A/HRC/WGAD/2014/19

GE.14-09385 (E)

*1409385*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-ninth session (22 April–1 May 2014)

No. 19/2014 (Thailand)

Communication addressed to the Government on 6 February 2014

concerning Muhamadanwar Hajiteh also known as Muhamad Anwal or Anwar

The Government has not replied to the communication.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. The mandate was extended for a further three years in

resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

A/HRC/WGAD/2014/19

General Assembly

Distr.: General

23 July 2014

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The case summarized below was reported to the Working Group on Arbitrary

Detention.

4.

Muhamadanwar Hajiteh also known as Muhamad Anwal or Anwar (hereinafter Mr.

Anwar) is a Thai citizen, born in 1984 and living in Pattani province, Thailand. Mr. Anwar

belongs to the ethnic Malay Muslim population of Pattani, which is one of the southern

provinces of Thailand, along with Yala and Narathiwat. The majority of the population in

the region are ethnic Malay Muslims who speak a local dialect of the Malay language.

5.

The source informs the Working Group that the southern provinces were

independent Muslim sultanates before being annexed by Thailand (then Siam) in 1902.

Since that time, the region has experienced varying degrees of separatist activity owing to

its distinctive religious, ethnic, linguistic, cultural and historical characteristics. The

National Revolutionary Front (Barisan Revolusi Nasional (BRN)) is one of the many

separatist groups that were formed to establish an independent homeland by casting ethnic

Malay nationalism in Islamic terms. The BRN-Coordinate (Barisan Revolusi Nasional-

Koordinasi) has emerged as the strongest among the various BRN factions.

6.

Following the widespread resurgence of separatist violence in 2004, the southern

provinces were placed under martial law in July 2005, pursuant to the enactment of the

Executive Decree on Government Administration in Emergency Situations (Emergency

Decree), which is still in effect. Sections 11(1) and 12 of the Emergency Decree authorize

soldiers and police to search and arrest without a judicial warrant. In addition, suspects

arrested under martial law may be detained for up to seven days without a charge.

According to the source, the Emergency Decree does not provide guarantees of access to

counsel or to contact family members, the right to challenge detention before a court, nor

safeguards against torture or other cruel, inhuman or degrading treatment during the 30-day

period of detention provided for in the decree. A case will only proceed under the Criminal

Procedure Code upon termination of the detention period.

7.

At 7.20 p.m. on 17 August 2005, six plain-clothes policemen arrested Mr. Anwar in

his home, pursuant to the Emergency Decree, and without a warrant. The source reports

that at the time of his arrest, Mr. Anwar was not informed of the charges against him nor of

his procedural rights as an accused, in contravention of section 83(2) of the Criminal

Procedure Code of Thailand and article 9, paragraph 2, of the International Covenant on

Civil and Political Rights. He was reportedly told that an informant had notified the police

of his involvement with the separatist movement.

8.

Immediately following his arrest, Mr. Anwar was detained at Yarang Police Station

in Pattani province and later transferred to the Royal Police Cadet Academy, Region 9 in

Yala province. At 1.00 a.m. on 18 August 2005, he was moved to Nong Jik Police Station

in Pattani province, where he was detained for 28 days. He was then transferred to Pattani

Central Prison.

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9.

On 10 November 2005, Mr. Anwar was reportedly brought before a judge for the

first time since his arrest, at which time he was informed that he was accused of

membership in BRN and was charged under articles 83, 91, 113, 114, 135 (1) and (2), 209

and 210 of the Criminal Code. The source submits that the period of two months and 23

days in detention before being brought before a judge constitutes an unreasonable delay and

is in contravention of section 87(3) of the Criminal Procedure Code and articles 9,

paragraph 3, and 14, paragraph 3 of the International Covenant on Civil and Political

Rights.

10.

During the period from November 2005 to October 2006, three requests were made

to release Mr. Anwar on bail, pursuant to section 88 of the Criminal Procedure Code. All

were denied on the basis of section 11 of the Emergency Decree (To prevent suspects from

committing an act which may cause a serious situation) and section 87(1)(3) of the

Criminal Procedure Code (Necessity of interrogation). He was finally released on bail in

October 2006.

