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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
14 June 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 detenti
