Opinion; Subjects: LAO PEOPLE'S DEMOCRATIC REPUBLIC, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.17-16182(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-ninth session, 21-25 August 2017
Opinion No. 61/2017 concerning Lodkham Thammavong, Somphone
Phimmasone and Soukan Chaithad (Lao People’s Democratic
Republic)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 28 March 2017, the
Working Group transmitted to the Government of the Lao People’s Democratic Republic a
communication concerning Lodkham Thammavong, Somphone Phimmasone and Soukan
Chaithad. The Government replied to the communication on 29 May 2017. The State is a
party to the International Covenant on Civil and Political Rights.
3.
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 him or her) (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 Covenant (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);
(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 on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2017/61
General Assembly
Distr.: General
15 September 2017
Original: English
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disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
The case presented by the source involves three Lao nationals who have been
deprived of their liberty:
(a)
Ms. Lodkham Thammavong, a 31-year-old domestic worker, who previously
resided in Bangkok;
(b)
Mr. Somphone Phimmasone, a 30-year-old security guard at a factory, who
previously resided in Bangkok;
(c)
Mr. Soukan Chaithad, a 33-year-old delivery driver, who previously resided
in Bangkok.
5.
According to the source, on 18 February 2016, Ms. Lodkham, Mr. Somphone and
Mr. Soukan returned to the Lao People’s Democratic Republic from Thailand, where they
resided, in order to renew their passports to allow them to re-enter Thailand and obtain the
necessary documents to work legally in that country.
6.
The source submits that Mr. Soukan was arrested on 22 February 2016 at the head
office of the Ministry of Public Security (known as “Ko Po So”) in Savannakhet City,
where he had gone to apply for a new passport. It is not known which forces carried out the
arrest of Mr. Soukan, nor whether they showed an arrest warrant or other authorization a
public authority. Ms. Lodkham and Mr. Somphone were arrested on 4 March 2016 at Ms.
Lodkham’s family home in the of village Bay Vang Tay, in the Nong Bok District of
Khammuan Province, Lao People’s Democratic Republic. They were detained by
uniformed police officers. It is not known whether they were shown an arrest warrant or
other authorization of a public authority.
7.
It is believed that Ms. Lodkham was initially held at the Khammuan provincial
prison in the town of Tha Khaek. Early in May 2016, she was transferred to a prison in
Vientiane. After his initial detention, Mr. Somphone was visited by his father once at the
Khammuan provincial prison. The source reports that, according to his father, Mr.
Somphone was being held in a dark cell underground, and that the prison authorities did not
allow him to speak with his son. Early in May 2016, Mr. Somphone was transferred to a
prison in Vientiane.
8.
The source further submits that, on 2 May 2016, Mr. Soukan’s family lodged a
complaint regarding his detention at the local police station in Xayphouthong District,
Savannakhet Province and at the Ko Po So in Savannakhet city. No steps were taken by the
families of Ms. Lodkham and Mr. Somphone to complain about their detention. The source
alleges that the authorities warned Mr. Somphone’s family that if they tried to find out the
whereabouts of Ms. Lodkham and Mr. Somphone, they would face legal action and be
charged with committing crimes against national security. The source adds that victims of
human rights violations, including families of individuals who have been subjected to
arbitrary arrest and enforced disappearance, routinely avoid seeking justice for fear of
reprisals. The source also notes that the existing climate of fear has increased following the
disappearance in December 2012 of a prominent civil society leader.
9.
On 25 May 2016, a State-run television channel showed Ms. Lodkham, Mr.
Somphone and Mr. Soukan in police custody at the police headquarters in Vientiane. The
date on which the video was recorded is not known. According to the news report, the three
individuals had been arrested for threatening national security by using social media to
tarnish the reputation of the Government of the Lao People’s Democratic Republic. The
source states that the relevant legislation applied was the 2012 Lao Law on Criminal
Procedure.
10.
According to the source, Ms. Lodkham, Mr. Somphone and Mr. Soukan were not
informed of the charges against them, nor were they granted access to legal counsel of their
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3
choice. It is not known whether they were granted access to a State-appointed lawyer or
whether they were brought before a judge. The source was not aware of any scheduled
court hearings.
