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.18-11323(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-first session, 17–26 April 2018
Opinion No. 3/2018 concerning Chayapha Chokepornbudsri (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 that mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 12 December 2017, the
Working Group transmitted to the Government of Thailand a communication concerning
Chayapha Chokepornbudsri. The Government provided initial clarifications on 13
December 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/2018/3
General Assembly
Distr.: General
9 July 2018
Original: English
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2
Submissions
Communication from the source
4.
Chayapha Chokepornbudsri, born on 11 November 1966, is a Thai national. Prior to
her detention, Ms. Chayapha worked as an accountant. Her usual place of residence was
Mueang District, Samut Prakan Province, Thailand.
5.
In the early morning of 19 June 2015, a group of military personnel from the 2nd
Infantry Division and police officers from the Technology Crime Suppression Division
arrested Ms. Chayapha at her residence while she was preparing to go to work. Officers
searched her house, confiscated her laptop and mobile telephone and took Ms. Chayapha to
the 11th Infantry Battalion Military Circle in Bangkok. She was detained there for four days
before being remanded to the custody of the police.
6.
Reportedly, the authorities did not produce an arrest warrant at the time of Ms.
Chayapha’s arrest. The Bangkok Military Court issued arrest warrant No. 2/2015 only on
22 June 2015 — three days after Ms. Chayapha was taken into military custody. On 23
June 2015, Ms. Chayapha was remanded to the custody of police from the Technology
Crime Suppression Division at the Thung Song Hong Police Station in Bangkok. She was
charged with violating the provisions of section 112 (lese-majesty) and of section 116
(sedition) of the Penal Code.
7.
On 24 June 2015, Ms. Chayapha appeared at a televised press conference organized
by the police and confessed to the crimes for which she had been charged.
8.
On 25 June 2015, Ms. Chayapha was transferred to the Bangkok Military Court for a
pretrial detention hearing. The Court rejected her request for bail on the grounds that she
was a potential flight risk. Ms. Chayapha was then taken to the Central Women’s
Correctional Institution.
9.
The source submits that, throughout the period of her initial detention, Ms.
Chayapha had no access to a lawyer. While she was in military custody, army personnel
reportedly threatened that she could face a harsher prison sentence if she sought access to
legal counsel.
10.
Ms. Chayapha was charged with two counts of lese-majesty (section 112 of the
Penal Code) for posting two messages on Facebook, on 10 and 11 June 2015, which,
according to the authorities, referred to the involvement of the Thai royal family in Thai
politics. In addition, Ms. Chayapha was charged with three counts of sedition (section 116
of the Penal Code) for posting three messages on Facebook, on 11 and 12 June 2015, which
the authorities interpreted as a suggestion that a military counter-coup was under way
against the junta.
11.
On 15 December 2015, Ms. Chayapha was taken to the Bangkok Military Court for
a closed trial. Neither Ms. Chayapha nor her lawyer were given sufficient notice about the
court hearing. Without a lawyer representing her in court, Ms. Chayapha decided to plead
guilty to the charges. As a result, the court immediately sentenced her to 10 years in prison
on two counts of lese-majesty and 9 years in prison on three counts of sedition. The court
halved the 19-year sentence to nine and a half years in consideration of Ms. Chayapha’s
guilty plea. She was then returned to the Central Women’s Correctional Institution to serve
her sentence, where she remains today.
12.
The source considers that Ms. Chayapha’s deprivation of liberty falls within
categories II and III of the Working Group.
13.
In relation to category II, the source submits that Ms. Chayapha’s deprivation of
liberty is arbitrary because it results from her exercise of the rights and freedoms
guaranteed by 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 State 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 has the right to
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freedom of expression; that right includes 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 or her 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 as to give the deprivation of liberty of Ms. Chayapha an
arbitrary character. In this respect, the source submits that Ms. Chayapha was not informed
promptly and in detail of the nature and cause of charges brought against her and did not
have adequate time for the preparation of her defence. She was also denied her right to
receive legal assistance at all stages of the proceedings and her right not to be compelled to
testify against herself or to confess her guilt. These rights are guaranteed by article 14 (3)
(a), (b), (d) and (g) of the Covenant.
