International organisations, including FIDH and OMCT within the framework of the Observatory for the Protection of Human Rights Defenders, call on the Thai government to end the abuse of the judicial process and the arbitrary detention of human rights defenders, activists, and protesters. Additionally, they urge a thorough and independent investigation into the death in custody one month ago of Netiporn 'Bung' Sanesangkhom.
AI Index Number: ASA 39/8157/2024
Tawee Sodsong
Minister of Justice
404 Chaeng Watthana Rd,
Thung Song Hong Sub-district, Lak Si District,
Bangkok 10210
June 14, 2024
Dear Minister of Justice,
RE: REQUEST to BRING AN END TO the abuse of the judicial
process and Arbitrary Detention of HUMAN RIGHTS DEFENDERS, ACTIVISTS AND
PROTESTERS, and TO investigate the death in custody of Netiporn ‘Bung’
Sanesangkhom
We, the undersigned organisations, write this open letter to request
you take urgent and immediate steps to end the ongoing abuse of the
judicial process and apparent arbitrary detention of human rights
defenders, activists and protesters in Thailand, solely because of their
exercise of their right to peaceful protest.
Our organisations remain concerned that, in contravention of
Thailand’s obligations under international human rights law and
standards, the Thai authorities are initiating criminal proceedings
against individuals solely because they have exercised their rights to
freedom of expression and peaceful assembly, leading to their being
convicted and often sentenced to imprisonment as a result. The ongoing
abuse of the judicial process extends to systematically denying human
rights defenders, activists and protesters temporary release on bail.
We also request a prompt, thorough, transparent, independent,
impartial and effective investigation into the circumstances of the
death in custody of activist Netiporn ‘Bung’ Sanesangkhom
on May 14, 2024 (see below), while she was arbitrarily detained. We
urge the government to provide redress as appropriate for the loss of
her life. Bung carried out two lengthy hunger-strikes prior to her death
to protest against the restrictive environment preventing pro-democracy
activists and human rights defenders from exercising their rights, and
against the abuse of the judicial process to target, silence and, detain
activists, protesters and human rights defenders, including herself. [1]
We call on the Thai government to take the opportunity provided by
its candidature for membership of the United Nations Human Rights
Council between 2025 and 2027 to demonstrate its commitment to upholding
and protecting international human rights law. With respect to this, we
further urge the government to take immediate steps to address the
concerns outlined below and ensure Thailand’s compliance with its
international human rights obligations to protect the rights to freedom
of expression, peaceful assembly and association, and other human
rights, and create a safe and enabling environment for human rights
defenders to exercise and defend their own rights as well as those of
others.
Abuse of the judicial process
Since mass protests calling for political and social reforms started
in 2020, the Thai authorities have targeted human rights defenders,
activists and protesters solely for their participation in peaceful
protests or for expressing their opinions, often with protracted
criminal proceedings that lead to criminal and civil sanctions.
According to statistics gathered by Thai Lawyers for Human Rights
(TLHR), between July 2020 and May 2024, the authorities initiated
criminal proceedings against at least 1,954 individuals in 1,296 cases,
including 286 young persons under 18 years old, for participating in
peaceful protests or expressing their opinions online and offline. [2]
At least 424 persons, including children, face charges under the
Criminal Code for offences related to “security”, carrying lengthy
prison terms upon conviction. In this connection, Thai authorities have
initiated proceedings against at least 272 persons for lèse-majesté
(Article 112) and 152 persons for sedition (Article 116). [3] In addition, at least 202 people were charged under the Computer Crimes Act (CCA) in connection with their online expressions. [4]
At the time of writing, trials were still ongoing in at least 729
cases, and at least 717 individuals are facing potential sentences
linked to their exercise of their rights to freedom of expression and
peaceful assembly. [5]
Courts have handed down prison sentences, with some individuals notably
being sentenced to up to 50 years for lèse-majesté offences. [6]
UN human rights bodies and independent experts have raised concerns
about the use of criminal provisions to criminalise the legitimate
exercise of the right to freedom of expression, including with respect
to their use in Thailand, due to their incompatibility with
international human rights law. [7]
The UN Human Rights Committee, for example, has held that “imprisonment
is never an appropriate penalty” for defamation-related offences [8] and has expressed concern over criminal provisions, including sedition and lèse-majesté under the Criminal Code and the CCA. [9]
The restrictive, overbroad, ambiguous or imprecise language of these
criminal provisions fails to narrow down the scope of the punishable
offences in question with a clear definition of the criminalised
conduct, establishing its elements and the factors that distinguish it
from conduct that is not criminally proscribed. As such, these criminal
provisions fail to meet the requirements of international law with
respect to the principle of legality; the limited and narrowly defined
legitimate fundamental public interests allowed under international
human rights law (namely, for the protection of the fundamental rights
and freedoms of others, national security, public safety, public order,
public health or public morals); necessity; proportionality;
non-arbitrariness and non-discrimination. [10]
As a result, these criminal provisions give officials wide discretion
to unduly limit the rights to freedom of expression and peaceful
assembly in the name of public security, order and health, and allow for
the imposition of lengthy prison terms.
