A/HRC/WGAD/2024/52, Opinion No. 52/2024 concerning Netiporn "Bung" Sanesangkhom...

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.24-22477 (E) 091224 091224

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 101st session, 11–15 November 2024

Opinion No. 52/2024 concerning Netiporn “Bung” Sanesangkhom

(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 11 July 2024 the Working Group

transmitted to the Government of Thailand a communication concerning Netiporn “Bung”

Sanesangkhom. The Government has not replied to the communication. 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).

* Mumba Malila did not participate in the discussion of the case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/52

General Assembly

Distr.: General

9 December 2024

Original: English

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Submissions

(a)

Communication from the source

(i)

Context

Netiporn “Bung” Sanesangkhom was a citizen of Thailand, born on 8 August 1995,

and a resident of Bangkok. Ms. Sanesangkhom was arrested on the basis of her participation

in a protest in 2022. She died on 14 May 2024, while in detention pending trial under

section 112 of the country’s Criminal Code (lèse-majesté law), which criminalizes insulting

or defamatory remarks about the monarchy.

Ms. Sanesangkhom began advocating for student rights and LGBTQIA+ rights in

mid-2021. She began in a support role, raising funds to facilitate activism by young people,

and later began taking part in protests. In 2021, she participated in a protest with a group

named “Bad Students”. She later joined the “Thalu Wang” group, a pro-democracy

organization comprised of young people who use performance art and public polls to

challenge social norms concerning the monarchy.

In addition to the charges under the lèse-majesté law, Ms. Sanesangkhom had been

convicted in one case and was facing charges in five other cases, including one other

lèse-majesté case.

For instance, in July 2021, Ms. Sanesangkhom was charged with trespassing and

damage to property for protesting in front of the Ministry of Public Health against the

coronavirus disease (COVID-19) vaccine policy. In November 2022, she picketed in front of

a shopping mall to condemn the alleged violent dispersal of an earlier protest and was charged

with trespassing. At the time of her death, that case was at the investigative stage.

In June 2023, she was charged, along with two other individuals, with trespassing and

damage to property in connection with a demonstration at Triam Udom Suksa Nomklao

School, which she had previously attended. That case was also at the investigative stage at

the time of her death.

In August 2023, Ms. Sanesangkhom protested in front of the Ministry of Culture,

calling for a senator to be stripped of an honorary national artistic designation for abstaining

from a parliamentary vote that ultimately prevented the Move Forward Party leader from

becoming Prime Minister. Ms. Sanesangkhom was charged with sedition, trespassing,

damage to public property, and violation of the Public Assembly Act. At the time of her

death, that case was also at the investigative stage. On the basis of that protest, her bail was

later revoked.

10.

In October 2023, Ms. Sanesangkhom and other members of the “Thalu Wang” group

attended the trial of a fellow group member. Ms. Sanesangkhom allegedly tried to climb onto

the fence adjacent to the court to communicate with the defendant, for which she was later

charged with contempt of court. In January 2024, she was found guilty and sentenced to one

month in prison.

11.

The additional lèse-majesté charge involved an informal poll. Specifically, in April

2022, Ms. Sanesangkhom conducted a peaceful informal poll on whether Thailand had

allowed the King to exercise his power indiscriminately. She was subsequently charged with

lèse-majesté, and at the time of her death, the trial was ongoing.

(ii)

Arrest and detention of Ms. Sanesangkhom under the lèse-majesté law

12.

Ms. Sanesangkhom was arrested on the basis of her participation in a pro-democracy

protest on 8 February 2022 and was charged with violating the lèse-majesté law. The protest

action in question entailed conducting a peaceful public opinion poll on whether the royal

motorcade had caused the public inconvenience. Subsequently, Ms. Sanesangkhom and the

other activists went to Srapathum Palace for a demonstration, where they had an altercation

with police officers. That incident, together with the conducting of the poll, is referred to as

the public poll incident.

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13.

On 10 March 2022, criminal proceedings were officially initiated against

Ms. Sanesangkhom, along with several other co-accused who participated in the public poll

incident. They were summoned, notified of the charges, and released on bail. The indictment

alleged that the group removed metal fences and made insulting comments to police officers.