15.
In addition, the source submits that the trial that resulted in her prison sentence was
conducted behind closed doors in a military court, in violation of article 14 (1) and (5) of
the Covenant. The source notes that, as a result of the declaration of martial law by the Thai
Army on 20 May 2014, the National Council for Peace and Order issued Announcement
37/2014 on 25 May 2014. Military courts assumed jurisdiction over lese-majesty cases for
offences committed after that date. Between May 2014 and February 2016, Thai military
courts have tried and sentenced to prison 24 defendants in lese-majesty cases, including Ms.
Chayapha.
16.
The source notes that individuals who allegedly committed lese-majesty offences
between 25 May 2014 and 31 March 2015 had no right to appeal the decision made by the
military courts as a result of the declaration of martial law and in accordance with article 61
of the Military Court Act of 1955. It is argued that this constitutes a violation of article 14
(5) of the Covenant, which prescribes that everyone convicted of a crime has the right to his
or her conviction and sentence being reviewed by a higher tribunal.
17.
The source further submits that the trial of Ms. Chayapha 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”.
18.
The source also argues 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. The source also submits that military judges lack adequate legal training. Lower
military courts in Thailand reportedly consist of panels of three judges, and only one of
them has legal training. The other two judges are commissioned military officers who sit on
the panels as representatives of their commanders.
19.
With regard to the right to a public hearing, the source notes 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 the courtroom. On numerous occasions, military
courts claimed that closed proceedings were necessary because lese‐majesty trials were a
matter of national security and could affect public morale.
20.
The source also argues that Ms. Chayapha’s prolonged pretrial detention and the
military court’s refusal to grant her bail is a 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”. The source also refers to Human Rights Committee general comment No. 8
(1982), in which the Committee stated that pretrial detention should be an exception and as
short as possible. In this context, the source notes that only 4 of the 66 individuals (6 per
cent) arrested for alleged violations of section 112 of the Penal Code after the military coup
of 22 May 2014 were released on bail pending trial. Courts have regularly denied bail to
defendants in lese-majesty cases, including Ms. Chayapha, by claiming that they would be
flight risks.
21.
Furthermore, the source argues that the court’s argument that the potential
punishment is very severe and that Ms. Chayapha is a flight risk and should therefore not be
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granted bail runs contrary to international human rights standards and jurisprudence of
United Nations human rights bodies. 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
evidence or the recurrence of crime. The relevant factors should not include vague and
expansive standards such as “public security”. The Committee also noted that pretrial
detention should not be ordered based on the potential sentence for a crime; rather, it should
be based on a determination of necessity.
Initial clarifications from the Government
22.
On 12 December 2017, the Working Group transmitted the allegations from the
source to the Government under its regular communication procedure. The Working Group
requested the Government to provide detailed information before 12 February 2018 about
the current situation of Ms. Chayapha. The Working Group also requested the Government
to clarify the legal provisions justifying her continued detention, as well as the
compatibility of her detention with the obligations of Thailand under international human
rights law. Moreover, the Working Group called upon the Government to ensure the
physical and mental integrity of Ms. Chayapha.
23.
On 13 December 2017, the Government acknowledged receipt of the
communication and undertook to send the Working Group further information. The
Government provided initial clarifications on the use of lese-majesty law and the military
court, as follows.
24.
According to the Government, it supports and values freedom of expression and
believes that such freedom is the basis of a democratic society and that the people can
freely exercise it. Nevertheless, such a right is not absolute and must be exercised within
the boundary of the law.
25.
The Government claims that the application of the lese-majesty law is in accordance
with the above-mentioned objectives. The Thai monarchy has been a pillar of stability in
Thailand, and the Thai sense of identity is closely linked to the monarchy. The lese-majesty
law is not aimed at curbing people’s right to freedom of expression but instead has the
objective of giving protection to the rights or reputation of the King, the Queen and the
heir-apparent of the Regent in a similar way as libel law does for commoners. It is not
aimed at curbing people’s right to freedom of expression.
26.
