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Monday, October 4, 2010

Many questions: The Thai justice and the freedom of media.

This is the machine translated article by Google Translate. Original Thai version is here.

Many questions: The Thai justice and the freedom of media.
By Sawatree Suksri 

Friday evening, September 24, 2553 was invited to the event so many people in the field of media. In particular, alternative media. Need to panic symptoms Ehืosom hurt again When they hear that Chiranuch Premchai Porn director of Civil Times website. The first online newspaper of being arrested by Thai police detective series with charges of publishing anti Bu.eam. 2 comments (by others) that may be illegal. The airport. After that she just returned from Hungary. For the conference on "Internet freedom". Internet at Liberty 2,010.

Chiranuch detainees to a pharmacist. Muang Khon Kaen (Province, she accused) by a police car on the same day.The news spread quickly online community with Facebook and Twitter are criticizing the actions of government officials widely The group size. Freejiew. a blog to track cases of Chiranuch especially in Thailand and of course the irony of this is reported as news in the media overseas soon.

That said, shocked and hurt "again" because this is not the first time. (And it is expected that it may not last) that Chiranuch being arrested with charges of the same or similar to an Internet service provider that supports deliberate. Or permit the offender (in accordance with Section 14 of Act Korn wrong about the computer to be called. Computer Act) in its own Internet service provider. Which is charged in accordance with Section 15, Act on computer , but capturing this Chiranuch the accused is charged up from the base of her "familiar" (but still hard to be "loved" a) at least 3. together on the internet with the head of state defamation of state (Article 83. of. 112 Criminal Code ), to appear to the public by any means that content does not conform to the Constitution. Or not to post comments or feedback in good faith the (. Section 116 of Criminal Code ) and the only publication to another offense (. Section 85 Criminal Code ), even today Chiranuch will go back home. She was allowed bail in the official level with collateral of approximately two hundred thousand in the second hit on September 25, 2553, but any questions that occur to Chiranuch own. Friends Kong land Prachatai. General information and monitoring are still being detained at the Son. Khon Kaen Province.

If the legal aspects. As well as other aspects related to threatened media freedom in Thailand For when this happens. Are interesting. And should be questioned as several issues together.  

1. Charged with such different people come to the right one in Khon Kaen with the official condemnation from the year 2551 as it is currently being prosecuted in the competent layer. The court approved an arrest warrant since 2552 (an arrest warrant dated September 8, 2552), but why Chiranuch was caught on time means that after nearly a year (in the case of 4371/2551, 11 S. c. 51).

Granted, in accordance with Section 68 Code of Criminal Procedure. the "arrest warrant" would have effect on all until it catches. Or the court to withdraw the legal definition, so back then. Would nothing unusual if the official practice of the means it will take many years to mean that And as long as the case has not expired. Arrest warrants in such cases are still in force. But in practice, and problems arise if the authorities take a long time. Or a very long time to carry out the meaning in other cases. Often the case that government officials did not identify the alleged offender is found or found but did not arrest the proceedings. Which force majeure to perform according to the mean as soon as possible. Or within a reasonable time. The case of Chiranuch not.

Should be recognized that Over a few years ago Chiranuch Premchai together as a people in the field of media appearances in the media, the public is Nuang other because Prachatai the online media web first in Thailand to have received much attention from consumer Internet media both inside and outside the country. Of the role involves working on freedom of the media Chiranuch own. She is often invited to speak at the seminar discussions or talk to a variety of topics, including free TV in her lawsuit was filed several charges by November. Act computers.And in that case have been preliminary hearing in court already, so would not force it over the shoulder than the government officials responsible for the case. Are arrested in this process according to an arrest warrant in a reasonable time. The fact that there may appear Chiranuch. Are invited to attend the media conference at the international level and have some reason to be traveling abroad. But life Chiranuch than 90% in Thailand and has its office (Office press release Tiger) is a residence Furthermore, what makes people know about surprised even more is that the capture was made after Chiranuch. " back into "the country is not going to" go out "overseas.