11.
In a communication to the Working Group on Enforced or Involuntary
Disappearances dated 7 July 2016, 1 the Government of the Lao People’s Democratic
Republic stated that Ms. Lodkham, Mr. Somphone and Mr. Soukan were being held at
Phonethan Detention Centre in Xaysettha District, Vientiane. The source submits that, since
the three individuals were detained, Mr. Somphone’s family has visited him four times and
Mr. Soukan’s family has visited him once. Ms. Lodkham has received no visits, as her only
family member is unable to visit her.
12.
The source alleges that the arrest and subsequent detention of Ms. Lodkham, Mr.
Somphone and Mr. Soukan was due to their repeated criticism of the Government of the
Lao People’s Democratic Republic while they were working in Thailand. More specifically,
they posted numerous messages on social media in which they criticized the Government in
relation to alleged corruption, deforestation and human rights violations. In addition, on 2
December 2015, Ms. Lodkham, Mr. Somphone and Mr. Soukan were among a group of
about 30 people who protested against the Government in front of the Lao Embassy in
Bangkok.
13.
The source submits that the deprivation of liberty of Ms. Lodkham, Mr. Somphone
and Mr. Soukan is arbitrary under categories II and III of the categories applied by the
Working Group.
14.
In relation to category II, the source submits that the ongoing deprivation of liberty
of the three individuals is arbitrary because it resulted from the exercise of their rights to
freedom of opinion and expression under article 19 of the Universal Declaration of Human
Rights and article 19 of the Covenant.
15.
In relation to category III, the source submits that the prolonged pretrial detention of
the three individuals is arbitrary because it violates article 9 (3) of the Covenant, which
provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained
in custody”. In addition, the source argues that the pretrial detention is contrary to the
provisions of the Lao Law on Criminal Procedure, article 65 of which states that pretrial
remand (or “temporary detention”) cannot exceed three months from the date of issuance of
the remand order. The Public Prosecutor may extend the period of remand for additional
three-month periods, but the total remand period cannot exceed three months for minor
offences or 12 months for major offences. If the remand continues beyond that period and
there is insufficient evidence to prosecute the person, the Public Prosecutor must issue an
order to release the person immediately. The source emphasizes the fact that Ms. Lodkham,
Mr. Somphone and Mr. Soukan have already spent more than 12 months in pretrial
detention since their respective dates of arrest.
Response from the Government
16.
On 28 March 2017, the Working Group transmitted the allegations from the source
to the Government under its regular communication procedure. The Working Group
requested the Government to provide detailed information by 27 May 2017 regarding the
current situation of Ms. Lodkham, Mr. Somphone and Mr. Soukan. The Working Group
also requested the Government to clarify the legal provisions justifying their continued
detention, as well as its compatibility with the obligations of the Lao People’s Democratic
Republic under international human rights law, particularly those treaties that the
Government has ratified. Moreover, the Working Group called upon the Government to
ensure Ms. Lodkham, Mr. Somphone and Mr. Soukan’s physical and mental integrity.
17.
The Government responded to the regular communication on 29 May 2017, two
days after the deadline for response. The Government had not requested an extension of the
deadline in accordance with paragraph 16 of the Working Group’s methods of work. Its
response in the present case is therefore considered late and, given the failure by the
1 See A/HRC/WGEID/110/1, paras. 64-65.
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4
Government to request a time extension, the Working Group cannot accept the response as
if it were presented within the time limit. However, as indicated in paragraphs 15 and 16 of
its methods of work, and in conformity with its practice, the Working Group may consider
any relevant information that it has obtained in order to render an opinion.
Further information from the source
18.
On 1 June 2017, the response from the Government was sent to the source for
further comment. The Working Group requested the source to respond by 15 June 2017.
The source responded on 14 June 2017.
Discussion
19.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
20.
In its late response, the Government stated that Ms. Lodkham, Mr. Somphone and
Mr. Soukan were no longer being held in pretrial detention and had been convicted of
criminal offences. According to the Government, the three individuals had been charged
under article 56 (acts of betrayal towards the nation), article 65 (propaganda against the Lao
People’s Democratic Republic) and article 72 (group gathering for turmoil generating
purposes) of the Penal Law 2005. The Government quoted the provisions of the Law, as
shown below.