In the Government’s view, as with other criminal offences, proceedings on lese-
majesty cases are conducted in accordance with due legal process. Persons who are charged
for lese-majesty are entitled to the same rights as those charged for other criminal offences.
27.
The Government also considers that the military court upholds the principles of
independence and neutrality, similar to the court of justice. The military court must comply
with the Criminal Procedure Code, which guarantees the right to a fair trial and the rights of
defendants, such as the right to have legal assistance and the right to bail, in accordance
with international standards, when putting civilians on trial.
28.
All judges at the military court must have practised law within the military judicial
system for no less than 20 years and are required to have the same set of knowledge and
expertise in criminal law as judges in civilian courts.
29.
Thai law also provides that judges, in both the court of justice and military courts,
may use discretion as to whether to hold closed trials in the interests of public order, good
morals or national security, if the cases are deemed to involve sensitive matters. This is
consistent with article 14 of the Covenant and not dissimilar to the practice in other
countries.
30.
No further information was received from the Government afterwards. The
Government’s initial clarifications contain general arguments for the lese-majesty law and
the military court but no specific details regarding Ms. Chayapha’s arrest, detention and
imprisonment or their factual and legal justification or assurances of her physical and
mental integrity, as requested by the Working Group.
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31.
While the Working Group will take into consideration the information obtained from
the Government’s initial clarifications in rendering its opinion, it notes that they cannot be
properly considered a “response” for the purpose of paragraphs 15, 16 and 21 (c) of its
methods of work.
Further comments from the source on the Government’s initial clarifications
32.
On 10 April 2018, the initial clarifications from the Government were sent to the
source for further comments. In its response of 13 April 2018, the source states that the
Government has repeated, verbatim, many of its previous responses to communications sent
by United Nations bodies on the issue of lese-majesty as well as the use of military courts
for trials of civilians accused of violating section 112 of the Thai Penal Code (lese-
majesty). According to the source, the Government has consistently failed to provide
detailed reasoning as to why it believes that the arrests made, detentions carried out and
lengthy jail sentences handed down in application of section 112 are in compliance with
article 19 of the Covenant. It has also repeatedly failed to specifically address the use of
military courts to try defendants in lese-majesty cases, which contravenes article 14 of the
Covenant.
33.
The source presents examples of earlier responses of international human rights
bodies concerning the lese-majesty law. Firstly, it is noted that, in its concluding
observations on the second periodic report of Thailand, adopted on 23 March 2017
(CCPR/C/THA/CO/2), the Human Rights Committee expressed its concern that criticism
and dissention regarding the royal family was punishable with a sentence of 3–15 years’
imprisonment and also expressed its concern about extreme sentencing practices in lese-
majesty trials. Furthermore, the source notes that, on 5 July 2017, during the review of the
Government’s combined sixth and seventh periodic reports under the Convention on the
Elimination of All Forms of Discrimination against Women, the Committee on the
Elimination of Discrimination against Women stated that there was a tendency by the Thai
police to abuse lese-majesty, and it questioned the role of military courts in lese-majesty
trials.
34.
The source also details its concerns over the ongoing abuse of section 112 of the
Penal Code. In that context, it submits that, from 22 May 2014 to 1 April 2018, 127
individuals were arrested under section 112 of the Penal Code. It also states that the abuse
has continued, following King Maha Vajiralongkorn Bodindradebayavarangkun’s
accession to the throne as the new monarch, Rama X, on 1 December 2016. According to
the source, from 1 December 2016 to 28 November 2017, at least 27 individuals were
arrested for alleged violations of section 112 of the Penal Code. Almost half of the arrests
allegedly resulted from the expression on social media of opinions perceived to be insulting
to the monarchy. Moreover, the source submits that, under King Maha Vajiralongkorn,
Thailand handed down the longest prison sentence ever imposed under section 112 of the
Penal Code. On 9 June 2017, the Bangkok Military Court found a defendant guilty on 10
counts of lese-majesty for posting on Facebook, in December 2015, photos and comments
deemed defamatory to the monarchy. The Court sentenced the person to 70 years in prison,
reduced to 35 years, in consideration of the guilty plea. The source also submits that a 14-
year old became the youngest person ever to be arrested for lese-majesty. On 25 May 2017,
police in Khon Kaen held a press conference during which they reported that they had
arrested nine people, including a 14-year old, for setting fire to roadside portraits of the late
King Bhumibol and King Maha Vajiralongkorn in Baan Pai and Chonnabot Districts, Khon
Kaen Province, on 3 and 13 May 2017.
