Opinion; Subjects: THAILAND, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.17-18099(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-ninth session, 21-25 August 2017
Opinion No. 56/2017 concerning Thiansutham Suthijitseranee
(Thailand)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 1 June 2017, the
Working Group transmitted to the Government of Thailand a communication concerning
Thiansutham Suthijitseranee. The Government replied to the communication on 12 June
2017. The State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2017/56
General Assembly
Distr.: General
13 October 2017
Original: English
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2
Submissions
Communication from the source
4.
Thiansutham Suthijitseranee is a Thai national and was a businessman prior to his
detention. His usual place of residence was the city of Bangkok.
5.
The source indicates that, on the morning of 18 December 2014, Mr. Thiansutham
and his wife were arrested at their home in Bangkok by more than 20 police officers from
the Technology Crime Suppression Division and military personnel. The police officers
confiscated several of the couple’s personal belongings, including laptop computers and
mobile telephones. No arrest or search warrants issued by a public authority were presented
at the time of the arrests. Rather, arrest warrant No. 151/2014 was issued by Bangkok
Military Court on 22 December 2014 in relation to Mr. Thiansutham.
6.
After the raid on their home, Mr. Thiansutham and his wife were taken for
interrogation to the Infantry Battalion at the Eleventh Military Circle in Bangkok. During
his interrogation, Mr. Thiansutham was ordered to provide the passwords to his email and
social network accounts. While Mr. Thiansutham’s wife was released the next day, Mr.
Thiansutham himself was detained there until 22 December 2014.
7.
The source specifies that Mr. Thiansutham was arrested in connection with having
posted five messages on Facebook between 25 July and early November 2014, which the
authorities deemed to be offensive to the monarchy. One of the messages contained
criticism of King Bhumibol Adulyadej’s efforts to promote a sufficiency economy and
compared the Thai and Bhutanese monarchies. Two other messages were interpreted as a
reference to the involvement of the monarchy in Thai politics and speculation about the
death of King Bhumibol, respectively.
8.
On 23 December 2014, Mr. Thiansutham was remanded in police custody at Thung
Song Hong police station in Bangkok for two days. On 25 December 2014, Bangkok
Military Court ordered Mr. Thiansutham’s transfer to Bangkok Remand Prison.
9.
After having been transferred there, Mr. Thiansutham petitioned Bangkok Military
Court for bail on four separate occasions, on 25 December 2014 and on 5, 16 and 18
January 2015. However, the court rejected all his requests for bail, reasoning that the
punishment for lese-majesty is very severe and that Mr. Thiansutham was a flight risk. The
source observes that the court’s argument runs counter to international human rights
standards and United Nations jurisprudence. In its general comment No. 35 (2014) on
liberty and security of person, the Human Rights Committee stated that detention pending
trial must be based on an individualized determination that it is reasonable and necessary
taking into account all the circumstances, for such purposes as to prevent flight,
interference with the evidence or the recurrence of crime. Relevant factors should not
include vague and expansive standards such as “public security”. The source points out that
the Committee also held that pretrial detention should not be ordered for a period based on
the potential sentence for a crime charged, rather than on a determination of necessity.
10.
On 31 March 2015, during a closed-door hearing, Bangkok Military Court sentenced
Mr. Thiansutham to 25 years in prison on five counts of lese-majesty. The authorities
evoked violations of section 112 of the Penal Code (lese-majesty) and of section 14 (1), (2)
and (3) of the Computer Crimes Act as grounds for arresting and convicting Mr.
Thiansutham. Section 112 of the Penal Code states that anyone who defames, insults or
threatens the King, the Queen, the Heir to the throne or the Regent will be punished with
imprisonment of 3 to 15 years. Section 14 (3) of the Computer Crimes Act stipulates that
any person who commits any act involving importing to a computer system any computer
data relating to an offence against the security of the Kingdom under the Penal Code is
subject to imprisonment for not more than five years or a fine of not more than 100,000
baht or both.
11.
On 2 April 2015, Mr. Thiansutham’s prison sentence was reduced to 21 years and 10
months as a result of a commutation of sentence granted on the occasion of Princess Maha
Chakri Sirindhorn’s sixtieth birthday.
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12.
The source submits that Mr. Thiansutham’s deprivation of liberty is arbitrary and
falls within categories II and III of the arbitrary detention categories referred to by the
Working Group when considering cases submitted to it.
13.