21.
According to article 56, “Lao citizens who, in relation or in cooperation with
foreigners or foreign organizations, lead activities to undermine the independence,
sovereignty, territorial integrity or basic political, defence, security, economic or
sociocultural interests of the Lao People’s Democratic Republic will be punished by the
deprivation of liberty from 10 to 20 years and will be fined from 10,000,000 kip to
500,000,000 kip or shall be punished by a seizure of properties and confined to home
custody or sentenced to life imprisonment or the death penalty”.
22.
According to article 65, “[a]ny individual who uses propaganda to slander the Lao
People’s Democratic Republic, or who use false news to spread disorder through oral
communications, writings, publications, newspapers, films, videos, photographs,
documents or other means against the State will be punished by one to five years of
imprisonment and shall be fined from 500,000 kip to 10,000,000 kip”.
23.
According to article 72, “any individual who organizes or participates in a group
organization for the purpose of demonstrations, protest marches or other, in view of causing
turmoil likely to generate social damage, will be punished by one to five years of
imprisonment and shall be fined from 200,000 kip to 50,000,000 kip”.
24.
At a hearing held on 22 March 2017, the Vientiane People’s Court ruled that Ms.
Lodkham, Mr. Somphone and Mr. Soukan had violated articles 56, 65 and 72 of the Penal
Law 2005 and imposed the following punishment:
(a)
Ms. Lodkham was sentenced to 12 years’ imprisonment and fined 11,000,000
kip (approximately $1,305);
(b)
Mr. Somphone was sentenced to 20 years’ imprisonment and fined
210,000,000 kip (approximately $24,965);
(c)
Mr. Soukan was sentenced to 16 years’ imprisonment and fined 106,000,000
kip (approximately $12,600).
25.
In determining whether the deprivation of liberty of the three individuals was
arbitrary, the Working Group had regard to the principles established in its jurisprudence to
deal with evidentiary issues. If the source has established a prima facie case for breach of
the international requirements constituting arbitrary detention, the burden of proof should
be understood to rest upon the Government if it wishes to refute the allegations (see
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A/HRC/19/57, para. 68). The Government can meet this burden of proof by producing
documentary evidence in support of its claims.2
26.
In the present case, the Working Group considers that the source has established a
credible prima facie case that has not been rebutted by the Government in its late reply.
Most of the response of the Government to the source’s allegations consisted of mere
assertions that the arrest and detention of Ms. Lodkham, Mr. Somphone and Mr. Soukan
had been carried out in accordance with Lao law and its international human rights
obligations. For example, the Government asserted that: (a) the three arrests had been based
on warrants (without providing a copy of the warrants); (b) upon their arrest, the three
individuals had been informed of the charges against them (with no supporting evidence,
such as a charge sheet); (c) the three individuals had been informed during the
investigation, pretrial detention and court hearing of their right to defence counsel, yet
chose to represent themselves (with no supporting evidence, such as a signed waiver by the
accused of their rights); and (d) the three individuals had pleaded guilty at the hearing (with
no supporting evidence, such as a transcript of the hearing).
27.
In addition, there is a body of reliable evidence that supports the source’s claims that
the Government has targeted Ms. Lodkham, Mr. Somphone and Mr. Soukan for having
criticized its human rights record. For example, the Government has arrested and detained
individuals solely for the peaceful exercise of the freedom of opinion and expression, or to
prevent the exercise of those and other rights, over many years. This has been well
documented in cases previously brought to the Working Group in relation to the Lao
People’s Democratic Republic (see, for example, opinions Nos. 51/2011, 26/2000, 49/1992
and 2/1992).
28.
More recently, other special procedure mandate holders have drawn attention to
allegations of arbitrary arrest and detention of those who speak out in support of human
rights in the Lao People’s Democratic Republic. On 25 July 2016, several mandate holders
addressed a joint urgent appeal to the Government specifically in relation to the case of Ms.
