DR. KAY DANES, OAM

Evidence that supports the Danes Claim to Arbitrary Detention

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Arbitrary detention exposes a victim to human rights violations where they are deprived of the means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhuman or degrading treatment etc. The Danes were exposed to these conditions as reported on page 7 of Dr Danes' submission to the Australian Senate. (Download)

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Some of the key legislation and international agreements aimed at combating arbitrary detention, to ensure an individual’s rights are protected, include:

International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations General Assembly in 1966. The ICCPR is a cornerstone in the fight against arbitrary detention. Article 9 of the ICCPR explicitly states that everyone has the right to liberty and security of person. It prohibits arbitrary arrest or detention and mandates that no one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.

Universal Declaration of Human Rights (UDHR), although not legally binding, the UDHR serves as a foundational document inspiring many national laws and international treaties. Article 9 of the UDHR states that no one shall be subjected to arbitrary arrest, detention, or exile. This declaration sets a global standard that influences legislation worldwide.

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The official position of the United States Government:  the Levinson Act, deals with the issue of arbitrary detention for US Citizens. In making assessments, the Department of State looks at the totality of the circumstances and considers factors including, but not limited to, the fairness of the judicial process, the veracity of the charges, and motivation or other circumstances surrounding or related to the arrest or the detention. The Levinson Act establishes a baseline criterion to determine whether there is, or is not, credible information that a US Citizen is unlawfully or wrongfully detained (refer to page 10 of the Submission).  

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Several aspects of the Danes case were indeed extraordinary and align with concerns about due process in Laos raised by various human rights groups: 

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• Lack of Arrest Warrants and Due Process: The absence of arrest warrants and the long detention periods before formal charges were laid are significant deviations from standard legal procedures. Laos has a law that allows for warrantless arrests in urgent cases, but this is sometimes used with excessive latitude, and the process of informing detainees and families can be delayed, particularly in rural areas.

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In the Danes case, they were denied the presumption of innocence. Until proven guilty, every individual is presumed innocent. This fundamental principle is a cornerstone of justice systems worldwide. Arbitrary detention without clear charges not only undermines this principle but also casts significant doubt on the fairness and integrity of the legal process. At no stage leading up to the actual court hearing were the Danes (or their lawyers) notified of any charges, or charged with a criminal offense, which raised serious concerns to the Australian government about the legitimacy of their detention. The lack of formal charges and the indefinite nature of the Danes detention suggest a serious violation of their basic legal rights (even by Lao PDR standards).

Article 49 on Documentation of Arrest — the Lao Law on Criminal Procedure (1990) states that “Regardless of the case, arrests must be documented as evidence.” At no time, during or after, the detainment of either of the Danes, were arrest warrants issued. Article 47 on Arrests — the Lao Law on Criminal Procedure (1990) state that: The arrest of any individual must be accompanied by an order in writing from the public Prosecutor or the court. Refer to https://www.icj.org/se-asia-security-law/criminal-procedure-law-articles-26-32-42-46-to-48-and-50-1990/)​

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Aside from international treaties and conventions specifying the prohibition of torture and Ill-treatment, the Lao PDR law also prohibits the practice. Specifically, Article 47 on Arrests — the Lao Law on Criminal Procedure (1990) states that ‘Beatings and torture of the arrested are prohibited.’

• Closed-Court Proceedings and Language Barrier: Closed-court proceedings and the inability to understand the language used are serious impediments to a fair trial. This is especially concerning when lawyers are reportedly restricted in their ability to challenge evidence or present a defence. The Right to a Fair Trial is a universally recognised guarantee in the Universal Declaration of Human Rights—the cornerstone of the international human rights system. Adopted in 1948 by world governments, including Lao PDR, this right is legally binding as part of customary international law. Customary international law serves as a primary source of international legal obligations binding on all states, independent of their treaty obligations. These rules derive from generally accepted practices recognised as law. In the Danes cases pre-trial processes were violated (refer to page 25 of the submission). The Australian Embassy were not informed of the pending closed-court proceedings. As stated, the Danes themselves were not informed. The preparation of a legal defence was denied and relied only on rumoured allegations circulating at the time.

