Thank you for your reply of 30 March 2007 to the Asian Human Rights Commission (AHRC) concerning the case of Somphon Dechanuphap and three others. As we informed you, the case has been going on in a court of first instance in Bangkok for 14 years and has so far been heard by a total of 91 judges without completion (UA-094-2007; AS-065-2007).
While we appreciate your acknowledgement of our letter, it also confused us. You state that the Office of the High Commissioner for Human Rights “unfortunately cannot intervene in a criminal case of this nature because of the pending nature of the inquiry”. This is surprising, because your obligation as regional representative of the United Nations human rights body is to international law and procedures, not domestic law and courts.
Through the Optional Protocol to the International Covenant on Civil and Political Rights, the UN Human Rights Committee is routinely called upon to make interventions in pending cases. For instance, in the case of Lalith Rajapakse v. Sri Lanka (1250/2004, 24 March 2005, CCPR/C/83/D/1250/2004), the committee decided that two cases waiting before the courts for three years were in breach of the covenant; the state could not explain why they had not been completed more quickly. Elsewhere the committee has been equally unequivocal on unreasonable prolonged delays. Whether the cases are ongoing or completed is no matter. In fact, the very purpose of the committee depends upon it intervening in pending cases, so as to provide effective relief to persons who have exhausted all their domestic remedies.
The case of Somphon Dechanuphap has been in court for 14 years; two defendants were released on bail after seven years. It has so far been posted for hearing some 462 times. From 1994 to 2005 only two police officers testified, excluding a period of around three years when questions of law were raised with the Constitution Court. The AHRC has found no good reason as to why it took so long for these two witnesses alone to depose. We also have found no good reason as to why the court has failed to conclude or dismiss the case. In short, we have no doubt that this amounts to an unreasonable prolonged delay within the meaning of the covenant and thus that international law has been broken.
Thailand has not yet joined the optional protocol, so the parties in this case cannot complain directly to the Human Rights Committee. However, it is a party to the international covenant, and is bound to its principles. It has also repeatedly committed itself to cooperate with UN human rights special procedures. Although these cannot give binding observations of the sort made by the committee, they can raise cases of concern with the government, and take other appropriate steps where necessary. The AHRC has initiated literally thousands of such interventions, and has invariably seen their good effects: some have saved lives. It is from these years of experience, and with strong commitment to international law and mechanisms, that we approached you on this occasion.
The Asian Human Rights Commission asks that you review the facts of the case that we sent to your office and re-examine your position. Both the grounds and means exist upon which you may intervene. In fact, you have an obligation to do so. To say that the matter is pending and you can do nothing while at the same time standing upon international norms is untenable. In so doing, not only do you contradict yourself, but you also undermine your own mandate and indeed the entire global human rights regime upon which we all depend. Please reconsider.
Yours sincerely
Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong
Cc:
1. Ms Louise Arbour, UN High Commissioner for Human Rights
2. Mr. Leandro Despouy, UN Special Rapporteur on the independence of judges and lawyers