35.
The source claims that military tribunals have continued to try individuals and
impose lengthy prison sentences for violations of section 112 of the Penal Code. Since 1
December 2016, the courts have convicted 10 individuals for lese-majesty offences. Of
those 10 individuals, 3 were tried and convicted by military courts. As at 28 November
2017, there was a total of 27 ongoing lese-majesty cases in military courts. The source
submits that, to date, the Government has not taken any measures to transfer the pending
cases to civilian courts, despite numerous recommendations by human rights monitoring
mechanisms. Trials of civilians in military courts have led to further violations of human
rights, including the right to liberty and the right to a fair trial.
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36.
The source notes that the chances of defendants in lese-majesty cases being released
on bail remain low. None of the individuals arrested for alleged violation of section 112 of
the Penal Code after the accession of King Maha Vajiralongkorn to the throne have been
granted bail. However, 6 of the 27 individuals in ongoing lese-majesty cases were released
without charge. The source had no updates concerning the ongoing detention of Ms.
Chayapha.
Discussion
37.
In the absence of further information from the Government concerning Ms.
Chayapha, the Working Group has decided to render the present opinion, in conformity
with paragraph 15 of its methods of work.
38.
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 for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
39.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty of person and that any national law allowing
deprivation of liberty should be made and implemented in conformity with the relevant
international standards set forth in the Universal Declaration of Human Rights, the
Covenant and other applicable international and regional instruments.1 Consequently, even
if the detention is in conformity with national legislation, regulations and practices, 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
40.
The Working Group would also like to reiterate that it applies a heightened standard
of review in cases where the rights to freedom of movement and residence, freedom of
asylum, freedom of thought, conscience and religion, freedom of opinion and expression,
freedom of peaceful assembly and association, participation in political and public affairs,
equality and non-discrimination, and protection of persons belonging to ethnic, religious or
linguistic minorities are restricted or where human rights defenders are involved. Ms.
Chayapha’s arrest, detention, trial and imprisonment for her messages require the Working
Group to undertake this kind of strict scrutiny.4
Category I
41.
The Working Group will examine the relevant categories applicable to its
consideration of this case.
42.
The Working Group notes that the Government has neither refuted nor addressed the
allegation that Ms. Chayapha was arrested without a warrant, which was issued three days
later, that she was not informed of the reasons for her arrest and that she was brought before
a military court for a pretrial detention hearing, where she was informed of the reasons for
her arrest six days after the event.
1 See General Assembly resolution 72/180, fifth preambular paragraph; Commission on Human Rights
resolutions 1991/42, para. 2, and 1997/50, para. 15; Human Rights Council resolutions 6/4, para. 1
(a), and 10/9, para. 4 (b); and opinions No. 94/2017, No. 88/2017, para. 32, No. 83/2017, paras. 51
and 70, No. 76/2017, para. 62, No. 28/2015, para. 41, and No. 41/2014, para. 24.
2 See opinions No. 94/2017, para. 47, No. 76/2017, para. 49, No. 1/2003, para. 17, No. 5/1999, para.
15, and No. 1/1998, para. 13.
3 See opinions No. 94/2017, para. 48, No. 88/2017, para. 24, No. 83/2017, para. 60, No. 76/2017, para.
50, and No. 33/2015, para. 80.
4 See opinions No. 94/2017, para. 49, No. 88/2017, para. 25, No. 83/2017, para. 61, No. 76/2017, para.
52, No. 39/2012, para. 45, No. 21/2011, para. 29, and No. 13/2011, para. 9. See also the Declaration
on Human Rights Defenders (art. 9 (3)).
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43.
