A/HRC/WGAD/2024/28, Opinion No. 28/2024 concerning Arnon Nampa (Thailand)

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.24-17649 (E) 081024 081024

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 100th session, 26–30 August 2024

Opinion No. 28/2024 concerning Arnon Nampa (Thailand)

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

In accordance with its methods of work, 1 on 4 March 2024 the Working Group

transmitted to the Government of Thailand a communication concerning Arnon Nampa. The

Government submitted a late response on 4 June 2024. The State is a party to the International

Covenant on Civil and Political Rights.

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).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/28

General Assembly

Distr.: General

9 October 2024

Original: English

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Submissions

(a)

Communication from the source

Mr. Arnon Nampa is a citizen of Thailand born on 18 August 1984.

According to the source, Mr. Nampa is a human rights lawyer and pro-democracy

activist. Since mid-2020, he has been known as one of the prominent protest leaders who

publicly advocated for democratic reforms in Thailand and for the reform of the monarchy.

Mr. Nampa has been the subject of multiple communications from the special procedures of

the Human Rights Council to the authorities.2

The source states that Mr. Nampa is being deprived of his liberty following two prison

sentences imposed in connection with two lèse-majesté cases (Black Case No. Aor.

2495/2564 and Black Case No. Aor. 2804/2564). The source explains that, by the time he

was indicted for lèse-majesté in those two cases, he was already being detained at the

Bangkok Remand Prison in connection with other lèse-majesté cases. The present

communication focuses on the two cases in which Mr. Nampa has been convicted and

sentenced to prison terms (Black Case No. Aor. 2495/2564 and Black Case No. Aor.

2804/2564).

(i)

Detention and cases against Mr. Nampa

With regard to case 1 (Black Case No. Aor. 2495/2564), the source indicates that, on

16 December 2020, in response to a police summons, Mr. Nampa presented himself to

Samranrat Police Station in Bangkok to acknowledge nine charges, including one charge

under section 112 (lèse-majesté) of the Criminal Code, in connection with his participation

in a peaceful protest on 14 October 2020 in Bangkok. After acknowledging the charges,

Mr. Nampa was not arrested and was free to leave. The source adds that the lèse-majesté

charge was based on Mr. Nampa’s speech during the above-referenced peaceful protest, in

which he called for the resignation of the then Prime Minister, the amendment of the

Constitution and the reform of the monarchy.

On 7 October 2021, Mr. Nampa was indicted under, inter alia, section 112 of the

Criminal Code in connection with his participation in a peaceful protest on 14 October 2020

in Bangkok.

The source notes that this was the tenth case in which Mr. Nampa was indicted under

section 112 of the Criminal Code. Because of the detention order issued against him by the

Bangkok Criminal Court, Mr. Nampa remained in detention at the Bangkok Remand Prison

after the 7 October 2021 indictment.

10.

Between 7 October 2021 and 22 February 2022, Mr. Nampa submitted a total of eight

bail requests (on 14, 19 and 26 October 2021; 3, 5 and 9 November 2021; 2 December 2021;

and 22 February 2022) to the Bangkok Criminal Court. The Court denied the first seven bail

requests and granted the eighth bail request. In his first bail request on 14 October 2021,

Mr. Nampa offered 200,000 baht (approximately $5,550) as a surety and maintained that, if

released, he would not flee as he had a usual place of residence and because of his work as a

lawyer. However, the Bangkok Criminal Court considered the seriousness of the charge, the

circumstances of the case and the severity of potential punishment before denying his bail

request. The Court stated that, if released, Mr. Nampa may flee. Subsequent bail requests

were denied on similar grounds.

11.

On 22 February 2022, the Bangkok Criminal Court granted Mr. Nampa’s eighth bail

request (as well as his other bail requests in eight other lèse-majesté cases before the Court)3

at 100,000 baht (approximately $2,770), subject to several restrictive conditions, such as the

prohibition to engage in activities or conduct that would tarnish the monarchy or the Court

2 See communications THA 2/2018, THA 4/2018, THA 7/2020, THA 11/2020 and THA 5/2023. All

communications in the present report are available from

https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

3 Black Cases Nos. Aor. 287/2564, 1629/2564, 2804/2564, 2847/2564, 2887/2564, 2888/2564,

2948/2564 and 3124/2564.

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and the prohibition on participating in public assemblies “that may cause disorder in society”.

