1. The Asian Legal Resource Centre (ALRC) wishes to raise concerns about the normalization of the violation of human rights in the name of protecting the monarchy in Thailand with the Human Rights Council. This statement is the seventh on this topic that the ALRC has submitted to the Council since May 2011. During the seventeenth session of the Council in May 2011, the ALRC highlighted the rise in the legal and unofficial use of Article 112 of the Criminal Code and the 2007 Computer Crimes Act (CCA) to constrict freedom of expression and intimidate citizens critical of the monarchy (A/HRC/17/NGO/27). During the nineteenth session in February 2012, the ALRC detailed some of the threats faced both by those who have expressed critical views of the monarchy, both legal and extralegal, as well as those who have expressed concern about these threats (A/HRC/19/NGO/55). During the twentieth session in June 2012, the ALRC raised concerns about the weak evidentiary basis of convictions made under Article 112 and the CCA (A/HRC/20/NGO/37) and the concerning conditions surrounding the death in prison custody of Amphon Tangnoppakul on 8 May 2012, then serving a 20-year sentence for four alleged violations of Article 112 and the CCA (A/HRC/20/NGO/38). During the twenty-second session in March 2013, the ALRC highlighted the January 2013 conviction under Article 112 of human rights defender and labour rights activist Somyot Prueksakasemsuk (A/HRC/22/NGO/44). During the twenty-third session in June 2013, the ALRC emphasized the regularization of the crisis of freedom of expression in Thailand, and noted that constriction of speech had become constitutive of political and social life in Thailand (A/HRC/23/NGO/42).
2. Over the course of the prior six statements, the ALRC first noted with surprise the active use of measures to constrict speech, then tracked the expansion of this use, and finally, the entrenchment of the foreclosure of freedom of speech. The ALRC is again raising the issue of freedom of expression with the Council in order to ensure that the regularization of this threat to human rights does not lead to it being normalized or forgotten. In the statement submitted to the Council in June 2013, the ALRC cautioned that current conditions threatened to normalize the routine denial of bail to individuals awaiting trial and appeal, the provision of substandard medical care in prisons, and the use of secrecy to restrict the openness of trials and public information about ongoing cases. In this statement, the ALRC wishes to alert the Human Rights Council to ongoing developments that lend weight to these concerns and underscore the urgency of addressing the crisis of freedom of expression in Thailand.
3. Article 112 criminalizes criticism of the monarchy and mandates that, "Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years." The 2007 CCA, which was promulgated as part of Thailand's compliance as a signatory to the United Nations Convention Against Transnational Organized Crime, has been used to target web editors and websites identified as critical of the monarchy or dissident in other ways. The CCA provides for penalties of up to five years per count in cases which are judged to have involved the dissemination or hosting of information deemed threatening to national security, of which the institution of the monarchy is identified as a key part. While Article 112 has been part of the Criminal Code since the last major revision in 1957, available statistics suggest that there has been a dramatic increase in the number of complaints filed since the 19 September 2006 coup; how often these complaints become formal charges and lead to prosecutions is information that the Government of Thailand has continuously failed to provide up to the present. The CCA has often been used in combination with Article 112 in the four years since its promulgation; similar to the use of Article 112, complete usage information has not been made available by the Government of Thailand. This failure to provide information creates fear and diminishes the space for freedom of expression through the use of secrecy and creation of uncertainty.
4. At present, there are 4 persons known to be serving prison terms for alleged violations of Article 112 and/or the CCA and 1 person behind bars while undergoing trial.
a. Daranee Charnchoengsilpakul was convicted of violations of Article 112 related to 55 minutes of speech and sentenced to 18 years in prison on 28 August 2009. Following examination of her case by the Constitutional Court, her sentenced was reduced to 15 years in December 2011. The Appeal Court upheld her conviction and sentence in May 2013.
b. Surachai Sae Dan (Danwattananusorn) was convicted of a series of violations of Article 112 related to political speeches he made and sentenced to a total of 12.5 years in prison in a series of cases in 2012. He has submitted a request for a royal pardon and is awaiting the outcome.
c. Somyot Prueksakasemsuk was convicted of violations of Article 112 related to his work in editing and publishing Voice of Taksin magazine, which was deemed to include two anti-monarchy articles (written by someone else) and sentenced to a total of 11 years in prison on 23 January 2013 (10 years on Article 112-related charges and 1 year related to a prior case). He has submitted an appeal to the Appeal Court and is currently awaiting a decision.
d. Ekachai Hongkangwan was convicted of violations of Article 112 related to selling VCDs of an ABC Australia documentary and copies of WikiLeaks material and sentenced to 3 years and 4 months in prison on 28 March 2013. He has submitted an appeal to the Appeal Court and is currently awaiting a decision.
e. Yutthapoom (last name withheld) has been held in the Bangkok Remand Prison since 19 September 2012 on charges of violating Article 112 following a complaint submitted by his older brother related to a conversation they had while watching television at home. The witness hearings in his case began on 20 August 2013, after he endured 333 days of pre-trial detention.
