Protect environmental activists, uphold rights to peaceful assembly and expression

(Loei, November 25, 2016)—Fortify Rights welcomes a decision today by the Loei Provincial Court to acquit two environmental defenders on trial for their alleged involvement in a protest at an open pit mine in northeastern Thailand.

“In effect, the court’s decision promotes fundamental rights and prevented unwarranted punishment of two environmental activists,” said Amy Smith, Executive Director of Fortify Rights. “But there is a long way to go. These charges should never have been brought in the first place.”

In a hearing observed by Fortify Rights today, the court found defendants Mr. Surapun Rujichaiyavat, 44, and Ms. Pornthip Hongchai, 46, not guilty of “disturbing the possession”–or trespassing—of an open-pit gold mine site previously managed by Tungkum Limited.

The company filed a complaint accusing the two defendants and other individuals of allegedly erecting green flags at the mine site and using lime powder to write “Close the Mine and Rehabilitate” on the ground surrounding the open-pit in the mine site. The Loei public prosecutor indicted the two defendants on May 24, 2016 on charges of violating sections 83, 362, and 365 of the Thai Criminal Code. These sections define the crime of trespass, which carries a penalty of up to five years’ imprisonment and/or a fine of up to 10,000 Thai Baht (US $285).

The court found the two defendants not guilty due to insufficient evidence that the company possessed the land at the time of the incident. The Thai Mining Act requires that the company obtain permission to use the land from the Department of Forestry and the Agricultural Land Reform Office, and Tungkhum Ltd.’s permission expired in 2010, five years before the alleged incident took place. Witnesses for the plaintiffs testified further that the company stopped operations in 2010. The court ruled that the company did not suffer any harm if they did not have possession of the land. The court acquitted the two defendants of all charges.

Human rights lawyers from the Community Resources Centre Foundation provided the defendants with pro-bono legal representation.

Sor Rattanamanee Polka, a lawyer representing Ms. Pornthip Hongchai, said: “It’s the duty of the investigator and the prosecutor to prove whether the company was initially the eligible and rightful complainant in this case. As there’s no proof of wrongdoing, the court was right to find the defendants not guilty.”

“Being subjected to lawsuits is a major burden for villagers, and it definitely affects their spirit and obstructs their campaign activities. These lawsuits also infringe on their rights to freedom of expression to defend human rights and the environment,” said Teerapan Pankeeree, a lawyer from the Community Resources Centre Foundation representing Mr. Surapun Rujichaiyavat. “The community has been exercising its rights to freedom of expression in a democratic society, and will continue to do so. The court’s decision to acquit the defendants works in favor of the fundamental freedom of the people, the right to express their grievances and demand justice for their community.”

The defendants are members of Khon Rak Ban Kerd Group (KRBKG), a community-based group formed by villagers from six communities surrounding the gold mine in Wang Sa Pung District, Loei Province. The group advocates for environmental protections from negative impacts potentially linked to the gold mine and has protested for several years against the local gold mining operation.

Tungkum Ltd. has brought at least 19 criminal and civil lawsuits against 33 villagers, including members of KRBKG in the past seven years. Through these lawsuits, the company has sought 320 million Thai Baht (US$9 million) from villagers in Loei. Currently, six criminal and civil cases involving at least 25 villagers are pending.

Under international human rights law, states have an obligation to protect the rights to freedom of peaceful assembly and expression. The U.N. Special Rapporteur on the rights to freedom of peaceful assembly and association has noted with concern the use of aggravated trespass, particularly by private companies, to curtail the right to freedom of peaceful assembly and he has applauded courts that prioritize these human rights when they appear to be targeted by private interests.

“It’s within Thailand’s interest to ensure that companies rely on business models that promote human rights, rather than judicial harassment,” said Amy Smith. “Thai courts should take every opportunity to remind companies that human rights should be prioritized.”

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