Mr. Nampa was also required to wear an electronic monitoring device at all times and not to

leave his residence between 9 p.m. and 6 a.m., except for medical reasons or to travel to a

police station.

12.

The source notes that with respect to case 1 alone, Mr. Nampa was held in detention

at the Bangkok Remand Prison from 7 October 2021 to 22 February 2022 for a total of 139

days.

13.

Despite the granting of bail in nine cases before the Bangkok Criminal Court on

22 February 2022, Mr. Nampa continued to remain in detention at the Bangkok Remand

Prison, because the Bangkok South Criminal Court had yet to grant bail to him in two other

cases, one of which was a lèse-majesté case.4 He was eventually granted bail in those two

cases by the Bangkok South Criminal Court on 28 February 2022. Overall, that detention

period lasted from 11 August 2021 to 28 February 2022 for a total of 202 days.

14.

On 26 September 2023, the Bangkok Criminal Court found Mr. Nampa guilty of lèse-

majesté and sentenced him to four years in prison. The Court also fined him 20,000 baht

(approximately $555) for violation of an emergency decree, which was in force at the time

of the alleged offence.5

15.

Shortly after the delivery of the verdict, as the case was pending appeal, Mr. Nampa

submitted a bail request to the Bangkok Criminal Court, which, in turn, transferred the

request to the Court of Appeals for consideration. Mr. Nampa was detained at the Bangkok

Remand Prison while waiting for an order from the Court of Appeals.

16.

The source notes that usually the Court of Appeals would take two to three days to

issue a bail order. However, on 28 September 2023, two days after the submission of the bail

request, Mr. Nampa’s lawyer called an officer at the Court of Appeals and discovered that

the Court had not received Mr. Nampa’s bail request. When the lawyer called an officer at

the Bangkok Criminal Court, the officer confirmed that the request had not been sent to the

Court of Appeals. The officer informed the lawyer that the transfer would be made that day.

17.

On 30 September 2023, the Court of Appeals issued an order denying Mr. Nampa’s

bail request. In the order, the Court explained that Mr. Nampa’s conduct “affected and

damaged the democratic form of government with the King as the head of State”, which was

a “serious matter”. Considering the four-year prison term imposed by the Bangkok Criminal

Court, the Court of Appeals stated that “there was a reason to believe that, if released,

Mr. Arnon Nampa would flee”.

18.

On similar grounds, the Court of Appeal denied Mr. Nampa’s four additional bail

requests. He remains imprisoned at the Bangkok Remand Prison as his case is at the appeals

stage.

19.

With regard to case 2 (Black Case No. Aor. 2804/2564), the source recalls that, on

23 June 2021, in response to a summons (dated 17 May 2021) from the Technology Crime

Suppression Division, Mr. Nampa reported himself to the Division to acknowledge charges

under section 112 of the Criminal Code and article 14 (3) (entering data constituting a

national security offence into a computer system) of the Computer Crimes Act (2007). After

acknowledging the charges, Mr. Nampa was allowed to leave.

20.

The source states that the charges in case 2 originate from two posts by Mr. Nampa

on 1 January 2021 and one post on 3 January 2021 on Facebook. In his first Facebook post,

published on 1 January 2021, Mr. Nampa reportedly questioned the reasons why losing faith

in the monarchy system should be criminalized and the need for section 112 of the Criminal

Code. In his second Facebook post, published on 1 January 2021, Mr. Nampa reportedly

criticized the monarchy as well as the heavy penalties under section 112 of the Criminal Code

for voicing such criticisms. He also stated that, if the matter were true and of public interest,

people should be able to speak about it and to criticize it. In his third Facebook post, published

on 3 January 2021, Mr. Nampa questioned whether those who opposed reform of the

4 Black Case No. Aor. 1671/2564.

5 Emergency Decree on Public Administration in Emergency Situations (2005).

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monarchy disagreed with him or whether they opposed the idea simply because the idea was

presented by him or people on his side. He also reiterated his criticisms of the monarchy.

21.

On 12 November 2021, the prosecutor submitted an indictment order to the Bangkok

Criminal Court against Mr. Nampa under section 112 of the Criminal Code and article 14 (3)

of the Computer Crimes Act.

22.

The source notes that Mr. Nampa was not brought to the Bangkok Criminal Court on

that day because he was being detained in the Bangkok Remand Prison in connection with

two other lèse-majesté cases before the Court (Black Case No. Aor. 1629/2564 and case 1)

and one lèse-majesté case before the Bangkok South Criminal Court (Black Case No. Aor.