In relation to category II, the source argues that Mr. Thiansutham’s ongoing
deprivation of liberty is arbitrary because it results from the exercise of rights or freedoms
guaranteed by the article 19 of the Universal Declaration of Human Rights and article 19 of
the International Covenant on Civil and Political Rights, to which Thailand is a party.
Article 19 of the Universal Declaration of Human Rights states that “everyone has the right
to freedom of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers”. Article 19 (2) of the Covenant states that “everyone shall have the
right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice”.
14.
In relation to category III, the source argues that the non-observance of the
international norms relating to the right to a fair trial guaranteed by article 14 of the
Covenant is of such gravity that it gives Mr. Thiansutham’s deprivation of liberty an
arbitrary character. The source specifies that Mr. Thiansutham did not have adequate time
to prepare his defence. He was also denied the right to receive legal assistance during
interrogations by the police and the military, as well as the right not to be compelled to
testify against himself, or to confess his guilt. The source points out that those rights are
guaranteed by article 14 (3) (b), (d) and (g) of the Covenant. In addition, the court hearing
that resulted in his prison sentence was conducted behind closed doors in a military court,
in violation of article 14 (1) of the Covenant.
15.
The source adds that, as a result of the declaration of martial law on 20 May 2014 by
the Royal Thai Army and the issuance of announcement No. 37/2014 on 25 May 2014 by
the National Council for Peace and Order, military courts assumed jurisdiction over lese-
majesty cases for offences committed from 25 May 2014 onwards. The source thus notes
that between 25 May 2014 and 25 February 2016, Thai military courts have tried and
sentenced 24 lese-majesty defendants, including Mr. Thiansutham.
16.
Individuals who allegedly committed lese-majesty offences between 25 May 2014
and 31 March 2015 have no right to appeal a decision made by a military court as a result
of the declaration of martial law and in accordance with section 61 of the 1955 Military
Court Act. Article 14 (5) of the Covenant provides that everyone convicted of a crime has
the right “to his conviction and sentence being reviewed by a higher tribunal”. The source
argues that the trial of Mr. Thiansutham in a military court is also in breach of article 14 (1)
of the Covenant, which states that everyone has the right to a “fair and public hearing by a
competent, independent and impartial tribunal”.
17.
The source claims that Thai military courts are not independent from the executive
branch of the Government. Military courts are units of the Ministry of Defence, and
military judges are appointed by the Army Commander-in-Chief and the Minister of
Defence. It is also alleged that military judges lack adequate legal training. Thai lower
military courts consist of panels of three judges, only one of whom has legal training. The
other two are commissioned military officers who sit on the panels as representatives of
their commanders.
18.
With regard to the right to a “public hearing”, the source states that lese-majesty
trials in military courts have been characterized by a lack of transparency. Military courts
have held many lese-majesty trials behind closed doors. Military judges have routinely
barred the public, including observers from international human rights organizations and
foreign diplomatic missions, from entry into courtrooms. On numerous occasions, military
courts claimed that closed-door proceedings were necessary because lese-majesty trials
were a matter of “national security” and could “affect public morale”.
19.
The source argues that Mr. Thiansutham’s pretrial detention and the military court’s
refusal to grant him bail is in violation of article 9 (3) of the Covenant, which states that “it
shall not be the general rule that persons awaiting trial shall be detained in custody”. In its
general comment No. 8, the Human Rights Committee also stated that pretrial detention
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should be an exception and as short as possible. In that regard, the source observes that only
4 of the 66 individuals (6 per cent) arrested for alleged violations of section 112 of the
Penal Code after the 22 May 2014 military coup were released on bail pending trial.
20.
The source notes that despite that principle, Thai courts have regularly denied bail to
lese-majesty defendants, including Mr. Thiansutham, by claiming that they were flight
risks. In that regard, the source specifies that Bangkok Military Court refused the requests
for bail submitted on 25 December 2014 and on 5, 16 and 18 January 2015 by Mr.
Thiansutham, reasoning that the punishment for lese-majesty is severe and that he was a
flight risk. The court’s argument runs counter to international human rights standards.
Response from the Government
21.
On 1 June 2017, the Working Group transmitted the allegations from the source to
the Government through its regular communication procedure. The Working Group
requested the Government to provide detailed information by 1 August 2017 about Mr.
Thiansutham’s current situation and any comment on the source’s allegations. The Working
Group also requested the Government to clarify the factual and legal grounds justifying Mr.
