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Thailand Law Journal 2014 Spring Issue 1 Volume 17

The Ministry of Public Health in Thailand reportedly provides health services to Thai sex workers and exploited women as well as attempting to keep track of those working in sex establishments and educating them about STD's and promoting condom use.374 The COMMIT MOU further calls for the providing of personal legal documentation, including birth registration,375 as previously covered376 Thailand does provide birth registration to the target populations.

(b) Labour laws

The COMMIT MOU obliges States to apply national labour laws that protect the rights of all workers based upon the principles of non-discrimination and equality.377 The rights of workers in Thailand are protected by the Labour Protection Act. This includes inter alia allowing holidays,378 guaranteeing minimum wage regardless of nationality379 and the forbidding of sexual harassment of child employees.380 If an employer is to employ individuals without legal working permits the employer will be held criminally responsible. The employer will also be criminally responsible should he or she violate the rights of those workers.381 Thus the Labour Protection Act does apply to the target populations, even though they cannot legally work.

2 Protection of Trafficked Children

(a) Not to be prosecuted for illegal entry

The Agreement with Vietnam, as well as MOU's with Cambodia and Burma assert that a trafficking victim shall not be prosecuted for illegal entry.382 The MOU with Burma further asserts that victims shall not be prosecuted for any offences arising as a direct consequence of trafficking in persons.383 The Anti-Trafficking Act asserts that unless the Minister of
Justice grants permission in writing the inquiry official is barred from taking criminal proceedings against any trafficked person on the offence of inter alia entering, leaving or residing in Thailand without permission under the law on immigration, giving false
information to the official, forging or using forged travel documents, offences under the law on prevention and suppression of prostitution384 or being an immigrant working without permission under the law.385

(b) Shelter and protection

The COMMIT MOU, the Agreement with Vietnam as well as MOU's with Cambodia and Burma state that a victim shall not be detained in an immigration detention centre.386 Under the Anti-Trafficking Act a victim shall not be placed in a detention cell or prison,387 and shall be placed in the care of a primary shelter provided by the law on prevention and suppression
of prostitution, or a primary shelter provided by the law on child protection, or other government or private welfare centres.388

The Trafficking Protocol obliges States to consider providing appropriate housing.389 MOU's with Burma and Cambodia call for victims to be placed under the care of the Department of Social Development and Welfare, the Agreement with Vietnam calls for victims to be placed under the care of the Ministry of Social Development and Human Security (MSDHS), providing shelter and protection in accordance with domestic law.390 The MOU with Lao PDR states that parties shall provide temporary housing and appropriate protection to victims in accordance with domestic policy.391 In the case of Sarawan and Kongsamrej 40 Laotian females, between the age of 12 and 20 were rescued from a brothel, 20 were identified as trafficking victims and received assistance at the Srisurat Shelter House for trafficking victims of the MSDHS.392

The Second Optional Protocol to the CRC calls for States to provide, in appropriate cases, for the safety of child victims from intimidation and retaliation.393 MOU's with Cambodia and Burma, and the Agreement with Vietnam also call for the ensuring of victims' security.394 Provisions in the Anti-Trafficking Act specifically refer to the victims' security regarding repatriation395 and custody.396

(c) Humane treatment and assistance

The MOU's with Cambodia and Burma, as well as the Agreement with Vietnam call for humane treatment throughout inter alia the process of protection and judicial proceedings.397 The COMMIT MOU obliges States to provide victims with appropriate physical, psychosocial, legal, educational and health care assistance.398 The Trafficking Protocol asserts that
States shall consider implementing measures to provide inter alia medical, psychological and material assistance as well as educational and training opportunities.399 The Anti-Trafficking Act states that the MSDHS shall consider to provide assistance as appropriate to a trafficked person regarding food, shelter, medical treatment, physical and mental rehabilitation, education, training and legal aid providing that human dignity and the difference in sex, age, nationality, race and culture of the trafficked person shall be taken into account. A trafficking victim has the right to protection prior to, during and after such assistance.400

The Trafficking Protocol states that when providing assistance to the protection of victims States shall take into account the age, gender and special needs of the victim, in particular thespecial needs of children.401 The COMMIT MOU calls for the promotion of greater gender and child sensitivity in all areas of work dealing with victims of trafficking.402 The MOU with
Burma asserts that child sensitive procedures should be put in place and applied throughout the process of inter alia protection and judicial proceedings.403 The Gov MOU calls for officials experienced in child-related work to participate in judicial proceedings,404 further stating that while children are in custody they shall be provided with safe and appropriate accommodation and assistance in terms of food, clothing, physical and psychological rehabilitation.405

The Anti-Trafficking Act, the Gov-NGO MOU nor the Gov MOU contain a provision regarding the privacy of the trafficked individual. Provisions that are present in the Second Optional Protocol to the CRC406 and the Trafficking Protocol.407