1671/2564).

23.

On 15 November 2021, Mr. Nampa was brought to the Bangkok Criminal Court

where the indictment order was read to him. The Court then issued a detention order against

Mr. Nampa.

24.

On 2 December 2021, Mr. Nampa submitted a bail request to the Bangkok Criminal

Court, which scheduled a hearing on 17 December 2021.

25.

On 17 December 2021, the prosecutors informed the judge that they would not be able

to submit a motion opposing Mr. Nampa’s bail request on the day. The prosecutors then

asked the judge to allow them to submit the motion on 22 December 2021. Despite

Mr. Nampa’s objection, the judge allowed the prosecutors to submit their motion by

23 December 2021 and noted that he would rule on the bail request on 24 December 2021.

26.

On 24 December 2021, the Bangkok Criminal Court denied Mr. Nampa’s bail request.

The Court stated that it considered Mr. Nampa’s speech and its potential to cause

“disturbance” in society, as well as the other criminal cases pending against him. The Court

also stated that there was reason to believe that, if released, Mr. Nampa would engage in

“similar acts” or “cause other dangers”.

27.

On 22 February 2022, Mr. Nampa submitted his second bail request in respect of case

2, as well as bail requests in eight other cases. The Bangkok Criminal Court granted

Mr. Nampa’s bail request in case 2 at 100,000 baht (approximately $2,770) and imposed

several restrictive conditions, as already reported in paragraph 11 above.

28.

The source notes that with respect to case 2 alone, Mr. Nampa was held in detention

at the Bangkok Remand Prison from 15 November 2021 to 22 February 2022 for a total of

100 days.

29.

Despite the granting of bail on 22 February 2022, Mr. Nampa continued to remain in

detention at the Bangkok Remand Prison as the Bangkok South Criminal Court had yet to

grant bail to him in two other cases, one of which was a lèse-majesté case. He was eventually

granted bail in all cases on 28 February 2022 after his detention had begun on 11 August

2021.

30.

On 17 January 2024, the Bangkok Criminal Court found Mr. Nampa guilty of

violating section 112 of the Criminal Code and article 14 (3) of the Computer Crimes Act

and sentenced him to four years in prison. The four-year prison sentence in case 2 and the

four-year prison sentence in case 1 will have to be served consecutively, which means

Mr. Nampa’s prison term currently stands at eight years.

31.

On 16 February 2024, Mr. Nampa submitted a bail request to the Bangkok Criminal

Court, which, in turn, transferred the request to the Court of Appeals for consideration. On

18 February 2024, the Court of Appeals denied the bail request. The Court noted that

Mr. Nampa’s action “affected and damaged the democratic form of government with the

King as the Head of State”, which was a “serious matter”. Furthermore, the Court noted that

Mr. Nampa had previously received another four-year prison sentence on 26 September 2023.

For those reasons, the Court stated that it had a reason to believe that, if released, Mr. Nampa

would flee.

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(ii)

Legal analysis

32.

The source submits that the deprivation of liberty of Mr. Nampa is arbitrary and falls

within categories I, II, III and V of the Working Group.

Category I

33.

In relation to category I, the source maintains that Mr. Nampa’s deprivation of liberty

under section 112 of the Criminal Code lacks a legal basis. It recalls that, according to the

well-established jurisprudence of the Working Group, detention pursuant to a law that is

inconsistent with international human rights law lacks a legal basis and is thus arbitrary.6

Furthermore, according to article 9 (1) of the Covenant, any deprivation of liberty must be

carried out in accordance with such procedure as is established by law.

34.

The source submits that Mr. Nampa’s detention under section 112 of the Criminal

Code is arbitrary, as it violates the principle of legality under international human rights law,

which requires that laws be formulated with sufficient precision so that the individuals can

access and understand the law and regulate their conduct accordingly.7

35.

In that regard, the source recalls that the Working Group has consistently found

section 112 to be vague and overly broad as it does not define what kinds of expression

constitute defamation, insult or threat to the monarchy, and leaves the determination of

whether an offence has been committed entirely to the discretion of the authorities.8

36.

The source states that Mr. Nampa has never called for people to engage in lawless

actions or to resort to any violence. The source argues that in their judgments in lèse-majesté

cases, courts have regularly failed to provide clear criteria or parameters to explain why they

had determined that certain conduct or statements amounted to a violation of section 112 of

the Criminal Code. Consequently, in the source’s view, it is impossible to know where the

line between permissible and impermissible criticism of the monarchy is drawn, according

to domestic law.