Thiansutham’s continued detention and to provide details regarding the conformity of the
relevant legal provisions and proceedings with international law, in particular the norms of
international human rights law that bind Thailand. Moreover, the Working Group called
upon the Government to ensure Mr. Thiansutham’s physical and mental integrity.
22.
In its response dated 12 June 2017, the Government informed the Working Group
that its communication had been duly forwarded to the relevant agencies for their
consideration and provided “initial clarifications” on the use of the lese-majesty law and the
Military Court.
23.
The Government stated that it supports and values freedom of expression, which is
the basis of a democratic society. People can freely exercise the right to freedom of
expression. Nevertheless, that right is not absolute and must be exercised within the
boundary of the law and not in a manner that disrupts public order and social harmony or
that infringes on others’ rights or reputations, as stipulated in article 19 (3) of the Covenant.
24.
According to the Government, the application of the lese-majesty law is in
accordance with the above-mentioned objectives. It is important to understand that the Thai
monarchy has been a pillar of stability in Thailand. The Thai sense of identity is closely
linked to the monarchy. The lese-majesty law is aimed at protecting the rights or reputation
of the King, the Queen and the Heir-apparent or the Regent in a similar way that libel law
does for commoners. It is not aimed at curbing people’s right to freedom of expression.
25.
The Working Group did not receive any additional response to the present
communication from the Government. The Government did not request an extension of the
time limit for its reply, as provided for in the Working Group’s methods of work.
Additional comments from the source
26.
The source replied that the Government’s response repeated verbatim many of its
previous responses to communications sent by United Nations special procedures, to
considerations of reports conducted by treaty bodies and to the universal periodic review of
May 2016 on the issue of lese-majesty, including the use of military courts for trials of
civilians accused of violating section 112 of the Penal Code.
27.
According to the source, the responses of the Government have consistently failed to
provide detailed reasoning as to why it believes the actions that have been regularly
punished with arrest, detention and lengthy jail terms comply with article 19 of the
Covenant. The Government has also repeatedly failed to specifically address the use of
military courts to try lese-majesty defendants, which contravenes article 14 of the
Covenant.
28.
The source remains concerned at the ongoing abuse of section 112 of the Penal Code
to subject individuals to arbitrary deprivation of liberty for the exercise of their right to
freedom of expression. Between 22 May 2014 and 2 July 2017, 112 individuals were
arrested under section 112.
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29.
The source also remains gravely concerned at the very long prison sentences that
Thai courts have continued to hand down to lese-majesty defendants. The source provides
an example of one such instance, when in June 2017, Bangkok Military Court sentenced
one individual to 70 years in prison after finding him guilty on 10 counts of lese-majesty.
The court halved his sentence to 35 years in consideration of his guilty plea. That is the
harshest prison sentence ever handed down in a lese-majesty trial.
30.
The source notes that the United Nations treaty bodies have, in recent concluding
observations concerning the periodic reports of Thailand, continued to underscore the
human rights violations linked to the enforcement of section 112 of the Penal Code.
31.
In particular, the source notes that, following its review of the second periodic report
of Thailand under the Covenant in March 2017, the Human Rights Committee noted its
concern about the clause in section 112 that imposed prison terms for “criticism and
dissention regarding the royal family” and about “extreme sentencing practices” in
connection with lese-majesty trials. The Committee recommended that Thailand review
section 112 in order to bring it into line with article 19 of the Covenant. It also reiterated
that the imprisonment of persons for exercising their freedom of expression violated article
19 of the Covenant (see CCPR/C/THA/CO/2, paras. 37-38).
32.
According to the source, over the past year, an increasing number of lese-majesty
defendants have been released on bail pending their investigation and trial. The source
welcomed that development, which reverses a trend that previously saw, between May
2014 and February 2016, the release of a mere 6 per cent of lese-majesty defendants on
bail.
Discussion
33.
The Working Group has, in its jurisprudence, established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case of breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest with the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68).
34.
The Working Group recalls that where it is alleged that a person has not been
afforded, by a public authority, certain procedural guarantees to which he or she was
entitled, the burden of proof should rest with the public authority, because the latter is in a
better position to demonstrate that it has followed the appropriate procedures and applied
the guarantees required by law.1
35.