11.

On 25 July 2007, the Pattani Provincial Court, a court of first instance, convicted

Mr. Anwar pursuant to section 114 (Making preparations or conspiring to commit the

insurrection); section.135 (2)(2) (Receiving training in terrorist activities); section 209

(Being a member of a body of persons whose proceedings are secret and whose aim is to be

unlawful) of the Criminal Code. Mr. Anwar was sentenced to imprisonment for a term of

12 years.

12.

On 16 June 2009, the Court of Appeal overturned the decision of the court of first

instance on the grounds that the Prosecutor had produced insufficient evidence to conclude

that Mr. Anwar was a member of BRN.

13.

On 1 May 2013, the Supreme Court overturned the decision of the appellate court

and reinstated the 12-year sentence. The Supreme Court did not give any reasons for

quashing the decision of the appellate court and its finding of insufficient prosecutorial

evidence for a conviction. Since the date of the Supreme Court judgement, Mr. Anwar has

been serving his sentence in Pattani Central Prison, where he is expected to remain until

2024.

14.

The source submits that Mr. Anwar’s detention may be considered arbitrary under

categories III and V of the arbitrary detention categories defined by the Working Group for

serious violations of his right to a fair trial and because the decision to deprive him of his

liberty was motivated by discriminatory reasons, based on his ethnicity, religion and place

of origin.

15.

In the source’s view, contrary to article 9 of the Universal Declaration of Human

Rights, Mr. Anwar was taken into custody and subsequently convicted for alleged

involvement with a separatist movement that has its origins in the ethnic Malay Muslim

population of the southern Thai provinces, a community to which he belongs. In addition,

contrary to article 10 of the Universal Declaration of Human Rights, Mr. Anwar was not

entitled to a fair and public hearing by an independent and impartial tribunal, as the Court

process was tainted in the following respects: the conviction was based upon the testimony

of a sole witness and, contrary to the requirements of article 227 (1) of the Criminal

Procedure Code of Thailand, the court failed to exercise due care in admitting that

evidence, as its reliability had not been tested. Furthermore, to Mr. Anwar’s detriment, the

evidence presented by his defence was not given equal weight by the judiciary as none of

the three levels of courts cites his defence in their judgements nor provides reasons as to

why they did not find the evidence presented by his defence convincing. Lastly, the source

argues that, contrary to articles 9 and 14 of the International Covenant on Civil and Political

Rights, there was an unreasonable delay in the resolution of the prosecution’s case against

Mr. Anwar as it lasted for eight years.

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Response from the Government

16.

The Working Group sent a communication to the Government on 6 February 2014,

requesting it to provide with detailed information about the current situation of

Muhamadanwar Hajiteh also known as Muhamad Anwal or Anwar and to clarify the legal

provisions justifying his continued detention.

17.

The Working Group regrets that the Government has not responded to the

allegations transmitted to it.

18.

Despite the absence of any information from the Government, the Working Group

considers that it is in the position to render its opinion on the detention of Mr. Anwar, in

conformity with paragraph 16 of its methods of work.

Discussion

19.

The Government has not rebutted the allegations submitted by the source.

20.

The present case concerns the arrest and detention of Muhamadanwar Hajiteh also

known as Muhamad Anwal or Anwar. He was arrested on 17 August 2005 and brought

before a judge on 10 November 2005. He was released on bail in October 2006.

21.

In July 2007, Mr. Anwar was sentenced to 12 year’s imprisonment for preparing or

conspiring to commit an insurrection, receiving training in terrorist activities and

membership in an organization that is secret and whose aim is unlawful. His conviction was

overturned on appeal in June 2009, but reinstated by the cassation court in May 2013. Mr.

Anwar is currently serving his sentence and, according to the source, he is expected to

remain in prison until 2024.

22.

The source submits that Mr. Anwar’s detention for the period of two months and 23

days without him being informed about the charges against him or brought before a judge

constitutes an unreasonable delay in contravention of section 87(3) of the Criminal

Procedure Code and article 9, paragraph 3, and article 14, paragraph 3, of the International

Covenant on Civil and Political Rights. The source has pointed to the Emergency Decree of

2005, under which suspects can be detained for up to seven days without a charge and held

for 30 days in detention before the case proceeds under the Criminal Procedure Act.