Category II

37.

In relation to category II, the source submits that Mr. Nampa’s deprivation of liberty

is the direct result of his exercise of his right to freedom of expression, guaranteed by article

19 (2) of the Covenant, to which Thailand is a State party. The source recalls that, under

article 19 (3) of Covenant, restrictions on the right to freedom of expression are justified only

if they are provided by law and are necessary (a) for respect of the rights or reputations of

others and (b) for the protection of national security or of public order, or of public health or

morals. The source submits that section 112 of the Criminal Code fails to meet those

requirements.

38.

The source recalls that, according to the Human Rights Committee, in circumstances

of public debate concerning public figures in the political domain and public institutions, the

value placed by the Covenant upon uninhibited expression is particularly high. Thus, 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, albeit public figures may also benefit from

the provisions of the Covenant. Moreover, 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.9

39.

The source submits that Mr. Nampa’s previous and ongoing deprivation of liberty

under section 112 of the Criminal Code has ensued from his peaceful speeches criticizing or

calling for reform of the monarchy. In particular, the source argues, in relation to case 1, that

the right of Mr. Nampa to make a speech such as the one he made on 14 October 2020,

alleging that the King had the sole authority to order the dispersal of protests, is guaranteed

by article 19 (2) of the Covenant. Such a statement represents a legal observation that contains

6 Opinion No. 64/2021, para. 57.

7 Opinion No. 49/2023, para. 64.

8 Ibid., para. 62.

9 Human Rights Committee, general comment No. 34 (2011), para. 38 (footnotes omitted).

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no judgment, notes the source. The source reiterates that Mr. Nampa has neither insulted nor

defamed the King.

40.

The source adds that, even assuming that Mr. Nampa’s expression constituted a

criticism of the King, international human rights law protects speeches criticizing the King

as the Head of State “in the exercise of his official duties or … in his capacity as

representative of the State which he symbolises”. The source maintains that the King’s

“inviolability” under the Constitution (i.e. immunity from legal proceedings) “should not in

itself act as a bar to free debate concerning possible institutional or even symbolic

responsibility on his part in his position at the helm of the State”.10 Mr. Nampa’s suggestion

that the King had the sole authority to order the dispersal of protests must be seen within the

larger context of the Government – which the King symbolizes – dispersing peaceful protests

in the second half of 2020.

41.

Furthermore, in relation to case 2, the source maintains that Mr. Nampa’s three

Facebook posts are protected by article 19 (2) of the Covenant. As noted by the Human Rights

Committee, article 19 (2) protects political discourse, commentary on public affairs and

discussion of human rights. The Committee has stated that article 19 (2) embraces even

expression that may be regarded as deeply offensive,11 subject to the restrictions under article

19 (3). Mr. Nampa’s three Facebook posts published in January 2021 highlighted the use of

section 112 of the Criminal Code and the human rights issues to which it gave rise.

Mr. Nampa expressed his opinion that no one should be imprisoned for speaking about the

monarchy. The source concludes that his political expressions clearly fell within the ambit of

expressions protected by article 19 (2) of the Covenant.

42.

The source notes that the Human Rights Committee has explained 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.12 The Committee noted that imprisonment was never an

appropriate penalty13 for defamation. The Working Group has also held in its jurisprudence,

specifically with reference to lèse-majesté in Thailand, that, if a speech defames any

individuals, the remedy will lie in a civil libel claim rather than in criminal sanctions.14

43.

In addition, the source submits that, despite section 112 of the Criminal Code being

categorized as a provision to prosecute national security offences, Thailand has consistently

failed to demonstrate in specific and individualized fashion the precise nature of the threat,

in particular by establishing a direct and immediate connection between the expression and

the threat.15 It is unclear how Mr. Nampa’s peaceful expressions criticizing the monarchy

posed a threat to national security or public order. As the Human Rights Committee has

explained, it is not compatible with paragraph 3, for instance, to invoke such laws to suppress

or withhold from the public information of legitimate public interest that does not harm

national security or to prosecute journalists, researchers, environmental activists, human

rights defenders, or others, for having disseminated such information.16

44.

Lastly, the source argues that the mandatory 3 to 15 years of imprisonment prescribed

by section 112 of the Criminal Code violates the proportionality principle under international

human rights law. The Working Group has consistently held that imprisonment under section

112 of the Criminal Code is a disproportionate penalty for the exercise of fundamental

rights. 17 Similarly, it is submitted that Mr. Nampa’s eight-year prison term is a

disproportionate response to his peaceful expression criticizing the monarchy.

