Cases during the NCPO era: Article 112 case database

Although Article 112 prosecutions have long existed in Thailand for decades at least since the 2006 coup, the rule of the National Council for Peace (NCPO) has caused them to spike.

In the wake of 22 May 2014, the coup makers have harshly resorted to rights violation methods to suppress critics of the monarchy. It has led to a surge in cases, the board interpretation of the provision, the holding of persons in military custody, the issuing of decrees to give jurisdiction to the Military Court over this offence, the infringement on the rights to fair trial, the sentencing of much longer imprisonment, the attempt to force people to seek political exile, and other obstacles created to impede attempts to hold activities or public discussion on problems concerning the use of Article 112. Only toward the end of NCPO era that the situation has become less tense.

Having been monitoring human rights situation after the 2014 coup, the Thai Lawyers for Human Rights (TLHR) also monitors the situation of Article 112. We have developed a database of Article 112 cases which have received legal assistance from us, and we have consent from the defendants in certain cases to having the information publicized. We have also made some observation regarding the judicial process from human rights perspective.

Here is a brief review of Article 112 cases during the NCPO era with a table featuring information about Article 112 cases that receive legal assistance and monitoring from TLHR. More information of each cases can also be retrieved from a rights and freedom database during the five years of NCPO (in Thai).

An overview of the situation and major observations regarding Article 112 cases (as of 31 May 20)

1. An “Article 112 case”, or “defamation of the King” or “lese majeste case” means a case in which a person is accused of committing an offence against the Penal Code’s Article 112 which provides that “Whoever defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent, shall be punished with imprisonment of three to fifteen years.”
2. After seizing power through a coup in 2014, the NCPO announced its policy to protect the monarchy by enforcing the laws or other measures. It has led to the jarring criminalization of the expression of political opinions during the five years under the NCPO rule. At least, 169persons have been indicted, 106 of whom as a result of their exercising freedom of expression, and the rest for defrauding.

Among them, 65 defendants in 55 cases have received legal assistance from the Thai Lawyers for Human Rights.

3. The NCPO also issued the Announcements no. 37/2557and 38/2557(effective from 25 May 2014 to 11 Sept 2016) to institute that the offence against this provision shall be adjudicated by the Military Court which apparently lacked judicial independence and there was no guarantee of the rights to fair trial. 25 cases which receive assistance from TLHR were tried in the Military Court, the other 30 in civilian court.
4. The enforcement of Article 112 had existed since before the NCPO came to power, but under the NCPO’s aggressive and ferocious policies, Article 112 has been interpreted and enforced much more broadly, the act of which could breach the rule of strict interpretation of criminal law and the exercise of the right to freedom of expression by the people. For example;

• The prosecution of a person who clicks ‘like’ or shares a Facebook post, even though the person is not the author of the post such as the cases against Jatupat and Thanakorn.
• The prosecution of a person who fails to stop another person who is saying something offensive to the monarchy such as the case against Patnaree (Sirawith’s or Ja New’s mother)
• The prosecution of a person who makes a comment about a dog adopted by His Majesty such as the case against Thanakorn or a group of individuals accused of setting fire on the portrait of the former king who is not even protected by Article 112.
• The prosecution of a person who claims to have a royal connection to defraud other persons such as the case against Phuchit, even though his acts do not constitute the elements of crime according to this provision.
• The prosecution of a person who claims to know Princess Maha Chakri Sirindhorn who is not protected by the provision such as the case against Noppharit
• The prosecution of a person with schizophrenia, even though according to the law, the inquiry official has to cease the investigation once it could be sufficiently established that the accused suffers from mental illness. But in reality, a number of people with mental illness have been indicted on this charge. TLHR has offered help to ten of them including Prachakchai, Sao, Thanet, etc.

5. After the 2014 coup, most of the accused in this case have often been subject to military custody, before being transferred to the police for further investigation. We have found at least 40 of such cases including those who have turned themselves in as summoned by the NCPO, i.e. Kathawuth or Chaleaw, and those who have been raided and arrested by the military and the police, i.e. Burin or Ekkarit.

The incriminating evidence including confession has been obtained while they were held in military custody and when they were denied the right to contact their confidante and their attorneys. Their communication devices have been seized and examined to extract more incriminating evidence even though such action is prohibited by law.

6. Most alleged offenders and defendants in Article 112 cases do not afford a number of rights to fair trial while being tried either in the Court of Justice or the Military Court, for example;

• The right to bail: 46 of them have been denied bail including Pronthip and Patiwat, or even Jatupat who applied for bail 12 times to no avail. Those who could successfully get bailed out had to spend hundreds of thousand baht to post bail.  Sirapop was only granted bail after nearly five years behind bars awaiting the trial.
• The right to public hearing: At least 18 cases have been subject to secret hearings including the cases against Anchan and Piya. In certain cases, the Court even read the verdict in a closed session including the cases against Jatupat and Opat.
• The right to speedy trial: Particularly, cases tried in the Military Court saw sluggish pace of hearings. For example, the hearing on the case against Sirapop has started since 2014. After nearly six years, the witness examination is yet to be done. As many alleged offenders or defendants are subject to pretrial detention and denied bail, the hearing delay will only prompt them to choose to plead guilty to the charges rather than to fight, such as the cases against Samak or Tara. TLHR found 40 defendants have decided to plead guilty for this reason.
• The right to legal counsel: For example, in the case against Chayapha, the Military Court has failed to inform her lawyer in advance about the forthcoming hearing. As a result, Chayapha decided to plead guilty without having the chance to consult with her lawyer.
• The right to have the case reviewed by a higher court: For cases tried in the Military Court, if the offence has been committed when Martial Law was still imposed (20 May 2014 – 1 April 2015), the defendant shall be deprived of the right to appeal with a higher court, for example, the cases against Thiansutham, Pongsak, and Tara who were sentenced to more than 20 years of imprisonment. As far as we know, there are ten cases where the defendants are denied such rights.
• For defendants with schizophrenia, the Court has failed to take into account the principle to protect offenders with mental illness in criminal justice when making the judgment either to acquit or convict the person. As a result, at least five defendants with mental illness have been convicted and sentenced to jail including Samak, “Rungruang”, and “Sin”.

