Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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Criminal Court Ratchada in Bangkok rejected four bail requests from Ampon Tangnoppakul, commonly known as Uncle SMS, following his arrest on August 3, 2010 and later imprisonment, for sending four lese-majeste SMS messages to Somkiat Khrongwatthanasuk, secretary to then-Prime Minister, Abhisit Vejjajiva. The messages were considered to be offensive to the King and Queen of Thailand under Article 112 of the Thai Criminal Code. The judge said that the prosecution could not clearly prove that the defendant was the person who sent the offensive text messages to the mobile phone of the Secretary to the then Prime Minister. But it went on to say that even so, because it was difficult for the prosecution to present compelling evidence, as the defendant who committed this offence would naturally conceal his actions so that others could not observe them, it was necessary to rely on circumstantial evidence which the prosecution presented to indicate the intentions of the defendant.On November 23, 2011, the Court sentenced Ampon to five years in prison for each message, which resulted in a total sentence of 20 years. Ampon died in prison during the first year of his sentence, which caused both national and international criticism over the use of lese-majeste law in Thailand.
Some information was derived from blogs, bulletin boards, and other similar online sources. Such information may not have been verified, but it should be noted that in countries in which the media or access to the media, including the Internet, are controlled by the government, blogs can be a reliable source of information.
Ampon was accused of using a mobile phone to send four short messages to Somkiat’s mobile phone on four separate days in May 2010. Somkiat made a denunciation regarding the messages at the Technology-related Offense Suppression Division, which is a division of the Royal Thai Police. A subsequent investigation found that the sending number belonged to Ampon. He was arrested at his home on August 3, 2010, after the Criminal Court issued a warrant of arrest.
Ampon was 61 at the time of the arrest. He was unemployed due to his old age and had suffered from oral cancer since 2007.
After the arrest, he was detained for 63 days before the Appeal Court granted him a provisional release on October 4, 2010. On January 18, 2011, the public prosecutor filed an official charge against him. Ampon was accused of committing an offense under Article 14 (2) and (3) of the Computer Crime Act as well as under Article 112 of the Criminal Code. The Criminal Court did not grant his bail request, reasoning that the offense was serious and had affected public morals and national security. The court also held that the case was still under consideration and that the defendant was a flight risk.
The court insisted on its decision to deny the temporary release, even though the lawyer for the defendant stated that detention during the court proceedings would violate the rights and liberties of the individual. The lawyer further informed the court that the defendant had serious health problems and needed regular medical attention. The defendant was not yet a convict and thus, according to Articles 39 and 40 of Thailand’s 2007 Constitution, he should have been granted temporary release.
On October 21, 2011, the lawyer submitted a statement urging the court to dismiss the case for lack of sufficient evidence, citing the following:
(1) The court relied on the International Mobile Equipment Identity (IMEI) of the phone, through which the number could have been counterfeited.
(2) The investigation of authorities directly focused on the defendant. The witnesses for the prosecution’s hearings were incompatible with the documents provided by the plaintiff.
(3) The plaintiff did not have any evidence to prove that the defendant was really the person who typed the messages and sent them.
Nevertheless, the Criminal Court sentenced Ampon to 20 years in prison on November 23, 2011—five years for each message. Ampon’s lawyer filed an application with the Appeal Court to grant bail to the defendant on February 23, 2012. The request was again rejected. The Supreme Court also rejected the bail request of the defendant on March 13, 2012.
On April 3, 2011 the lawyer submitted a statement to withdraw the appeal. From January 18, 2011 (the day the official charge was filed), to April 3, 2012, the Criminal Court rejected the bail request 4 times. The Appeal Court rejected the bail request 3 times and the Supreme Court rejected it once.
Ampon passed away at the Bangkok Remand Prison on May 8, 2011.
The death of Ampon was considered tragic and the inefficient prison system was thought to have played a major role in this matter. Ampon had been sent to the Correctional Hospital on May 4, 2012 before 12 pm because of severe stomach pain. He was admitted to the hospital as an inpatient at 3:40 pm. No procedure was performed afterwards because the hospital’s office operative hours were over. That day was also a Friday and the hospital was closed on Saturday and Sunday. Ampon’s blood was finally tested on May 7, 2012. He passed away the next morning. His lawyer said that he had suffered from stomach pain for more than one month, and the symptoms worsened on Friday, May 4, 2012.
The autopsy showed that he had cancer of the liver, which had spread throughout his body. Three doctors from independent organizations participated in the autopsy as observers. Two of them stated that Ampon must have been suffered from the cancer for at least 6 months, judging by his liver’s condition. One of them added that there was no indication whatsoever that the hospital staff had attempted to save the man’s life.
A hospital staff person testified before the Criminal Court on May 23, 2013. The staff person said that he or she did not know Ampon or his health conditions. The staff person also did not know the doctor who was responsible for the case. When the lawyer asked about access to medical treatment during the night, the staff person said that an official letter to the on-duty prison guard was necessary. The medical staff would not be able to access the cell without the approval of a guard.
Due to a flood at the end of 2011, the defendant could not travel from prison to Court. Instead, the ruling was read over a teleconference system.
The plaintiff obtained evidence from DTAC and TRUE (two of the GSM mobile phone providers in Thailand), which allegedly made them trustworthy.
Regarding the IMEI issue, the IMEI number in this case matched the IMEI number of Ampon’s mobile, and the defendant could not provide an expert to prove that the IMEI number could be counterfeited. Moreover, that phone was only used by Ampon, and thus, it was difficult to demonstrate that others were using it. It was also found that the phone used two SIM cards at times very close to each other.
When the defendant claimed that he sent the phone to a repair shop in the Imperial World Mall in Samrong, the Court did not believe what he said. This was because he said that he sent it to the repair shop in May 2010 shortly after he was arrested, but the Court found that this took place in April 2010. Ampon also could not remember the name of the repair shop, which was strange in the Court’s opinion, because the defendant had traveled to the shop twice.
The defendant claimed that he did not know how to send an SMS and did not know the mobile number of Somkiat, but the Court said that this could not be proven, and that it was easy for the defendant to claim such a thing.
According to the Court, even though the plaintiff could not make it clear that the defendant sent the messages from his mobile phone, this issue was difficult to prove using direct witnesses because it was obviously necessary that the defendant had to hide such wrongdoing from others. Therefore, the Court found circumstantial evidence was more important in demonstrating the defendant’s true actions and intentions.
Thus, the defendant was handed a sentence of 20 years imprisonment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case contracts expression. Many reasonable doubts were raised throughout the trial and there was no evidence sufficiently demonstrating that the defendant was the person who committed the offenses. Moreover, there were 8 witnesses for the prosecution and only 3 witnesses for defense, and the testimony given by the witnesses for the prosecution did not match the evidence presented at trial.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 14 (2) and (3)
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