Regardless of whether criminal proceedings lead to prosecution,
imprisonment or fines, their use may have the effect of further
undermining the enjoyment of defendants’ rights. Individuals are
required to commit time and other resources to defend themselves against
unwarranted charges. Children and young people are particularly
impacted by abuse of the judicial process which may result in stigma and
compromise their ability to fully enjoy their right to education. [11]
Arbitrary detention
According to TLHR, as of June 6, 2024, at least 43 individuals
involved in protests were in detention, 19 of whom had been sentenced to
imprisonment and 24 of whom were still in pre-trial detention. [12] Of the 24 people, 17 were charged with t lèse-majesté offences. [13] The Thai authorities repeatedly held prominent protesters in detention and denied them temporary release on bail. [14]
Under international human rights law and standards guaranteeing the
right to liberty and the presumption of innocence, there is a
presumption that people charged with a criminal offence will not be
detained while awaiting trial. [15]
The UN Human Rights Committee has held that a defendant may only be
detained pending trial in exceptional circumstances where the
authorities must demonstrate that their deprivation of liberty pending
trial is both necessary and proportionate, for example, in cases where
there is substantial reason to believe that if released, the individual
would abscond or commit a serious offence or interfere with the
investigation or obstruct the course of justice. [16]
In addition, pre-trial detention should not be mandatory for all
defendants charged with a particular crime, nor should it be ordered for
a period based on the potential sentence for the crime charged rather
than on a determination of necessity. [17]
Further, the UN Working Group on Arbitrary Detention (UNWGAD) has
repeatedly and consistently found Thailand’s detention of individuals
solely as a result of their peaceful exercise of their right to freedom
of expression, including under lèse-majesté provisions and article 14
of the Computer Crimes Act, to be arbitrary. [18]
The UNWGAD has expressed grave concern at a pattern of arbitrary
detention resulting in serious harm to society by causing a chilling
effect and leading individuals to “[refrain] from debates on matters of
public interest in order to avoid prosecution.” It has called on the
Thai authorities to release individuals arbitrarily detained in
violation of Thailand’s human rights obligations, including the right to
liberty, the right to a fair trial and the right to freedom of opinion
and expression under Articles 3, 8, 9, 10 and 19 of the Universal
Declaration of Human Rights and Article 2, 9, 14 and 19 the
International Covenant on Civil and Political Rights (ICCPR), by which
Thailand is bound as a State party. [19]
The United Nations Human Rights Committee [20] and UN Special Procedures, [21] as well as governments during the Universal Periodic Reviews [22]
, have made further recommendations to the Thai government to stop
arbitrarily detaining individuals and imposing excessive restrictions on
the legitimate exercise of the rights to freedom of expression and
peaceful assembly.
