Translation:Prevention and Suppression of Torture and Enforced Disappearance Act, 2565 BE
Table of contents
- Act
- Preamble
- Introductory provisions
- Chapter 1 General provisions
- Chapter 2 Committee for Prevention and Suppression of Torture and Enforced Disappearance
- Chapter 3 Prevention of torture and enforced disappearance
- Chapter 4 Prosecution
- Chapter 5 Penal provisions
- Transitory provisions
- Statement of grounds
Volume 139Issue 66A
Royal Gazette
25 October 2565
Prevention and Suppression of
Torture and Enforced Disappearance
Act, 2565 BE
Phrabat Somdet Phra Paramenthra
Ramathipbodi Sisinthra Maha Vajiralongkorn
Phra Wachiraklao Chaoyuhua
Given on the 24th day of October 2565 BE
Being the 7th year of the present reign
His Majesty King Ramathipbodi Sisinthra Maha Vajiralongkorn Phra Wachiraklao Chaoyuhua is pleased to give a Great Royal Command that it be announced as follows:
Whereas it is appropriate to have a law on prevention and suppression of torture and enforced disappearance;
This Act contains certain provisions relating to the restriction of personal rights and freedoms, which section 26, in conjunction with section 32, of the Constitution of the Kingdom of Thailand permits to be done through the powers under legal provisions;
The grounds and necessity for the restriction of personal rights and freedoms under this Act are to protect every person from torture and enforced disappearance by state officials and to enhance the efficiency of the law enforcement for preventing, suppressing, and remedying the persons injured by the acts of the described characteristics, thereby making the enactment of this Act compatible with the conditions provided in section 26 of the Constitution of the Kingdom of Thailand;
Therefore, by and with the advice and consent of the National Assembly, He is graciously pleased to enact the following Act:
Section1.This Act is called the Prevention and Suppression of Torture and Enforced Disappearance Act, 2565 BE.
Section2.This Act shall enter into operation upon passage of one hundred and twenty days from the day of its publication in the Royal Gazette onwards.
Section3.In this Act—
“injured person” means a person who has undergone injury to the life, body, or mind as a result of torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance, and shall include the husband of a person subjected to enforced disappearance, the wife of such person, an ascendant of such person, a descendant of such person, the person with whom such person cohabits as husband or wife without registered marriage, or a person giving maintenance to or given maintenance by such person;
“state official” means a person who exercises a state power, or to whom a power has been assigned or appointment, authorisation, support, or acquiescence has been given directly or implicitly by a person holding a state power for the execution of law;
“Committee” means the Committee for Prevention and Suppression of Torture and Enforced Disappearance;
“custody” means arrest, restraint, detention, lockup, confinement, or any other similar act which limits the physical freedom of a person.
Section4.The Minister of Justice shall be in charge of the implementation of this Act.
Section5.Whoever, being a state official, commits by whatever means an act which causes another to undergo severe pain or suffering, either physical or mental, for any of the following purposes:
(1)to obtain information or confession from the victim or a third person;
(2)to punish the victim because of an act the victim or a third person has committed or is suspected to have committed;
(3)to intimidate or coerce the victim or a third person;
(4)to inflict discrimination in any form;
thereby commits an offence of torture.
Section6.Whoever, being a state official, imposes a punishment or by whatever means commits an act which is cruel, is inhuman, or degrades human dignity, thus causing another person to suffer dehumanisation or violation of a fundamental right to humanness or to undergo physical or mental pain or suffering, thereby commits an offence of cruel, inhuman, or human dignity degrading treatment, if it does not amount to the offence under paragraph 5.
The act under paragraph 1 does not include harm which is an inherent or incidental outcome of all the lawful sanctions.
Section7.Whoever, being a state official, holds in custody or abducts any person and denies the commission of the mentioned act or conceals the fate or whereabouts of such person, thus causing the person to be removed from the protection of the law, thereby commits an offence of enforced disappearance.
The offence under paragraph 1 shall be considered to be continuous until the fate of the person is known.
Section8.Whoever commits outside the Kingdom an offence of torture according to section 5, an offence of cruel, inhuman, or human dignity degrading treatment according to section 6, or an offence of enforced disappearance according to section 7, must undergo inside the Kingdom such punishment as designated in this Act, in respect of which the dispositions of section 10 of the Criminal Code shall also apply mutatis mutandis.
Section9.The offence of torture according to section 5 and the offence of enforced disappearance according to section 7 shall not be considered to be the offences of political characters according to the law on extradition and the political offences according to the law on international cooperation in criminal matters.