(d) Permit victims to remain in Thailand

The Trafficking Protocol asserts that each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.408 Thai law does not allow for victims to remain permanently however the Anti-Trafficking Act asserts that for the purpose of taking proceedings against the offender, or providing medical treatment, rehabilitation or claiming compensation, the competent official may assist the trafficked person to get permission to stay in Thailand temporarily and be temporarily allowed to work in accordance with the law.409

3 Judicial Proceedings

(a) Informing of rights, time and scope of proceedings

The Trafficking Protocol obliges States to consider implementing measures to provide inter alia counselling and information, in particular as regards to a victim's legal rights.410 The Second Optional Protocol to the CRC asserts that States shall adopt appropriate measures including inter alia "Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases."411 Under the Anti-Trafficking Act a trafficked person is to be informed of the time frame in delivering assistance of each stage of legal proceedings.412 Despite various provision in the Anti-Trafficking Act,413 Gov MOU and Gov-NGO MOU414 concerning assistance in legal proceedings, there is no specific mention of informing victims of their rights.

[1]  [2]  [3]  [4]  [5]  [6]  [7]  [8]  [9]  [10]

[11]   [12]  [13]  [14]  [15]  [16]  [17]  [18]  [19]

374 Humantrafficking.Org, 'Thailand' (n31)
375 COMMIT MOU (n93) art 22
376 Please see '3 DOMESTIC LAW, A RIGHTS, 2 Qualified Rights, (d) Right to be registered after birth and
acquire a nationality'
377 COMMIT MOU (n93) art 25
378 Labour Protection Act (n305) Section 28
379 Ibid Section 89
380 Ibid Section 16
381 Centre Against International Human Trafficking, Office of the Attorney General, 'Weerapong Saelee &
Anoma Siriyoowattananon' Criminal Court of Bangkok UN Doc THA003 (26 August 2010)
382 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 7(a), Agreement Between the Government of the Kingdom of
Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating
Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking (n94) art 6(1),
Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 8(a)
383 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 8(a)
384 Particularly on contacting, persuading, introducing and soliciting a person for the purpose of prostitution
and assembling together in the place of prostitution for the purpose of prostitution. Anti-Trafficking Act
(n52) Section 41
385 Ibid Section 41
386 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 7(b), Agreement Between the Government of the Kingdom of
Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating
Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking (n94) art 6(2),
Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 8(b) COMMIT MOU (n93) art 16
387 Anti-Trafficking Act (n52) Section 29
388 Ibid Section 33
389 Trafficking Protocol (n2) art 6(3)(a)
390 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 7(b), Agreement Between the Government of the Kingdom of
Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating
Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking (n94) art 6(2),
Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 8(b)
391 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Lao People's Democratic Republic on Cooperation to Combat Trafficking in Persons, Especially
Women and Children (n94) art 6
392 Centre against International Human Trafficking Office of the Attorney General, 'Sarawan and Kongsamrej'
Criminal Court of Bangkok UN Doc THA010 (8 October 2012)
393 Second Optional Protocol to the CRC (n169) art 8(1)(f)
394 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 7(c),(d), Agreement Between the Government of the Kingdom
of Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for
Eliminating Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking
(n94) art 6(3),(4), Memorandum of Understanding Between the Government of the Kingdom of Thailand and
the Government of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially
Women and Children (n94) art 8(c),(d) COMMIT MOU (n93) art 18
395 Anti-Trafficking Act (n52) Section 38
396 Ibid Section 29
397 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 7(c),(d), Agreement Between the Government of the Kingdom
of Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for
Eliminating Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking
(n94) art 6(3),(4), Memorandum of Understanding Between the Government of the Kingdom of Thailand and
the Government of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially
Women and Children (n94) art 8(c),(d)
398 COMMIT MOU (n93) art 17
399 Trafficking Protocol (n2) art 6(3)(c),(d)
400 Anti-Trafficking Act (n52) Section 33
401 Trafficking Protocol (n2) art 6(4)
402 COMMIT MOU (n93) art 15
403 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 8(e)
404 Gov MOU (n101) 5.7
405 Ibid 5.9
406 "Protecting, as appropriate, the privacy and identity of child victims and taking measures in accordance with
national law to avoid the inappropriate dissemination of information that could lead to the identification of
child victims;" Second Optional Protocol to the CRC (n169) art 8(e)
407 "In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the
privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings
relating to such trafficking confidential." Trafficking Protocol (n2) art 6(1)
408 Ibid art 7(1)
409 Anti-Trafficking Act (n52) Section 37
410 Trafficking Protocol (n2) art 6(3)(b)
411 Second Optional Protocol to the CRC (n169) art 8(b)
412 Anti-Trafficking Act (n52) Section 33



 

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