Death in custody
Netiporn ’Bung’ Sanesangkhom, a 28-year-old woman activist, was among
those who were denied bail and was held in arbitrary detention twice
due to her peaceful activism. Netiporn faced seven criminal charges
because of her involvement in the protest movement, including one charge
of lèse-majesté which stemmed from peacefully conducting a public
opinion poll on February 8, 2022 about road traffic controls imposed
during royal motorcades. [23]
She was initially granted temporary release pending her trial, but on
May 3, 2022, the Southern Bangkok Criminal Court revoked bail and
remanded her in custody in the lèse-majesté case mentioned above because
Netiporn had continued to take part in peaceful assemblies and had
violated a bail condition requiring her to refrain from “joining a
protest that causes public disorder”. [24] She then went on her first hunger strike until she was temporarily released on August 4, 2022. [25]
More recently, in a separate case, on January 26, 2024, Netiporn was
sentenced to one month’s imprisonment for contempt of court. [26]
In late February 2024, her detention was then extended, as the Bangkok
Criminal Court t revoked bail and remanded her in custody for the same
aforementioned lèse-majesté case against her, which was still pending. [27]
Starting on January 27, 2024, she went on her second hunger strike,
this time for more than 65 days, to protest her detention and the
detention of other activists. [28]
Eventually, she reportedly suffered a cardiac arrest on May 14, 2024
and passed away, while in the Central Women’s Correctional Institute
Hospital. [29]
Under international human rights law and standards, the Thai
authorities must respect, protect, and fulfill the right to life of
everyone under their jurisdiction, including people in detention. There
is a presumption of State liability for arbitrary deprivation of life
that arises in connection with custodial deaths. Such presumption may be
rebutted only when the State is exonerated of any liability through a
prompt, thorough, effective, independent, impartial and transparent
investigation into the circumstances and causes of such a death, which
is an essential requirement to uphold the right to life. [30]
Thailand is further obligated under international human rights law to
provide medical care for everyone deprived of their liberty. Thailand
is a State Party to the International Covenant on Economic, Social and
Cultural Rights, the United Nations Committee on Economic, Social and
Cultural Rights has stated that governments must respect the right to
health by ensuring equal access to health services for all persons,
including prisoners. [31]
The 1990 UN Basic Principles for the Treatment of Prisoners stipulate
that prisoners should have access to the same health services as the
general population in a country without discrimination. [32]
Additionally, the revised 2015 UN Standard Minimum Rules for the
Treatment of Prisoners (Nelson Mandela Rules) restate that right and
mandate prompt access to medical attention in urgent cases and the
transfer of prisoners requiring specialised treatment or surgery to
appropriate facilities, which can also be civil hospitals if needed. [33]
Recommendations
The abuse of the judicial process and the arbitrary detention of
human rights defenders, activists and protesters constitute violations
of Thailand’s obligations under international human rights law, as would
any failure to effectively investigate the custodial death of Netiporn
‘Bung’ Sanesangkhom. The Thai government must act to uphold its
commitments to protect human rights and ensure the rights to freedom of
expression, peaceful assembly, liberty and security of person, due
process guarantee, and the right to life, among other rights, are
respected. The Thai authorities need to take immediate steps outlined
below to address the concerns raised in this letter and to demonstrate
their adherence to their international human rights obligations, with a
view to fostering an environment where human rights are fully respected
and protected. These actions are essential to comply with the ICCPR and
other international standards.
To end the abuse of the judicial process and the arbitrary detention
of human rights defenders and activists, we call on the Thai authorities
to:
• Respect, protect and fulfil the rights of everyone, including
of children and other young people, to freedom of expression,
association and peaceful assembly;
• Conduct a thorough review of the bail process to align it with
international human rights law and standards, ensuring that detention in
connection with the legitimate exercise of human rights is arbitrary
and unlawful, and pre-trial detention be the exception rather than the
rule;
• Immediately and unconditionally release individuals from
arbitrary detention, drop criminal investigations and prosecutions and
quash convictions related solely to their exercise of their rights to
freedom of expression and peaceful assembly;
• Repeal or amend laws used to stifle peaceful dissent, including
by bringing the lèse-majesté (Article 112) and sedition (Article 116)
provisions and the CCA in line with international human rights law and
standards on freedom of expression, as recommended by the Human Rights
Council’s Special Procedures and the UN Human Rights Committee; and
• Establish regular, structured dialogue with civil society
organisations to address concerns referred to in this letter and involve
them in relevant policy-making processes.
To address the concerns around the death in custody of Netiporn, take the following actions:
• Conduct a prompt, effective, thorough, independent, impartial
and transparent investigation into the circumstances and cause of
Netiporn’s death, in line with international human rights law and
standards, including in the Minnesota Protocol on the Investigation of
Potentially Unlawful Death (2016), to establish accountability and
prevent future occurrences;
• Provide appropriate forms of remedy, including compensation and
other forms of reparations, as warranted in line with international
law; and
• Ensure the right to health for all detainees, as a minimum as
mandated by the Nelson Mandela Rules, including by providing prompt
access to medical attention and necessary specialised treatment or
surgery as needed.