With time and form of arrest. And detained at the airport. As well as bringing the accused to sit for several hours after the car journey from Bangkok to Khon Kaen, and then the interrogation at the police station to another until almost Kaen hit two. Than to allow a bail Chiranuch. This is Saturday. This case should be questioning that. Officer of the state authority as the legitimate or not? Or the use of state power, but like the nest to damage one of the accused only getting older. In addition, non-execution of arrest warrants and that the lapse of time possible, leaving more than a year. Be considered or not. Not ignore the execution of duties? That these are all factors likely to offenses against the position in accordance with Section 157 Criminal Code total

2. According to the facts in one. It seems to capture Chiranuch non-urgent matters. (Because it was released at warrant of arrest for a year. Chiranuch the status of people in the news, there is resident Not seem to escape all the opportunity possible) would be another question arises in that Why officers chose to ask for "arrest warrants"from the court, which affect the rights of the accused rather than the "summons" to show to the investigation.

The news appeared in Matichon online. Col. Chat Pong Pong Su Wan officers (Sb. 2) Police Station. Muang Khon Kaen One of the officers of the said case, gave an interview to the press that "This case is not a case where a summons would be issued. It is a serious penalty, "the interview is interesting. According to the Code of Criminal Procedure does not contain any chapter section that says that To be issued a summons to the lawsuit must be no serious penalty. Or even the principle that If the case is serious, then penalty. Is of the officers who have requested an arrest warrant only It does not appear that any of the law.

Criteria for issuing a summons. Provided in Section 52, Code of Criminal Procedure. which is that the ground rules are not difficult. And can be removed by the officers themselves. Administrative official. Senior police or by the court when the case may have reason to be questioned. Preliminary examination hearing or otherwise by law. No specific restrictions in terms of "penalty" as it would show that the issuance of the subpoena. In fact convenient and easier than I issued an arrest warrant. Various reasons, which must be in accordance with Section 66 of the same law. (will be mentioned later) is important in the second paragraph of Article 52 is also noted. If officers.Administrative official. Adults or police. Go investigate yourself. (Not a suspect. Or testimony that the officers in the address) or the accused shall have the power to summon witnesses to give evidence without the need to issue a subpoena.

For the arrest warrant in accordance with Section 66 Code of Criminal Procedure. to ask the court only. The following must be why.

1) when there is reasonable evidence that any person would be criminal offenses. Which has a high rate of imprisonment for a term exceeding three years or
2) when there is reasonable evidence that Any person should be criminal offenses. And there is reason to believe that escape. Or are going to mess with evidence. Or otherwise cause danger.
Also noted that paragraph. If a person is not a resident Or does not come as a summons. Or by appointment without a reasonable excuse. That person may be presumed to be fugitive

Terms of an arrest warrant out for not "force chapter" that if the case is serious penalty. (Very high imprisonment up to three years), officers have issued an arrest warrant, but only (In the discretion of the officer or the court) is situated opposite the law that prohibited them separately. If any case the rate of imprisonment of less. "No warrant shall issue" unless the reason for the conditions in Article 2 In addition, if the words in the second paragraph withWould see that fact. If you do not really need. Arrest should be on late-comer to the subpoena even. Because it"did not come as a summons. Or by appointment, without reasonable excuse "is the official reason for requesting the court issued an arrest warrant, so the interview officers of such people. It would have any doubt very inviting. And may cause misunderstanding with people who know the law with

Granted,. If the case is a serious penalty. (This includes cases Chiranuch accused in this as well) as the legal discretion of the officer or the court decide to issue a summons or arrest warrant. But if the spirit of the law of criminal procedure. Especially in the era after the Constitution Act 2540 comes into effect then. Will find that such discretion is not no "framework" I directed the Constitution Act 2540 is important legislation that affects criminal proceedings. Because the revised philosophy of criminal proceedings in accordance with the principle of "presumed that the accused or the defendant is innocent. Until the final court action that is wrong, and so the products at the various criminals as he was then. Therefore do not, "With the addition of chapter coverage. "Right to the accused and the accused" in the various section of this constitution. Including revised Code of Criminal Procedure, Section for many more in line with the Constitution. From that in the past. Criminal Process in Thailand, but specifically focused on space. "Crime prevention and suppression" (The Crime Control Model) only. Turned to the importance of space. "Protects the rights of the accused or the defendant" (The Due Process Model) with the course, this should result in changes to the justice system. Including the attitude of government officials, law enforcement in Thailand.

