Human Trafficking in Thai Criminal Law: A Crime against the State or a Crime against the Person?

[UN-ACT]

Post by: Thomas Harré [1], Visiting Scholar at UN-ACT and PhD Candidate at the School of Law, University of Melbourne. He can be reached at [email protected] or at [email protected]. You can also follow him on twitter at @Thomas_Harre.

When a criminal offence occurs in Thailand, a prosecution can be brought against the alleged offender either by a Public Prosecutor or by the injured person themselves. Further, regardless of who initiates the prosecution, the other party may be joined to the case as a co-prosecutor at any point during the trial [2]. This gives the trafficked person the ability to make a claim for compensation in a criminal trial for the exploitation that they have suffered. Potentially, this is of immense benefit to a trafficked person, who would otherwise have to wait until criminal proceedings have wrapped up before being able to begin a civil case for compensation.

For those of us coming from countries that use the common law system, the idea that an injured person be represented in their own criminal trial alongside the prosecutor is a little unusual. However, countries that use the civil law legal system have had more experience with this procedure. Examples include the mechanism of Nebenklager in Germany or the concept of a partie civile in France. The principle has also been adopted by the Khmer Rouge Tribunal in Cambodia. In each of these three different jurisdictions, the role of the injured person in proceedings is clearly marked out, with their participation being focused on claims for compensation.

Unfortunately, under the Thai system there is a lack of clarity about the role of the injured person in terms of their participation in court, and the circumstances under which an application by an injured person to be joined to the trial as co-prosecutor will be accepted. Lawyers working with anti-human trafficking NGOs have reported that some Judges in Courts of First Instance are denying these applications, giving the reason that it is not the individual who is injured in a case of human trafficking, but rather the State. In my view, a decision based on these grounds is incorrect, and may negatively impact the rights of the victim. It also deprives the Court of the benefit of having experienced anti-trafficking legal experts contribute to the trial – expertise that is of use to all parties.

The lack of clarity stems from Thailand’s Code of Criminal Procedure. The Code allows for an injured person to be represented in relation to both compoundable and non-compoundable offences – in other words, in serious and less serious matters. The only guidance that can be inferred is that there must in fact be an ‘injured person’ whose interests have been harmed. This is a wide category, which will include most victims of criminal offending.

It is unfortunate that Thai law does not elaborate further on the requirements of becoming a co-prosecutor to a trial. Despite this lack of clarity, it is possible to make some comments about when an application to be joined to a trial can rightly be denied by the Court. It is known that, historically, the Thai procedural mechanism allowing participation of a trafficked person in the trial of their traffickers is in some way analogous to the civil law mechanisms used by German and French jurisprudence [3]. With these origins, it is probable that the initial right to participation was intended to be restricted in similar ways to the French and German equivalents, that is, limited to cases that allege harm to ‘highly personal interests’. If this is the case, then a Court may justify the denial of an application in cases where it is deemed that the harm suffered fails to touch on such interests.

It is difficult to see, however, how this justification could work in cases involving human trafficking. Under Thailand’s Penal Code, trafficking offences are categorised as ‘offences against liberty’ – clearly a category which involves ‘highly personal interests’. Beyond that, Thailand’s anti-trafficking laws are found in the Anti-Trafficking Act B.E. 2551 (2008). Insofar as the provisions of the Anti-Trafficking Act are complementary to, and consistent with the provisions of the Penal Code, it’s fair to assume that the offences created by the Anti-Trafficking Act should be considered to be ‘offences against liberty’.

Even a cursory look at the way human trafficking is defined in Thailand shows that this understanding of the offence makes sense. Section 6 of the Act states that:

“Whoever, for the purpose of exploitation, does any of the following acts:

(1) procuring, buying, selling, vending, bringing from or sending to, detaining or confining, harboring, or receiving any person, by means of the threat or use of force, abduction, fraud, deception, abuse of power, or of the giving money or benefits to achieve the consent of a person having control over another person in allowing the offender to exploit the person under his control; or

(2) procuring, buying, selling, vending, bringing from or sending to, detaining or confining, harboring, or receiving a child;

is guilty of trafficking in persons” [4].

