Hong Kong, January 22, 2013
On December 19, 2012, the Criminal Court in Bangkok was scheduled to deliver the verdict in the case of Somyot Prueksakasemsuk, who has been charged under Article 112 of the Criminal Code. The reading of the decision was rescheduled for tomorrow, Wednesday, January 23, 2013, at 9 am at the Criminal Court in Bangkok. The Asian Human Rights Commission urges all individuals concerned with freedom of expression, and human rights broadly, to attend the reading of the verdict if possible, and if not, to follow developments in this case closely.
Somyot Prueksakasemsuk is a long-time labour rights activist and human rights defender in Thailand. Since 2007, he has been the editor of Voice of Taksin magazine. He was arrested and taken into custody on April 30, 2011, and shortly thereafter charged with two violations of Article 112 of the Criminal Code, which states 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." In Somyot's case, the charges were for allegedly allowing two articles with anti-monarchy content to be published in Voice of Taksin magazine. Somyot was held for six months of pre-trial detention; the hearings in his trial began on November 12, 2011 and continued until May 3, 2012. Similar to the majority of individuals who have been charged under Article 112, his repeated requests for bail were denied on the basis of the gravity of the charges against him. In August 2012, the UN Working Group on Arbitrary Detention noted that Somyot's detention was arbitrary because "he has been detained for his peaceful exercise of his right to freedom of opinion and expression provided for" in both the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights (Read the full opinion of the Working Group here).
The reason given by the Criminal Court for the deferral of the reading of the decision on December 19, 2012, and therefore the extension of Somyot Prueksakasemsuk's arbitrary detention, was the need to read a comment by the Constitutional Court in relation to Article 112 of the Criminal Code. The comment, dated October 2012, addressed a petition submitted by Somyot as well as a petition submitted by Ekachai Hongkangwan, who is being prosecuted in a separate case for alleged violations of Article 112. The comment addressed whether or not Article 112 was in contravention to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution (The full comment can be read in Thai here). In response to concerns about each of these provisions of the Constitution, the Constitutional Court ruled that Article 112 did not stand in contravention and was therefore constitutional.
The Asian Human Rights Commission is gravely concerned by the stance taken by the Constitutional Court in their comment and their cavalier dismissal of the significant concerns presented. With regard to each of the three articles of the Constitution raised as contravened by Article 112 of the Criminal Code, the Court's explanation is at best, vague, and at worst, ideological. What makes this comment significant is both the potential impact it may have on the judgment rendered in Somyot Prueksakasemsuk's case, as well as other lese majeste cases and the broad frame of freedom of expression and human rights in Thailand.
The Constitutional Court frames their comment by citing Articles 2 and 8 of the Constitution. Article 2 states that "Thailand adopts a democratic form of government with the King as Head of the State." Article 8 states that "The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action." The Court then notes that Thailand has had a king as head of state "for a long time, since the Sukhothai era, even though there was a transformation in 1932 to be a democratic regime with the king as head of the state under a constitution." The Court continues, noting that "Up until the current constitution of the kingdom, the form of regime remains one with the king as head of the state." The Court then comments on what this means, offering the interpretation that "This demonstrates the great respect, esteem, and admiration held by the people for the institution of the monarchy. The place of the Thai king as the respected and beloved center of the Thai people has been continuous, as shown in age-old royal traditions and legal conventions. The king has administered with virtue and taken action with the intention of the well-being of the people. In particular, King Bhumipol Adulyadej, the current monarch, greatly contributes to the nation and gives royal grace to the Thai people. He visits the people and bestows royally-conceived projects in different areas in order to alleviate the suffering and solve the problems and troubles of the people. He teaches the people to subsist in line with the principles of the sufficiency economy, by living in line with the middle way, having enough, and being prepared to face changes which may arise. Ordinary people are aware of the king’s conduct and his generosity. They therefore have deep-seated respect, trust, and loyalty for the king and the institution of the monarchy. The long-standing patronage of the Thai king has made the Thai people to continually respect, love, and admire the king. This is a unique characteristic of Thailand held by no other country." For this reason, the Constitutional Court explains that the state provides protection because the king is the head of state and a primary institution of the country. The Court then notes that Article 112 of the Criminal Code is a complimentary provision to Article 8 of the Constitution.
In addition, the Constitutional Court also frames the comment by noting that the purpose of Article 112 of the Criminal Code is to "control the behavior of individuals in society, protect safety, and safeguard public peace for members of society, including strengthening the security in society." The reason why it is appropriate to do so is because speech deemed to insult, defame, or threaten the king, queen, heir-apparent or regent, "may be action that destroys the hearts of Thai people who have respect, love, and are loyal to the king and the institution of the monarchy, and may cause resentment among the people."
After this introduction, which foreshadows the Constitutional Court's dismissal of the two petitions at hand, and any future petitions, the Court turns to specifically address Article 112 of the Criminal Code in relation to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution.
Article 3 (2) of the Constitution states that "The National Assembly, the Council of Ministers, the Courts, other Constitutional organizations and State agencies shall perform duties of office by the rule of law." The petition noted that the classification of Article 112 of the Criminal Code as a crime of national security, and the corresponding harsh punishment, was not in line with the rule of law. In response, the Constitutional Court notes that Thailand is a democratic regime with the king as head of state. The Court further argues that the monarchy is in a special position, and therefore a special law is just because the monarchy is a primary pillar of the nation, owing to history, royal tradition, and legal convention. Rather than addressing the question of national security, and how an alleged violation of Article 112 of the Criminal Code might affect it, the Constitutional Court instead attempts to redefine the rule of law to include special protection for particular individuals within the polity. i.e., the king, queen, heir-apparent, and regent.