The international norms on detention include the right to be presented with an arrest
warrant, except arrests that are made in flagrante delicto, which is inherent in the right to
liberty and security of person and the prohibition of arbitrary deprivation under articles 3
and 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant, as
peremptory norms of customary international law.5 Any form of detention or imprisonment
should be ordered by, or be subject to the effective control of, a judicial or other authority
under the law whose status and tenure should afford the strongest possible guarantees of
competence, impartiality and independence, in accordance with principle 4 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
44.
The lese‐majesty and sedition charges against Ms. Chayapha rest upon her five
Facebook messages, posted between 10 and 12 June 2015. It cannot be said that she was
caught in flagrante delicto in the commission of any alleged crimes when the authorities
arrested her on 19 June 2015. Moreover, the Bangkok Military Court issued her arrest
warrant only on 22 June 2015. In its jurisprudence, the Working Group has consistently
found that an offence is flagrant if the accused is either apprehended during the commission
of a crime or immediately thereafter, or is arrested in hot pursuit shortly after a crime has
been committed.6 In the present case, Ms. Chayapha was arrested on the basis of five
Facebook messages posted between 10 and 12 June 2015. In the view of the Working
Group, she was clearly not arrested in flagrante delicto.7 The Working Group underlines
that any deprivation of liberty without a valid arrest warrant issued by a competent,
independent and impartial judicial authority is arbitrary and lacks legal basis.8
45.
The failure at the time of her arrest to inform Ms. Chayapha of the reasons for her
arrest and of her rights and to inform her promptly of any charges against her further
violated articles 3 and 9 of the Universal Declaration of Human Rights and articles 9 (2)
and 14 (3) (a) of the Covenant, as well as principles 10 and 13 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment. The
violations of the rights accorded universally to criminal suspects undermine the legal basis
for her arrest and initial detention.
46.
The Working Group notes that Ms. Chayapha was not brought promptly before a
judge or other officer authorized by law to exercise judicial power, nor was she allowed to
challenge the lawfulness of her detention before a court in accordance with article 9 (3) and
(4) of the Covenant. Furthermore, in Ms. Chayapha’s case, the Working Group finds it
particularly troubling that the police failed to guarantee other fundamental guarantees,
including prompt judicial review, while it organized a televised press conference for her
“confession” on 24 June 2015, a day before her first presentation before a judge, on 25 June
2015.
47.
For the reasons above, the Working Group considers that Ms. Chayapha’s initial
arrest and detention between 19 and 25 June 2015 lacked legal basis, in violation of articles
3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant. The
Working Group therefore concludes that her detention is arbitrary under category I.
Category II
48.
The Working Group recalls that the freedom of opinion and expression and the
freedom of thought and conscience are fundamental human rights consecrated in articles 18
and 19 of the Universal Declaration of Human Rights and articles 18 and 19 of the
Covenant.9
49.
The Working Group notes that the Human Rights Committee, in its general
comment No. 34 (2011) on the freedoms of opinion and expression, stated that restrictions
5 See opinion No. 88/2017, para. 27.
6 Opinion No. 36/2017, para. 85. See also opinions No. 53/2014, para. 42, No. 46/2012, para. 30, No.
67/2011, para. 30, and No. 61/2011, paras. 48–49; and E/CN.4/2003/8/Add.3, paras. 39 and 72 (a).
7 See opinion No. 9/2018, para. 38.
8 See opinion No. 93/2017, para. 44.
9 See CCPR/C/78/D/878/1999, para. 7.2.
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on the freedom of expression must not be overbroad and recalled that such restrictions must
conform to the principle of proportionality, be appropriate to achieve their protective
function, be the least intrusive instrument among those which might achieve their protective
function and be proportionate to the interest to be protected. Moreover, the Committee, in
paragraph 38 of that general comment, emphasized that all public figures were legitimately
subject to criticism and political opposition, and expressed its concern regarding laws on
lese-majesty, disrespect for authority, defamation of the Head of State and the protection of
the honour of public officials, with a pointed reminder that laws should not provide for
more severe penalties solely on the basis of the identity of the person that may have been
impugned. The Committee emphasized, in paragraph 42 of that same general comment, that
the penalization of a media outlet, publishers or journalist solely for being critical of the
Government or the political social system espoused by the Government can never be
considered to be a necessary restriction of freedom of expression.