Section10.In a case of an offence of enforced disappearance according to section 7, investigation shall be conducted until the person subjected to enforced disappearance is found or reliable evidence indicating the death of such person is obtained, and the details of the commission of the offence are known, and the offender is identified.
Section11.In a case of an offence of torture according to section 5 or offence of cruel, inhuman, or human dignity degrading treatment according to section 6 in which the injured person is unable to file a complaint or denunciation by himself, or an offence of enforced disappearance according to section 7, the husband of the person subjected to torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance according to this Act, the wife of such person, an ascendant of such person, a descendant of such person, the person with whom such person cohabits as husband or wife without registered marriage, or the person giving maintenance to or given maintenance by such person, as the case may be, shall become the injured person under the Criminal Procedure Code also.
Section12.No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of an offence under this Act.
Section13.No state agency or state official 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 human dignity degrading treatment, or to enforced disappearance.
Section14.There shall be a committee called the “Committee for Prevention and Suppression of Torture and Enforced Disappearance”, composed of—
(1)the Minister of Justice as President;
(2)the Permanent Secretary to the Ministry of Justice as Vice President;
(3)ex officio Members, namely, the Permanent Secretary to the Ministry of Defence, the Permanent Secretary to the Ministry of Foreign Affairs, the Permanent Secretary to the Ministry of Interior, the Attorney General, the Commissioner General of the Royal Thai Police, the Director General of the Department of Special Investigation, the President of the Lawyers’ Council of Thailand, and the President of the National Press Council of Thailand;
(4)the following six Members appointed by the Council of Ministers:
(a)persons of recognised knowledge, expertise, and experience in the field of human rights, who are two in number, and those in the fields of law and forensic science, one from each field;
(b)one forensic physician and one psychiatric physician.
The Director General of the Department of Rights and Liberties Protection shall serve as its Member and Secretary, and the Director General of the Department of Rights and Liberties Protection shall appoint not more than two public servants from the Department of Rights and Liberties Protection as his Assistant Secretaries.
Section15.A member under section 14(4) must have the following qualifications and must not be attacked by the following disqualifications:
(1)being of Thai nationality;
(2)not being a bankrupt or having once been a dishonest bankrupt;
(3)not being an incompetent or quasi-incompetent person;
(4)not being a holder of a political position, a local councillor, a local administrator, or a member of the board of or holder of an administrative position in a political party;
(5)not being suspended from the public service or temporarily removed from the public service;
(6)not having once been expelled, dismissed, or discharged from the public service, from a state agency, or from a state enterprise on grounds of breach of discipline;
(7)not having once undergone imprisonment according to a final judgment of imprisonment, including a final judgment of imprisonment with suspension of the imposition of the punishment or suspension of the designation of the punishment, save where the punishment was for an offence committed through negligence, petty offence, or offence of defamation;
(8)not having once been subjected to a judicial judgment or order for confiscation of property to the State on grounds of unusual wealth or unusual increase of property.
Section16.A Member under section 14(4) holds his position for a term of four years.
Upon completion of the term under paragraph 1, if no new Member is yet appointed, the Member who has vacated the position by rotation shall remain in the position in order to continue carrying out duties until a newly appointed Member assumes duties.
A Member who has vacated his position by rotation may be reappointed, but he shall not hold the position for more than two consecutive terms.
Section17.Apart from rotation, a Member under section 14(4) vacates his position upon—
(1)death;
(2)resignation;
(3)discharge by the Council of Ministers because of defect or dishonesty as to the duties, infamous conduct, or decline in ability;
(4)lack of a qualification or attack by a disqualification according to section 15.
Section18.In the event that a Member under section 14(4) vacates his position before his term ends, a Member shall be appointed to fill the vacancy within sixty days, save where the remaining term of the Member is less than ninety days, in which case the appointment of a replacing Member may be forgone. In addition, the person appointed to fill the vacancy shall be in such position for the remaining term of the Members already appointed.
In the event that a Member under section 14(4) vacates his position before his term ends, the Committee shall be composed of all the existing Members until a Member is appointed in accordance with paragraph 1.