The indictment also alleged that some of the group “expressed symbolically by raising three

fingers in a pro-democracy salute in front of Srapathum Palace,” and implied that this too

may have been an illegal action. The indictment does not allege that the activists engaged in

any violence.

14.

According to the indictment, Ms. Sanesangkhom and her co-accused violated the

lèse-majesté law because conducting the poll attacked the royal cortège. Furthermore, the

indictment suggested that traveling to the Palace in defiance of police orders also constituted

lèse-majesté, without explaining why this would be so.

15.

In addition to lèse-majesté, on the basis of the same facts, Ms. Sanesangkhom was

charged with sedition, on the notion that, according to the indictment, those involved in

conducting the poll intended to communicate to the monarchy that the general public was

disturbed by the royal cortège; this was neither conducted within the spirit of the Constitution,

nor duly expressed honest opinion or criticism, and had an intent to cause unrest and

disaffection among the people. Ms. Sanesangkhom was also charged with insulting and

resisting the orders of officials.

16.

Ms. Sanesangkhom was granted bail on the condition that, among other things, she

neither harmed the monarchy, nor posted on social media inviting, inciting, provoking or

inducing people to join rallies, nor joined a rally that may cause chaos in the country.

17.

On 13 March 2022, a group of activists, including Ms. Sanesangkhom, conducted

another public opinion poll on land expropriation. On 3 May 2022, Bangkok South Criminal

Court revoked Ms. Sanesangkhom’s bail on the basis thereof, finding that she had

participated in a protest that had caused unrest in society, in violation of the bail conditions.

She remained detained at Bangkok Women’s Central Correctional Institution from 3 May to

4 August 2022, during which she began a hunger strike that lasted 64 days. She filed eight

bail requests during that time.

18.

On 4 August 2022, Ms. Sanesangkhom was granted bail by Bangkok South Criminal

Court, on the condition that she did not cause further damage to the monarchy and did not

cause further disturbance. The Court also prohibited her from engaging in any action similar

to the alleged cause of action. Furthermore, she was prohibited from leaving the country,

prohibited from leaving her residence between 7.00 p.m. and 6.00 a.m. except as approved

by the Court, and ordered to report to the Court every 30 days.

19.

After being released on bail, Ms. Sanesangkhom remained active in the

pro-democracy movement, participating in several other protests. In August 2023, she

attended a protest at the Ministry of Culture demanding that a senator be stripped of his

national artist status after he abstained from the parliamentary vote to choose a prime

minister. During the protest, Ms. Sanesangkhom allegedly sprayed paint onto a royal flag.

20.

In September 2023, Ms. Sanesangkhom and 17 others were charged with sedition,

trespassing and public order offences. The charge sheet alleges that the 18 accused persons

set off fireworks, “sprayed colour” and “tied some dirty clothes to the wall surrounding the

protest area”. The charge sheet makes no allegations of injury or violence; as regards damage

to property, it assesses the damage to the marble nameplate of the Ministry of Culture at

8,000 baht, the costs of cleaning up and fixing traffic lanes and road surfaces in front of the

Ministry at B26,000 and other costs at B30,000.

21.

On 26 January 2024, Ms. Sanesangkhom’s bail was revoked on the basis of her

participation in the Ministry of Culture protest in August 2023 (for allegedly spraying paint

on the Queen’s flag). She was detained at the Bangkok Central Women’s Correctional

Institution. She began a hunger strike on 27 January 2024, calling for reform of the monarchy

and for the authorities to stop imprisoning people for holding or expressing dissenting

opinions.

22.

On 6 February 2024, she was transferred to a hospital due to her deteriorating health

condition. She was then transferred back and forth between the detention facility and the

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hospital several times over the next few months until suffering a cardiac arrest at

approximately 6.20 a.m. on 14 May 2024, at the detention facility.

23.

Medical personnel at the prison hospital reportedly attempted to revive her, including

by intubation, but failed. At 9.30 a.m., Ms. Sanesangkhom was transferred from the prison

hospital to Thammasat University Hospital. A coroner’s report noted that Ms. Sanesangkhom

arrived at the hospital with no vital signs and had a “faulty intubation”. She was pronounced

dead at Thammasat University Hospital at 11.22 a.m.