45.

Regarding the proportionality principle, the Bangkok Criminal Court, in its judgment

of 17 January 2024 in case 2, attempted to explain that the penalty of 3 to 15 years of

10 European Court of Human Rights, Otegi Mondragon v. Spain, Application No. 2034/07, Judgment,

15 March 2011, para. 56.

11 Human Rights Committee, general comment No. 34 (2011), para. 11 (footnotes omitted).

12 Ibid., para. 38.

13 Ibid., para. 47.

14 Opinion No. 56/2017, para. 53.

15 Human Rights Committee, general comment No. 34 (2011), para. 35.

16 Ibid., para. 30.

17 See, for example, opinion No. 49/2023, para. 69.

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imprisonment under section 112 is a proportionate response to Mr. Nampa’s criticism of the

King. Responding to Mr. Nampa’s statement that people should be able to criticize the King,

the Court explained that, because the King is “beloved by the people”, any insults directed at

the King necessarily “hurt the feelings” of the Thai people.18 The Court noted that the State

must afford special protection to the King, being the King, the Head of State and the

“embodiment of nationhood and unity”.19 The Court further noted that lèse-majesté is a crime

with no exceptions or defences: as such, it is a more serious offence than defamation against

ordinary citizens, for which the Court maintained there were exceptions and defences.20 The

Court added that the Constitution recognized the King as “sacred” and “inviolable”.21

46.

The source in turn maintains that the King’s “inviolability” under the Constitution22

does not justify the excessively long prison sentence of 3 to 15 years under international

human rights law. It notes that the Human Rights Committee has specifically stated that laws

should not provide for more severe penalties solely on the basis of the identity of the person

who may have been impugned.23

Category III

47.

In the context of category III, the source argues that Mr. Nampa’s pretrial detention

in relation to case 1 (for 139 days) and case 2 (for 100 days) violated his right to liberty

pending trial under article 9 (3) of the Covenant.

48.

Under article 9 (3) of the Covenant, the general rule is that persons awaiting trial

should not be detained in custody. As the Working Group has explained, 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. Detention should not be ordered on the basis of the

potential sentence for the crime but should be based on a determination of its necessity.

Courts must examine whether alternatives to pretrial detention, such as bail, would render

detention unnecessary in the particular case.24

49.

In case 1, Mr. Nampa spent 139 days in pretrial detention after he had been indicted

on 7 October 2021 under section 112 of the Criminal Code. His first seven bail requests25

were denied by the Bangkok Criminal Court, which cited the “seriousness of the charge” and

“the severity of potential punishment” as reasons for believing that, if released, Mr. Nampa

would flee. Furthermore, the Court believed that, if released, Mr. Nampa would cause “other

dangers” or “other harm” in society. Similarly, in case 2, the Bangkok Criminal Court’s

denial of bail on 24 December 2021 was based on its belief that, if released, Mr. Nampa

would engage in “similar acts” again or “cause other dangers”. The Court cited Mr. Nampa’s

speech and its potential to cause “disturbance” in society, as well as other criminal cases

against him to support its belief.

50.

The source submits that, contrary to international law, the Bangkok Criminal Court

failed to conduct an individualized determination as to whether Mr. Nampa’s pretrial

detention was reasonable or necessary. The source recalls that the Working Group has

previously held in another lèse-majesté case in Thailand that courts cannot rely on the

severity of potential punishment for lèse-majesté offences to deny bail.26 For those reasons,

the source submits that the manner in which article 108 (1) of the Criminal Procedure Code

is being applied in Mr. Nampa’s case has been overly broad and arbitrary.

18 Bangkok Criminal Court, Prosecutor v. Arnon Nampa, Black Case No. Aor. 2804/2564, Judgment,

17 January 2024, p. 22.

19 Ibid.

20 Ibid. pp. 22 and 23. See also articles 326 (criminal defamation), 329 (good-faith criticisms are

exempt) and 330 (truth is a defence to criminal defamation) of the Criminal Code.

21 Prosecutor v. Arnon Nampa, Black Case No. Aor. 2804/2564, p. 24.

22 Constitution, art. 6.

23 Human Rights Committee, general comment No. 34 (2011), para. 38.

24 Opinion No. 64/2021, para. 76.

25 Submitted on 14, 19 and 26 October, 3, 5 and 9 November and 2 December 2021.

26 Opinion No. 64/2021, para. 78.

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51.