6. During the NCPO era, the Military Court and the Court of Justice tend to impose a longer prison term on defendants in Article 112 cases. It has even been increased from 5 years per count to 8-10 years per count. As a result, the Military Court has made sentencing as much as 50 – 70 years in the cases against Wichai, Pongsak, Sasiphimon and Thiansutham (given his guilty plea, it was reduced by a half). Such sentencing does not comply with the principle of proportionality of criminal punishment since the offences are all involved with just the expression of opinions.
7. Toward the end of judicial process, there are Article 112 convicts who are denied parole since their offences are considered an offence against the principal institution of the nation, for example, the case of Jatupat. The denial of such parole is an act of discrimination itself. Eventually, Jatupat was only released 41 days before prison term courtesy to the Royal Pardon Decree 2019.
8. Since early 2018, Article 112 prosecutions have been in spectacular decline. According to our information, very few new cases have been prosecuted since then. In addition, it has been found that the Court of Justice tends to dismiss lèse majesté cases even if the defendants have pleaded guilty to the charge. In certain verdicts, the Courts do not explain as to why the cases have been dismissed, for example, the burning of royal portraits cases in Khon Kaen. In other instances, for example, in the case against Prawase, the Court did not even mention lèse majesté charges in its verdict. In other occasions, they decided to convict and sentence them on other charges; for instance, they sentenced “Kay” on Computer Crime Act while sentencing Prawase on Article 116 (sedition) instead of Article 112. In another case, the Court simply convicted the defendant on other charges not related to the charge sheet, like the case against “Prat”.
9. While Article 112 prosecutions have been dwindled since 2018, we have found the prosecutions on Computer Crime Act and Article 116 have been on the rise to criminalize both offline and online critics of the monarchy, for example, the cases against the Organization For a Thai Federation (in Thai).Other unlawful measures have also been adopted including visiting the persons at their homes, taking them away and putting them in custody for interrogation and to subjecting them to threatening while being held in custody in military barracks or police stations before forcing them to sign an MoU.
10. The trial of civilians in the Military Court has come to an end and all remaining cases have now been transferred to the jurisdiction of the Court of Justice as a result of the Head of the NCPO Order No. 9/2562 which was issued just before the NCPO became defunct. As a result, eleven cases on Article 112 handled by TLHR and whose trials in the Military Court have yet to finish have been transferred to the Court of Justice, including the cases against Sirapop, Anchan, Patnaree and particularly one of the two cases against Bundit that the Court of Justice had to deliver a verdict, even though the witness examination had not been conducted by the Court.
11. At present, there are twelve cases on Article 112 that have received assistance from TLHR and are still ongoing. Two of such cases have been disposed by the Court since the defendants had died (Prachakchai and Nathee), and the final verdicts have been delivered in 42 cases. The public prosecutor has decided to not prosecute seven such cases (including the case against Sombat, who shared and commented on a post about the People’s Party plaque) and the Court has dismissed three cases against (Kay, Noppharit, and Sakan) and convicted 41 defendants in 32 cases. At present, 12 convicts are still imprisoned.
12. The aggressive enforcement of Article 112 coupled with militaristic tactics used during the military regime do not just contribute to the soaring number of defendants and the increasing burden on them to defend themselves in the Court and to be subject to pretrial detention, it has also prompted many to seek political exile. It should be noted that six political exiles, who fled the country either before or after the 2014 coup and have been wanted for Article 112 cases, have become victims of enforced disappearance while seeking refuge in neighboring countries.
13. During the NCPO era, there were hardly any campaign or public forum organized on the issue of Article 112 in the country, even though prior to that, there had been the outpouring of campaigns and advocacies to demand either the revocation or amendment of Article 112. A slew of public discussions were organized to discuss problems stemming from its enforcement.
14. The UN Special Procedures have sent letters to the Thai government several rimes to raise their concern that the enforcement of Article 112 and the Computer Crime Act have not been made in compliance with the International Covenant on Civil and Political Rights (ICCPR) including the prosecution and detention of a person simply for expressing their views in private or public sphere and online media. Such acts violate the right to freedom of expression and opinions. The UN Special Procedures are also concerned that the laws have been used as a tool to silence the anti-coup activists. In addition, the UN Working Group on Arbitrary Detention states that the detention of Patiwat, Pronthip, Pongsak, Thiansutham, Sasiphimon, Chayaphaand Sirapop is tantamount to arbitrary detention which is a breach to the international treaty to which Thailand is a member.
15. The United Nations called for the amendment of Article 112. In a similar vein, TLHR has developed recommendations to address the consequential effects of the coup in terms of the legislations, the policies and judicial process in order to uphold rights and freedom of the people. One of the recommendations is the review of the elements of law and criminal punishment related to the offence against Article 112. We propose that an amendment be made to ensure its compliance with human rights principle whereby restriction of an individual’s rights must be done as proportionate and as necessary to a democratic system.

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For more information, please read >> Five years under NCPO, isn’t that enough? Recommendations to eliminate the effects of the coup

>> (In Thai) Recommendations to address the consequential effects of the coup in terms of the legislations, the policies and judicial process in order to uphold rights and freedom of the people

>> The use of Article 112, in decline or being replaced by other laws 

Article 112 case database (click on defendant’s name for more detail in Thai)

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