The Working Group wishes to reaffirm that any national law allowing deprivation of
liberty should be made and implemented in compliance with the relevant international
provisions set forth in the Universal Declaration of Human Rights, the Covenant and other
relevant international legal instruments. Consequently, even if the detention is in
conformity with national legislation, the Working Group must assess whether such
detention is also consistent with the relevant provisions of international human rights law.2
The Working Group considers that it is entitled to assess the proceedings of a court and the
law itself to determine whether they meet international standards.3
36.
The Working Group notes with concern a series of cases in recent years in which the
Government has used its lese-majesty laws to deprive its citizens of their liberty.4 The
number of lese-majesty cases has significantly increased since the coup d’état on 22 May
2014. The Office of the United Nations High Commissioner for Human Rights, for its part,
noted in a press release in June 2017 that the number of persons under investigation for
insulting the monarchy had more than doubled from 119 in 2011-2013 to at least 285 in
1 See the ruling of the International Court of Justice in Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, pp. 660-661, para. 55.
See also opinions No. 41/2013, para. 27, and No. 59/2016, para. 61.
2 See opinions No. 20/2017, para. 37, and No. 28/2015, para. 41.
3 See opinion No. 33/2015, para. 80.
4 See opinions No. 44/2016; No. 43/2015; No. 41/2014; and No. 35/2012.
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2014-2016. The ratio of those charged with the lese-majesty offence who walked free had
also fallen sharply from 24 per cent in 2011-2013 to just 4 per cent in 2016.5 During the
universal periodic review of Thailand in May 2016, restrictions on the right to freedom of
opinion and expression and the lese-majesty laws were frequently raised as a matter of
concern by delegations (see A/HRC/33/16).
Category I
37.
The Working Group will examine the relevant categories applicable to its
consideration of the present case, including category I, which concerns deprivation of
liberty without invoking any legal basis.
38.
In the present case, the Working Group notes that, on 18 December 2014, Mr.
Thiansutham was arrested with his wife at home by police officers from the Technology
Crime Suppression Division and military personnel. The police arrested the couple and
confiscated some of their personal belongings, including laptop computers and mobile
telephones, without a warrant. The arrest warrant for Mr. Thiansutham was issued by
Bangkok Military Court four days later, on 22 December 2014.
39.
Mr. Thiansutham was held and interrogated at the Infantry Battalion at the Eleventh
Military Circle, a military barracks in Bangkok, where he had no access to his family or a
lawyer between 18 and 22 December 2014. He was remanded to Thung Song Hong police
station on 23 December 2014 and brought before the court only on 25 December 2014. The
Government has failed to provide any legal basis for Mr. Thiansutham’s initial arrest and
detention.
40.
The Working Group notes that, on 8 July 2014, the Government made article 4
notification of its derogation from certain provisions of the Covenant, but that no
derogation has been notified with regard to article 9 of the Covenant.6
41.
Given the above observations, the Working Group determines that Mr.
Thiansutham’s initial arrest and incommunicado detention lack a legal basis in violation of
article 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant,
thus falling within category I.
Category II
42.
The Working Group recalls that the right to hold and express opinions, including
those that are not in accordance with official government policy, is protected under article
19 of the Universal Declaration of Human Rights and article 19 of the Covenant.7 In that
regard, in its general comment No. 34 (2011) on the freedoms of opinion and expression,
the Human Rights Committee stated that the mere fact that forms of expression are
considered to be insulting to a public figure is not sufficient to justify the imposition of
penalties, adding that all public figures, including those exercising the highest political
authority such as Heads of State and Government, are legitimately subject to criticism and
political opposition. The Committee specifically expressed concern regarding laws on such
matters as lese-majesty (para. 38).
43.
With regard to the application of section 112 of the Penal Code and section 14 (3) of
the Computer Crimes Act, the Working Group recalls that it has found the lese-majesty
charge and conviction in Thailand8 and in other countries9 to be in violation of article 19 of
the Universal Declaration of Human Rights and article 19 of the Covenant.
44.
The Working Group also notes that the Human Rights Committee, in its concluding
observations on the second periodic report of Thailand, expressed its concerns about reports
5 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21734&LangID=E.
6 See depositary notification C.N.479.2014.TREATIES-IV.4. Available at
https://treaties.un.org/doc/Publication/CN/2014/CN.479.2014-Eng.pdf.