In addition, according to the source, Mr. Nampa’s conduct for which he was being

detained was protected by article 19 (2) of the Covenant. Therefore, refusing to grant bail to

Mr. Nampa in order to prevent him from “engaging in similar acts” violated his right to

freedom of expression and to liberty pending trial.

52.

The source further notes that, in relation to the Bangkok Criminal Court’s concerns

that, if released, Mr. Nampa would cause “other dangers”, according to the Human Rights

Committee, factors to consider when deciding whether to grant bail should not include vague

and expansive standards such as “public security”.27 Grounds for detention must be defined

with sufficient precision to avoid overly broad or arbitrary interpretation or application.28 The

source submits that the Bangkok Criminal Court has never clarified what “other dangers”

meant. The Court has also never referred to any evidence to support its concern about the

“dangers” that Mr. Nampa may cause.

53.

Moreover, the source sustains that Mr. Nampa’s imprisonment after having been

found guilty of lèse-majesté in case 1 (on 26 September 2023) and case 2 (on 17 January

2024) violates his fundamental right to liberty under article 9 (1) of the Covenant.

54.

Finally, also in relation to category III, the source submits that Mr. Nampa’s right to

be tried without undue delay under article 14 (3) (c) of the Covenant was violated.

55.

The source recalls that article 14 (3) (c) of the Covenant guarantees that, in the

determination of any criminal charge, everyone shall be “tried without undue delay”.

Similarly, the Human Rights Committee has noted that an important aspect of the fairness of

a hearing is its expeditiousness.29 The Committee has also noted that, in cases in which the

accused are denied bail by the court, they must be tried as expeditiously as possible.30 In its

most recent opinion on detention under the lèse-majesté law of Thailand, the Working Group

explained that the reasonableness of any delay in bringing a case to trial must be assessed in

the circumstances of each case, taking into account the complexity of the case, the conduct

of the accused and the manner in which the matter had been dealt with by the authorities.31

The Working Group also held that any delay in trying a person whose detention is arbitrary

under category II is unreasonable.32

56.

The source notes that in case 1, Mr. Nampa was charged on 16 December 2020 and

indicted on 7 October 2021. He was then subjected to pretrial detention between 7 October

2021 and 22 February 2022 for 139 days. His trial began on 20 June 2023, or 916 days after

a criminal charge was formally brought against him. It argues that such a period before the

commencement of the trial is excessively long. The trial lasted from 20 June to 5 July 2023,

with a total of 10 hearings.

57.

Similarly, it is noted that, in case 2, Mr. Nampa was charged on 23 June 2021 and

indicted on 15 November 2021. He was then subjected to pretrial detention from

15 November 2021 to 22 February 2022 for 100 days. His trial began on 21 April 2023 or

667 days after a criminal charge was formally brought against him. Such a period before the

commencement of the trial is excessively long. The trial lasted from 21 April to 23 November

2023, with a total of 11 hearings.

58.

The facts related to both lèse-majesté cases for which Mr. Nampa is being imprisoned

do not require technically complex or in-depth investigations. The Working Group has

previously found that a delay of more than a year and a half after arrest violated the right

under article 14 (3) (c) of the Covenant.33 The allegations against the subject of that opinion

(livestreaming on Facebook) are very similar to those against Mr. Nampa in case 2, notes the

source.

27 Human Rights Committee, general comment No. 35 (2014), para. 38.

28 Ibid., para. 22.

29 Human Rights Committee, general comment No. 32 (2007), para. 27.

30 Ibid., para. 35.

31 Opinion No. 49/2023, para. 75.

32 Ibid.

33 Ibid., para. 76.

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Category V

59.

Lastly, in relation to category V, the source submits that Mr. Nampa’s deprivation of

liberty is based on his political opinions and his status as a human rights defender.34

60.

The source submits that Mr. Nampa’s deprivation of liberty stems from his political

opinions deemed by authorities to be critical of the monarchy and the Government. His

criticism of the monarchy, the use of section 112 of the Criminal Code and his views on the

Government’s policies on the monarchy are key reasons for his deprivation of liberty.35

61.

Furthermore, the source also submits that Mr. Nampa is being targeted because of his

status as a human rights defender. His human rights work and status as a human rights

defender have been recognized by the special procedures of the Human Rights Council in

numerous instances, including by the Special Rapporteur on the independence of judges and

lawyers and the Special Rapporteur on the situation of human rights defenders.36

62.