24.

The source submits that officials reportedly refused to provide Ms. Sanesangkhom’s

team with the CCTV footage from the prison hospital at the time of her death.

25.

The source notes that although the Prime Minister has promised an inquiry into

Ms. Sanesangkhom’s death, which would also look at possible negligence by prison officials

in managing her treatment, little progress appears to have been made.

(iii)

Legal analysis

26.

The source submits that the detention of Ms. Sanesangkhom was arbitrary and falls

under categories I, II and V of the Working Group.

Category I

27.

The source submits that Ms. Sanesangkhom’s imprisonment was arbitrary because it

was without legal basis. Her detention was based upon alleged lèse-majesté violations under

section 112 of the Criminal Code, a law that is vague and overly broad. Furthermore, the

revocation of Ms. Sanesangkhom’s bail was disproportionate and unnecessary.

28.

It is stated in article 9 of the Covenant that “no one shall be subjected to arbitrary

arrest or detention”. The Working Group has previously determined that “one of the

fundamental guarantees of due process is the principle of legality (nullum crimen, nulla

poena sine lege), including … the principle of certainty”. 2 The Working Group has

emphasized that under the principle of legality set forth in article 15 of the Covenant, “an act

can be punished only if, at the time of its commission, the act was the object of a valid,

sufficiently precise, written criminal law to which a sufficiently certain sanction was

attached”.3 Thus, “vaguely and broadly worded provisions, which cannot qualify as lex certa,

violate the due process of law undergirded by the principle of legality”.4 Under this principle,

individuals must be able to know what acts will be considered criminal and regulate their

conduct accordingly.5

29.

The source cites the Working Group’s earlier jurisprudence which highlighted the

danger posed by vague laws to protected rights.6 The Working Group has further clarified

that such laws afford the authorities unfettered discretion, thereby resulting in unjustified and

arbitrary criminalization of the legitimate exercise of the right to freedom of expression.7

30.

The source further recalls that the country’s lèse-majesté legislation, as codified in

section 112 of the Criminal Code, is vague and overly broad because it fails to define what

forms of expression constitute insults or threats to the monarchy, leaving “the determination

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

Working Group has repeatedly found that section 112 fails to provide a legal basis for

detention. 9 Ms. Sanesangkhom’s detention, which was based principally on alleged

violations of lèse-majesté, was therefore without legal basis and arbitrary.

2 Opinion No. 10/2018, para. 50.

3 Ibid.

4 Ibid., para. 52.

5 See also opinion No. 41/2017; and Human Rights Committee, general comment No. 34 (2011).

6 Opinion No. 9/2018, para. 44.

7 Opinions No. 20/2017, para. 35; No. 21/2014, paras. 25 and 26; and No. 27/2012, para. 38; and

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

8 Opinion No. 49/2023, para. 62.

9 See opinions No. 49/2023, No. 64/2021, No. 4/2019, No. 3/2018, No. 56/2017, No. 51/2017,

No. 44/2016, No. 43/2015 and No. 41/2014.

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31.

Moreover, Ms. Sanesangkhom’s detention was disproportionate and unnecessary.

Although she was initially granted interim relief in the form of bail, her bail was twice

revoked, for the second time on 26 January 2024, due to alleged protest actions.

32.

It is stated in article 9 (3) of the Covenant that “it shall not be the general rule that

persons awaiting trial shall be detained in custody”. The Human Rights Committee has stated,

in its general comment No. 35 (2014), 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. Accordingly, pretrial detention should not be mandatory for all

defendants charged with a particular crime, without regard to individual circumstances.10 The

Committee further states that courts must examine whether alternatives to pretrial detention

… would render detention unnecessary in the particular case.11

33.

The Working Group has applied this principle to find detention arbitrary where the

relevant authorities have failed to conduct an individualized assessment to determine whether

it is reasonable and necessary to keep an individual in pretrial detention.12 In addition, any

justification for detention must be substantiated with evidence, and cannot be based on mere

assumption.13 The Working Group has also found that vague and expansive standards such

as “public security”14 are insufficient to justify pretrial detention and that instead a “present,

direct and imperative threat” must be shown.15

34.