7 See also Human Rights Declaration of the Association of Southeast Asian Nations, art. 23.
8 See opinions No. 44/2016; 43/2015; No. 41/2014; and No. 35/2012.
9 See opinions No. 20/2017; No. 48/2016; and No. 28/2015.
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of a sharp increase in the number of people who had been detained and prosecuted for the
crime of lese-majesty since the military coup and about extreme sentencing practices,
which resulted in dozens of years of imprisonment in some cases. The Committee explicitly
urged Thailand to review article 112 of the Penal Code, on publicly offending the royal
family, to bring it into line with article 19 of the Covenant, reiterating that the
imprisonment of persons for exercising their freedom of expression violated article 19 of
the Covenant (see CCPR/C/THA/CO/2, paras. 37-38).
45.
The Working Group expresses its concern about the vague, broad and open-ended
definition of “insult” used in section 112 of the Penal Code. The Working Group is mindful
of the chilling effect on freedom of expression that such vaguely and broadly worded
regulations may have, resulting in unjustified criminalization.10 The Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression has warned
that the threat of a long prison sentence and the vagueness about what kinds of expression
constitute defamation, insult or threat to the monarchy encourage self-censorship and stifle
important debates on matters of public interest (see A/HRC/20/17, para. 20).
46.
According to article 19 (3) of the Covenant, freedom of expression may be subject to
restrictions, when provided by law and necessary (a) for respect of the rights or reputations
of others; and (b) for the protection of national security or of public order (ordre public), or
of public health or morals. Furthermore, article 29 (2) of the Universal Declaration of
Human Rights states that “in the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the purpose of securing
due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society”.
47.
In that regard, the Working Group has stated, in its deliberation No. 9 concerning the
definition and scope of arbitrary deprivation of liberty under customary international law,
that the notion of “arbitrary” sensu stricto includes both the requirement that a particular
form of deprivation of liberty is taken in accordance with the applicable law and procedure
and that it is proportional to the aim sought, reasonable and necessary (para. 61).
48.
The Working Group has affirmed, in its deliberation No. 8 on deprivation of liberty
linked to/resulting from the use of the Internet, that freedom of expression constitutes one
of the basic conditions of the development of every individual, without which there is no
social progress, and that peaceful, non-violent expression or manifestation of one’s opinion,
or dissemination or reception of information, even via the Internet, if it does not constitute
incitement to national, racial or religious hatred or violence, remains within the boundaries
of the freedom of expression (paras. 45 and 47).
49.
In addition, the Working Group notes that the Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression indicated that the right to
freedom of expression includes expression of views and opinions that offend, shock or
disturb. Reiterating principle 6 of the Johannesburg Principles on National Security,
Freedom of Expression and Access to Information, he stated that protection of national
security or countering terrorism cannot be used to justify restricting the right to expression
unless the Government can demonstrate that: (a) the expression is intended to incite
imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and
immediate connection between the expression and the likelihood or occurrence of such
violence (see A/HRC/17/27, paras. 36-37).
50.
In the present case, the Working Group considers that Mr. Thiansutham’s posts fall
within the boundaries of opinions and expression protected under article 19 of the Universal
Declaration of Human Rights and article 19 of the Covenant. Furthermore, the Working
Group has been unable to find Mr. Thiansutham’s deprivation of liberty for the lese-
majesty offence under section 112 of the Penal Code and section 14 (3) of the Computer
Crimes Act, and the criminal provisions per se, necessary or proportional for the purposes
set out in article 19 (3) of the Covenant.
10 See opinion No. 20/2017, paras. 35 and 40.
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51.
In its jurisprudence, with regard to the application of the principle of proportionality,
the Working Group has applied the test of (a) whether the objective of the measure is
sufficiently important to justify the limitation of a protected right; (b) whether the measure
is rationally connected to the objective; (c) whether a less intrusive measure could have
been used without unacceptably compromising the achievement of the objective; and (d)
whether, balancing the severity of the measure’s effects on the rights of the persons to
whom it applies against the importance of the objective, to the extent that the measure will
contribute to its achievement, the former outweighs the latter.11
52.
The Working Group notes that, in its universal periodic review in May 2016, the
Government stated that freedom of expression could be restricted only as necessary to
maintain public order and prevent further polarization in society. The challenge was to
maintain a balance when enforcing relevant laws, so as not to undermine rights and
freedoms, especially when exercised in good faith and with good intentions (see
A/HRC/33/16, para. 16). In view of the standard set out above, it is difficult for the
Working Group to consider that Mr. Thiansutham’s posts could plausibly threaten national
security or public order, let alone public health or morals.
53.