Since 2020, Mr. Nampa has been charged in a total of 26 cases – 14 of which are

lèse-majesté cases – all in connection with his human rights activities, concludes the source.

Additional information received from the source

63.

On 26 July 2024, the Working Group received an update from the source that, on

25 July 2024, Mr. Nampa was sentenced to four additional years, on another count of

lèse-majesté, bringing his total sentence to 14 years. The source noted that this was his fourth

conviction and that he was facing 10 additional charges.

(b)

Response from the Government

64.

On 4 March 2024, 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 by 3 May 2024 about the current situation

of Mr. Nampa. The Working Group also requested the Government to clarify the legal

provisions justifying his detention, as well as their compatibility with the obligations of the

Government of Thailand under international human rights law and, in particular, with regard

to the treaties ratified by the State. Moreover, the Working Group called upon the

Government to ensure Mr. Nampa’s physical and mental integrity.

65.

The Government submitted its response on 4 June 2024, which was after the set

deadline. 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. Consequently, the Working Group

cannot accept the reply as if it were presented within the time limit.

Discussion

66.

In the absence of a timely response from the Government, the Working Group has

decided to render the present opinion, in conformity with paragraph 15 of its methods of

work.

67.

In determining whether Mr. Nampa’s detention is arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international law constituting arbitrary

detention, the burden of proof should be understood to rest upon the Government if it wishes

to refute the allegations.37 In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

34 A/HRC/48/55, paras. 46–50.

35 Opinions No. 12/2019, para. 131; and No. 91/2020, paras. 65 and 66.

36 See communications THA 2/2018, THA 4/2018, THA 7/2020, THA 11/2020 and THA 5/2023.

37 A/HRC/19/57, para. 68.

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(a)

Category I

68.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without any legal basis. The source argues

that the detention is arbitrary under category I because it is impossible to invoke any legal

basis justifying Mr. Nampa’s detention under section 112 of the Criminal Code, as it violates

the principle of legality under international human rights law.

69.

In considering whether that provision meets international standards, the Working

Group has taken into account relevant analysis of lèse-majesté offences in Thailand carried

out by the Working Group and other international human rights mechanisms in recent years.38

Briefly, that includes the following:

(a)

In its jurisprudence relating to Thailand, the Working Group has consistently

found that the detention of individuals under section 112 of the Criminal Code and article 14

of the Computer Crimes Act to be arbitrary under category II when it resulted from the

peaceful exercise of the freedom of expression;39

(b)

In numerous communications to the Government, special procedure mandate

holders have expressed concern about the lèse-majesté provisions of the Criminal Code,

including their use in restricting the freedom of expression and their incompatibility with

article 19 of the Covenant.40 The Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression has stated that lèse-majesté provisions have no

place in a democratic country and are incompatible with the freedom of expression under

international human rights law.41 The Office of the United Nations High Commissioner for

Human Rights has expressed similar concerns;42

(c)

In its concluding observations on the second periodic report of Thailand, the

Human Rights Committee expressed its concern that criticism and dissension regarding the

royal family was subject to a punishment of between 3 and 15 years’ imprisonment. The

Human Rights Committee also expressed concern about reports of a sharp increase in the

number of persons detained and prosecuted for the crime of lèse-majesté since the military

coup and about extreme sentencing practices, which resulted in extensive periods of

imprisonment in some cases. The Human Rights Committee explicitly urged the Government

to review section 112 of the Criminal Code 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;43

(d)

During the most recent consideration of Thailand under the universal periodic

review mechanism of the Human Rights Council, in November 2021, the lèse-majesté laws

and restrictions on the right to freedom of opinion and expression were frequently raised as

38 Relevant examples of this analysis are also given in opinions No. 51/2017, paras. 28–40; and

No. 56/2017, paras. 36 and 42–55. For more recent examples, see opinions No. 4/2019, paras. 48 and

49; No. 64/2021, paras. 54–58; and No. 49/2023, paras. 61–64.

39 See opinions No. 35/2012, No. 41/2014, No. 43/2015, No. 44/2016, No. 51/2017 and No. 49/2023.

The Working Group has also made similar findings in relation to lèse-majesté laws in other countries:

see, for example, opinions No. 28/2015, No. 48/2016 and No. 20/2017.