Lodkham, Mr. Somphone and Mr. Soukan.3 The mandate holders expressed concern at the
alleged arbitrary arrest and detention of the three individuals, noting that it appeared to be
in retaliation for their peaceful and legitimate human rights work and exercise of their
rights to freedom of expression and freedom of peaceful assembly. The mandate holders
also expressed concern that the three individuals had not been able to challenge the
lawfulness of their detention, had not been formally charged with any crime and had not
been given access to a lawyer or to their families. The Government did not reply to this
communication.
29.
Furthermore, the Working Group notes that there is wide-ranging concern among
the international community about the criminalization of the exercise of the rights to
freedom of opinion and expression in the Lao People’s Democratic Republic. In the most
recent universal periodic review conducted by the Human Rights Council in relation to the
Lao People’s Democratic Republic, in January 2015, 18 recommendations were made by
delegations to the Government to improve enjoyment of the rights to freedom of opinion
2 See opinion No. 41/2013, in which the Working Group noted that the source of a communication and
the Government do not always have equal access to the evidence, and frequently the Government
alone has the relevant information. In that case, the Working Group recalled that, where it is alleged
that a person has not been afforded, by a public authority, certain procedural guarantees to which he
was entitled, the burden to prove the negative fact asserted by the applicant is on the public authority,
because the latter is “generally able to demonstrate that it has followed the appropriate procedures and
applied the guarantees required by law ... by producing documentary evidence of the actions that were
carried out”. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), ICJ,
Judgment dated 30 November 2010, para. 55.
3 The joint urgent appeal was issued by the Working Group on Enforced or Involuntary
Disappearances, the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of
association, the Special Rapporteur on the situation of human rights defenders and the Special
Rapporteur on the independence of judges and lawyers. Available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=3281.
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and expression, including views expressed through the Internet. Several of the
recommendations related to the amendment of provisions in the Penal Law and other
legislation that criminalize the exercise of the right to freedom of expression, while other
recommendations highlighted the need to eliminate arbitrary detention.4
30.
In the present case, the Working Group considers that the deprivation of liberty of
Ms. Lodkham, Mr. Somphone and Mr. Soukan is arbitrary according to category I. The
source asserts, and the Government has failed to rebut with documentary evidence, that the
three individuals were not informed promptly of the charges against them, contrary to
articles 9 (2) and 14 (3) (a) of the Covenant. The Government therefore failed to invoke a
legal basis against Ms. Lodkham, Mr. Somphone and Mr. Soukan justifying their
deprivation of liberty. Although the source did not make submissions relating to category I,
the Working Group is able to make such a finding as the factual basis (i.e. failure to inform
the accused of the charges) was clearly raised in the source’s initial submission and put to
the Government in the regular communication from the Working Group.
31.
The Working Group also concludes that the deprivation of liberty of Ms. Lodkham,
Mr. Somphone and Mr. Soukan is arbitrary according to category II. The expression of
critical views on social media in relation to alleged corruption, deforestation and human
rights violations and participation in a peaceful protest fall within the boundaries of opinion
and expression protected by article 19 of the Universal Declaration of Human Rights and
article 19 of the Covenant. In the absence of any information indicating that Ms. Lodkham,
Mr. Somphone and Mr. Soukan had engaged in violent activity, or that their actions directly
resulted in violence or a threat to national security, the Working Group concludes that their
arrest and detention was intended to restrict the legitimate exercise of their rights.
Furthermore, there was no submission from the Government in its late reply that any of the
permitted restrictions on the right to freedom of expression found in article 19 (3) of the
Covenant applied in the present case. In any event, the Human Rights Council, in its
resolution 12/16, called upon States to refrain from imposing restrictions that are not
consistent with article 19 (3), including restrictions on discussion of government policies,
reporting on human rights and corruption in government, peaceful demonstrations and
expression of opinion and dissent.
32.
