NGOs demands rights to bail, healthcare-AHRC

May 15, 2012

A Statement from Group of Human Rights NGOs in Thailand forwarded by the Asian Human Rights Commission

THAILAND: Rights organizations demand the right to temporary release and right to health

Ah Kong died while serving a 20 year sentence in prison for a lèse majesté offence

Asian Human Rights Commission: May 8, 2012

Today on 8 May 2012, at 9.10 am, Mr. Amphon, aka “Ah Kong”, passed away in the Prison Infirmary in Bangkok. According to an initial lead, Ah Kong had been suffering from stomach pains and was transferred to the hospital last Friday. He was doing time in jail after being sentenced to 20 years for allegedly sending text messages to the phone belonging to personal secretary of a former Thai Prime Minister, Mr. Abhisit Vejjajiva. The SMSs were deemed defamatory, insulting or threatening to the King or the Queen, as per Section 112 of the Penal Code. According to the Corrections Department, Ah Kong was brought to the hospital for severe stomach pains at noon on Friday 5 May 2012. However, he was not placed in bed until 3.40 pm. No proper diagnosis was given immediately due to the end of working hours and the weekend. It was not until Monday that a blood sample was taken. Before the results were made known, Ah Kong passed away. The autopsy is ongoing.

Ah Kong was arrested on 3 August 2010 and was held in custody for two months before receiving bail. When he reported to the prosecutor on 18 January 2011, he was immediately taken into custody again and was never released, even after the verdict was read on 23 November 2011. He was sentenced to 20 years in jail. While advancing the case, his lawyers applied for his temporary release many times, but they were always denied by the Courts. On 20 February 2012, the defence lawyers submitted a motion of appeal claiming that the prosecutor had failed to prove beyond doubt that the accused had committed the offence. By solely relying on the IMEI number, the prosecutor failed to ascertain the guilt of the accused. According to the Criminal Procedure Code, the accused should be given the benefit of the doubt and be acquitted. An application for bail request was also given to the Court of Appeals with the deposit. The request included academic positions of seven senior lecturers, and submissions that Ah Kong was granted bail during the investigation level and that he had never made any attempt to run away as he never showed resistance during the apprehension. In addition, given his old age and his suffering from oral cancer, Ah Kong needed to go see a doctor regularly. Also, given his poverty and the fact that he lived with his wife and three small grandchildren, it would not be reasonable for him to jump bail.

Nevertheless, the Court of Lower Instances, the Court of Appeals and the Supreme Court refused to grant him bail, because of the heavy punishment he stood to serve and the gravity of the circumstances of the offence he had committed. The Courts were also not convinced that the accused had not committed the crime, and stated that should he be released, it would be possible that he would jump bail. Also, with regard to the claim about his illness, the Courts deemed that it was not yet life threatening and that the prison infirmary could provide for his medical needs. Thus, all eight bail requests were not granted. Later, the defence lawyer had withdrawn the motion of appeals and was preparing to seek a royal pardon for him.

The Human Rights Lawyers Association (HRLA) and human rights organizations whose names are listed below would like to offer our deepest condolences to the family of Ah Kong and other families affected by other lèse majesté cases. Many of them have failed to have their right to temporary release upheld to prepare themselves for the proper self-defence. We also deem that the death of Ah Kong in official custody reflects imminent problems concerning the right to temporary release of alleged offenders and the accused in lèse majesté cases and other criminal cases. We would like to offer the following opinions and suggestions;

1. The right to temporary release is a fundamental right in the justice process. It rests on the notion of presumed innocence and that guilt needs to be proved beyond a reasonable doubt. Therefore, in the criminal law regime, it stipulates that “the accused or suspects shall be entitled to the right to temporary release, and any denial of such a right can only be done as an exemption”. The right is universally enshrined in the 2007 Constitution of Thailand, Criminal Procedure Code, and the 1966 International Covenant on Civil and Political Rights (ICCPR) to which Thailand is a state party.

Should the Court decide against a bail request, the reasoning must be based on empirical and credible evidence which ascertains the fear that the accused may run away, tamper with evidence, or commit any harm. It is not possible to cite the harshness of punishment and gravity of the case circumstances as the “main reason” to deny the right to temporary release. The severe illness that took away the life of Mr. Amphon should serve as a lesson on the right to temporary release and the use of discretion in the justice system.

Therefore, to uphold the right, bail should be granted for the alleged offenders and accused in lèse majesté cases. This would reflect the same standard which is used by the Courts to grant bail, even in cases which carry much higher penalty rates. While, the decision is pending over the bail request, the accused in lèse majesté cases should be transferred to the Lak Si Temporary Detention Center, since they should be treated as “political prisoners”.

2. The right to health encompasses access to sufficient and efficient medical services. It stands clear in this case that Mr. Amphon was suffering from oral cancer and to contain the disease, he needed to go see doctor every three to six months. As Mr. Amphon was not granted bail, the prison infirmary could simply provide him with palliative care, but not surveillance care. It could be a factor contributing to the mortality of Mr.Amphon. We propose that the treatment standard be improved, and more financial and human resources be provided to enhance disease surveillance and care for the prisoners and to ensure their prompt and effective access to the needed treatment. There is no reason to wait until the condition gets out of hand.

3. Since the death occurred while Mr. Amphon was held in official custody, an autopsy and a post mortem inquest have to be conducted for the Court to declare the identity of the deceased, where and when the decease took place, and circumstances around the decease as required by Section 150 of the Criminal Procedure Code. We demand that all concerned agencies help to explore the causes of death of Mr. Amphon and verify if he had received sufficient necessary treatment. Also, independent organizations should make an effort to participate in identifying the causes of death to ensure transparency of the truth finding process and to put out any doubt cast by public.

The death of Ah Kong should serve as a lesson for Thailand and personnel in the justice process, lawyers, the government and concerned agencies. They should seriously ponder the lesson and make their effort in earnest to effectively eliminate any discrimination aided and abetted against political dissents through the pressing of severe charges and the restrictions on their personal rights and the right to justice process which are fundamental rights prescribed for in the Constitution of Thailand and international laws.

Human Rights Lawyers Association (HRLA)
Cross-Cultural Foundation (CrCF)
Human Rights and Development Foundation (HRDF)
Environmental Litigation and Advocacy for the Want (Enlaw)
Union for Civil Liberty (UCL)
Stateless Watch for Research and Development Institute of Thailand (SWIT)
Asian Human Rights Commission (AHRC)
Community Resource Centre (CRC)
People’s Empowerment Foundation (PEF)

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For more information, please contact:
Mr. Panom Butakhiaw, Case Coordinator (Thai), phone 0854681555
Ms. Yada Hatthathammnoon (English), phone 0891309757

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