Rights-Network-in-Thailand_en.pdf (asylumaccess.org)In order to ensure that a person is not returned to a place where they would be in danger of certain fundamental rights violations, essential procedural safeguards are required.

Given the fact above, the Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2565 (2022) has come into force since 22 February 2023. The law is enacted pursuant to Thailand’s obligations toward the UNCAT and the ICPPED. Even though there was an attempt to delay article 22-25 through the decree issued by the former Prayuth Government, on 18 May 2023, the Constitutional Court of Thailand with 8 out of 9 voted and ruled that the decree was unconstitutional. Therefore the whole law was back in place to protect the people’s rights and ensure their safety from torture, ill-treatment, and enforced disappearance. 

However, the interpretation and implementation of this principle in Thailand have been subject to question, debate, and criticism among the stakeholders, especially human rights lawyers working for the protection of asylum seekers and refugees. Prior to the enactment of the new Act, discussion about safeguards in immigration detention, final destination after the police arrest, rarely takes place due to the difficult access to the facility and the arrestees. But today several provisions in the new law could prevent abuses in the deportation process, including provision on detention conditions (section 6), non-refoulement section 13), preventive measures (section 22-25), reporting crimes (section29) and investigation by other agencies. The measures have not been discussed in the perspective of the protection of immigrants and refugees’ rights and deserve a collective learning between those involved in this field. Thus, the Asylum Access Thailand (AAT), in collaboration with Cross Cultural Foundation (CrCF) organized a training on 19 May 2023 aiming to consolidate knowledge about the Act and share to lawyers working to ensure that the rights and safeguards of their clients are respected, to explore any potential interpretation of the non-refoulement principle under the Act and explore ways to ensure effective implementation. The results of the discussion shall be detailed in the next sections.

Current context and situation

Refugees in Thailand can be divided into three main groups.

1. Temporary sheltered groups: There are about 9 shelters hosting more than 90,000 people, mostly from Burma’s Karen ethnic group.
2. Urban refugees: More than 40 nationalities, most from Vietnam, Pakistan, Cambodia, Syria, Somalia.
3. A person who is not in a shelter and is not considered a refugee, but escaped persecution from their own country. They could not access international protection, these include the Rohingya and Uyghur people fleeing Burma after the coup. These groups are not protected in any way. Some face human trafficking issue.

The groups that work to provide legal assistance and promote the protection of human rights of refugees are often civil society organizations. which provides legal advice, legal knowledge, bail, support for relevant government agencies in these tasks. It also focuses on caring for children who may be affected by family follow-up during relocation and detention. However, these CSOs face difficulty in accessing detainees and detention places, as well as identifying the detainees; these issues shall be discussed further in the chapter on case studies.

Legal framework and analysis: arrest and safeguards

In Thailand, an arrested person shall not be held in custody for more than 48 hours (or two days) from the time of arrival at the police station. In the case of necessity for investigation or other necessity may extend beyond 48 hours as necessary. Some laws allow the detention prior to charge for more than 48 hours, for example under Drug suppression Law,  the pre-charge detention must not exceed 3 days, that is, a maximum of three days to be detained anywhere besides the police station. Under Martial law and Emergency law, the pre-charge detention is allowed 7 days and maximum 30 days accordingly. 

With a focus on the context of vulnerable groups mentioned in the introduction (immigrants, refugees, and migrant workers), Thailand has three laws related to the issues that these groups are facing or at risk of: first hours of police custody, torture and ill-treatment, forced confession and incommunicado detention, they include the Criminal Procedure Code, The Immigration Act, B.E. 2522 (1979) and the Alien Working Act, B.E. 2551 (2008). In addition to these existing laws, the Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2565 (2022) shall play a significant role in terms of protecting the people from any unlawful act committed by state officials.

The Criminal Procedure Code

Section 87 – An arrestee may not be restrained beyond the necessity according to the circumstances of the case.

In the case of petty offence, an arrestee may be restrained only for a period of time necessary for taking his statement and ascertaining his identity and residence.