The Working Group considers that the source’s allegations disclose violations of
Ms. Lodkham, Mr. Somphone and Mr. Soukan’s right to a fair trial under articles 9, 10 and
11 (1) of the Universal Declaration of Human Rights and articles 9 and 14 of the Covenant,
and that their deprivation of liberty is arbitrary under category III. Specifically, the three
individuals were each held in pretrial detention for over one year, in violation of article 65
of the Lao Law on Criminal Procedure and article 9 (3) of the Covenant. There is no
evidence that they were brought promptly before a judge, as required by article 9 (3) of the
Covenant. Moreover, according to article 9 (3), if they could not be tried within a
reasonable time, they were entitled to release. The Government asserted in its response that
the police requested an extension of pretrial detention of the three individuals because the
case was “complex and difficult in nature” and that the investigation “needed sufficient
time to collect all evidence in order to confirm the criminal charges”. However, the
Government provided no compelling reason or documentation showing why such lengthy
pretrial detention was necessary in the present case. The right of the three individuals to be
tried without undue delay under article 14 (3) (c) of the Covenant was also violated.
33.
Furthermore, the publication of a news story on State-run television on 25 May 2016
showing Ms. Lodkham, Mr. Somphone and Mr. Soukan in police custody at the police
headquarters in Vientiane effectively denied them the presumption of innocence under
article 14 (2) of the Covenant. The news report stated that the three individuals had been
arrested for “threatening national security by using social media to tarnish the reputation of
the Government of the Lao People’s Democratic Republic”. In its paragraph 30 of its
general comment No. 32 (2007) on the right to equality before courts and tribunals and to a
fair trial, the Human Rights Committee stated that it is a duty for all public authorities to
4 See A/HRC/29/7, paras. 121.37, 121.75, 121.108, 121.129, 121.135-146 and 121.150-151.
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refrain from prejudging the outcome of a trial, and that the media should avoid news
coverage undermining the presumption of innocence.
34.
In addition, it is clear from the information submitted by the source that Ms.
Lodkham, Mr. Somphone and Mr. Soukan were held incommunicado during the initial
period of their pretrial detention. The source alleges that Mr. Somphone’s father visited him
at Khammuan provincial prison but was not permitted to speak with his son, and that Mr.
Soukan’s family lodged a complaint regarding his detention. The location of the three
individuals when they were subsequently transferred to Vientiane was also unknown, as
indicated by the petition filed with the Working Group on Enforced or Involuntary
Disappearances. The Government responded to that petition on 7 July 2016, only at that
point notifying that Working Group of Ms. Lodkham, Mr. Somphone and Mr. Soukan’s
location. The Government stated that the three individuals had been visited by their
relatives during their pretrial detention, but provided no evidence (such as a visitor register
or affidavits from prison officials) in support of its assertion. Incommunicado detention is a
violation of the right to contact the outside world under applicable standards such as rules
43 (3) and 58 of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) and principles 15, 16 and 19 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
35.
Given that the three individuals were, at least initially, held incommunicado, the
Working Group considers that their right to legal assistance, which applies from the
moment of apprehension, was not respected. The source confirmed that they did not have
access to a lawyer of their choice, and it is highly unlikely that they were offered the
services of a legal aid lawyer. The Government states that the three individuals were
informed of their right to a lawyer during the investigation, pretrial detention and court
hearing, but chose to represent themselves. However, the burden of proof is on the
Government to show that they chose freely to represent themselves, and it has failed to do
so. The lack of legal representation was particularly serious in the present case, given that
the three individuals were facing heavy penalties for the charges under article 56, 65 and 72
of the Penal Law 2005, including imposition of the death penalty under article 56. Even if
Ms. Lodkham, Mr. Somphone and Mr. Soukan had chosen freely to represent themselves,
as claimed by the Government, the Vientiane People’s Court should not have allowed such
serious proceedings to continue without ensuring that a lawyer was assigned to them.5 The
Working Group considers that the right to legal assistance under articles 14 (3) (b) and (d)
of the Covenant was violated in this case.
36.
The Government asserts that Ms. Lodkham, Mr. Somphone and Mr. Soukan
confessed to the charges at least three times during the proceedings against them. That is,
the Government states that, during the investigation, the individuals “admitted that they had
committed the alleged criminal acts against the law of the Lao People’s Democratic
Republic” and pleaded guilty at the hearing where their confession of guilt had been made
“without any coercion or intimidation”. The Government states that, at the end of the
hearing, the accused again admitted their offences and expressed regret. The Working
Group considers that there is not enough information to indicate whether the three
individuals made a confession under duress, and the source did not allege that this was the
case. However, the Working Group reminds the Government that it is unacceptable
according to article 14 (3) (g) of the Covenant to compel a confession. As the Human
Rights Committee states in paragraph 41 of general comment No. 32 (2007), the burden is
on the Government to prove that statements made by the accused were given of their own
free will, particularly in the absence of legal representation.
