THAILAND: Persecution of torture victims, legalized impunity

August 29, 2011

HUMAN RIGHTS COUNCIL
Eighteenth session, Agenda Item 4, General Debate

THAILAND: Persecution of torture victims and the legalization of impunity

The Asian Legal Resource Centre wishes to draw the attention of the Human Rights Council to the systemic persecution of torture victims in Thailand.

Thailand acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) on 2 October 2007. However, since accession, there has neither been a national law passed nor significant changes in the practices of state security forces. Police routinely use torture as part of law enforcement throughout the country and since the declaration of martial law in the three southern border provinces in January 2004, the range of state security forces present, including army, police, and local defence volunteers, ordinarily use torture as part of counterinsurgency operations. Despite several attempts to use existing Criminal Procedure Code and constitutional measures to hold state security forces accountable, human rights defenders in the country have been unable to compel state responsibility and there has instead been a consolidation of impunity in the years since Thailand acceded to the CAT. This underscores the urgent need to address torture in Thailand through appropriate legislative, administrative, judicial and other measures, including significant efforts to reform the state security forces.

Compounding the grave concern that the ALRC has over the ongoing use of torture and the continued failure to secure accountability through judicial, administrative or legislative means in Thailand is the alarming use of institutions from all branches of government, including the courts, not to protect the human rights of victims but to further torment those who actually dare to hold alleged perpetrators to account.

To take one specific case, a court in Bangkok on 10 August 2011 sentenced a torture victim to two years in prison for having spoken out against his alleged torturers. In Black Case No. 2161/2552, Police Major General Chakthip Chaijinda brought a criminal complaint against Mr. Suderueman Malae, one of the clients of forcibly abducted and disappeared human rights lawyer Mr. Somchai Neelaphaijit, with whose case the Working Group on Arbitrary Detention has been concerned for a number of years. Some key features of the case are as follows.

A) Mr. Suderueman, along with four others, was accused of stealing guns from the Pileng Army Camp in Narathiwat province on 4 January 2004, detained under the terms of martial law, and initially charged with "attempt to kill." While they were under detention, they were tortured and pressured to confess. Mr. Suderueman and the other four men were the clients of Mr. Somchai Neelaphaijit. In addition to preparing their defense, Mr. Somchai prepared a complaint detailing their torture, which he submitted to the Department of Special Investigation (DSI), Ministry of Justice on 11 March 2004. On 12 March 2004, Mr. Somchai was forcibly disappeared. In the intervening seven years, the initial charges of "attempt to kill" against Mr. Suderueman have been dropped, the perpetrators of Mr. Somchai's disappearance have not been held to account, and Mr. Suderueman has been prosecuted for filing a complaint about torture. Taken together, this series of events indicates the grave failure to protect victims of torture, a systematic inability to secure justice for victims of state violence, and the presence of collusion among different sectors of the administrative, judicial, and security apparatus in Thailand.

B) On 28 March 2005, during the trial of the officers of the Royal Thai Police who were accused of abducting and presumably killing Mr. Somchai Neelaphaijit, Mr. Suderueman and other victims of torture whom Mr. Somchai represented testified under oath that they had been tortured. The manner of torture included electrocution, urination on the head and face, smacking on the base of the ears, and assault on the body. The testimony of Mr. Suderueman and the other victims were consistent not only with one another but also with the accounts of other victims of torture in the south of Thailand.

C) Within the legal framework of Thailand, and particularly under martial law, there are few options to make a formal complaint of wrongdoing by state security officials. In this particular case, the DSI took up the formal investigation of the torture of Mr. Suderueman and the other four men with whom he was detained. At the completion of their investigation, the DSI submitted their report to the Office of the National Anti- Corruption Commission (NACC), whose mandate includes investigating all illegal wrongdoing committed by civil servants. The NACC then commenced investigation of Police Lieutenant General Bhanupong Singhara Na Ayuthaya and eighteen other police officers involved in the arrest and detention of Mr. Suderueman and the other four men.

D) On 22 December 2010, the NACC dismissed the complaint against Police Lieutenant General Bhanupong and the other police officers. The NACC claimed that the physical examination reports failed to establish if the torture really took place while the victims were held in official custody. Even without addressing the NACC's profound delay and mishandling of this case, it is pertinent to note that the vast majority of the cases with which this agency is concerned deal with financial wrongdoing, rather than violence perpetrated against citizens by state officials. This underscores the need for implementation of the CAT in Thailand and the establishment of an office with a precise mandate and specialization in the investigation of torture complaints.