For these reasons. If the penalty rate of other surrounding circumstances, including the status and behavior of the accused that they would own. It is not difficult to track a suspect or defendant by the prosecution authorities should be the main method that has deprived the rights of the accused or the minimum extent necessary before, so in the case of Chiranuch may be considered that The actions of public officials. Choose whether to issue an arrest warrant or a summons instead of how to time in following the definition. Are not in the spirit of the two major legal issue at all. Key to the fact that another appearance. Chiranuch Accused to be called to give evidence to the officer several times. And never had any behavior contrary to summon it.

3. Content that "should" is an offense under the law. (The blame) on the part of "Comments", which belongs to the Civil Service Times. (In the article there are more than 250 comments) is not the content in "white meat off the team press release from the Times interview Chotisak. High light. So. Additional charges that the offense together with other services under section 112, intended to provide content that is not in accordance with the Constitution as well as the 116 errors in the publication database to another offense. Is charged with the proper or not.

For this problem is the question, not less, as well as the Chiranuch own. It is just Chiranuch "intermediary" service provider web site news. The area open to comments only. If the author would not decide at that in the end, Chiranuch be guilty and punished under different it or not the court, "Justice," consider yourself (if filed in court.) But the author has noted in the law on this aspect as follows.

That a person is guilty and must be punished in the base "together" defamation committed by the head of state by dint of section 83. of. Section 112 Criminal Code is that Have shown that people who carry more than one person.But it can be considered as "the joint" was. Facts must be added at the end of that question. Two or more people who have been accused of that. To act in a manner "Ruamjai" or retain the same since the beginning. It also can "cooperate" with each other, while the offense. In other words, it is. Each offender has accepted from the beginning. (Before the guilty) out of action with others committed acts of self And joint action with something.(May split duties well done, etc.), while the offense occurred.

Important keywords. Was "I agree with the actions of others as their own" and "as guilty" if the case Chiranuch. (Including the Forums administrator. Forum on online media, etc.) of the nature of technology and other services on the Internet. The number and speed of data transmission. Including the nature of business in this type of service. It is almost impossible. The Web site administrator area which is open to comments. Or bulletin board to retain since the beginning of the post. Take or accept. "Comments" displayed by visitors to the web site is huge."Comments of itself" and would be difficult to happen as well that the host is able to recognize these, or see all the text, "while" on the post. Greatly when I saw a post already for some time. Seeing that. The training as a "media in the media" truly As an Internet service provider. (This is different from a newspaper editorial. Or other publication of the paper. A moderator before published material) almost never is "joint" with a comment on his web site at all. (Although some people would argue that this case be "Continuing offense" and whether it could not be regarded as a joint. With the congestion issues that come together in the future. Must be known to the offender or an accomplice in the beginning anyway).

Not only. Even as a "sponsor" for offenders. In accordance with Code section 86. which shall be punished as well.(But much less than the joint), it is still difficult to determine which service provider is to network media. Because the sponsor must be "to facilitate or assist the offender" in the time "Before or on the" offense only. Although the text as published in the media on the verge of a "continuing offense" and whether it must appear that the service provider. Has been done in any way help. Or facilitate any one of the reasons clear. Is not only not delete the messages. Or to open the area to normal. Story similar to this. Had the Supreme Court at 766/2476 orientation to the size that "Any person who knows that an offense occurred. Then ignored totally free. Or even the victim does not help when requested. Not a sponsor. And not even recommend to others not to interfere with the offender. Decay is not considered a supporting each other like "why is it such as Sponsors are not an evil spirit with the offenders themselves the same size, the "act" is guilty, so he took the punishment. Should be clearly shown that the action "Provide the comfort," the actual, not just ignore the questions of others that will be considered only supported with omissions to act or not, it still has problems, suspect that in the end, anyway. Thailand has a provision that the "obligations" in the matter to the carriers. (Especially with online media, with correspondence between service providers. And service providers, which are difficult to check) was not considered to be the service provider has "the duty to protect."

