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泰國拘禁黃之鋒 涉違反國際公約

2016/10/7 — 10:55

法政匯思就黃之鋒先生於2016年10月5日被泰國當局拘禁一事所觸及國際法層面的簡述

1. 在2016年10月5日,雨傘運動前學生領袖及香港眾志秘書長黃之鋒在抵達曼谷國際機場時旋即被泰國當局攔截。他遭拘禁超過10小時後,終被泰國當局遣返香港。根據黃先生對各傳媒憶述:

(a) 在離開機艙往機場大樓途中,約有20名泰國執法人員接近他,並將他直接帶至收押室單獨監禁。

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(b) 當他被泰國執法人員指示進入機場收押室之際,黃先生曾詢問其監禁原因、能否聯絡律師,以及能否通知家人。上述三項要求一概被有關人員回絕。有關人員繼而恐嚇,指出他已被列進泰國黑名單,不能入境;並宣稱泰國就像中國,跟香港不一樣 - 黃先生在當地所能行使的權利亦如是。

(c) 被單獨拘禁在收押室期間,黃先生跟外界完全斷絕聯絡。  

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(d) 當黃先生終於被遣返,他收到一份文件,說明他被拒絕入境乃基於泰國出入境條例第12(7)條,如被視為將「有可能作出危害公眾之行為,或有機會成為滋擾;或將對公眾和平與安全、公眾及國家安全造成任何破壞;或正被外國政府通緝」之外國人一律會被拒絕入境。

2. 如果黃先生所描述的事件無誤(而泰國當局在此刻亦無作出任何反對),黃先生所遭受到泰國當局的對待顯然令人髮指,並且不為道德、政治及人權等立場所能接受。再者,就着泰國軍政府領袖之言論,中國在泰國當局行動中疑有參與。這情況同樣令人非常憂慮,香港及中國政府在此事上必須回應各方的質詢。有關議題已在社會間有個別人士和團體已廣泛討論,我們不作額外補充。   

3. 然而,作為一個律師和法律學生組織,法政匯思特別關注事件中,泰國當局對待黃先生的行為所觸及的國際法層面:   

(a) 根據《公民權利和政治權利國際公約》(下稱「公約」)第9條: 「人人有權享有人身自由和安全。任何人不得加以任意逮捕或拘禁。除非依照法律所確定的根據和程序,任何人不得被剝奪自由。」   

(b) 泰國為公約簽署國之一,並已認可此約章。因此泰國在國際法下應受公約約束。

(c) 聯合國人權事務委員會於2014年12月16日曾就上述公約的條例發出一份注釋文件 - 「第35號一般性意見」(CCPR/C/GC/35)。當中與黃先生事件有關的部份羅列如下:

(i) 第5段:「剝奪自由的例子包括...行政拘禁:就算有人欲爭辯泰國出入境條例第12(7)條為行政拘留,泰方因出入境管制理由而扣押黃先生此舉明顯地受公約第9條約束。而事實上,黃先生一直等到在被遣返之際,方被告知其所謂的拘禁理據。

(ii) 第12段:「逮捕或拘禁可能是依國內法授權的,但仍可能屬於任意:如泰國當局確實違反公約第9條(見下方),就算其「任意」舉動是由當地法例賦予權力,這都不是抗辯理由。  

(iii) 第18段:「移民控制程序中實行的拘禁本身不屬於任意拘禁,但根據有關情況必須是合理、必要且適度的拘禁,並隨時間的延續進行重新評估: 黃先生在被扣留超過10小時後,才乘搭跟去程不同的航空公司班機返回香港。在那10小時中,從曼谷返港的航班為數不少;而黃先生經已從最初就被通知他將不能進入泰國境內。就此,法政匯思認為,黃先生於當時情況下的拘禁明顯可以被視為「任意」和「無理」,而其受拘押的時間之久更絕非「必要」或「適度」。

