The denial of the right to temporary release of Mr. Somyot Pruksakasemsuk and other accused in criminal cases
A Statement from a group of Thai Human Rights NGOs
In pursuant to the arrest and prosecution of Mr. Somyot Pruksakasemsuk, labour activist and core members of the June 24 for Democracy and Editor of "Voice of Taksin" on the violation of Section 112 or lèse majesté law since 30 April 2011, and over the past ten months, his applications for temporary release have been turned down. Lately, Mr. Panithan Pruksakasemsuk, his son, has started a hunger strike to protest against the order of the Criminal Court to deny his father's bail though the request has been made seven times and sufficient deposit has been offered. His protest is aimed at demanding the right to temporary release of this father and the issue has been widely reported in media until now.
The undersigned human rights organizations deem that the right of an alleged offender or an accused to temporary release is a very pertinent issue in the criminal justice process. It has led to extensive controversies over what is appropriate or not. Therefore, we have the following opinions and proposals to make regarding the issue;
1. The right to temporary release is a universal and fundamental right that should be accorded equally to all human beings.
The right to temporary release is prescribed for in Section 40(7) of the 2007 Constitution of the Kingdom of Thailand or even in Section 107 of the Criminal Procedure Code, it 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. It is an obligation for all parties concerned to follow and implement on an equal basis.
2. Any exceptions made against the right to temporary release have to be based on extremely important circumstances and have to be accompanied by objective and credible evidence.
Section 108(1) of the Criminal Procedure Code provides for exceptions that can be made by either competent officials or the Court of jurisdiction to deny the right to temporary release, should there be credible reasons including;
(1) The alleged offender or accused may run away
(2) The alleged offender or accused tampers with the evidence
(3) The alleged offender or accused may commit other harmful action
(4) The person request for bail or the deposit are not deemed credible
(5) The temporary release may pose any obstacle or cause damage to the investigation of inquiry official or trial of the Court.
Therefore, any parties concerned with the permission to give bail have to always bear in mind that the denial of the right to temporary release can only be made as an exception. And all denials of the right to bail have to be subject to stringent interpretation of the law and accompanied by objective and credible evidence. Should the inquiry officials or public prosecutors fail to secure objective and credible evidence to support the denial of bail, the Court has to always let the alleged offenders or accused attain the right to temporary release.
3. The Court is obliged to interpret the law according to the intent of the law and international standards to uphold human rights and the right to temporary release has to be realized in all cases.
Written law that provides for and upholds the right to temporary release of alleged offenders or accused shall become meaningless, should the implementing agencies interpret the law incompatibly with the intent to uphold the rights and liberties of alleged offenders or accused. Genuine enforcement of a law shall be subject to the interpretation of the law enforcement officials.
Section 27 of the 2007 Constitution of the Kingdom of Thailand stipulates clearly that "Rights and liberties recognized by this Constitution expressly, impliedly, or through decisions of the Constitutional Court shall be protected and directly binding on the National Assembly, the Council of Ministers, Courts, and other State organs in legislating, applying, and interpreting laws."€Therefore the interpretation of the law is not subjected to the discretion of either the police or the Court without any regard to the intent to protect rights and liberties of an alleged offender or an accused. Instead, the law has to be interpreted in light of the provision concerning rights and liberties prescribed for in Section 40(7) of the Constitution in order to make possible the right to temporary release.
4. Section 39 (2) and (3) of the Section 27 of the 2007 Constitution of the Kingdom of Thailand primarily upholds the presumed innocence principle.
Therefore, prior to any final judgment made to convict a person, the treatment of the person as if he already committed an offense is not permitted. Therefore, as a result of the denial of bail request, the detention of Mr. Somyot Pruksakasemsuk and other alleged offenders or accused during the trial period together with other convicts whose final judgments have been reached is therefore a breach of the Constitutional provision.
In light of the above rationale, we demand that the police and the Court interpret and enforce the law to provide for the right to temporary release with an emphasis on enshrining and upholding the rights and liberties of alleged offenders or accused as they are human beings who deserve to be treated with equal dignity. They are obliged to follow the intent of the Constitution and international human rights laws.
As the cases against Mr. Somyot Pruksakasemsuk become a controversial issue in society, the Court should make it clearly visible to public that it has properly applied and interpreted the law with regard to human dignity of the accused as provided for by the law. Therefore, it should consider giving Mr. Somyot Pruksakasemsuk the right to temporary release to set a good precedent and to allow other alleged offenders or accused to attain the same right.
Statement made on 15 February 2012
Human Rights Lawyers Association (HRLA)
Cross Cultural Foundation (CrCF)
Union for Civil Liberty (UCL)
Environmental Litigation and Advocacy for the Wants (EnLAW)
Foundation of Muslim Attorney Centre (MAC)
Asian Institute for Human Rights (AIHR)
Community Resource Centre (CRC)
Thai Netizen Network
Center for Child Development and Community Network