In the case of Ms. Sanesangkhom, she had her bail revoked on the basis that she had

violated a condition of the bail order of 4 August 2022. Specifically, the court revoked her

bail because she had allegedly “painted a colour on the Queen’s emblem in the royal flag”.

The court allegedly conducted no individualized assessment of whether detention was

reasonable and necessary and likewise failed to conduct even a cursory analysis of less

restrictive alternatives.

35.

The bail order permitted revocation of the bail on grounds that extended beyond the

objectives deemed legitimate under the Covenant. The source recalls that the Human Rights

Committee notes that pretrial detention can be imposed “for such purposes as to prevent

flight, interference with evidence or the recurrence of crime”.16 These limitations are geared

to ensuring that detention is reasonable and necessary.

36.

However, the order granting bail in Ms. Sanesangkhom’s case sets conditions that

refer broadly to causing further disturbance and damage to the monarchy. Even assuming

that the conditions fall under the objective of preventing “the recurrence of crime”, they are

far from sufficiently defined and are insufficient to justify pretrial detention.

37.

The fact that Ms. Sanesangkhom agreed that she would comply with these conditions

in order to obtain bail does not change the analysis. She would not have been able to escape

imprisonment in the absence of this agreement that she would not exercise her protected

rights, as has been true in numerous other cases where individuals have been charged with

lèse-majesté.

38.

In addition to the failure to conduct the requisite individualized analysis, the bail

conditions themselves violated the requirement under article 9 of the Covenant that detention

be imposed as a last resort and only where necessary and reasonable.

39.

The source concludes that Ms. Sanesangkhom’s pretrial detention is thus tragically

just one example of the larger-scale abuse of pretrial detention in lèse-majesté cases.

10 See para. 38.

11 Ibid.

12 See opinions No. 62/2017 and No. 56/2017.

13 Cedeño v. Bolivarian Republic of Venezuela (CCPR/C/106/D/1940/2010), para. 7.10.

14 Opinion No. 56/2017, para. 9.

15 Opinion No. 44/2017, para. 29.

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

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Category II

40.

It is argued that Ms. Sanesangkhom’s deprivation of liberty in response to the public

poll incident and the later revocation of her bail for her participation in a protest resulted from

her exercise of her right to freedom of expression and right to peaceful assembly, in violation

of articles 19 and 21 of the Covenant respectively.

41.

It is stated in article 19 (2) of the Covenant that “everyone shall have the right to

freedom of expression”, which includes the right to seek, receive and impart information and

ideas, including political discourse, commentary on public affairs, and discussion of human

rights.

42.

The Human Rights Committee has emphasized the importance of safeguarding public

debate and the ability to criticize public officials: “the value placed by the Covenant upon

uninhibited expression is particularly high in the circumstances of public debate in a

democratic society concerning figures in the public and political domain”. 17 In the

Committee’s words, “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”.18 As such, “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”.19

43.

Moreover, article 19 (3) of the Covenant provides that there are limited enumerated

grounds for restricting freedom of expression – such as for the protection of national security,

public order or public health – and that even then restrictions must be subject to stringent

conditions; restrictions must, among other things, be necessary and proportionate.

Additionally, restrictions on the right to freedom of expression must be “prescribed by law”.

44.

When assessing proportionality, the Human Rights Committee has held that “laws

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

that may have been impugned”.20 The source also notes that the European Court of Human

Rights has stated that defamation laws that afford more protection to kings than to ordinary

citizens violate the spirit of the Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on Human Rights), since “making insults

against the King a criminal offence” is “not necessary in a democratic society”.21

45.

The Working Group has emphasized that governments seeking to justify restrictions

to freedom of expression on the basis of one of the grounds set forth in article 19 (3) of the

Covenant must specifically identify relevant language in the speech at issue that creates a

threat. The Human Rights Committee has likewise found that, to restrict protected speech,

the authorities “must demonstrate in specific and individualized fashion the precise nature of

the threat, and the necessity and proportionality of the specific action taken, in particular by

establishing a direct and immediate connection between the expression and the threat”.22

46.