6. Common to these 5 cases is that the individuals involved have repeatedly been denied bail, always on the grounds that their crimes are too grave a threat to national security to permit even temporary release, despite full cooperation of all parties in investigation and prosecution. Although some individuals were granted bail while awaiting trial, upon conviction they were all denied bail, despite ongoing processes of appeal. This is in contravention to Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party, which specifies: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."
7. To raise one notable example of the denial of bail, Somyot Prueksakasemsuk (5c above), submitted his 15th request for bail on 24 July 2013. Along with the application, approximately 152,000 USD of property deeds were submitted as security with the request. On 26 July 2013, the Appeal Court denied the request. The justification offered was that as Somyot had been sentenced to a prison term greater than 10 years, if he was released, there was a danger that he might flee. The Appeal Court further noted that, "The actions of the defendant impacted public order and the feelings of the people," and so his release on bail was not warranted.
8. Bail is routinely granted during trials and after conviction while awaiting appeal in cases of committing violent crimes in Thailand, but routinely denied for cases involving freedom of speech. To offer one example, on 30 July 2012, in Black Case No. 3252/2552, 3466/2552, the Criminal Court found five police officers guilty of brutally murdering Kiettisak Thitboonkrong, age 17, in 2004 as part of the so-called "War on Drugs," in which close to 3000 people were extrajudicially killed across Thailand. Three of the police offers were found guilty of premeditated murder and hiding a corpse and sentenced to death. One police officer was found guilty of premeditated murder and sentenced to life imprisonment. One police officer was found guilty of abusing his authority to aid in protecting his subordinates from criminal prosecution and sentenced to seven years' imprisonment. All five police officers were granted bail while they appeal their conviction. In all but one of these instances, the police were sentenced to longer prison terms than Somyot Prueksakasemsuk, yet they were granted bail. Given the explanation by the Appeal Court when they denied Somyot's request that the length of his sentence meant that he might flee and that his crime impacted public order, granting the police officers bail seems strange. In the absence of an explanation from the Court, this collection of actions suggests that constricting dissident speech and protecting the monarchy are more important to the Thai state than ensuring accountability for extrajudicial violence committed against citizens by state actors.
9. The ALRC is gravely concerned about the effects of the ongoing entrenchment of the constriction of freedom of expression on human rights, justice, and the rule of law in Thailand. The frequency of the exercise of the draconian Article 112 and CCA risks the naturalization and normalization of violations of rights and the constriction of speech and political freedom. The ALRC would like to remind the Government of Thailand that under Article 19 of the ICCPR, restrictions on the right to freedom of expression are only permissible under two circumstances: "for respect of the rights or reputations of others" and "for the protection of national security or of public order (ordre public), or of public health or morals." While measure 112 is classified as a crime against national security within the Criminal Code of Thailand, and this, along with the need to protect the monarchy, is frequently cited by the Government of Thailand when faced with the criticism that the measure is in tension with the ICCPR, a precise explanation of the logic for categorizing the measure as such has not been provided to date. Until this explanation is provided, the constriction of freedom of expression is arbitrary.
10. In view of the above, the Asian Legal Resource Center calls on the UN Human Rights Council to:
- Call on the Government of Thailand to release all those convicted or facing charges under Article 112 and the 2007 Computer Crimes Act. At a minimum, those currently being held should immediately be granted bail while their cases are in the Criminal or Appeal Courts.
- Demand that the Government of Thailand revoke Article 112 of the Criminal Code and the 2007 Computer Crimes Act.
- Urge the Government of Thailand to allow and support the full exercise of freedom of expression and political freedom, consistent with the terms of the Universal Declaration of Human Rights, to which it is a signatory, and the International Covenant on Civil and Political Rights, to which it is a state party.
- Request the Special Rapporteur on the freedom of opinion and expression to continue ongoing monitoring and research about the brought situation of constriction of rights and individual cases in Thailand; and, the Working Group on Arbitrary Detention to continue to monitor and report on those cases of persons arbitrarily detained under Article 112.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.