50.
In the same vein, the Working Group notes that the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression reiterated that
the right to freedom of expression includes the expression of views and opinions that
offend, shock or disturb.10 In addition, the Human Rights Council, in its resolution No.
12/16, paragraph 5 (p) (i), stated that restrictions on discussion of government policies and
political debate are not consistent with article 19 (3) of the Covenant.
51.
The aforementioned analysis sheds specific light on this case. Ms. Chayapha was
arrested, detained, prosecuted and imprisoned under sections 112 (lese-majesty) and 116
(sedition) of the Penal Code for her Facebook messages allegedly referring to the royal
family’s involvement in politics and a purported military counter-coup against the junta.
52.
The Government claimed, in its initial clarifications, that the lese-majesty law had
the objective of respecting the rights or reputation of the royals and regents, a legitimate
restriction upon the freedom of expression under article 19 (3) (a) of the Covenant.
However, in the Working Group’s assessment, the purported objective of the lese-majesty
law can hardly be considered as a valid ground for a necessary restriction of freedom of
expression, given that all public figures can be legitimately subject to criticism and political
opposition. In this specific case, the Working Group cannot but also consider that the
detrimental effects of the lese-majesty law and its application on Ms. Chayapha’s freedoms
and the chilling effect for the public far outweigh any potential benefits. In this vein, the
Working Group has been unable to find Ms. Chayapha’s deprivation of liberty under
sections 112 (lese-majesty) and 116 (sedition) of the Penal Code, and criminal provisions
per se, necessary or proportional for the purposes set out in article 19 (3) of the Covenant.
53.
The Working Group notes that, on 8 July 2014, following the invocation of the
nationwide martial law on 20 May 2014, the Government notified of its derogation from
certain provisions of the Covenant, pursuant to article 4 of the Covenant. However, no
derogation has been notified with regard to article 9 of the Covenant.11 The Working Group
expresses its concern at the 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.
54.
The Working Group therefore considers that Ms. Chayapha’s deprivation of liberty
is arbitrary under category II, as it resulted from her exercise of the rights or freedoms
guaranteed under articles 18 and 19 of the Universal Declaration of Human Rights and
articles 18 and 19 of the Covenant.
Category III
55.
Given its finding that Ms. Chayapha’s deprivation of liberty is arbitrary under
category II, the Working Group wishes to emphasize that no trial of Ms. Chayapha should
have taken place. However, with the trial having taken place, the Working Group will now
10 See A/HRC/17/27, para. 37.
11 See depositary notification C.N.479.2014.TREATIES-IV.4.
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consider whether the alleged violations of the right to a fair trial and due process were
grave enough to give her deprivation of liberty an arbitrary character, so that it falls within
category III.
56.
The Working Group considers that the Bangkok Military Court did not provide a
public hearing, as required under article 14 (1) of the Covenant, given that Ms. Chayapha
was tried, convicted and sentenced in closed sessions, from which observers from
international human rights organizations and foreign diplomatic missions were excluded.
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 her
trial.12
57.
In addition, to reiterate the Working Group’s prior findings, Thai military courts
cannot be considered competent, independent or impartial as required under article 10 of
the Universal Declaration of Human Rights and article 14 (1) of the Covenant. 13 Thai
military courts can hardly be considered 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.
58.
Trials of civilians and the placing of civilians in preventive detention by military
courts are in violation of the Covenant and customary international law, as confirmed by
the 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.14
59.
In addition, the Working Group notes that, in its general comment No. 32 (2007) on
the right to equality before courts and tribunals and to a fair trial, the Human Rights
Committee stated that 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. 22). In the
present case, Ms. Chayapha was informed of the nature and cause of the charges against her
four days after her arrest, a delay for which the Government provided no explanation, in
violation of article 14 (3) (a) of the Covenant. In addition, she was not informed of her right
to legal assistance, did not have access to a lawyer when she was being interrogated by the
police and was not given adequate time and facilities for the preparation of her defence, in
breach of article 14 (3) (b) and (d) of the Covenant.15
60.