(iv) 第58段:「對防止酷刑至關重要的一些保障,對保護處於任何形式拘禁中的人免受任意拘禁和人身安全損害也很必要...應允許獨立的醫務人員和律師及時和經常探訪,同時允許家屬在監督下(在拘禁的合法目的這樣要求的情況下)探視。應以被拘禁者懂得的語言立即讓他們知道自己的權利; 提供以適當語文(包括盲文)印刷的傳單可有助於被拘禁者時常保持知情。應讓被拘禁的外國人知道他們有權與其領事機構聯繫:黃先生在被拘禁期間,顯然有權可以無條件地接觸律師和家人(如有需要,後者可在監督下進行,惟未知在黃先生的情況下是否有此需要)。他亦理應即時得悉自己被扣押的理由。泰國當局拒絕讓黃先生接觸法律援助和家屬,未有讓他立即知道受拘留的根據。凡此種種,無疑已構成泰國當局明顯地違反公約第9條。另外,泰國當局亦理應要告知他擁有聯絡其領事館的權利。     

(v) 第66段:「不被任意拘禁的根本保障不可減免:就國際法而言,在公約下的某些權利在「在社會緊急狀態威脅到國家的生命」時可以克減(公約第4條)。在「一般性意見」文件中清楚表明,不被任意拘禁的權利不在此列。是故,縱使泰國當局以國家安全等理據為由以扣押和遣返黃先生,其任意拘禁之舉在國際法下依然屬於不合法;而在該情況下,聲稱要保障國家安全不會使犯法行為合理合法化。

4. 歸納上述各點,法政匯思認為若黃先生的指控屬實,泰國政府對黃先生的拘禁已違反了公約第9條。在這情況下,泰國當局理應就其任何違反國際法的行爲向黃先生致歉,並就此向他作出賠償。另外,我們亦要求香港和中國政府高度重視事件之嚴重性,以及泰國對於手持香港特別行政區護照的黃先生的非法拘留向泰國提出官方抗議。

 

法政匯思
2016年10月7日

(標題由編輯所擬)

 

The Progressive Lawyers Group’s summary submissions in relation to the international law aspects of Mr Joshua Wong's detention by Thai authorities on 5 October 2016

1. On 5 October 2016, Joshua Wong, who is the Secretary General of the political group Demosisto and former student leader of the Umbrella Movement in Hong Kong was, immediately upon his entry into Bangkok’s international airport, intercepted by the Thai authorities and detained for over 10 hours.  He was ultimately deported by the Thai authorities and returned to Hong Kong.  According to Mr Wong (as we have gathered from his account to the media):

(a) Immediately upon being accosted by around 20 Thai officers on his way from the airplane to the airport terminal, he was taken into detention by way of solitary confinement.

(b) At the point when he was asked by Thai officers to enter the detention cell at the airport, he asked for an explanation on why he was being detained, whether he could contact a lawyer, and whether he could inform his family of his detention.  All three requests were denied by the Thai authorities.  They further threatened him with words to the effect that he was on a black list and would not be allowed entry, and that Thailand is like China and unlike Hong Kong when it comes to his rights.

(c) Throughout his time in solitary confinement, he had no contact with the outside world.  

(d) When he was ultimately deported, he was handed a document so notifying him, and the document stated, amongst other things, that he was denied entry into Thailand on account of section 12(7) of Thailand’s Immigration Act, which states that an alien would be denied entry into Thailand if he is considered as “having behaviour which would indicate possible danger to the public or likelihood of being a nuisance or constituting any violence to the peace or safety of the public or to the security of the public or to the security of the nation, or being under warrant of arrest by competent officials of foreign governments.”

2. If Mr Wong’s account of events is correct (and Thai authorities have not to date issued any denials), the treatment by Thai authorities of Mr Wong is clearly outrageous and unacceptable from moral, political and humanitarian standpoints.  The suspected involvement of the Chinese government in the Thai authorities’ actions (the assertion coming from no less than the leader of Thailand’s military junta) is also deeply troubling, and both the Hong Kong and Chinese governments have much to answer for in this regard.  These are matters which have already been extensively commented upon by persons and groups within Hong Kong, and we do not seek to add to it.

