No. 28/2024: Arnon Nampa

Arbitrary Detention under Category I: Lack of Legal Basis

• The Working Group on Arbitrary Detention is of the opinion that the detention of Arnon Nampa constitutes arbitrary detention under Category I because Section 112 is not considered a legal basis that can justify the deprivation of Arnon’s liberty.

 

• The Working Group explains that the principle of legality requires that the law must have a clear definition, and the general public must be able to access and understand the law; otherwise, the general public will not be able to conform their conduct to the law.

 

• Considering Section 112, the law enforced in Arnon Nampa’s detention, the Working Group is of the opinion that Section 112 is vague and overly broad. That is, Section 112 lacks a clear definition of what expressions constitute defaming, insulting, or threatening the monarchy. Therefore, the enforcement of Section 112 relies entirely on the discretion of officials in interpreting which actions fall under Section 112.

 

• Furthermore, the Working Group is of the opinion that the detention of Arnon Nampa during trial for more than 200 days (at least 139 days from the speech in the #Mob14Oct assembly at Democracy Monument case and at least 100 days from the 3 Facebook posts case in January 2021) is detention without a legal basis.

 

• The Working Group explains that Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) establishes the principle that pre-trial detention shall not be the general rule. If pre-trial detention is necessary, such measures must be implemented for the shortest possible duration, and must be based on an individualized determination of necessity and reasonableness, considering all circumstances, and must be for the purposes of preventing flight, interference with evidence, and re-offending.
• The Court should consider whether there are other measures that can be enforced instead of pre-trial detention so that detention is not necessary in such cases, such as granting bail or other conditions. Furthermore, the decision to order pre-trial detention should not be based on the penalty the person might receive, but should be based on necessity.

 

• The Working Group finds that the order to detain Arnon Nampa during trial for over 200 days was not based on an individualized determination and the principle of necessity or reasonableness. Thus, the detention lacked a legal basis.

 

• The Working Group also noted that even when Arnon Nampa was granted bail, he was subject to strict bail conditions, such as wearing an EM bracelet and prohibition from leaving his residence between 9:00 PM and 6:00 AM, which resembled house arrest. Therefore, Arnon Nampa was considered deprived of liberty even while on bail at that time.

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Arbitrary Detention under Category II: Exercise of Fundamental Freedoms under International Law

• The Working Group on Arbitrary Detention is of the opinion that the detention of Arnon Nampa constitutes arbitrary detention under Category II because it violates Article 19 of the ICCPR, which protects freedom of expression, meaning Arnon Nampa’s detention resulted from the exercise of freedom of expression, which is legitimate as it pertains to matters of public interest.

 

• The Working Group on Arbitrary Detention considers that Arnon Nampa’s speeches, whether at physical assemblies or online, fall within the scope of exercising the right to freedom of expression protected by Article 19 of the ICCPR and Article 19 of the UDHR. All public figures, including those in the highest political authority such as Heads of State and Government, are legitimately subject to criticism and political opposition, and the law should not have more severe penalties based only on the status of the person who might be alleged.

 

• When considering the principles under Article 19(3) of the ICCPR, the exercise of the right to freedom of expression may be subject to restrictions, but such restrictions must be (1) Provided by law, (2) Must be consistent with legitimacy (in cases such as the protection of national security, public order, public health, or public morals), and (3) Such restrictions must adhere to the principles of necessity and proportionality.

 

• The Thai Government previously argued that the lèse-majesté law, which restricts freedom of expression, is for the preservation of public order and national security. However, the Working Group rejected this argument, concluding that “it cannot be maintained that Arnon Nampa’s actions threatened the rights or reputation of others, national security, public order, public health, or public morals.”

 

• Furthermore, the Working Group also noted that the Thai Government did not explain the reasons why the arrest, detention, and prosecution of Arnon Nampa resulting from the exercise of freedom of expression and peaceful assembly were appropriate and proportionate. It also noted that the detention of individuals under lèse-majesté proceedings in Thailand follows a pattern, meaning the detention of individuals who peacefully express dissent against the lèse-majesté law through freedom of expression.

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Arbitrary Detention under Category III: Violation of International Norms concerning the Right to a Fair Trial

• The Working Group on Arbitrary Detention is of the opinion that the detention of Arnon Nampa constitutes arbitrary detention under Category III because the relevant officials were unable to comply with the international standard of due process, which is a minimum standard. According to international law, including the Universal Declaration of Human Rights and Articles 9(3) and 14(3)(c) of the ICCPR, the principle established in cases of arrest or detention on criminal charges is that everyone shall be entitled to trial within a reasonable time and without undue delay.

 

• From the case of the speech in the #Mob14Oct assembly at Democracy Monument, where Arnon Nampa was detained pre-trial for over 139 days, and received his first trial hearing on 20 June 2023, which was over 916 days since the first day of prosecution. And the case of the 3 Facebook posts in January 2021, where Arnon Nampa was detained pre-trial for over 100 days, and received his first trial hearing on 21 April 2023, which was over 667 days since the first day of prosecution.

 

• For these reasons, the Working Group on Arbitrary Detention considers that the detention of Arnon Nampa under Section 112 violates Articles 9(3) and 14(3)(c) of the ICCPR, and also contravenes Principle 38 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

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Arbitrary Detention under Category V: Detention Resulting from Discrimination on the Grounds of Ethnic Origin, Political Opinion, etc.

• The Working Group on Arbitrary Detention has considered that the arbitrary detention of Arnon Nampa resulted from the exercise of freedom of expression in his capacity as a human rights defender, including the exercise of civil and political rights and other opinions. The deprivation of such rights and freedoms may be presumed to be a deprivation of liberty that contravenes international law on the basis of discrimination based on political or other opinions.

 

• Therefore, the detention of Arnon Nampa violates Articles 2 and 7 of the UDHR and Articles 2(1) and 26 of the ICCPR, as it is discrimination based on political or other opinions and his status as a human rights defender.

 

• Furthermore, the Working Group on Arbitrary Detention noted that Arnon Nampa’s opinions were the core issue of the aforementioned case, and the relevant officials displayed a discriminatory attitude. That is, the discrimination against Arnon Nampa is evident from the prosecution of Arnon Nampa stemming from his human rights activities in over 26 cases, 14 of which were prosecuted under Section 112, the prolonged duration of Arnon Nampa’s detention, and the creation of difficult and complicated bail conditions.