The Working Group concurs with the assessment of the Human Rights Committee
with specific reference to lese-majesty that laws should not provide for more severe
penalties solely on the basis of the identity of the person that may have been impugned.12 If
Mr. Thiansutham’s postings defamed any individuals, the remedy would lie in a civil libel
claim rather than in criminal sanctions (see A/HRC/4/27, para. 81). That would have been a
less intrusive measure sufficient to achieve respect of the rights or reputations of others.
54.
Therefore, the Working Group considers that Mr. Thiansutham’s deprivation of
liberty for the lese-majesty charge relating to his postings resulted from the exercise of the
right to freedom of expression guaranteed by article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant.
55.
The Working Group notes that the Government has made article 4 notification of its
derogation from article 19 of the Covenant by prohibiting the broadcasting or publication of
certain content, particularly that inciting conflict and alienation in society, false or
provocative messages. 13 However, the Working Group expresses its concern at the vague,
broad and open-ended definition of terms used by the Government and cannot but consider
that the lese-majesty legislation and prosecution are not necessary or proportional to the
Government’s stated purpose of affording vital national security protection in declaring
martial law on 20 May 2014.
Category III
56.
The Working Group has also considered whether the violations of the right to a fair
trial and due process suffered by Mr. Thiansutham were grave enough to give his
deprivation of liberty an arbitrary character falling within category III.
57.
The Working Group considers that Bangkok Military Court did not provide a public
hearing, as required under article 14 (1) of the Covenant, given that the hearing at which
Mr. Thiansutham was sentenced was held in closed session, excluding observers from
international human rights organizations and foreign diplomatic missions. None of the
exceptions to that rule stipulated in article 14 (1), such as national security or public order,
that would allow a trial to be closed to the public, can reasonably apply to his trial.14
58.
In addition, the Working Group considers that Bangkok Military Court does not
meet the standard established in article 14 (1) of the Covenant that everyone is entitled to a
fair and public hearing by a competent, independent and impartial tribunal.15 Thai military
11 See opinion No. 54/2015, para. 89.
12 See Human Rights Committee, general comment No. 34, para. 38.
13 See depositary notification C.N.479.2014.TREATIES-IV.4. Available at
https://treaties.un.org/doc/Publication/CN/2014/CN.479.2014-Eng.pdf.
14 See opinion No. 44/2016, para. 31.
15 See also Human Rights Declaration of the Association of Southeast Asian Nations, art. 20 (1).
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courts are not independent of the executive branch of Government because military judges
are appointed by the Commander-in-Chief of the Army and the Minister of Defence.
Moreover, they lack sufficient legal training and sit in closed sessions as representatives of
their commanders.
59.
The trial of civilians and decisions placing civilians in preventive detention by
military courts are in violation of the Covenant and customary international law, as
confirmed by the constant jurisprudence of the Working Group. The intervention of a
military judge who is neither professionally nor culturally independent is likely to produce
an effect contrary to the enjoyment of the human rights and to a fair trial with due
guarantees (see A/HRC/27/48, para. 68).
60.
In addition, as the Human Rights Committee stated in its general comment No. 32
(2007) on the right to equality before courts and tribunals and to a fair trial, the guarantees
of a fair trial under article 14 of the Covenant cannot be limited or modified because of the
military or special nature of a court (para. 38). In the present case, Mr. Thiansutham did not
have access to a lawyer when he was being interrogated by the police and was not informed
of his right to legal assistance, in breach of article 14 (3) (b) and (d) of the Covenant.16
61.
The police arrested Mr. Thiansutham with his wife at home on 18 December 2014
without a warrant, which was issued by Bangkok Military Court only on 22 December
2014. During the pretrial detention and interrogation at a military barracks in Bangkok, Mr.
Thiansutham, without access to a lawyer, was ordered to provide the passwords to his email
and social network accounts. Given those circumstances, the Working Group considers it
unlikely that he was afforded the right not to be compelled to confess guilt, contrary to
article 14 (3) (g) of the Covenant. The burden is on the Government to demonstrate that Mr.
Thiansutham’s confession was made of his own free will, but the Government failed to
respond to the allegation.
62.
The Working Group also notes that Mr. Thiansutham’s conviction and sentence by
the military court were not subject to appeal. As a result of the declaration of martial law on
20 May 2014 and the issuance by the National Council for Peace and Order of
announcement No. 37/2014 on 25 May 2014, military courts assumed jurisdiction over
lese-majesty offences committed between 25 May 2014 and 31 March 2015,17 and section
61 of the 1955 Military Court Act proscribes the offenders’ right to appeal military court
decisions. The absence of a right to appeal is a clear violation of article 14 (5) of the
Covenant.
