THAILAND: Repeated denial of bail and attack on political freedom

The Asian Human Rights Commission (AHRC) wishes to express grave concern about the repeated denial of bail in the case of Apichat Pongsawat, who is currently being held in the Bangkok Remand Prison.

The Asian Human Rights Commission (AHRC) wishes to express grave concern about the repeated denial of bail in the case of Apichat Pongsawat, who is currently being held in the Bangkok Remand Prison. The proceedings against Apichat are a clear instance of the abuse of power by the National Council for Peace and Order (NCPO), the military junta who seized power on 22 May 2014, to constrict political freedom and spread fear. The AHRC calls for the immediate release of Apichat Pongsawat and all others in Thailand who are being held for peacefully protesting or exercising their freedom of expression.

Apichat Pongsawat is currently completing a master’s degree in the Graduate Volunteer Centre at Thammasat University and also works at the Law Reform Committee of Thailand. He was arrested on 23 May 2014 while he was peacefully protesting in front of the Bangkok Art and Cultural Center (AHRC-STM-099-2014). He was detained for one night at the Signal Department of the Royal Thai Army and then held at the Crime Suppression Division for seven days. Then, on 30 May 2014, he was formally charged in the Bangkok Southern Criminal Court with violations of NCPO Order No. 7/2557 [2014], Article 14 (3) of the 2007 Computer Crimes Act (CCA) in combination with Article 112 of the Criminal Code, and Articles 215, 216, and 368 of the Criminal Code. On the day he was charged, Professor Parinya Thewanarumitkul, a law professor at Thammasat University, offered his civil service rank as guaranty. The Court turned down this request on the basis that the professor was not close enough to Apichat and they were concerned that he might flee (AHRC-STM-110-2014). On Monday, 2 June, Apichat’s mother submitted a second application for bail, and the Court turned it down as well, and cited their concern that if released, Apichat might interfere with the evidence as the reason. The Court did not provide any further evidence for their denial.

The refusal to grant bail to Apichat is a clear violation of his human rights, and even stands in contradiction to Section 107 of the Criminal Procedure Code. This section stipulates clearly that “Upon receiving an application for temporary release, the competent official or the Court enjoins without delay, and all the alleged offenders or accused are granted permission to be released temporarily by the rule prescribed for under Section 108, Section 108/1, Section 109, Section 110, Section 111, Section 112, Section 113 and Section 113/1”. The provisions are compatible with the International Covenant on Civil and Political Rights (ICCPR) to which Thailand is a state party, particularly in Article 9(3) which states that, “It shall not be the general rule that persons awaiting trial shall be detained in custody”. Therefore, the right to temporary release is a crucially important legal principle established in bother domestic and international laws. While the NCPO may have abrogated the 2007 Constitution, the Criminal Procedure Code remains in place and they remain a state party to the ICCPR.

The charges brought by the authorities against Apichat Pongsawat are a clear example of the junta’s targeted attack on political freedom and freedom of expression. He is accused of violating Announcement No. 7/2557 of the NCPO, which prevents any political assembly or demonstration of more than 5 persons, and of disobeying the order of the authorities to cease. When he was formally charged in the Criminal Court, this was categorized as violations of Articles 215 (1, 3), 216, and 368 (1) of the Criminal Code. Article 215 (1) stipulates that, “Whenever ten persons upwards being assembled together do or threaten to do an act of violence, or do any thing to cause a breach of the peace, every such person shall be punished with imprisonment not exceeding six months or fined not exceeding one thousand Baht, or both,” and (3) notes that, “ If the offender be the manager or person having the duty to give orders for the commission of the offence, such offender shall be punished with imprisonment not exceeding five years or fined not more than ten thousand Baht, or both.” Article 216 stipulates that, “When the official orders any person assembled to gather so as to commit the offence as prescribed under Section 215 to disperse, such person not to disperse shall be imprisoned not more than three years or fined not more than six thousand Baht, or both.” Article 368 (1) stipulates that, “Whoever, being informed of an order of an official given according to the power invested by law, refuses to comply with the same without any reasonable cause or excuse, shall be punished with imprisonment not exceeding ten days or fined not exceeding five hundred Baht, or both.” This means that if convicted of violating these articles of the Criminal Code, Apichat could face a prison term of up to eight years, six months, and one week as well as a heavy fine for peacefully expressing his opposition to the coup.

In addition, the authorities are using Article 112, the highly-politicized article of the Criminal Code which stipulates that, “Whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” While this measure has been part of the Code since its last revision in 1957, since the 19 September 2006 coup, it has been extensively used by both the state and private individuals to target and silence their opponents. Apichat has also been charged with violating Article 14 (3) of the 2007 Computer Crimes Act (CCA), which has been used in concert with Article 112 numerous times, which stipulates that, anyone who commits violations which “involves import to a computer system of any computer data related with an offence against the Kingdom’s security under the Criminal Code,” he “shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both.” If convicted of violating these measures, depending on the number of charges made, Apichat could face an additional lengthy prison term, if the arbitrary parsing of number of violations and the length of the sentences in earlier cases such as Amphon Tangnoppakul (AHRC-STM-180-2011), are any indication.

As the AHRC has repeatedly noted, the investigatory and judicial processes in Article 112 and CCA cases raise significant questions about the strength and fairness of evidence used. What is currently known about this case only confirms these concerns. While Apichat was in detention, his mobile phone was examined by the authorities and they discovered his Facebook account and alleged found pictures of him with leaders of the red shirt United Democratic Front Against Dictatorship (UDD) and attendance at various events discussing Article 112. The authorities allege that in 2010, he posted information on his personal Facebook page that contained content that violated Article 112 and the CCA. Although the authorities claim to be concerned that Apichat will interfere with evidence, given the heightened political context following the coup and the criminalization of any kind of dissent, the AHRC is concerned about the integrity of the evidence that the authorities claim to have found, and the investigatory means through which they did so.

The Asian Human Rights Commission calls for the immediate release of Apichat Pongsawat and condemns the crackdown on rights and liberties by the National Council on Peace and Order in Thailand in the harshest terms. He is a citizen who was expressing his opinion peacefully and who now faces a lengthy series of legal proceedings and potential prison term for doing so. The AHRC is particularly concerned that Apichat is being further charged under dubious conditions with alleged violations of Article 112 and the 2007 Computer Crimes Act for posts he allegedly made on Facebook during 2010. Given the destruction of the already tenuous rule of law by the junta, the possibility of a fair investigation and trial is rare, and the Asian Human Rights Commission is concerned that the judicial process he will be subjected to will lack any semblance of justice. The AHRC will be following this case closely, and encourages all others concerned with human rights and justice in Thailand to do so as well.