Because of failure to apply traditional law to condone or punish various Internet service providers are committed itself in an age where the Internet more. But the state can not ascertain the actual offender. And pulled out a concept, Internet service providers to share the responsibility with the other countries (including Thailand) needed a way. "Issue a special law, the liability of Internet service providers under specific conditions only. In the current legislation is. Section 15, Act of computer sure enough in this case, complainant condemn Chiranuch the only guest who does not know the law. It may also be forgiven. If the authorities to comply with legal knowledge know nothing about these matters at all. It should be a review of teaching Thai law express

For charges of second section 116 Criminal Code to make the content displayed in a manner contrary to the Constitution. The extra motivation. To changes in the law's land, to create disorder among rebellious people. Or of unrest in the kingdom. As well as for public land violated the law that is alleged in the more serious offenses.
The first issue to consider is that the word "material" under section 116 in the case of the publicity this Refers to the content in any part, anyway. If you consider the words and spirit of the law. Would mean that the content publisher's own perception that he would not only mean the content of others, especially if the host does not know how other people's content. But what happened in the case of Chiranuch is the content that allegedly may fall into an offense under this section. No content in news interviews Chotisak mild high , but the content of the comments other people have more white meat on that one.

According to the second issue, which is Section 116 of the first issues that must be guilty. "Extra motivation," with .... that is available to the various provisions of the law. The motivations that Usually arise from the mind of"Offender" who create content for their own situation at the time before it is published to the question is when Chiranuch. No vendor or build "Opinions" that may be a problem as their own condemnation. (Unless he proves that Chiranuch who post themselves) in conjunction with the law, she still did not have the responsibility to review the content of comments. (Now only a moral duty) and also do not appear to have let Chiranuch aware of such content. This, then said, Chiranuch have "Extra motivation" for any situation from the "content" that Chiranuch not a creator. And occurs later presented the real news is not likely to happen at all actually in the process.

Charges (more) The last is very interesting. Section 85 Criminal Code is based on the ad or announcement to the people committed to a particular subject. Finally, if an offense that occur as announced. The announcement in such offense and shall be punishable (in short that the offender with the publication of) question is to publish the interview a person. The State Department itself was not charged with any of the "white meat" is a word that has a direct fault. , Shall be considered a declaration inviting others offender law there?

In addition, should know that. Liability under Section 85 is based on the "fault" that declared the act. This means that Declaration must be made clear that the announcement is intended to others guilty in a particular subject, such as inviting others defamation. Incitement to harm others. Set rewards to people who disobey the country, etc. (try to correlate this with the statement, posted revolving around another penalty. This happened several times in the witch hunt online viewers) that if someone has read an interview white meat problem , which in the Times and the Web public. Would see that. I do not have any statements in any part of that clear enough. Or could be construed as Chiranuch and team Prachatai solicitation to anybody any action or comment which is what illegal items such as 112 or 116.

Concluded that the various charges such notice, even the people who are innocent in law. Elements and may not even realize the mistake they accuse others that are what And may not know that the interpretation of law, the laws have the effect of deprivation of personal freedoms seriously must act strictly. However, as the official state law enforcement. Should be more careful about melody. Do not use personal bias acts as a piece of political contributions. And do not know or do not care that the notification by the mutual accusations are unfounded.Occurs with the purpose of good faith or how Or should be notified or not. Sometimes it also may make the case to court and placental cord plant. Also suffered damage to a person using any other reason with

4. Facts. (From the mouth Chiranuch who understand that given to officers as well) said, commenting on their part have all been reported and there was 5 comments 2 comments were deleted before a long time ago. Without any notice from a government official said. But the message is deleted because it is quite precarious, and it is clear, while the remaining three comments. Chiranuch just be aware and take action by telling deleted successfully notified by the police on the day of arrest

The point is this, shall be considered or that leave a comment on "may be" illegal, it exists until this day. (Date arrest) caused by the intentional support. Or consented to the offense in its service area as provided in Section 15 of PC Act is an offense under this section must appear clear that service providers are aware of "information" and to know that. "The message is a fault" in this Act, Section 14, a computer) and continue to allow to exist. But more important is the issue. The concrete indicators which will tell you that. Service providers know that people do not know.