The undersigned organisations remain committed to working with
relevant government agencies to provide any additional information you
may need in order to fulfill these recommendations.
Footnotes
[1] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้, 14 May 2024, https://tlhr2014.com/archives/66964
[2] Thai Lawyers for Human Rights, พฤษภาคม 2567: จำนวนผู้ถูกดำเนินคดีทางการเมืองยอดรวม 1,954 คน ใน 1,296 คดี, 5 June 2024, https://tlhr2014.com/archives/67575
[3] Thai Lawyers for Human Rights, พฤษภาคม 2567: จำนวนผู้ถูกดำเนินคดีทางการเมืองยอดรวม 1,954 คน ใน 1,296 คดี (previously cited).
[4] Thai Lawyers for Human Rights, พฤษภาคม 2567: จำนวนผู้ถูกดำเนินคดีทางการเมืองยอดรวม 1,954 คน ใน 1,296 คดี (previously cited).
[5] Information documented by Thai Lawyers for Human Rights
[6] See Amnesty International, “Thailand: 87-year prison sentence handed in harshest lèse-majesté conviction,” 19 January 2021, https://www.amnesty.org/en/latest/press-release/2021/01/thailand-87-prison-sentence-lese-majeste and Guardian, “Man jailed for record 50 years for criticising Thai monarchy” 18 January 2024, https://www.theguardian.com/world/2024/jan/18/man-jailed-for-record-50-years-for-criticising-thai-monarchy#: :text=A%20Thai%20man%20has%20been,a%20
legal%20rights%20group%20said.
[7] UN
Human Rights Committee, Concluding observations on the second periodic
report of Thailand, 25 April 2017, UN Doc. CCPR/C/THA/CO/2, paras 35-38,
https://www.ohchr.org/en/documents/concluding-observations/ccprcthaco2-concluding-observations-second-periodic-report (‘2017 Concluding Observations’)
[8] International
Covenant on Civil and Political Rights, Article 19; Human Rights
Committee, General Comment No. 34 on Article 19: Freedoms of opinion and
expression, 12 September 2011, UN Doc. CCPR/C/GC/34, paras 30, 38 and
47, https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
[9] UN Human Rights Committee, 2017 Concluding Observations (previously cited).
[10] For
further analysis of the laws against international human rights law and
standards, see: ICJ, Dictating the Internet: Curtailing Free
Expression, Opinion and Information Online in Thailand, April 2021, Part
III, https://www.icj.org/wp-content/uploads/2021/06/Thailand-Dictating-the-Internet-FoE-Publication-2021-ENG.pdf
[11] Amnesty
International Thailand, ‘แอมเนสตี้-ศูนย์ทนาย’ ดำเนินคดีของเด็กและเยาวชน
3 ปี สร้าง 7 ผลกระทบ แนะ 6 ข้อ ก. ยุติธรรม, 21 พฤศจิกายน 2566, https://www.amnesty.or.th/latest/news/1190
[12] Thai Lawyers for Human Rights, รายชื่อผู้ต้องขังทางการเมือง 2567, 6 June 2024, https://tlhr2014.com/archives/63015
[13] Thai Lawyers for Human Rights, รายชื่อผู้ต้องขังทางการเมือง 2567 (previously cited).
[14] This
pattern of arbitrary detention through the denial of bail has been
ongoing since 2021. See, for example, Amnesty International, Urgent
Action: Peaceful protestors may face 100+ years in prison, 24 March
2021, Index: ASA 39/3891/2021, https://www.amnesty.org/fr/wp-content/uploads/2021/05/ASA3938912021ENGLISH.pdf; and Amnesty International, Thailand: Immediately drop unjustified charges against protest leader, 24 September 2021, https://www.amnesty.org/en/latest/news/2021/09/amnesty-thailand-protest-leader-arrest/;
Thai Lawyers for Human Rights, The expanding universe of legal
persecutions: Examining various developments following the #19Sept
protest (Part 2), 29 June 2021, https://tlhr2014.com/en/archives/31397
[15] Human
Rights Committee, General Comment No. 35 on Article 9: Liberty and
security of person, 16 December 2014, UN Doc. CCPR/C/GC/35, https://www.ohchr.org/en/calls-for-input/general-comment-no-35-article-9-liberty-and-security-person, para 38.