The Government failed to respect Ms. Chayapha’s presumption of innocence, in
violation of article 11 (1) of the Universal Declaration of Human Rights, article 14 (2) of
the Covenant and principle 36 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. In broadcasting her confession before trial,
the Government violated her right to be presumed innocent and prejudiced her rights to a
fair trial. The Working Group recalls that all public officials have a duty to refrain from
prejudging the outcome of a trial, for example by abstaining from making public statements
affirming the guilt of the accused. 16 While the presumption of innocence needs to be
balanced with the public’s right to information in a democratic society, the latter must be
proportionate to the former.17
61.
The Working Group would also like to consider the military court’s refusal to grant
Ms. Chayapha 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
12 See also opinions No. 56/2017, para. 57, No. 51/2017, para. 42, and No. 44/2016, para. 31.
13 Opinions No. 56/2017, para. 58, and No. 51/2017, para. 43.
14 See A/HRC/27/48, para. 68.
15 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 the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles
10, 11 (1), 15 and 17–19.
16 See opinion No. 33/2017, para. 86 (e). See also Human Rights Committee general comment No. 35
(2014) on liberty and security of person; and CCPR/C/69/D/770/1997 and Corr.1, paras. 3.5 and 8.3.
17 See opinions No. 83/2017, para. 79, and No. 57/2017, para. 56.
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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. 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.18
62.
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
military coup of 22 May 2014 were released on bail pending trial. In Ms. Chayapha’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 those accused of lese-majesty offences casts serious doubt
on the individualized determination of Ms. Chayapha’s flight risk. The Working Group is
therefore of the view that the Government has not fully met the burden of demonstrating the
necessity for Ms. Chayapha’s pretrial detention.
63.
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 the deprivation of liberty of Ms.
Chayapha an arbitrary character that falls within category III. Ms. Chayapha’s guilty plea is
of questionable validity as it is unlikely that informed consent or an informed decision can
be made without legal counsel.
64.
The Working Group wishes to express its grave concern about the pattern of
arbitrary detention in cases involving the lese-majesty laws of Thailand. 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.19
65.
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.
Country visit to Thailand
66.
The Working Group would like to reiterate that it would welcome the opportunity to
conduct a country visit to Thailand, in accordance with the request it made on 6 April 2017,
so that it can engage with the Government constructively and offer assistance to address its
serious concerns relating to the arbitrary deprivation of liberty.20 The Working Group notes
in particular the recent cases that it has considered.21 The Working Group also notes that
Thailand has issued a standing invitation to all special procedure mandate holders since 4
November 2011 and looks forward to an invitation to visit the country.
Disposition
67.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Chayapha Chokepornbudsri, being in
contravention of articles 2, 3, 7, 9, 10, 11, 12 and 14 of the Universal Declaration of
18 See A/HRC/19/57, paras. 48–58, and Human Rights Committee general comment No. 35 (2014),
para. 38.
19 See also opinions No. 56/2017, para. 72, and No. 51/2017, para. 57.
20 See also opinions No. 56/2017, para. 73, No. 51/2017, para. 58, and No. 44/2016, para. 28.
21 Opinions No. 56/2017, No. 51/2017, No. 44/2016, No. 15/2015, No. 43/2015, No. 41/2014, No.
19/2014 and No. 35/2012.
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Human Rights and of articles 2, 9, 14, 15, 17 and 26 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I, II and III.
68.
The Working Group requests the Government of Thailand to take the steps
necessary to remedy the situation of Ms. Chayapha 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.
69.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Chayapha immediately and accord
her an enforceable right to compensation and other reparations, in accordance with
international law.
70.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Chayapha and to take appropriate measures against those responsible for the violation of
her rights.
Follow-up procedure
71.
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 Ms. Chayapha has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms.
Chayapha;
(c)
Whether an investigation has been conducted into the violation of Ms.
Chayapha’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.
72.
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.
73.
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.
74.
The Government should disseminate through all available means the present opinion
among all stakeholders.
75.
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.22
[Adopted on 17 April 2018]
22 Human Rights Council resolution 33/30, paras. 3 and 7.