The Human Rights Committee has further emphasized the importance of safeguarding

public debate and the ability to criticize public officials: “the value placed by the Covenant

upon uninhibited expression is particularly high in the circumstances of public debate in a

democratic society concerning figures in the public and political domain”. 23 In the

Committee’s words, “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”, and “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”.24

17 See the Committee’s general comment No. 34 (2011), para. 34.

18 Ibid., para. 38.

19 Ibid.

20 Ibid.

21 European Court of Human Rights, Otegi Mondragon v. Spain (application No. 2034/07), judgment of

15 September 2011, para. 38.

22 See the Committee’s general comment No. 34 (2011), para. 35.

23 Ibid., para. 34.

24 Ibid., para. 38.

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47.

Ms. Sanesangkhom’s detention violated her right to freedom of expression for four

reasons. Firstly, section 112 of the lèse-majesté law is inconsistent with international

standards on freedom of expression. In addition to violating the proscription of vague and

overbroad restrictions on speech, the law criminalizes protected expression.25 The high value

of political speech is not outweighed by the State’s interest in protecting the reputation of the

monarchy from insults and defamation, particularly given the significant custodial penalties

imposed under this provision. Section 112 is far from the “least intrusive instrument amongst

those which might achieve their protective function”,26 rendering it both unnecessary and

disproportionate. The Human Rights Committee has called on States to consider

decriminalizing defamation and has stated that imprisonment for defamation is never an

appropriate penalty.

48.

Secondly, the revocation of Ms. Sanesangkhom’s bail was based on her protected right

to free expression, rendering her detention disproportionate and unnecessary on this basis.

Ms. Sanesangkhom’s bail was revoked because she had “painted a colour on the Queen’s

emblem in the royal flag”. It is argued that under international standards, penalties cannot be

imposed for insulting public officials, and defacing an emblem for expressive purposes is

protected by the right to freedom of expression. The Human Rights Committee has

specifically raised concerns regarding laws that penalize “disrespect for flags and symbols”.27

The Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression has found that criminal defamation laws, to which section 112 bears a strong

resemblance, may not be used to protect abstract or subjective notions or concepts, such as

the State, or national symbols. 28 There is no evidence in the bail revocation order that

Ms. Sanesangkhom’s conduct incited violence or posed a violent threat, or any other kind of

threat. The court’s analysis is limited to the fact that the conduct allegedly breached the bail

conditions.

49.

Thirdly, the basis for the charges themselves was protected expression – namely, the

conducting of an informal poll. Such polls were a core part of Thalu Wang’s expressive

protest activity. The European Court of Human Rights has held that article 10 of the European

Convention on Human Rights (protecting freedom of expression) applies to online polls and

articles about their results.29 The Human Rights Committee has likewise applied article 19 of

the Covenant to restrictions on the publication of poll results.30

50.

The authorities failed to establish a direct and immediate connection between the

expression and any threat.31 The indictment does not explain the rationale for restricting

Ms. Sanesangkhom’s speech. This kind of conclusory analysis is not sufficient to justify

restricting speech, much less detention.

51.

Even if the authorities had sought to justify Ms. Sanesangkhom’s prosecution and

detention on the basis of an asserted need to protect the monarchy’s reputation, it would still

have been disproportionate and unnecessary. Ms. Sanesangkhom’s expression fell short of

the level of gravity required for criminal prosecutions, which, as the Special Rapporteur on

the promotion and protection of the right to freedom of opinion and expression has

concluded, should be reserved for the most serious speech offences.32 And even if some

restriction might have been justified, imprisonment could not be. As the Human Rights

Committee has found in the analogous context of criminal defamation, “imprisonment is

never an appropriate penalty”.33

52.

Fourthly, the bail conditions themselves violated Ms. Sanesangkhom’s right to

freedom of expression. She was granted bail on condition that she did not cause further

25 See opinion No. 49/2023.

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

27 See the Committee’s general comment No. 34 (2011), para. 38.

28 A/HRC/14/23, para. 84.

29 See, for example, European Court of Human Rights, OOO Informatsionnoye Agentstvo

Tambov‑Inform v. Russia (application No. 43351/12), judgment of 18 August 2021.