Those that have already been played. Whether the current laws of other countries. Or the laws of Thailand itself.No provisions set "Obligation" to Internet service providers. Or other electronic media to verify any of the content, especially content created by others. The reason that Legislators of the countries understand the limitations that no one can monitor the Internet to complete thoroughly. Assigned duties as such. Especially if there is a penalty. In addition to creating or too heavy to pass through the media of this type. Also likely to negatively impact the development and popularity of Internet technology with Because no one would want to be entrepreneurs who need to charge a lot for equipment. Or hire someone to take care of 24-hour space that they may be liable instead of or in conjunction with the actual offender, if the contents escape my sight. One could say that. Validated by an Internet service provider that happen (somewhat) in the current measures are only preliminary. Each carrier voluntarily made themselves. The main reason is to try to prevent themselves be liable for the contents of other people only Find the right role in law enforcement.

Finally, liability under the Act, Section 15, a computer is possible but only if it is, "said Notification" to the substance that is an offense to the host only after the media directly or otherwise. I have empirical evidence thatHost reviews are certainly aware of the message as a comment a few words clearly seen easily, etc. If it turns out that fact. I did not have to notify the service provider. In addition, comments have a lot of hard-to-check States or the laws of the State shall have no right to expect that service providers "know" themselves, and when corrective action is not liable under the law.

Furthermore the following should be asked that. If advised of the existence of the "content" is "anyone" who are not officers of the state. And want service providers to remove content at its departure immediately that 1) the notifier is not a person who has been damaged by content directly (ie not the person who was defamation, etc.) or even 2) the right to inform the content as Section 112 open to anyone blame the government party. In the law. Is a function of the executive or the website will always need to remove that content. Since no clear evidence that the illegal content.

If the answer is yes, must be removed regularly, and everyone has the right to delete notify provider. Would cause chaos in the state was certainly Because it allows for people bullying each other. In addition, each carrier may be liable to be sued by people of all other parties in Nuang affect the development of Internet services in the country.This case, the Wed. Act The computer will see that this law does not define the measures that the carrier will spy"represents the purity that he did not intentionally support Or allow the contents of an offense "under section 15 as it is small problem in the execution has always been that the Contact tab. Operation or how to do. Or by how much time after receiving the notice. Service providers will be free from someone inform the accused. It only brought hardship to the service provider. Yet the court to stay or be guilty and sentenced to be punished at all.

If Thailand does not wish to problems such as these occur. Should set clear guidelines on what that person to notify the provider and the service provider is required to remove the content. Within the time specified how much. In addition, when deleted. Or suspended temporarily and then released. Fairness must be open to those affected. In this meaning, as well as service users and service providers own request provisional or ask for justice from the court with Moreover, if in the end. The Supreme Court ruled that content is distributed to non-stop offense. States, including the accused, they should be responsible either by law, however, these offers will occur or not will be Khึื depends on the sincerity of government to protect freedom of the people and the media. As well as the generosity of the government of the country, which at present we find it almost did not find.

Brief case made to last Chiranuch Premchai Porn is another phenomenon. Reflects a bad situation that happened to freedom of opinion And perception of information in Thailand In an age where the media are trying to offer a comprehensive fact is rare in the ocean more than a new needle Media such that enough left over to hit some say blocking. Carriers are also accused of threatening freedom strange as if he was a bad offense itself. Both the acts of others. The state is how to deal with a suspicious process that is intended to persecute Or covert threats both countries, including media freedom. But what is even more alarming is that these days comes not only government officials, only the law as a tool to threaten freedom And acted as an opponent to the public. But people should cherish their freedom, they turned to play with each other intimidation itself.

"The scope of freedom of the press is not only the freedom to distribute information freely only But can extend to freedom without any penalty on the media have presented information is true and relevant to the public interest. "
New York Times Co.v.Sullivan, 1964.

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