Section19.The Committee has the following duties and powers:
(1)to submit opinions to the Council of Ministers or state agencies for improvement of laws, statutes, regulations, or other necessary measures under this Act;
(2)to designate policies, work plans, and measures for prevention and suppression of torture, cruel, inhuman, or human dignity degrading treatment or punishment, and enforced disappearance;
(3)to designate inclusive policies and measures on the rehabilitation and remedy of the physical and mental conditions of the injured persons, with a view to restoring them to their original state as much as possible;
(4)to designate upon concurrence from the Ministry of Finance the criteria and procedures for the provision of financial and mental assistance and remedies to the injured persons and the provision of long-term medical rehabilitation to the injured persons;
(5)to designate measures for prevention of the commission of the offences and the concealment of the holding of persons in custody, as well as measures for protection of givers of information about the commission of the offences under this Act;
(6)to scrutinise information and facts as to acts of torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance in accordance with this Act, and to receive, follow up, and scrutinise complaints;
(7)to consider reports on the situations of the torture, cruel, inhuman, or degrading treatment, and enforced disappearance, and annual reports on performance outcomes, and submit them to the Council of Ministers to further be submitted to the House of Representatives and the Senate and disseminated to the public for general information;
(8)to appoint advisors or subcommittees for carrying out work as assigned by the Committee;
(9)to lay down regulations or announcements relating to the costs incurred in the carrying out of duties and other costs, upon concurrence from the Ministry of Finance;
(10)to lay down other regulations for the execution of this Act.
Section20.At the meetings of the Committee, the attendance of not less than half of the total number of the Members is required for establishing a quorum.
At a meeting of the Committee, if the President is absent or unable to carry out duties, the Vice President shall preside over the meeting. If the Vice President is absent or unable to carry out duties, the meeting shall select one of the Members to preside over the meeting.
A decisive ruling passed by a meeting shall adhere to the majority of votes. One Member shall have one vote in voting. If votes are tied, the person presiding over the meeting shall give one additional vote as a casting vote.
Section21.The Department of Rights and Liberties Protection shall be responsible for the administrative work of the Committee, and shall have the following duties and powers:
(1)to coordinate and cooperate with relevant public entities, state agencies, and private bodies in searching for, tracking down, and rescuing injured persons;
(2)to encourage participation from relevant public entities, state agencies, and private bodies in prevention and suppression of torture, cruel, inhuman, or human dignity degrading treatment or punishment, and enforced disappearance;
(3)to study, research, and disseminate knowledge as to torture, cruel, inhuman, or human dignity degrading treatment or punishment, and enforced disappearance, and provide knowledge and training to people and state officials;
(4)to collect case information and statistics, and produce reports on the situations of the torture, cruel, inhuman, or human dignity degrading treatment, and enforced disappearance, as well as annual reports on performance outcomes and guidelines for prevention and suppression of the commission of the offences under this Act, for submission to the Committee for consideration;
(5)to carry out other actions as assigned by the Committee or a subcommittee.
Section22.In holding a person in custody, the responsible state official must make a continuous audiovisual record from the time of the arrest and custody until the person is delivered to an inquiry officer or is released, save where this is impossible because of force majeure, in which case such cause shall be recorded in the custody record as evidence.
In holding a person in custody according to paragraph 1, the responsible state official must make an instant notification to a public prosecutor and the chief district officer of the locality where the custody takes place or, in Bangkok Metropolis, to a public prosecutor and the Director of the Bureau of Investigation and Legal Affairs, Department of Provincial Administration. If the person receiving the notification finds that there are substantial grounds to believe that there is torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance, he shall further proceed with section 26.
Section23.In holding a person in custody, the responsible state official must record information about the person in the custody, which must at least include the following details:
(1)identification information about the person in custody, such as his name, family name, or identity;
(2)the day, time, and place of the custody, and the information about the state officials carrying out the custody; in the event that the person is removed from the mentioned place, the place of destination to which the person held in custody is delivered and the state officials responsible for such removal must be specified;
(3)the order for the holding of the person in custody, and the grounds for issuance of such order;
(4)the state official ordering the holding of the person in custody;
(5)the day, time, and place of release of the person in custody, and the persons who come to receive the person in custody;
(6)the information about the physical and mental conditions of the person in custody, both before the custody and before the release; in the event that the person in custody dies during the custody, the cause of his death and the place where his body is kept must be specified;
(7)other information designated by the Committee for prevention of torture, cruel, inhuman, or degrading treatment, or enforced disappearance.
Section24.For the benefit of the person in custody, a person lawfully interested in the access to the information of the person in custody, such as his relative, representative, or attorney-at-law, or the Committee, a subcommittee, or the official assigned by the Committee, has the right to request the responsible state official to disclose the information about the person in custody according to section 23.
If the state official refuses to disclose the information about the person in custody, the requestor has the right to file with the court of the area where the requestor is domiciled, the Criminal Court, or the provincial court of the locality believed to be the place where the torture or the cruel, inhuman, or human dignity degrading treatment occurs or the person subjected to the enforced disappearance was last found, as the case may be, a motion for a court order mandating the disclosure of the said information.