3. However, as a group of lawyers and law students, the Progressive Lawyers Group is particularly concerned about the international law aspects of Mr Wong's treatment by the Thai authorities:

(a) Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”) states that: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”  

(b) Thailand is a signatory to the ICCPR and has ratified the treaty and is thus bound by it under international law.

(c) The United Nations Human Rights Committee has issued an interpretive commentary on Article 9 of the ICCPR: General Comment 35, 16 December 2014, CCPR/C/GC/35 (“General Comment”).  The following parts to the General Comment are of particular relevance in Mr Wong's case:

(i) Paragraph 5: “Examples of deprivation of liberty include … administrative detention”: Even if one were to argue that section 12(7) of the Thai Immigration Act is in the nature of an administrative detention, Mr Wong’s detention for Thai immigration purposes clearly fall within the ambit of Article 9 of the ICCPR. This is not to mention the fact that Mr Wong was never informed of the (alleged) basis of his detention until he was deported.

(ii) Paragraph 12: “An arrest or detention may be authorized by domestic law and nonetheless be arbitrary": If Thai authorities acted in contravention of Article 9 of the ICCPR (see below), it is no defence to assert that they had the domestic legal authority to act in an arbitrary manner.

(iii) Paragraph 18: “Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time: Mr Wong was detained for over 10 hours and returned to Hong Kong on a different airline to the one which he flew to Bangkok.  There were a significant number of flights from Bangkok to Hong Kong during that 10-hour period.  Mr Wong was already told from the outset of his detention that he would not be allowed entry into Thailand.  The Progressive Lawyers Group considers it clearly arguable that Mr Wong’s detention was, in the circumstances, arbitrary and not reasonable, necessary or proportionate in terms of the length of time.

(iv) Paragraph 58: “Several safeguards that are essential for the prevention of torture are also necessary for the protection of persons in any form of detention against arbitrary detention and infringement of personal security … Prompt and regular access should be given to independent medical personnel and lawyers and, under appropriate supervision when the legitimate purpose of the detention so requires, to family members. Detainees should be promptly informed of their rights, in a language they understand; providing information leaflets in the appropriate language… Detained foreign nationals should be informed of their right to communicate with their consular authorities”: Mr Wong clearly had the right, whilst detained, to have unconditional access to lawyers, and (if necessary, under supervision, although it is not clear where such necessity is in this case) to family members.  He also ought to have been informed immediately the reason for his detention.  The fact that he was denied legal and family access by the Thai authorities, and was not immediately told of the basis for his detention, constituted a clear breach of Article 9 of the ICCPR. He also ought to have been informed of his right to communicate with his consular authorities.

(v) Paragraph 66: “The fundamental guarantee against arbitrary detention is non-derogable”: As a matter of international law, some rights under the ICCPR can be derogated from “in times of public emergency which threatens the life of the nation” (Article 4 of ICCPR).  The General Comment makes it clear that arbitrary detention is not one of those rights.  Thus, even though the Thai authorities have used national security-related grounds to detain and then deport Mr Wong, his arbitrary detention remains illegal under international law.  National security does not serve as a legal justification in the circumstances.

4. Taking the above together, the Progressive Lawyers Group considers that if Mr Wong’s allegations are accurate, he was detained by the Thai authorities in a manner which contravened Article 9 of the ICCPR.  In such circumstances, the Thai authorities should apologise to Mr Wong for any of its acts which are contrary to international law, and compensate him for the same.  We further call on the Hong Kong and Chinese government to treat this matter with utmost seriousness and lodge a formal protest with Thailand for the unlawful detention Mr Wong, who is a holder of a passport of the Hong Kong Special Administrative Region.

 

Progressive Lawyers Group
7 October 2016

 

 

 

 

 

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