23.

The Working Group reiterates that States derogating from procedures set out in

article 9 of the Covenant in circumstances of armed conflict or other public emergency

must ensure that such derogation does not go beyond those strictly required by the

exigencies of the actual situation and that they reflect the principle of proportionality,

which is common to derogation and limitation powers. This becomes even more relevant

the longer the duration of the derogation, which, in any case, must never approach a normal

or permanent state. The Working Group builds on the practice of the Human Rights

Committee and its own constant jurisprudence, which have established these requirements

as customary international law.

24.

The Working Group refers to the concern expressed by the Human Rights

Committee that the Emergency Decree of 2005 does not place sufficient limits on the

derogation from the rights protected by the International Covenant on Civil and Political

Rights that may be made in emergencies, nor does it guarantee full implementation of

article 4 of the Covenant. The Human Rights Committee stated that detention without

external safeguards beyond 48 hours should be prohibited and recommended that:

The State party should ensure that all the requirements of article 4 of the Covenant

are complied with in its law and practice, including the prohibition of derogation

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from the rights listed in its paragraph 2. In this regard, the Committee draws the

attention of the State party to its general comment No. 29.1

25.

Furthermore, the principle of legality requires compliance with the rights under the

emergency legislation. That requirement has not been met in the present case, as Mr. Anwar

was not promptly informed about the charge against him and brought before a judge,

contrary to the rights provided for in the Emergency Decree of 2005 and in the International

Covenant on Civil and Political Rights.

26.

The Working Group concludes that the detention of Mr. Anwar for a period of two

months and 23 days, without being informed about the charge against him and brought

before a judge, constitutes a breach of article 9, paragraph 3, of the Covenant.

27.

The source also asserts that there were serious violations of Mr. Anwar’s right to a

fair trial. The Working Group notes the source’s submission that the evidence presented by

Mr. Anwar’s defence was not given equal weight by the courts and that the courts relied on

police evidence presented by the prosecution in convicting and sentencing Mr. Anwar. The

Working Group underlines that evidence presented by the prosecution must be open to

challenge or review by courts and the source’s submission clearly indicates that the

evidence was not subject to proper examination by the courts in the present case.

28.

In fact, the court of appeal overturned the decision of the court of the first instance

on the ground of insufficient evidence. Then, without giving any reasons, the Supreme

Court quashed the decision of the appellate court and its finding of insufficient

prosecutorial evidence for a conviction and reinstated the sentence. No matter what national

law stipulates, international law requires that where an accused person is charged with

membership in a prohibited organization or wide incitement or inchoate offences, evidence

must be subject to robust challenge and reasons reflecting that must be provided in the

judgement of the court.

29.

The Working Group thus holds that Mr. Anwar’s detention is in grave breach of

article 9 of the Universal Declaration of Human Rights and articles 9 and 14 of the

International Covenant on Civil and Political Rights. The Working Group has established

that Mr. Anwar’s detention is in violation of international law and that he has an

enforceable right to compensation pursuant to article 9, paragraph 5, of the International

Covenant on Civil and Political Rights.

Disposition

30.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

The deprivation of liberty of Muhamadanwar Hajiteh also known as Muhamad

Anwal or Anwar is arbitrary and constitutes a breach of article 9 of the Universal

Declaration of Human Rights and articles 9 and 14 of the International Covenant on

Civil and Political Rights. Mr. Anwar’s detention falls within category III of the

arbitrary detention categories to which the Working Group refers when considering

cases submitted to it.

31.

Consequent upon the opinion rendered, the Working Group requests the

Government of Thailand to remedy the situation of Mr. Anwar and to bring it into

conformity with the standards and principles set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

1 CCPR/CO/84/THA, para. 13.

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32.

The Working Group believes that, taking into account all the circumstances of the

case, the adequate remedy would be to immediately release Mr. Anwar and to provide him

with adequate reparation. The duty to provide Mr. Anwar with compensation for the

violations of his rights rests upon the State and should be enforceable before the national

courts.

[Adopted on 1 May 2014]