30 Kim v. Republic of Korea (CCPR/C/84/D/968/2001).

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

32 A/66/290, paras. 20–36.

33 See the Committee’s general comment No. 34 (2011), para. 47.

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damage to the monarchy, did not cause further disturbance and did not engage in any action

similar to the alleged cause of action.34 The first and third conditions simply replicate the

vagueness that infects the lèse-majesté law itself. The vagueness is compounded by the use

of the term “damage”. This leaves open the question of what the threshold for “damage” is,

and from whose perspective this is to be assessed. The concept of “causing disturbance”35 is

equally vague. The Working Group found in a similar instance that the law in question was

extremely vague and lacked the requisite degree of precision and legal certainty.36 In the

present case, because the bail conditions themselves did not meet the requirement of being

“provided by law”, violating them should not have given rise to imprisonment.

53.

Ms. Sanesangkhom’s detention also violated her right to freedom of peaceful

assembly, in violation of article 21 of the Covenant.

54.

As noted by the Human Rights Committee, the rules governing freedom of expression

and freedom of peaceful assembly overlap: restrictions on peaceful assemblies must not be

used, explicitly or implicitly, to stifle expression of political opposition to a government,

challenges to authority, including calls for democratic changes of government, the

constitution or the political system, or the pursuit of self-determination.37 Given that peaceful

assemblies often have expressive functions, and that political speech enjoys particular

protection as a form of expression, it follows that assemblies with a political message should

enjoy a heightened level of accommodation and protection.38

55.

Permissible restrictions on the right to freedom of peaceful assembly are strictly

limited and must: (a) be prescribed by law (the principle of legality); (b) serve a legitimate

objective; and (c) be necessary to achieve and be proportionate to that objective.39 With

respect to the legitimacy of the objective, restrictions on the right to freedom of peaceful

assembly are only permitted for the protection of national security or public safety, public

order, public health or morals, and the rights and freedoms of others. “This is an exhaustive

list.”40

56.

Ms. Sanesangkhom’s participation in the public poll incident, particularly in the

demonstration that followed the polling itself and in the protest for which her bail was later

revoked, falls within the scope of protection of the right under article 21 of the Covenant to

freedom of peaceful assembly. The charge sheet for the public poll incident does not allege

that Ms. Sanesangkhom or her co-accused incited or threatened violence. As the Human

Rights Committee has established, “if the conduct of participants in an assembly is peaceful,

the fact that certain domestic legal requirements pertaining to an assembly have not been met

by its organizers or participants does not, on its own, place the participants outside the scope

of the protection of article 21”.41 Nor does the fact that some participants in the public poll

incident may have directed insulting language at the police or removed barricades deprive

the protest of protections. As the European Court of Human Rights has held, “being a part of

the security forces of the State, the police should display a particularly high degree of

tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent

unlawful actions in respect of their personnel and to expose them to a real risk of physical

violence.”42

57.

According to the Human Rights Committee, authorities may only restrict assemblies

on the grounds that they have crossed the threshold from peaceful to violent where they entail

34 Bangkok South Criminal Court, Interim Release Order.

35 The bail revocation order suggests that the condition may have been understood to extend even

further: it summarizes the condition as precluding any provocative message or any invitation to

participate in a demonstration which may potentially cause public disturbance. (Bangkok South

Criminal Court, Interim Release Revocation Order).

36 Opinion No. 8/2017, paras. 36 and 38.

37 See the Committee’s general comment No. 37 (2020), para. 49.

38 Ibid., para. 32.

39 Ibid., para. 36.

40 Ibid., para. 41.

41 Ibid., para. 16.

42 Terentyev v. Russia (application No. 10692/09), judgment of 4 February 2019, para. 77.

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the use of “force against others that is likely to result in injury or death, or serious damage to

property”.43

58.

As to the August 2023 protest in front of the Ministry of Culture, the bail revocation

order makes no mention of any alleged breach of public order, but rather focuses on the

alleged spraying of paint on the royal flag. The charge sheet, while referencing damage to

public property, does not indicate that there was any violence or injury to persons.

59.

Given that these were broadly peaceful assemblies seeking to express political views,

restrictions on those participating in them needed to satisfy the three-part test.

Ms. Sanesangkhom’s detention failed that test for the following four reasons.

60.