40 See communications THA 5/2011, THA 9/2011, THA 10/2011, THA 13/2012, THA 1/2014,

THA 3/2014, THA 13/2014, THA 9/2015, THA 1/2017, THA 7/2017, THA 3/2019, THA 8/2020,

THA 11/2020, THA 6/2021, THA 1/2023 and THA 2/2023.

41 See, for example, UN News, “UN rights expert urges Thailand to loosen restrictions around

monarchy defamation law”, 7 February 2017. See also A/HRC/14/23/Add.1, paras. 2361–2409; and

A/HRC/29/25/Add.3, para. 366.

42 See, for example, Office of the United Nations High Commissioner for Human Rights, “Press

briefing note on Thailand”, 13 June 2017, available at https://www.ohchr.org/en/2017/06/press-

briefing-note-thailand.

43 CCPR/C/THA/CO/2, paras. 37 and 38. See also United Nations Educational, Scientific and Cultural

Organization, submission to the thirty-ninth session of the Working Group on the Universal Periodic

Review for the third cycle review of Thailand, para. 4; and United Nations country team submission

for the third cycle review of Thailand, “Implementation of international human rights obligations,

considering applicable international humanitarian law”, April 2021, paras. 58–59.

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matters of concern. Delegations urged the Government to bring its lèse-majesté laws into

conformity with its international commitments.44

70.

The Working Group recalls its jurisprudence in which it found that section 112 of the

Criminal Code, pursuant to which Mr. Nampa is being prosecuted, was vague and overly

broad.45 Section 112 of the Criminal Code does not define what kinds of expression constitute

defamation, insult or threat to the monarchy, and leaves the determination of whether an

offence has been committed entirely to the discretion of the authorities.

71.

Given that considerable body of findings in relation to the lèse-majesté provisions in

section 112 of the Criminal Code, the Working Group is convinced that Mr. Nampa is being

detained pursuant to legislation that expressly violates international human rights law. As a

result, there is no legal basis for his detention. The Working Group also recalls its extensive

jurisprudence in which it found that detention pursuant to a law that was inconsistent with

international human rights law lacked a legal basis and was therefore arbitrary.46

72.

As the Working Group has stated, the principle of legality requires that laws be

formulated with sufficient precision so that individuals can access and understand the law

and regulate their conduct accordingly.47 The Working Group considers that section 112 of

the Criminal Code is so vague as to be inconsistent with international human rights law. It is

thus incompatible with article 11 (2) of the Universal Declaration of Human Rights and

article 15 (1) of the Covenant and cannot be considered to be prescribed by law and as defined

with sufficient precision due to its vague and overly broad language.48 Given the continuing

international concern regarding the country’s lèse-majesté laws, the Government should

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.

73.

The source also asserts that Mr. Nampa’s pretrial detention in case 1 (for 139 days)

and case 2 (for 100 days) violated his right to liberty pending trial under article 9 (3) of the

Covenant. The source recalls that such prolonged pretrial detention has been due to the

Court’s rejection of Mr. Nampa’s numerous bail requests. According to the source, these

decisions were not based on individualized assessments of the circumstances of Mr. Nampa’s

case.

74.

Article 9 (3) of the Covenant provides that it shall not be the general rule that persons

awaiting trial shall be detained in custody. The Working Group recalls the view of the Human

Rights Committee that pretrial detention should be an exception and be as short as possible

and 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.49 Courts must examine whether alternatives to

pretrial detention, such as bail or other conditions, would render detention unnecessary in the

particular case.50 Detention should not be ordered on the basis of the potential sentence for

the crime but should be based on a determination of its necessity. While the Government in

its late reply states that the court’s decisions were based on repeated offences, seriousness of

the charges and the sentences imposed, as the Working Group has previously held (in another

lèse-majesté case in Thailand), courts cannot rely on the severity of potential punishment for

lèse-majesté offences to deny bail.51

44 A/HRC/49/17, paras. 52.56–52.62. See also the recommendations made during the second cycle

review: A/HRC/33/16, paras. 158.130–158.138, 158.141, 158.142, 159.18 and 159.50–159.63.

45 Opinions No. 51/2017, para. 32; No. 56/2017, para. 45; No. 4/2019, para. 55; No. 64/2021, paras. 55

and 56; and No. 49/2023, paras. 62, 64, 66 and 70.

46 See, for example, opinions No. 43/2017, para. 34; No. 40/2018, para. 45; and No. 69/2018, para. 21.