No. 64/2021: Anchan Preelert

Arbitrary Detention under Category I: Lack of Legal Basis

• The Working Group (WGAD) is of the opinion that Anchan’s detention constitutes arbitrary detention under Category I due to the absence of a legitimate legal basis in multiple dimensions.

 

• First, her arrest on 25 January 2015 was carried out without a warrant from an independent judicial authority. Any deprivation of liberty must be supported by a court order. Merely invoking martial law was insufficient to render the arrest lawful.

 

• Second, she was detained in a military camp for 5 days (25-30 January 2015) before being brought before a Military Court judge. This constitutes a violation of the right to be brought “promptly” before a judicial authority (according to international standards, within 48 hours), which violates ICCPR Article 9(3).

 

• Third, the Working Group finds that the legal texts used for her detention, namely Section 112 of the Criminal Code and Section 14 of the Computer Crime Act, violate the principle of legality. These laws are vague and overly broad. Specifically, Section 112 does not provide a clear definition of what constitutes “defaming, insulting, or threatening” the monarchy, and Section 14 does not clearly define “offences relating to national security.” Such vague laws make their enforcement entirely dependent on the discretion of the authorities.

 

• The Working Group asserts that when the law used as the basis for detention itself violates international human rights, the detention is deemed to “lack a legal basis” and is arbitrary.

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

• The Working Group finds that Anchan’s detention constitutes arbitrary detention under Category II because it is a direct result of her exercise of the freedom of expression, as protected under ICCPR Article 19.

 

• Her action was the “uploading of audio clips” onto social media, which constitutes “seeking, receiving, and imparting information and ideas” and falls within the scope of political discourse and commentary on public affairs.

 

• The Working Group reiterates that all public figures, including Heads of State, are legitimately subject to criticism. The mere fact that the expression was viewed as “insulting” a public figure is insufficient to warrant criminal punishment, and imprisonment is “never an appropriate penalty” for defamation offenses.

 

• The Thai Government failed to demonstrate how Anchan’s actions (who did not produce the content herself) posed a threat to national security or incited violence. Therefore, the sentence of 43 years and 6 months imprisonment is a “grossly disproportionate” measure for the exercise of a fundamental right.

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

• The Working Group concludes that the violations of Anchan’s right to due process were “of such gravity” that her detention became arbitrary under Category III.

 

• First, her case was tried in a Military Court for almost 4 years. The Working Group asserts that Thai Military Courts “cannot be considered competent, independent or impartial” because military judges are under the authority of the executive branch (Ministry of Defence) and lack sufficient legal training. Trying a civilian case in a Military Court is a clear violation of ICCPR Article 14.

 

• Second, all 27 hearings, in both the Military and Criminal Courts, were held behind closed doors, violating the right to a public hearing under UDHR Article 10 and ICCPR Article 14(1). The rationale citing national security and public morality was insufficient to bar public access in a case of this nature.

 

• Third, she was held in pre-trial detention for 3 years and 281 days, which constitutes a violation of the right to be tried “without undue delay” under ICCPR Article 14(3)(c). This delay was caused by the “extremely slow pace” of the Military Court proceedings.

 

• Fourth, the initial denial of bail, citing the “severity of the offence” (punishment), contravenes the principle of ICCPR Article 9(3) that pre-trial detention must be an exception and must be based on an individualized determination, not on the severity of the potential sentence.