Behind closed doors, on 6 January 2017 the Khon Kaen Provincial Court read the Supreme Court’s decision to dismiss a motion to reverse the bail revocation order filed by Mr Jatupat ‘Pai’ Boonpattaraksa. Jatupat, nicknamed Pai, is a student at Khon Kaen University and key member of pro-democracy groups Dao Din and New Democracy Movement (NDM), who is currently charged with lese majeste under Article 112, and with offences under the Computer Crime Act. The Court also ordered Jatupat to remain in custody for a fourth term, of 9 – 20 January 2017, and denied him bail, although he has to sit for a mandatory exam to complete his bachelor’s degree on 17 – 18 January. Details of the case and Thai Lawyers for Human Rights opinion follow. (Read more)
1. The Supreme Court denied the motion to reverse the bail revocation order, endorsing the Appeal Court’s decision
The Khon Kaen Provincial Court read the Supreme Court order to dismiss Jatupat’s motion to reverse the bail revocation order of the Court of First Instance, and the Appeal Court’s endorsement of the order, leaving Jatupat to remain in custody of the Khon Kaen Central Prison. The Court ruled that the Appeal Court’s decision was final as per Article 119 bis of the Criminal Code and, thus, dismissed the suspect’s motion.
Jatupat was arrested on 3 December 2016 for violations of Article 112 of the Criminal Code and the Computer Crime Act, filed against him by Lt Col Phitakphon Chusri, Deputy Chief of Operations Directorate at the 33rd Military Court in Khon Kaen, Northeastern Thailand. The allegations stem from his sharing a BBC Thai article “Profile: Thailand’s new King Vajiralongkorn” and quoting an excerpt on Facebook. He was previously released on unconditional bail on 4 December 2016 but his bail was revoked. Jatupat was summoned by the Khon Kaen Provincial Court to hear the ruling of the Supreme Court on 6 January 2017 after his lawyers submitted a petition to the Khon Kaen Provincial Court on 29 December 2016. The petition asked the Supreme Court to review the ruling of the Appeal Court. The decision reads:
Upon consideration, the Court of First Instance had granted bail during the course of the investigation. Following the order, the alleged offender violated the conditions of bail issued by the Court of First Instance. As a consequence, the Court of First Instance ordered to revoke his bail bond, and refused to have him temporarily released. Upon the alleged offender’s motion against the Court of First Instance’s order, the Court of Appeal, Region IV, refused to grant the alleged offender provisional release, in view that the Court of First Instance’s order was of a just nature, and thus, dismissed the motion. That the alleged offender submitted a motion to the Supreme Court to reverse the Court of First Instance’s ruling, and that the Court of Appeal, Region IV, endorsed the Court of First Instance’s order to revoke bail, show the alleged offender’s intent to have the Supreme Court review the order not granting provisional release. As the Court of Appeal, Region IV, endorsed the decision of the Court of First Instance, the decision of the Court of Appeal, Region IV, is final per Article 119 bis of the Criminal Code. Motion dismissed.
2. The Court denied another bail application, Pai remanded for fourth term
On the same day, the Khon Kaen Provincial Court reviewed Jatupat’s detention, and ordered him remanded for a fourth term, of 9 – 20 January, for a total of 12 days. Jatupat’s attorneys then applied for his provisional release, citing reasons that Jatupat’s exam was scheduled on 17 – 18 January, but the Court ruled against them. Jatupat will remain in custody till 20 January 2017.
The Court had scheduled the hearing for the police to request Pai’s fourth pre-trial detention, submitted on 5 January. Jatupat then submitted a petition for a hearing in court instead of via video link from prison— a procedure carried out on 28 December for his third term in custody.
The police request stated that the police need more time to gather evidence and conduct examination of witnesses from the Technology Crime Suppression Division (TCSD), government agencies, legal organisations, and CSOs to complete the case file. The inquiry officer, Pol Lt Col Jiratthakiet Sornviset, stated that there were four more witnesses, in addition to one from the hearing for third detention, making a total number of five witnesses. Furthermore, when granted provisional release, Jatupat had continued to express his opinions on online platforms, which could lead to evidence tampering. According to the police, since the case is related to national security with a high penalty, the suspect could attempt to escape, tamper with evidence, manipulate online users, and cause other damage if bail were granted. However, if the suspect agreed to stop posting on social media platforms, his actions may no longer obstruct the investigation.