Firstly, section 112 does not satisfy the requirement that restrictions on participation

in peaceful assemblies be “provided by law”. Nor are the restrictions envisaged in section 112

necessary or proportionate.

61.

Secondly, the bail revocation in the present case violates article 21 of the Covenant.

The source recalls that the only matter mentioned on the bail revocation order is that “the

third defendant painted a colour on the Queen’s emblem in the royal flag”. 44 This is

insufficient to meet the requirements of legitimacy, necessity and proportionality, submits

the source.

62.

Thirdly, to the extent that the charges are predicated upon the public poll incident

protest, they are also not adequately justified, necessary or proportionate. The indictment

does not specify the extent to which the protest was a basis for charging the defendants with

violating section 112. According to the source, this does not establish a connection between

the assembly and any potential justification for restrictions. Furthermore, the specific

restrictions of prosecution and imprisonment are not a necessary or proportionate response

to a peaceful assembly, even accounting for the alleged minor verbal altercation between

police and protesters.

63.

Finally, the bail conditions themselves, to the extent that they restricted

Ms. Sanesangkhom’s ability to take part in peaceful assemblies – which they clearly did,

given that on two occasions her bail was revoked on the basis of such activism – were

unlawful because they were vague and overly broad.

Category V

64.

The source submits that Ms. Sanesangkhom’s detention constitutes a violation of

international law on the grounds of discrimination based on political opinion and on her status

as a human rights defender.

65.

Her detention is part of a well-established pattern of persecution by the authorities of

Ms. Sanesangkhom as well as of others who have been detained on the basis of their political

opinions and their activities as pro-democracy activists.

66.

The Working Group has highlighted several non-cumulative indicators that serve to

establish the discriminatory nature of detention based on actual or perceived political opinion.

These include the following: (a) the deprivation of liberty was part of a pattern of persecution

against the detained person, including for example through previous detention; (b) other

persons with similarly distinguishing characteristics have also been persecuted; (c) the

authorities have made statements to or have conducted themselves towards the detained

person in a manner that indicates a discriminatory attitude; (d) the context suggests that the

authorities have detained a person on discriminatory grounds or to prevent them from

exercising their human rights; and (e) the alleged conduct for which the person is detained is

only a criminal offence for members of his or her group.45

67.

The source argues that the first, second and fourth indicators apply to

Ms. Sanesangkhom, demonstrating the arbitrary nature of her detention under category V.

Firstly, the authorities have launched seven cases against Ms. Sanesangkhom arising from

43 See the Committee’s general comment No. 37 (2020), para. 15.

44 Bangkok South Criminal Court, Interim Release Revocation Order.

45 A/HRC/36/37, para. 48.

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her activism. Secondly, the source recalls that Thailand has prosecuted numerous others like

Ms. Sanesangkhom who are perceived to have criticized the monarchy. Thirdly, the context

suggests that Ms. Sanesangkhom was detained in order to prevent her from exercising her

rights to freedom of peaceful assembly and freedom of expression.

68.

Furthermore, there is an overlap between category II freedom-of-expression claims

and category V claims based on political opinion. When the deprivation of liberty results

from the exercise of civil and political rights, such as the right to freedom of expression or

association, there is a strong presumption that the deprivation of liberty also constitutes a

violation of international law on the grounds of discrimination based on political or other

views.46 The source submits that this presumption applies in favour of Ms. Sanesangkhom.

69.

Additionally, the Working Group has previously found violations of category V based

on discrimination against individuals for their status as human rights defenders.47

70.

Ms. Sanesangkhom participated in peaceful assemblies and publicly criticized

lèse-majesté prosecutions and other rights-restrictive laws. For this, she was repeatedly

subjected to criminal proceedings and detention. As such, her deprivation of liberty in the

present case also constitutes a category V violation as part of a pattern of persecution for her

activities as a human rights defender.48

71.

The source concludes that the Government detained Ms. Sanesangkhom on the basis

of a vague law for conducting an informal poll and participating in a protest, and then again

for refusing to stop exercising her rights. The source notes that this case exemplifies how the

cycle of detention, bail (subject to repressive conditions) and then the threat of or the actual

revocation of bail serves to chill speech and protest in the country.