63.
The Working Group notes that, on 8 July 2014, the Government made article 4
notification of its derogation from article 14 (5) of the Covenant only where a jurisdiction
had been conferred to the Martial Court over sections 107-112 of the Penal Code and the
offences against the internal security of the Kingdom.18
64.
A fundamental requirement for any measures derogating from the Covenant, as set
forth in article 4 (1), is that such measures are limited to the extent strictly required by the
exigencies of the situation. The obligation to limit any derogation to those strictly required
by the exigencies of the situation reflects the principle of proportionality. Moreover, the
mere fact that a permissible derogation from a specific provision may, of itself, be justified
by the exigencies of the situation does not obviate the requirement that specific measures
taken pursuant to the derogation must also be shown to be required by the exigencies of the
situation.19
16 See also United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, principle 9; and Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles
10, 11 (1), 15 and 17-19.
17 The ruling junta lifted martial law on 1 April 2015.
18 See depositary notification C.N.479.2014.TREATIES-IV.4. Available at
https://treaties.un.org/doc/Publication/CN/2014/CN.479.2014-Eng.pdf.
19 See Human Rights Committee, general comment No. 29 (2001) on derogations from provisions of the
Covenant during a state of emergency, para. 4.
A/HRC/WGAD/2017/56
10
65.
For instance, in its jurisprudence the Working Group has considered that the
detention of a teenager for two years based simply on accusations of having participated in
demonstrations by an organization banned by the occupation authorities is disproportionate
in relation to any public emergency despite derogation from article 9 of the Covenant in
force.20
66.
The Working Group concurs with the opinion of the Human Rights Committee that
the principles of legality and the rule of law require that fundamental requirements of fair
trial must be respected during a state of emergency.21 The right to have one’s conviction
and sentence reviewed by a higher tribunal according to law is doubtless one such
requirement.
67.
The Working Group considered the military court’s refusal to grant Mr.
Thiansutham bail. Article 9 (3) of the Covenant requires that detention in custody of
persons awaiting trial should be the exception rather than the rule subject to guarantees of
appearance, including appearance for trial, appearance at any other stage of the judicial
proceedings and, should the occasion arise, appearance for execution of the judgment.
Detention pending trial must be based on an individualized determination that it is
reasonable and necessary taking into account all the circumstances, for such purposes as to
prevent flight, interference with evidence or the recurrence of crime and the relevant factors
should be specified in law and should not include vague and expansive standards such as
“public security”. Nor should pretrial detention be mandatory for all defendants charged
with a particular crime, without regard to individual circumstances, or ordered for a period
based on the potential sentence for the crime charged, rather than on a determination of
necessity.22
68.
The Working Group notes with particular concern that only 4 of the 66 individuals
(6 per cent) arrested for alleged violations of section 112 of the Penal Code after the 22
May 2014 military coup were released on bail pending trial. In Mr. Thiansutham’s case, the
Working Group considers that the military court cannot rely on the severity of potential
punishment for lese-majesty offences to deny bail. It also considers that the near blanket
rejection of bail applications by lese-majesty offenders casts serious doubt about the
individualized determination of Mr. Thiansutham’s flight risk. The Working Group
therefore determines that the Government has not met the burden of demonstrating the
necessity for Mr. Thiansutham’s pretrial detention.
69.
Given the above, the Working Group concludes that the violations of the right to a
fair trial and due process are of such gravity as to give Mr. Thiansutham’s deprivation of
liberty an arbitrary character that falls within category III.
Laws on lese-majesty
70.
Elaborating further on the propriety of the lese-majesty law in view of the principle
of legality and its effect on the right to a fair trial,23 the Working Group notes that one of
the fundamental guarantees of due process is the principle of legality, including the
principle of nullum crimen sine lege, which is particularly relevant in the case of Mr.
Thiansutham. The principle of legality, in general, ensures that no defendant may be
punished arbitrarily or retroactively by the State. That means that a person cannot be
convicted of a crime that was not publicly accessible, and nor can they be charged under a
law that is excessively unclear or convicted under a penal law that is passed retroactively to
criminalize a previous act or omission.
71.