Jatupat’s lawyers submitted a motion against the fourth term of detention, stating that there was no reason for pre-trail detention. The suspect had shown no evidence of acts deemed likely to tamper with evidence, escape, or obstruct the investigation and the prosecution. Jatupat also had no knowledge of the identities of witnesses to whom the inquiry officer referred, making it impossible for him to influence or tamper with the witnesses. That the case is related to national security is redundant, since similar cases were granted bail in the past. The suspect merely shared a BBC article on Facebook, but did not express his own comments. Jatupat has also cooperated throughout the proceedings. As for posts on online platforms, the suspect’s acts were not deemed as criminal offences or repeated crimes, and therefore did not cause harm to the public and to society. Despite the national security-related content of the case, the court, with judicial discretion, may allow provisional release.
Significantly, the suspect is in his last year of undergraduate degree, and is due to take his computer examinations on 17 – 18 January; this is the last mandatory course required for his degree completion. If the Court ruled for the fourth period of detention of 12 days, the suspect’s rights to freedom and education would be undermined, causing damage to his education despite the fact that Jatupat is only an accused.
Jatupat further stated that his status remained that of an accused. Based on the presumption of innocence, in accordance to the Universal Declaration of Human Rights (UDHR), which Thailand had signed, and the International Covenant on Civil and Political Rights (ICCPR), which Thailand has ratified, and that the Court had not found him guilty, Jatupat remains innocent. Thus, the Thai judiciary must respect its international obligations accordingly.
At the end of the hearing, the Court granted the police request to detain Jatupat for another 12 days, due to the ongoing police investigation and in view of the fact that the case is related to national security. The Court, however, emphasized that the police must complete the investigation soon.
As a result, Jatupat will not be able to attend his examinations on 17 – 18 January. His lawyers and family then submitted another appeal for bail, making this the fourth application, with increased bail money of 500,000 Baht (approx. 14,150 USD). The petition states that the alleged offender had not violated the bail conditions set by the court. He had continued to publish his opinions, and had not deleted the alleged post in view that he had the right to freedom of opinion. Regardless, the Court still refused the bail, ruling that, “There is no reason to change the order of the Court of Appeal, Region IV. Motion dismissed.”
3. The Court conducted the hearing for detention and read the Supreme Court’s verdict behind closed doors
When Jatupat was summoned to the courtroom to hear the Supreme Court’s verdict and for a hearing of his fourth custody term, a sign reading “Secret Hearing” was placed in front of the room to prevent trial observers from entering the room. His lawyers then submitted a motion against the conduct of secret trial, citing the Criminal Procedure Code that the trial must be open to public. Furthermore, the hearing only concerned the issue of pre-trial detention, and whether to extend custody, not the case itself, which concerns matters of national security and the Thai monarchy. However, the Court proceeded behind closed doors in accordance with Article 177.
In the view of TLHR, the suspect’s legal rights have not been respected.
In the case of the Khon Kaen Provincial Court refusing provisional release with reference to the ruling of the Court of Appeal, Region IV, Jatupat was denied the right to complete his last course of his bachelor’s degree, even though Jatupat and his lawyers indicated reasons and necessities, incorporating legal and human rights principles. Thai Lawyers for Human Rights recognizes that provisional release is subject to the Court’s discretion, acting in accordance with the law. However, provisional release is, based on legal principles, to be granted unless there are reasonable grounds to order otherwise.
Although the Court of Appeal had ruled against the release, the Khon Kaen Provincial Court is well within its discretion to order the alleged offender temporarily released. The Court is in this respect not bound to the Appeal Court’s ruling and is independent to deliver its decision per Article 119 bis of the Criminal Code, which states that, “If the Appeal Court issues the order confirming the order of not granting provisional release of the Court of First Instance, such order of the Appeal Court shall be final. But, it shall not rebar the right to submit a new application for provisional release.” If the Court stands with the previous decision without exercising its discretion, despite the laws, the alleged offender’s rights affirmed by the law no longer have any effect in practice.
- According to Article 177 of the Criminal Code, the Court may, of its own motion or on the application of either party, issue an order that the trial be held behind closed doors, provided that it is in interest of public order or good morals, or in order to prevent secrets concerning the security of the State from being disclosed to the public.
- According to Article 119 of the Criminal Code, in the event that provisional release has not been granted by the Court, the applicant has rights to file an appeal motion against such an order as follows:
– If it is the order of the Court of First Instance, the applicant shall appeal to the Appeal Court;
– If it is the order of the Appeal Court, the applicant shall appeal to the Supreme Court.
The Court of First Instance accepting the appeal motion shall forthwith send up the aforesaid motion together with the files or copy of files as far as necessary to the Appeal Court or Supreme Court, as the case may be, for the Court’s consideration and to issue the order immediately.
If the Appeal Court issues the order confirming the order of not granting provisional release of the Court of First Instance, such order of the Appeal Court shall be final. But, it shall not rebar the right to submit a new application for provisional release.