E) While the NACC dismissal of the case officially absolved all of the named police officers from any responsibility for the torture of Mr. Suderueman Malae and the other four men, two police officers chose to bring legal charges of filing a false statement to the DSI and the NACC. Police Lieutenant General Bhanupong Singhara Na Ayuthaya and Police Major General Chakthip Chaijinda each brought separate cases against Mr. Suderueman in the Criminal Court in Bangkok.

F) The case brought by Police Lieutenant General Bhanupong was dismissed after examination by the court on 27 September 2009. The Criminal Court maintained that the defendant used his basic rights as a citizen to make a complaint to the DSI. The ALRC views this ruling as an important confirmation of the rights of citizens to secure their own rights and challenge state impunity. Police Lieutenant General Bhanuphong appealed and at present, the case is still under examination by the Appeal Court.

G) In contrast to the case brought by Police Lieutenant General Bhanupong, in the case brought by Police Major General Chakthip Chaijinda, the Criminal Court made a decision which runs counter to basic principles of the protection of victims of torture and other forms of state violence. On 10 August 2011, Mr. Suderueman was sentenced to two years in prison for allegedly making a false statement to the authorities.

H) The details of the allegations and the court decision in this case speak to an ingrained lack of respect for victims of state violence and contempt for human rights among state officials and institutions at all levels in Thailand, to which the ALRC has repeatedly drawn the Council's attention. The ALRC has had the opportunity to examine the court decision, of which the following aspects are especially pertinent:

i) The statement of Mr. Suderueman which Police Major General Chakthip alleged was false is the following, recorded in third person: "During the daytime on 22 February 2004, Police Major General Chakthip and his colleagues assaulted Mr. Suderueman by slapping his ears and kicking his trunk many times. The assault was carried out over a period of ten minutes. It took place in a meeting room in Tan Yong Police Station." Police Major General Chakthip claimed that he was not present for these events, and that he had been injured by the testimony.

ii) Police Major General Chakthip claimed that he was falsely implicated in the torture of Mr. Suderueman. The basis for his denial of involvement was in part that although he had been listed in the police records as heading up a unit responsible for the arrest and detention of Mr. Suderueman in February 2004, he had not actually been present at the time. In other words, he argued that the police records of the case were themselves at very least inaccurate, and possibly fabricated. Police Major General Chakthip argued that for this reason he could not be held to account for the torture of Mr. Suderueman.

iii) The Criminal Court found, in part on the basis of the NACC's investigation, that there was no evidence to support the complaint brought by Mr Suderueman against Police Major General Chakthip. The court convicted Mr. Suderueman and sentenced him to two years in prison under sections 173 and 174 of the Criminal Code, for maliciously giving false information to inquiry officers, even though no evidence exists to show that the naming of Police Major General Chakthip was in any way malicious.

The conviction of Mr. Suderueman by the Criminal Court in this case speaks not only to a system characterized by utter neglect of victims of gross human rights abuses in Thailand, but one that in practically every respect institutionalises and legalizes the impunity of perpetrators. That the investigative and judicial institutions together not only act to deny justice to victims but also to enable the perpetrators of violence to commit further violence on their victims through the use of the courts points to the vast gulf between international standards of human rights and notions and those operative in practice in Thailand.

The prosecution and conviction of Mr. Suderueman represents a violation of the Government of Thailand's obligations under the CAT, to which Thailand has acceded, notably article 13, which provides that,

"Each state party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given."

The prosecution of Mr. Suderueman is a clear example of official intimidation as a consequence of making a complaint. Particularly given questions surrounding the efficacy of the NACC investigation, his prosecution raises deeply troubling questions about the respect for human rights in Thailand; however, whereas the answers to these questions are far from clear, the message that the case sends to other victims of torture is unequivocal--complain at your peril.

The Asian Legal Resource Centre is very concerned that the Criminal Court finding against Mr. Suderueman will serve as a powerful deterrent to dissuade other victims of torture from filing complaints or otherwise speaking out against state perpetrators. Already, very few persons lodge complaints, not because large numbers of victims do not exist, but because of an awareness that judicial, administrative and investigative organs in Thailand are almost universally arrayed against victims of abuse, as shown in the case presented here, rather than in their favour. Consequently, the ALRC calls on the Human Rights Council to:

a) Condemn the prosecution and conviction of torture victim Mr. Suderueman Malae and the failure of the criminal judicial system to hold anyone to account for the crimes committed against him; and,

b) Call on the Government of Thailand to pass without delay a law to criminalize torture in accordance with the Convention against Torture, and to establish a specialized agency for the investigation and prosecution of alleged perpetrators.

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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