It’s clear that this involves conduct, which is specifically targeted at an individual person. When trafficking takes place, it is for the purpose of exploiting a person.

Can a Judge then rely on the argument that it is the State, rather than the victim who has been harmed to deny an application for a trafficked person to be joined as co-prosecutor in human trafficking cases heard in a Thai Criminal Court? I would suggest that the answer is ‘no’. I am supported in this analysis by a recent appeal against a decision of a Court of First Instance denying such an application. The Court of Appeal’s verdict is consistent with my reasoning, stating that because the victims had been exploited for forced labour on fishing boats “(…) the damaged parties should therefore be treated as the persons bearing the direct impact of the act and should be entitled to become co-plaintiffs in the case” [5].

This is not to say that victims of human trafficking are harmed exclusively. Jurisprudence of criminal law tells us that crime also has an effect on the interests of the State. One theory of law explains that criminal law is best understood as a framework of norms, the breach of which leads to punishment by the State, not the harmed individual. In other words, when a person suffers harm through the criminal actions of another, the State will step in to determine both criminal responsibility and appropriate punishment.

It seems that Thai law may slowly be resolving itself on this point along the lines of the argument I’ve set out here [6]. A question remains however: why would a Court want to deny an application to be joined as co-prosecutor in the first place?

On the basis of what is set out in the Criminal Procedure Code, an injured person who is joined to a case as co-prosecutor has similar procedural rights as the Prosecutor, although there remains a procedural bias toward the Public Prosecutor. For example, when a case has both a representative for the injured person and a Public Prosecutor acting as joint prosecutors, the Public Prosecutor has the ability to seek an order from the Court to prevent the injured person from taking, or omitting to take, any action that the Public Prosecutor deems to be potentially detrimental to the case [7]. This ability is reserved for Public Prosecutors; injured persons are unable to take an equivalent action against the prosecutor.

This means that lawyers for an injured person have the ability to support a Public Prosecutor in a trial, without any risk to the Public Prosecutor that the lawyers for the victim will take over the trial. Arguably, this could be of great benefit to a Public Prosecutor who may be heavily overworked and under-resourced. Further, NGO lawyers who are highly experienced in working on trafficking issues are able to share that expertise with the Court, with the potential to produce far more nuanced jurisprudence on human trafficking in Thailand going forward.

To conclude, it seems that it is not possible to say that human trafficking is purely a crime against the state, nor purely a crime against an individual. In the context of the Thai criminal law, human trafficking must be considered to have elements of both. The state, however, is only a secondary injured person/entity while victims of human trafficking are directly inflicted and damaged. Therefore, the State has the obligation to protect the victims, while the injured persons have the right to claim their access to justice (as they are entitled to under Thai law). In addition to this legal answer, there are also significant practical benefits. Allowing injured persons to be joined as co-prosecutors in criminal cases relating to human trafficking hence is a win for all sides.

[1] Many thanks to Ubonwan Boonrattanasamai and Sebastian Boll for their comments on earlier drafts. Any mistakes are of course mine.

[2] Thailand Criminal Procedure Code B.E 2477, ss 30, 31.

[3] Apirat Petchsiri, Eastern Importation of Western Criminal Law (Fred B Rothman & Co., Littleton, 1987); M. B. Hooker, A Concise Legal History of South-east Asia (Clarendon Press, Oxford, 1978).

[4] Thailand Anti-Trafficking Act B.E. 2551, s 6.

[5] Human Rights and Development Foundation, Press Release 8 August 2016.

[6] Although note that, as a Civil System, there is only a very limited doctrine of precedent in Thailand. While the recent Court of Appeal decision is positive, its potential effect should not be overstated.

[7] Thailand Criminal Procedure Code B.E. 2447, s 32.

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