The court has the power to order the state official under paragraph 1 to disclose to the requestor the information about the person in custody according to section 23. In the event that the court orders rejecting the disclosure of the information, the requestor may file an appeal with an appellate court. The order of the appellate court shall be final.
Section25.The responsible state official or court may refuse to disclose the information about the person in custody according to section 23, if such person is being under the protection of the law as a subject of the jurisdiction of the court and such disclosure would violate privacy or would give an unfavourable outcome to a person or would obstruct an inquiry or investigation into a criminal case.
Section26.When there is an allegation that anyone is being subjected to torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance, the following persons shall have the right to file with the local court with criminal jurisdiction a motion for an order mandating instant termination of such act:
(1)the injured person or the interested persons according to section 24;
(2)a public prosecutor;
(3)the Director of the Bureau of Investigation and Legal Affairs, Department of Provincial Administration, or the chief district officer under section 22, or an administrative officer assigned by the Director of the Bureau of Investigation and Legal Affairs, Department of Provincial Administration, or by the chief district officer;
(4)an inquiry officer or special case investigator;
(5)the Committee, a subcommittee, or an official assigned by the Committee;
(6)any other person in the interest of the injured person.
Upon receipt of the motion under paragraph 1, the court shall promptly conduct an ex parte examination, in which the court has the power to summon any state official or person to appear and give statement or deliver documents or any other objects for the sake of the examination, or may also order a state official to bring before the court the person in custody.
Section27.For the purpose of terminating the alleged act according to section 26 and providing primary remedies for the injury, the court may order as follows:
(1)the torture or cruel, inhuman, or human dignity degrading treatment shall be terminated;
(2)the place of custody shall be changed;
(3)the person in custody shall be allowed to have private meetings with relatives, attorneys-at-law, or other persons he trusts;
(4)medical treatment, evaluation by forensic physicians and psychiatric physicians certified by the Medical Council of Thailand, production of medical records, and rehabilitation of physical and mental conditions shall be carried out;
(5)documents, records, or any other information shall be disclosed;
(6)any other appropriate measures shall be designated for the purpose of terminating the torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance, or providing primary remedies for the injury incurred by the injured person.
In the event that the court has considered and found that there is no need for the custody to continue, the court shall order prompt release of the person in custody.
The court order under paragraph 1 shall be final.
Section28.In event that a person held in custody dies, the responsible state official shall notify the Committee thereof so that it would promptly participate in following up and scrutinising the information and facts as to any torture during the custody.
Section29.Whoever discovers or knows about an act of torture, cruel, inhuman, or human dignity degrading treatment, or enforced disappearance shall notify an administrative officer, a public prosecutor, an inquiry officer, the Committee, or an authorised subcommittee without delay.
The notifier under paragraph 1, if having acted in good faith, incurs no liability, whether civil, criminal, or disciplinary, even though it later appears that there is no such offence as notified.
Section30.The limitation governing the offence under section 7 shall not commence until the fate of the person subjected to enforced disappearance is known.
Section31.In Bangkok Metropolis and other provinces, the senior administrative officers, the administrative officers ranking from district clerks or equivalents who are affiliated to the Department of Provincial Administration, Ministry of Interior, the special case investigators, and the public prosecutors shall, apart from the inquiry officers under the Criminal Procedure Code of Thailand, be the inquiry officers having the power to conduct inquiries and assume the responsibilities according to the Criminal Procedure Code and to prosecute the offences under this Act and other connected offences.
In the event that a special case investigator inquires into a case of any offence under this Act, that case shall become a special case according to the law on special case investigation.
In the event that an inquiry is conducted by any other agency than a public prosecutor, the responsible inquiry officer shall notify the public prosecutor of the causes of the case so that the latter would scrutinise or supervise the inquiry instantly.
In the event that it is uncertain as to the inquiry officer of which area or which agency should be the responsible inquiry officer, the Attorney General or his substitute shall decide.
In the event that an offender under this Act is a state official according to the organic law on prevention and suppression of corruption and is subject to the duties and powers of the National Anti-Corruption Commission, the responsible inquiry officer shall proceed with the case in accordance with this Act and notify the National Anti-Corruption Committee for its information.
Section32.The agencies having the power to conduct inquiries and investigations into cases of the offences under this Act shall continuously report the developments in the cases to the injured persons, and the Committee, a subcommittee, or an official authorised by the Committee shall have the duties and powers to follow up the developments in the cases and to take all measures for protection of welfare and safety, for compensation, remedy, and rehabilitation of physical and mental injury, for provision of legal advice and recommendations, and for provision of support and assistance in relation to prosecution, with participation from the injured persons.
