Lèse-majesté prosecution of Move Forward MP-elect proceeded in the absence of the defense lawyer

On 1 and 2 June 2023, the examination of prosecution witnesses in a trial of the prominent political activists and Move Forward MP-elect Chonthicha Jaengraew at the Ratchada Criminal Court proceeded in the absence of the defense lawyer and despite Ms. Chonthicha’s request that the hearings be postponed until her lawyer is available to attend the hearing. Ms. Chonthicha was accused of violating Section 112 (lèse-majesté) of the Criminal Code by posting a message on her Facebook account about the Thai monarchy.

Notably, in this case, during the pretrial conference on 27 June 2022, both the prosecution and the defense agreed on the dates on which they would both be available to attend the hearings and to conduct witness examination. On that day, Chonthicha’s defense lawyer informed the Court Appointment Center that he would be preoccupied with trial in another case at Bangkok South Criminal Court on 1, 2, and 6 June 2023. Taking into account the availability of both the prosecutor and the defense lawyer, Chonthicha’s trial was scheduled to start in 2024.

However, on 5 July 2022, Deputy Chief Justice of the Criminal Court Attakarn Foocharoen unilaterally moved the trial dates to 1, 2, and 6 June 2023 and 8-11 August 2023. As the defense lawyer had already informed the Court Appointment Center on 27 June 2022, these new trial dates clash with witness examination hearings in a separate case which he needs to attend.

1 June 2023: First day of witness examination

On 1 June 2023, the defense submitted a request to the Criminal Court, asking the Court to postpone the hearing to other days on which the defense lawyer is available and not preoccupied with hearings in other cases. The Court denied the defense’s request, reasoning that the prosecution witnesses were ready to testify and that the defense did not object to the new trial dates in July 2022 when the dates were set.

However, according to Chonthicha’s defense lawyer, he already informed the Court twice — the first time on 27 June 2022 and the second time on 5 July 2022 — about his unavailability on the new trial dates.

In spite of the defendant’s objection to being tried without her defense lawyer, the Court nevertheless proceeded with the examination of four prosecution witnesses in the absence of the defense lawyer.

The Court informed Chonthicha that she may cross-examine the prosecution witnesses if she wished to do so. Believing the procedure to be unjust, Chonthicha refused to cross-examine the witnesses by herself.

2 June 2023: Second day of witness examination

On 2 June 2023, Chonthicha submitted a letter about the unfair trial that took place on 1 June 2023 to the Judicial Commission as well as the Chief Justice of the Criminal Court. The letter calls for an investigation into the panel of judges that preside over Chonthicha’s case and for a disciplinary proceeding to be initiated against them. An officer from the Criminal Court received this letter and informed Chonthicha that the letter would be delivered to the Judicial Commission and the Chief Justice of the Criminal Court.

In the courtroom, Chonthicha requested that the Court postpone the hearing to another date because her defense lawyer could not make it to the hearing due to his commitments in another criminal case. The Court denied Chonthicha’s request.

The Court reasoned that Chonthicha has two lawyers in this case. Meaning, even if one lawyer is not available, another lawyer can still show up at the Court and cross-examine the witnesses. Although Chonthicha explained to the Court that said second lawyer was only her lawyer for the purpose of bail revocation proceedings, the Court noted that she never made the scope of the lawyer’s representation in her case clear at the time of his appointment. As such, the Court considered that the second lawyer has the power to represent Chonthicha in all aspects of the trial.

Furthermore, the defense pointed out that the second lawyer was also unavailable due to another hearing in another criminal case which he must attend. In response to this point, the Court stated that the defense did not produce any evidence to prove that the second lawyer was unavailable. The Court therefore denied Chonthicha’s request to postpone the hearing.

The Court informed Chonthicha the right to cross-examine the prosecution witnesses. However, because she believed the procedure was unjust, she refused to cross-examine the witnesses by herself.

A total of three prosecution witnesses testified before the Court on this day.

6 June 2023: Third day of witness examination

On 6 June 2023, Chonthicha requested that the Criminal Court postpone the hearing due to her lawyers’ unavailability. Unlike previous cases, the Court granted her request and ordered that the hearing be postponed.

The Court explained that, having checked the system on the cases before the Court of Justice, there existed a good reason to postpone the hearing because the defense lawyers were preoccupied with another lèse-majesté case at the Bangkok South Criminal Court. The Court also canceled hearings on 8-10 August 2023 because the defense lawyers will be preoccupied with another case at Taling Chan Criminal Court.

Furthermore, in response to the defense’s request to have prosecution witnesses undergo direct examination again in the presence of the defense lawyer, the Court held that the examination of witnesses on 1 and 2 June 2023 was lawful and so no re-examination of the witnesses was required.

The Court did, however, issue summons to four prosecution witnesses so that the defense could cross-examine them on 11 August 2023. The Court also informed the defense that the hearings on 1 and 2 June 2023 were video recorded, and that the defense could request for the recordings.