(b)

Response from the Government

72.

On 11 July 2024, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group requested

the Government to provide detailed information by 9 September 2024 about the

circumstances of Ms. Sanesangkhom’s deprivation of liberty. The Working Group also

requested the Government to clarify the legal provisions justifying her 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.

73.

The Working Group regrets that it did not receive a response from the Government to

the present communication. The Government did not request an extension of the time limit

for its reply, as is provided for in the Working Group’s methods of work.

Discussion

74.

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

to render the present opinion, in conformity with paragraph 15 of its methods of work. As a

preliminary issue, the Working Group takes note that Ms. Sanesangkhom died while in

custody and is therefore no longer detained. There is no provision in the Working Group’s

methods of work that precludes consideration of a case in such circumstances. Indeed, the

Working Group considers it necessary to render an opinion given that the allegations relating

to Ms. Sanesangkhom’s deprivation of liberty in Thailand and subsequent death in custody

are serious and warrant further attention.49

75.

In determining whether Ms. Sanesangkhom’s detention was 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

46 Opinion No. 88/2017, para. 43.

47 See opinions No. 26/2017 and No. 48/2017.

48 Opinion No. 26/2017, para. 57.

49 See opinions No. 55/2018, para. 59; and No. 50/2017, para. 53 (c); and opinion No. 36/2020.

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Government if it wishes to refute the allegations.50 In the present case, the Government has

chosen not to challenge the prima facie credible allegations made by the source.

(a)

Category I

76.

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 was arbitrary under category I because it is impossible to invoke any legal

basis justifying Ms. Sanesangkhom’s detention under section 112 of the Criminal Code, as it

violates the principle of legality under international human rights law.

77.

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.51

Briefly, that includes the following:

(a)

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

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

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

exercise of freedom of expression;52

(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 freedom of expression and their incompatibility with

article 19 of the Covenant.53 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 freedom of expression under

international human rights law.54 The Office of the United Nations High Commissioner for

Human Rights has expressed similar concerns;55

(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 punishment of between 3 and 15 years’ imprisonment. The

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 have resulted in extensive periods of imprisonment in

some cases. The Committee has 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 violates article 19;56

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

51 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.

52 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.

53 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, available from

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

54 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.

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

briefing note on Thailand”, 13 June 2017. See also Office of the United Nations High Commissioner

for Human Rights, Regional Office for South-East Asia, press release dated 28 March 2017.

56 CCPR/C/THA/CO/2, paras. 37 and 38; United Nations Educational, Scientific and Cultural

Organization (UNESCO) submission to the Working Group on the Universal Periodic Review at its

thirty-ninth session 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 and 59.

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(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

matters of concern. The Government was urged to bring its lèse-majesté laws into conformity

with its international commitments.57

78.

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

Criminal Code, pursuant to which Ms. Sanesangkhom was deprived of her liberty, was vague

and overly broad. 58 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.

79.

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

section 112 of the Criminal Code, the Working Group is convinced that Ms. Sanesangkhom

was being detained pursuant to legislation that expressly violates international human rights

law. As a result, there was no legal basis for her detention. The Working Group also recalls

its extensive jurisprudence in which it has found that detention pursuant to a law that is

inconsistent with international human rights law lacks a legal basis and is therefore

arbitrary.59

80.

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

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

and regulate their conduct accordingly.60 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 defined

with sufficient precision due to its vague and overly broad language.61 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.

81.

The source also asserts that Ms. Sanesangkhom’s pretrial detention violated her right

to liberty pending trial, under article 9 (3) of the Covenant. The source recalls that such

prolonged pretrial detention has been due both to the court’s rejections of

Ms. Sanesangkhom’s bail requests and, once accorded, to the court’s revocation of such bails,

on the basis of alleged infringement of the bail conditions. According to the source, these

decisions were not based on individualized assessments of the circumstances of

Ms. Sanesangkhom’s case.

82.

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

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

Rights Committee that pretrial detention should be the exception and should 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. 62 Courts must examine whether

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

review: A/HRC/49/17, paras. 158.130–158.138, 158.141, 158.142, 159.18 and 159.50–159.63.

58 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. 64, 66 and 70.

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