If the arrested person is not released and detained for further inquiry or action, the arrested person shall be arraigned within forty eight hours as from the time of the arrested person taken to the inquiry official-house under Section 83, unless there is the act of god or unavoidable necessity, the inquiry official or Public Prosecutor shall  request the Court to summon/issue? the warrant detaining the alleged offender, ask the alleged offender if he or she will plea or not, and the Court may summon the inquiry official or Public Prosecutor for notifying the necessity or may summon the evidence in corroboration of trial.

Section 7/1 of the Criminal Procedure Code stipulates that a person arrested in custody is entitled to the following rights: 

(1) The right to meet and consult a person who will be his/her lawyer;
(2) The right to have a lawyer or a trusted person to observe during the interrogation;
(3) The right to receive visitors or to contact relatives;
(4) The right to receive immediate medical treatment in the event of an illness.

The Immigration Act, B.E. 2522 (1979)

Section 54 – Any alien entering or staying in the Kingdom without permission, or with permission that is expired or revoked, may be repatriated from the Kingdom by the competent official. 

If an investigation is to be conducted for repatriation under paragraph one, the provisions of Sections 19 and 20 shall apply mutatis mutandis. 

In a case where there is an order to repatriate an alien from the Kingdom, while waiting for the repatriation to take place, the competent official shall have power to permit the alien to reside at a place provided that such alien shall have to come to meet the competent official on the date, time and place as prescribed, with bond or with bond and security, or the competent official may detain such alien at a place for however long as is necessary. The detention expenses shall be borne by such alien. 

The provisions of this Section shall not apply to aliens entering the Kingdom prior to the date the Immigration Act, B.E. 2480 (1937) came into force.

The Immigration Act provides police officers and immigration officials broad discretionary powers to detain foreigners. The law does not set a maximum length of time that a person can remain in administrative immigration detention.

The Immigration Act also criminalizes unauthorized stay, which is punishable by up to two years imprisonment. The Ministry of Justice’s Department of Corrections is responsible for monitoring prison and detention facility conditions; however, its mandate does not include administrative detainees. The Immigration Police Bureau of the Royal Thai Police administers the country’s approximately 15 dedicated immigration detention centres (IDCs), which are spread out across Thailand’s land borders and along the Andaman Sea and Gulf of Thailand. The detention centres are not subject to many of the regulations that govern the regular prison system. As a result, both the procedures and conditions of immigration detention can vary greatly. The costs of deportation are also to be covered by the person being deported. 

The Alien Working Act, B.E. 2551 (2008)

Section 51 states that any migrant working without a permit shall be liable to imprisonment term of no more than five years, or a fine of 2,000-100,000 THB, or both. If a migrant accused of committing such an offense under paragraph one agrees to leave the Kingdom within the period specified by inquiry officials, which must be within thirty days, the inquiry officials may settle a fine and proceed with the deportation of the migrant.

For migrant worker cases, although the law comprehensively specifies the nature of the offenses and penalties, it fails to describe the legal protection of the detainees’ rights, particularly when the detainees are in the Immigration Office’s detention system, where inspections are difficult and the detainees do not have access to legal support. This issue will be discussed in detail in the next chapter.

The Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2565 (2022)
(“The Anti-Torture Act”)

Thailand, as a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), has pledged to the international community to prevent torture and ill-treatment. Over the past ten years, efforts have been made to push forward draft bills on the prevention and suppression of enforced disappearance and torture. On 22 February 2023, the Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2022 has officially come into force.

The Act’s key provisions will not only bring about the prevention and suppression of torture and enforced disappearance by a public official but also contribute to the betterment of the Thai criminal justice. The provisions mainly discussed and related to the protection of our target vulnerable groups are as follows:

• Section 5-7 provide definition of the offenses under this law including torture, ill-treatment, and enforced disappearance.  
• Section 13 states that no state agency or state authority shall expel, return, or extradite a person to another State, if there are substantial grounds for believing that the person would be in danger of being subjected to torture, to cruel, inhuman, or degrading treatment, or to enforced disappearance. 
• Section 22, it requires that throughout the arrest, the responsible state official has to be equipped with a body camera to prevent an act of torture or further abuse of power. An official is also required to immediately notify other agencies about the arrest, including the administrative agencies and the public prosecutor. 
• Section 23 states the duty to prepare a detailed report of the arrest and detention. This is highly beneficial not only for the safeguards of the arrestee but also for the officer themselves in case of misconduct allegations. 
• Section 24-25 allows that the report shall be made available to the family and lawyer of the arrestee to prevent any act of torture or enforced disappearance, if not the court shall issue an order requiring the official to disclose the information. In terms of jurisdiction, the Criminal Court for Corruption and Misconduct Cases is designated as the court of jurisdiction, enhancing impartiality and independence of a case process.
• Section 26 on reporting an allegation of an act of torture, cruel, inhuman, or degrading treatment, or enforced disappearance states that the victim or stakeholder includes “any other person of the victim’s interest”, which may include the role of civil society. Both on behalf of organizations, lawyers and individuals working to help with this issue are all included in this section 26. The law also states that the reporting person will not face any civil, criminal or disciplinary liability even after it appears that there is no offense as reported. 

Context and case studies: applying the Anti-Torture Act in practice

Children arrested together with their family

In many cases arrested by the Immigration officers, children are sometimes confined together with their family. However, the officers may claim that they are not under custody but are there as companions of the arrestees, so they do not go through the court of juvenile and family for a preliminary examination of the arrest. 

Analysis

Article 3 of the Anti-Torture Act define “custody” as an arrest, deprivation of liberty, confinement, isolation, incarceration, or any other similar acts to deprive a person of liberties in their body. So every form of deprivation of liberties shall be considered “custody” or “detention” under this law, for example, if an officer invite a person to come in a vehicle, and that person could not refuse to do so, such act is a form of taking into custody and that officer will have to comply to the law by informing other assigned agencies, starting to record the arrest, etc. To facilitate this process, A Prevention and Suppression of Torture and Enforced Disappearance Center is established by the Office of Attorney General, they can be found in the Department of Provincial Administration, all district offices and the Office of the Attorney General across the country. An arrest officer can reach out to these agencies via a telephone call. 

If the officers refuse to reveal where they are taking the person to, or whether they have arrested the person at all, the oversight agency such as the attorney can intervene and charge them for the related offense listed in the law. 

Difficult identification of a person and deportation

An asylum seeker may be arrested at the entry into Thailand  if they are found to be in violation of immigration laws or to be charged with an offense from their country. Then, they may be ordered to be deported. At the stage of awaiting removal from Thailand, they may be detained until the deportation process is completed. Detention in such cases is generally carried out in immigration detention centers where lawyers find themselves in a difficult situation to get access to their clients. Moreover, the deportation process duration is often indefinite and unknown, regardless of the fact that they are requesting a refugee status from UNHCR or that they have already obtained one. In a case where an asylum seeker or a refugee has an arrest warrant from their home country, officers may also argue that it is their duty to repatriate such person otherwise they may face charges under section 157 of the Criminal Code. Most of the time, identification of the arrested person is difficult or even impossible. In March 2023, there were 3 Myanmareses arrested at the Thai Immigration, their names and photos were released, including proof of them being tortured in Myanmar resulting in public attention to these cases. However, no one was able to document, get access to the truth, and reach out to them. 

Analysis

The first step is to try to identify the arrested person and prove that they are facing refoulement, for example there may be a picture or a video of the person being forcibly returned or simply that they were at a specific spot in the immigration process. Then, it will require a liable proof that they are at risk of harm. Even though in practice it is difficult to reach out to the arrestees and to determine their identity, under the Anti-Torture Act it is the duty of the officer to record the arrest. This will also depend on the state strategies and policies on the asylum seekers and refugees, the state attitude must be shifted in order to impact the policies aiming to support the rights of these groups. For the duty to repatriate a person with an arrest warrant, this will refer to the Act on Mutual Assistance in Criminal Matters B.E.2535 (1992), which authorizes the Attorney General to make decision whether to repatriate the person, if he/she is not from a state party to the Act, the officer is not obliged to repatriate. In addition, to prevent a potential refoulement of a person, section 26 of the Anti-Torture Act allows relevant stakeholders to file with the local court with criminal jurisdiction a petition for an order mandating instant termination of such act.