37.
Finally, the Working Group wishes to record its grave concern at the actions taken
against Ms. Lodkham, Mr. Somphone and Mr. Soukan in the present case by key criminal
justice sector agencies, including the Lao Police, the Vientiane Prosecutor’s Office and the
5 See Human Rights Committee general comment No. 32 (2007), paras. 37-38, where the Committee
stated that, despite the right to defend oneself under article 14 (3) (d) of the Covenant, the interests of
justice may require the assignment of a lawyer against the wishes of the accused, including in cases
involving serious charges.
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Vientiane People’s Court. The Government stated in its submission that the police had
conducted a “thorough investigation into the alleged offences of each individual in a
comprehensive and objective manner”; that the Prosecutor had “looked into the case strictly
in accordance with rules and procedures of criminal trial”; and that the panel of three judges
had “studied the dossiers of the cases, looked into the facts and the issues of law, examined
all available evidences”. Despite this extensive scrutiny, the Government presented no
evidence or information to the Working Group in its late reply that would explain how the
criticisms made by the three individuals and their protest outside the Lao Embassy in
Bangkok could fall within the conduct prohibited by articles 56, 65 and 72 of the Penal Law
2005.
38.
Such criminalization of the rights to freedom of expression, association and peaceful
assembly is likely to have a significant chilling effect in deterring other individuals,
including human rights defenders, from exercising their human rights and fundamental
freedoms. Moreover, the imposition of sentences of 12, 16 and 20 years of imprisonment
and accompanying fines, after Ms. Lodkham, Mr. Somphone and Mr. Soukan had each
already spent over a year in pretrial detention, cannot be considered a proportionate
response to the actions of the three individuals. The Working Group calls upon the
Government to immediately and unconditionally release Ms. Lodkham, Mr. Somphone and
Mr. Soukan. The Working Group also calls upon the Government to repeal provisions such
as article 56 of the Penal Law 2005, which can be used to impose penalties ranging from 10
years’ imprisonment to capital punishment on those who have exercised their human rights.
39.
The Working Group would welcome an invitation from the Government to
undertake its first country visit to the Lao People’s Democratic Republic so that it can work
constructively with the Lao authorities in addressing serious concerns relating to the
arbitrary deprivation of liberty.
Disposition
40.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Lodkham Thammavong, Somphone Phimmasone and
Soukan Chaithad, being in contravention of articles 9, 10, 11 and 19 of the Universal
Declaration of Human Rights and 9, 14 and 19 of the Covenant, is arbitrary and falls
within categories I, II and III.
41.
The Working Group requests the Government to take the steps necessary to remedy
the situation of Ms. Lodkham, Mr. Somphone and Mr. Soukan without delay and bring it
into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights and the Covenant.
42.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Lodkham, Mr. Somphone and Mr.
Soukan immediately and accord them an enforceable right to compensation and other
reparations, in accordance with international law.
43.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Lodkham, Mr. Somphone and Mr. Soukan, and to take appropriate measures against those
responsible for the violation of their rights.
44.
The Working Group urges the Government to bring its legislation, particularly
articles 56, 65 and 72 of the Penal Law 2005, into conformity with the recommendations
made in this opinion and with the obligations of the Lao People’s Democratic Republic
under international human rights law.
Follow-up procedure
45.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
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(a)
Whether Ms. Lodkham, Mr. Somphone and Mr. Soukan have been released
and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Lodkham,
Mr. Somphone and Mr. Soukan;
(c)
Whether an investigation has been conducted into the violation of their rights
and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Lao People’s Democratic Republic with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
46.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
47.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
48.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.6
[Adopted on 25 August 2017]
6 See Human Rights Council resolution 33/30, paras. 3 and 7.