During the closed-court proceedings, the Danes stood before three judges and were not allowed to ask questions at any point. The prosecutor sought to coerce Kerry Danes into making false statements, in direct violation of the principles enshrined in international and Lao National laws. It is noted on the court record that the Lao Prosecutor presented a photocopied document as evidence, without revealing the location of the original. Kerry Danes’ signature had been photocopied from another unrelated document, making it appear as if Kerry Danes had signed the document. This forgery was permitted as evidence, which is a grave breach of legal standards. Moreover, the poor acoustics in the courtroom rendered the proceedings inaudible and incoherent. This made it impossible for the Danes, the Australian Ambassador, or the Danes’ Australian lawyer to follow the proceedings.

Article 57 of the Lao People’s Democratic Republic Constitution (1990) stands as a crucial legal safeguard ensuring that criminal cases are handled with a high degree of fairness and objectivity. According to this article, criminal cases must be dismissed when there is insufficient evidence to prove that the accused is the offender. Further, Article 57: Basis for Dismissal of a Case Criminal cases shall be dismissed: When there is no sufficient evidence to show that the accused is the offender. These principles underscore the importance of robust and compelling evidence in the administration of justice. Evidence must include proof of the defendant’s guilt as well as of their innocence, and it should be evaluated based on a comprehensive and objective consideration of the case. If the evidence casts doubts on the guilt of the accused, such person must be released from charges. At no point was any evidence produced that established the Danes’ guilt to the proffered charges.

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• The wrongfulness of the Verdict:  The verdict in the Lao PDR court was delivered after five hours on 28 June 2001. To put this into perspective, a similar case in an Australian court would have easily required approximately 20 hearing days to ensure a fair and comprehensive evaluation. The judgment was read from a pre-typed five-page document.  This raised immediate concerns. Both the Australian lawyer and the Australian Ambassador voiced their doubts to the media, highlighting that, given the complexity of the case, it was highly improbable that the three presiding judges could have:

• deliberated on the evidence and legal issues,
• reached a unanimous guilty verdict for each charge,
• formulated the reasoning behind their findings,
• produced a written, typed, checked, corrected and finalised judgment all within just 25 minutes (see ABC The Australian Story: On Their Honour).

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• Diplomatic Intervention and Presidential Pardon: The eventual release and presidential pardon of the Danes, following the intervention of the Australian government, including the Prime Minister and Foreign Minister, underscores the diplomatic importance and unusual nature of their case. 

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It's important to remember that these events took place in the context of Laos' judicial system, which has been criticized by highly credible human rights organisations and governments for deficiencies in areas like judicial independence, due process, and protections against arbitrary arrest and detention. Typically, no one had ever been acquitted once charged in Laos at the time of the Danes arbitrary detainment.  

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The US State Department's Country Reports on Human Rights Practices for Laos from 2000-2001 documented significant concerns about arbitrary arrest and detention. The reports noted:

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• Arbitrary Arrest and Detention: The Lao government engaged in arbitrary arrests and detentions, particularly of individuals suspected of political opposition or involvement in activities deemed threatening to state security.

• Lack of Due Process: Detainees were often held without formal charges, denied access to legal counsel, and kept incommunicado for extended periods.

• Secret Detention Facilities: The reports mentioned the existence of undisclosed detention locations where prisoners were held without notification to family members or consular officials.

• Torture and Ill-Treatment: The State Department documented credible reports of torture and coercive interrogation methods used to extract confessions.

These reports align with the circumstances regarding Kerry and Kay Danes' detention in Phonthong Prison, including the arbitrary nature of the detention, incommunicado holding, and torture to coerce false statements.

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US State Department Report (2001) https://www.refworld.org/reference/annualreport/usdos/2001/en/25849

US State Department Report (2002) https://www.refworld.org/reference/annualreport/usdos/2002/en/29902​