Indefinite detention and indecent detention conditions

Several cases have been confined for more than ten years, some are also struggling with the inappropriate conditions of detention and ill-treatment. Prior reports show that there are detainees who got sick and do not receive or get access to treatment. Most cases wish to move to the third country but due to the provisions under the Immigration act, the authorities may not allow them to move to the third country.

Analysis

The section 6 on cruel, inhuman, or degrading treatment, shall apply to this context, especially if there is evidence of the ill-treatment, such as denial to provide access to medical treatment. The section 26, as stated above, also authorize the court to conduct an ex parte hearing promptly, in which the court has the power to summon any state authority or person to appear and give statement or surrender documents or any other objects for the sake of the hearing, or may also order a state authority to bring before the court the person in the custody.

Recommendations

From the discussion during the training on 19 May 2023, participants from various organizations providing legal aid for refugees, asylum seekers, migrant workers, described their experience on arrest practices, challenges, law and principles. With the objectives to improve the human rights situation of the vulnerable groups mentioned and to promote the more effective implementation of the Anti-Torture and Enforced Disappearance Act, they summarized the recommendations as follows:

General recommendations

• Review and revise the Cabinet Regulations on the screening of aliens B.E. 2562 ³v36_24_01_2563.pdf (ago.go.th)
• Ratify Convention Relating to the Status of Refugees
• Ratify Optional Protocol to the Convention Against Torture (OPCAT) to strengthen oversight body capacity to visit detention places
• No one should be discriminated against or excluded from the screening mechanism. The NSM’s provision prescribes that migrant workers and people under special measures are exempted. This might exclude them from protection, if the main reason they are in Thailand is due to fleeing from persecution. Exclusion should be decided later.
• Refugees should not be seen as criminals. They may have entered the country irregularly but they did not commit any serious crime. In practice, many individuals are detained in Immigration Detention Center (IDC). A lot of them are stuck because they are in detention but cannot return or go to the third country.
• Ensure the right to work, this will lessen the burden of the state as well as CSOs, as they can be responsible for their own livelihood. The right to work is also beneficial for an aging society. A lot of refugees are skilled laborers. Some were doctors, lawyers, teachers before they became refugees. 
• Ensure disclosure of data to facilitate the right to a lawyer. Lawyers should be made aware of the information about the cases so they can effectively give legal assistance.
• Empower the victim communities to know and claim their rights, equip them with knowledge on relevant law and policies
• Improve the status registration process to be more simple, able to identify different statuses of a person entering the country, such as a migrant worker, an asylum seeker, or a refugee, with respect to non-refoulement principles, other human rights standard, as well as domestic law, especially the Anti-Torture and Enforced Disappearance Act.
• Central government must ensure that policies on refugees, especially whose situations are the most critical such as Myanmar refugees, respect human rights and non-refoulement principles.

Recommendations related to Anti-Torture and Enforced Disappearance Act

• Under the Prevention and Suppression of Torture and Enforced Disappearance Act, draft new regulations on the protection of vulnerable groups aiming to facilitating the operation of relevant state agencies
• Provide effective remedy and reparation both for the past and the future cases of refugees, including all issues from ill-treatment, torture, enforced disappearance, to refoulement 
• Relevant state agencies must also provide training and capacity building on the law for CSOs working the field, not just for the state officials only, this includes lawyers, social workers, human rights officers, etc.
• Increase civil society participation to build trust and synergy by opening more space for CSOs representatives or victims to exchange on their needs and to help make the law more inclusive, human rights-based,  and people centric. For example, appointing a refugees rights expert to the Committee under the Act.

• 1
  This data used in this report is collected from a training on 19 May 2023 hosted by Asylum Access Thailand (AAT) in collaboration with Cross Cultural Foundation (CrCF), namely “Anti-Torture and Enforced Disappearance Act: New Legal Protection Tools for Refugees”. The report shall be used in the project “Reducing Risky Practices Leading to Torture in Malaysia, Philippines and Thailand” or #SafeInCustody in partnership with Association for the Prevention of Torture, Cross cultural Foundation, Suara Rakyat Malaysia (SUARAM) and Task Force Detainees for the Philippines (TFDP).
• 2
  Refugee-Rights-Network-in-Thailand_en.pdf (asylumaccess.org)
• 3
  v36_24_01_2563.pdf (ago.go.th)