[16] Human Rights Committee, General Comment No. 35 on Article 9: Liberty and security of person (previously cited).
[17] Human Rights Committee, General Comment No. 35 on Article 9: Liberty and security of person (previously cited).
[18] See
the UN Working Group on Arbitrary Detention (UNWGAD), Opinions adopted
by the Working Group on Arbitrary Detention at its ninety-seventh
session, 28 August–1 September 2023, 23 October 2023, UN Doc.
A/HRC/WGAD/2023/49, para 61(a). The UNWGAD also referred to its opinions
No. 35/2012, No. 41/2014, No. 43/2015, No. 44/2016 and No. 51/2017,
which made the same assessment.
[19] UNWGAD,
Opinions adopted by the Working Group on Arbitrary Detention at its
ninety-seventh session, 28 August–1 September 2023, para 71-72
(previously cited).
[20] UN
Human Rights Committee, Concluding observations on the second periodic
report of Thailand, 25 April 2017, UN Doc. CCPR/C/THA/CO/2, https://documents.un.org/doc/undoc/gen/g17/099/90/pdf/g1709990.pdf?token=co1x9EVLWuVMLTDQbb&fe=true, para 25-26.
[21] See
recent examples of such communications from UN Special Rapporteurs at
UN Special Procedures, Joint allegation letter, 13 March 2024, UN Doc.
AL THA 3/2024, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28802; and UN Special Procedures, Joint allegation letter, 5 May 2023, UN Doc. AL THA 2/2023, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28064
[22] Thailand
received at least four recommendations on arbitrary arrest and
detention of activists during the Universal Periodic Review in 2021. See
United Nations Human Rights Council, Report of the Working Group on the
Univesal Periodic Review: Thailand, 21 December 2021, UN Doc.
A/HRC/49/17, recommendation 52.47 by Mexico (“Decriminalize freedom of
expression and peaceful assembly and avoid the detention of minors for
exercising these rights”), recommendation 52.52 by Austria (“Guarantee
the rights to freedom of expression and assembly and stop targeting
civilians engaging in peaceful protests under criminal charges entailing
punishment with exorbitant prison terms”), recommendation 52.60 by
Sweden (“Amend article 112 of the criminal code on royal defamation to
bring it into line with Thailand’s international human rights
obligations under the International Covenant on Civil and Political
Rights and, as an intermediate step, remove mandatory minimum prison
terms for violations of that provision”) and recommendation 52.83 by
Ireland (“End arbitrary detentions, arrests and any acts of harassment
against political actors and civil society, including human rights
defenders”).
[23] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited).
[24] Thai
Lawyers for Human Rights, ศาลสั่งถอนประกัน “ใบปอ – เนติพร” ผู้ต้องหา
ม.112 คดีทำโพลขบวนเสด็จ ชี้สร้างความวุ่นวายกับกลุ่มผู้ชุมนุมอื่น
ผิดเงื่อนไขประกัน, 5 May 2022, https://tlhr2014.com/archives/43235
[25] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited).
[26] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited).
[27] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited).
[28] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited)
[29] Thai
Lawyers for Human Rights, บุ้ง เนติพร เสียชีวิตระหว่างการควบคุมตัวของ
จนท.ราชทัณฑ์ รอชันสูตรพลิกศพต่อในวันพรุ่งนี้ (previously cited)
[30] International
Covenant on Civil and Political Rights, Article 6(1); the UN Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions (1989), and its companion document, the
Minnesota Protocol on the Investigation of Potentially Unlawful Death
(2016). See also: Amnesty International, Thailand: Tragic death of
detained activist must be ‘wake-up call’, 14 May 2024, https://www.amnesty.org/en/latest/news/2024/05/thailand-tragic-death-of-detained-activist-must-be-wake-up-call/
[31] International
Covenant on Economic, Social and Cultural Rights (CESCR), Article 12.
See also CESCR, General Comment No. 14: The Right to the Highest
Attainable Standard of Health (Art. 12), 11 August 2000, UN Doc.
E/C.12/2000/4, para. 34.
[32] Basic Principles for the Treatment of Prisoners, Rule No. 9.
[33] United Nations Standard Minimum Rules for the Treatment of Prisoners, Rules No. 24 and 27.
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