Laws that are vaguely and broadly worded may have a chilling effect on the exercise
of the right to freedom of expression, as they have potential for abuse. They also violate the
principle of legality under article 15 of the Covenant, as it makes it unlikely or impossible
20 See opinion No. 9/2010, para. 25.
21 See Human Rights Committee, general comment No. 29, para. 16.
22 See Human Rights Committee, general comment No. 35, para. 38.
23 See opinion No. 20/2017, paras. 49-52.
A/HRC/WGAD/2017/56
11
for the accused to have a fair trial.24 In that regard, the Working Group notes that in 2016,
the Human Rights Committee urged the Government of Kuwait to clarify the vague, broad
and
open-ended
definition
of
key
terms
in
the
relevant
provisions
(see
CCPR/C/KWT/CO/3, para. 41). Furthermore, detention pursuant to proceedings that are
incompatible with article 15 are necessarily arbitrary within the meaning of article 9 (1) of
the Covenant.25
72.
The Working Group wishes to express its grave concern about the pattern of
arbitrary detention in cases involving the lese-majesty laws of Thailand. The Working
Group recalls that under certain circumstances, widespread or systematic imprisonment or
other severe deprivation of physical liberty in violation of fundamental rules of
international law may constitute crimes against humanity.26 Given the increased usage of
the Internet and social media as a means of communication, it is likely that the detention of
individuals for exercising their rights to freedom of opinion and expression online will
continue to increase until steps are taken by the Government to bring the lese-majesty laws
into conformity with international human rights law.
73.
Given the continuing international concern regarding the country’s lese-majesty
laws, the Government may consider it to be an appropriate time to work with international
human rights mechanisms to bring those laws into conformity with its international
obligations under the Universal Declaration of Human Rights and the Covenant. The
Working Group would welcome the opportunity to conduct a country visit to constructively
assist in that process. In that regard, the Working Group notes the commitment made by the
Government during its universal periodic review in May 2016 to reaffirm its standing
invitation to all the special procedures of the Human Rights Council (see A/HRC/33/16,
para. 161 (g)).
74.
The Working Group notes the initial detention of Mr. Thiansutham’s wife by the
Government in a possible case of “guilt by association” and reiterates the principle that any
measure treating family members of a suspect also as potential suspects should not exist in
a democratic society, even during a state of emergency.27
Disposition
75.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Thiansutham Suthijitseranee, being in contravention of
articles 7, 9, 10, 11 and 19 of the Universal Declaration of Human Rights and of
articles 9, 14, 15, 19 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II and III.
76.
The Working Group requests the Government of Thailand to take the steps
necessary to remedy the situation of Thiansutham Suthijitseranee without delay and bring it
into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
77.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Thiansutham Suthijitseranee immediately
and accord him an enforceable right to compensation and other reparations, in accordance
with international law.
24 See also Human Rights Declaration of the Association of Southeast Asian Nations, art. 20 (2).
25 See Human Rights Committee, communication No. 1629/2007, Fardon v. Australia, Views adopted
on 18 March 2010, para. 7.4 (2).
26 See article 7 (1) (e) of the Rome Statute of the International Criminal Court. See also opinions No.
37/2011, para. 15; No. 38/2011, para. 16; No. 39/2011, para. 17; No. 4/2012, para. 26; No. 47/2012,
paras. 19 and 22; No. 34/2013, paras. 31, 33 and 35; No. 35/2013, paras. 33, 35 and 37; No. 36/2013,
paras. 32, 34 and 36; No. 38/2012, para. 33; No. 48/2013, para. 14; No. 22/2014, para. 25; No.
27/2014, para. 32; No. 34/2014, para. 34; No. 35/2014, para. 19; No. 44/2016, para. 37; No. 32/2017,
para. 40; No. 33/2017, para. 102; and No. 36/2017, para. 110.
27 See opinion No. 1/2017, paras. 58-59.
A/HRC/WGAD/2017/56
12
78.
The Working Group urges the Government to bring the relevant legislation,
particularly section 112 of the Penal Code and section 14 (3) of the Computer Crimes Act,
which has been used to restrict the right to freedom of expression, into conformity with the
commitments of Thailand under international human rights law.
Follow-up procedure
79.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Thiansutham has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr.
Thiansutham;
(c)
Whether an investigation has been conducted into the violation of Mr.
Thiansutham’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Thailand with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
80.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
81.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
82.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.28
[Adopted on 24 August 2017]
28 See Human Rights Council resolution 33/30, paras. 3 and 7.