Section33.For the purpose of assisting an injured person, an inquiry officer or public prosecutor shall, at the earliest opportunity, notify the injured person of the right to claim compensation as a result of the commission of an offence under this Act and the right to legal assistance.
In the event that the injured person has the right to, and wishes to, claim such compensation as mentioned in paragraph 1, the public prosecutor shall also claim the compensation on behalf of the injured person.
Section34.The criminal courts for corruption and misconduct cases shall be the courts with jurisdiction over cases of the offences under this Act, which shall also include cases in which the offenders under this Act are subject to the jurisdiction of a military court at the time of the commission.
Section35.A person who commits an offence of torture according to section 5 shall be punished with imprisonment from five years to fifteen years and a fine from one hundred thousand baht to three hundred thousand baht.
If the offence under paragraph 1 causes serious harm to the victim, the offender shall be punished with imprisonment from ten years to twenty-five years and a fine from two hundred thousand baht to five hundred thousand baht.
If the commission of the offence under paragraph 1 causes death to the victim, the offender shall be punished with imprisonment from fifteen years to thirty years, or imprisonment for life, and a fine from three hundred thousand baht to one million baht.
Section36.A person who commits an offence of cruel, inhuman, or human dignity degrading treatment according to section 6 shall be punished with imprisonment of not over three years, or a fine of not over sixty thousand baht, or both the imprisonment and the fine.
Section37.A person who commits an offence of enforced disappearance according to section 7 shall be punished with imprisonment from five years to fifteen years and a fine from one hundred thousand baht to three hundred thousand baht.
If the offence under paragraph 1 causes serious harm to the victim, the offender shall be punished with imprisonment from ten years to twenty-five years and a fine from two hundred thousand baht to five hundred thousand baht.
If the offence under paragraph 1 causes death to the victim, the offender shall be punished with imprisonment from fifteen years to thirty years, or imprisonment for life, and a fine from three hundred thousand baht to one million baht.
Section38.If the offence under section 35 or 36 is committed against a person who is not older than eighteen years, a pregnant woman, a person with physical or mental disability, or a person incapable of self-dependence due to his age or sickness, the offender shall be punished one-half more heavily than the punishment provided in such section.
If the offence under section 37 is committed against the person under paragraph 1, the offender shall be punished one-half more heavily than the punishment provided in such section.
Section39.Whoever joins a conspiracy to commit an offence according to section 35, 36, 37, or 38 shall be punished with one third of the punishment designated for such offence.
If an offence is committed as a result of the conspiracy under paragraph 1, those joining the conspiracy shall be punished with the punishment designated for the offence.
In the event that the offence has been committed to the point of commencement but, due to intervention by anyone joining the conspiracy, it is not completed or it has been completed but produces no outcome, the court may impose upon the intervening conspirer a punishment lesser in any degree than that designated by the law.
Section40.An aider in the commission of an offence under section 35, 36, 37, or 38 shall be punished in the same manner as the principal.
Section41.If, before the court of first instance gives a judgment, the offender under section 37, section 38, paragraph 2, section 39, or section 40 assists in the discovery of the person subjected to enforced disappearance without such person having undergone serious harm or having fallen under a situation of imminent harm to the life, or provides important information beneficial to the prosecution, the court may impose upon him a punishment lesser in any degree than that designated by the law.
Section42.Any person in command who knows that a subordinate under his command is to commit or has committed an offence according to section 35, 36, 37, or 38, and fails to take necessary and suitable measures to prevent or suppress the offence, or fails to carry out or refer the matter for the carrying out of investigation and prosecution according to the law, shall be punished with one half of the punishment designated for the offence.
The person in command under paragraph 1 must be the person who has the duty to be responsible for and has the power to control the acts relating to an offence of torture, an offence of cruel, inhuman, or human dignity degrading treatment, or an offence of enforced disappearance.
Section43.The disposition of section 10 shall apply mutatis mutandis to the acts of enforced disappearance committed before the day of entry into operation of this Act.
Countersignature
General Prayut Chan-o-cha
Prime Minister
Note: The grounds for promulgation of this Act are as follows: As acts of torture and enforced disappearance committed by state officials amount to serious violations of human rights which should not have happened in any situation whatsoever, it is appropriate to criminalise them and designate measures for their prevention and suppression, remedial measures for their victims, and other relevant measures in line with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance, so as to enhance and increase the efficiency of Thailand’s law enforcement and protection of human rights. It is therefore necessary to enact this Act.
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I, the copyright holder of this work, hereby release it into the public domain. This applies worldwide. In case this is not legally possible: I grant anyone the right to use this work for any purpose, without any conditions, unless such conditions are required by law.
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