The Constitutional Court examined Article 29 and Article 45 (1, 2) together. Article 29 is in the section of the Constitution which addresses rights, liberties, and human dignity in a broad sense, and states that "(1) The restriction of such rights and liberties as recognized by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and only to the extent of necessity and provided that it shall not affect the essential substance of such rights and liberties. (2) The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person provided that the provision of the Constitution authorizing its enactment shall also be mentioned therein. (3) The provisions of paragraph one and paragraph two shall apply mutatis mutandis to rules or regulations issued by virtue of the provisions of the law." Article 45 states "(1) A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicize, and make expression by other means. (2) The restriction on liberty under paragraph one shall not be imposed except by virtue of the provisions of law specifically enacted for the purpose of maintaining the security of the State, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals of preventing the deterioration of the mind or health of the public." In response, the Constitutional Court argues that Article 112 of the Criminal Code does not have any effects on freedom of expression. The Court further notes that freedom of expression must be in line with the Constitution, and speech which defames, insults, or threatens the king, queen, heir-apparent or regent is not, and so Article 112 of the Criminal Code does not limit freedom of expression.
The Asian Human Rights Commission wishes to note one line in the Constitution not mentioned by the Court in their comment. The first sentence of Article 3 notes that "The Sovereign power belongs to the Thai people." Throughout this comment, rather than specifying how the Constitution might be used to uphold the rights and liberties of the people, the Constitutional Court has instead specified the conditions under which the people do not have rights, or recourse to demand their rights. Combined with a comment issued in 2011 in response to a petition filed by Daranee Charnchoengsilpakul (See AHRC-FAT-038-2011), the Constitutional Court seems to have taken up the task of systematically stripping rights and liberties out of the Constitution.
The Asian Human Rights Commission is concerned about what this comment may mean for the specific case of Somyot Prueksakasemsuk, who faces a maximum sentence of up to 30 years if convicted, as well as what it means broadly. The AHRC urges all concerned parties to observe the Criminal Court decision in the case of Somyot Prueksakasemsuk tomorrow and to closely follow related developments in other cases and Thai state actions and comments in relations to Article 112 of the Criminal Code.
The Asian Human Rights Commission is shocked to learn that a regional police commander in Thailand has recently given a substantial financial gift to five police officers convicted of murdering a teenager, Kiettisak Thitboonkrong, during the 2004 "war on drugs".
On 25 September 2012, Pol. Lt. Gen. Sompong Khongpetchsak, the Police Region 4 commander, presented Pol. Lt. Col. Sumitr Nanthasathit and his four colleagues with 100,000 baht (USD3265). This news was posted on the website of Police Region 4 (see here). According to the website, this money is intended as welfare support to the five police for "having been found guilty resulting from carrying about their duties at the Kalasin police station". (Photo Source: Royal Thai Police Region 4)
In a statement released shortly after the court decision in this case (AHRC-STM-157-2012), the AHRC welcomed the landmark conviction as a clear sign that the judiciary in Thailand was at last willing to hold the police to account for their use of extrajudicial violence against citizens. The action by Pol. Lt. Gen. Sompong Khongpetchsak, by contrast, indicates a clear unwillingness of the police to draw a line between duty and extrajudicial violence, and also indicates unequivocal support of the police leadership for the use of extrajudicial violence against citizens.
Let us briefly revisit the facts of the case, in order to situate the actions of the regional police commander in compensating subordinates for an act of murder committed in the line of "duty". On 30 July 2012, in Black Case No. 3252/2552, 3466/2552, the Criminal Court found five out of the six police officers accused of murdering Kiettisak Thitboonkrong, age 17, in 2004. The six defendants were Pol. Snr. Sgt. Maj. Angkarn Kammoonna, Pol. Snr. Sgt. Maj. Sutthinant Noenthing, Pol. Snr. Sgt. Maj. Phansilp Uppanant, Pol. Lt. Col. Samphao Indee, Pol. Col. Montree Sriboonloue, and Pol. Lt. Col. Sumitr Nanthasathit, all officers stationed in Kalasin Province, northeast Thailand. The police had arrested Kiettisak on 16 July 2004 for allegedly stealing a motorcycle. When his family heard this news, they went to the police station and attempted to talk to him. After returning multiple times, his grandmother was allowed to witness his interrogation on 22 July 2004 and told to wait for him to be bailed out later that day. But Kiettisak never came home and several days later his mutilated body was found in a neighbouring province. Following his death, his family launched a campaign to campaign to investigate and hold the police in Kalasin accountable for his murder and the murders of 27 other individuals by police of the same station during and following the so-called "war on drugs". After an extraordinary effort on their part, the court finally reached its verdict and sentenced three police officers to death for their actions, while one it sentenced to life imprisonment, and one to seven years in prison.
Rather than holding state officials who used extrajudicial violence against these citizens to account, in Thailand the perpetrators of crimes have often been rewarded. The alleged police abductors and killers of human rights lawyer Somchai Neelaphaijit, for instance, obtained promotions even as a criminal case was proceeding against them in court. Others accused of torture and killings have been transferred to "inactive" postings, considered discipline enough in cases that obtain a large amount of public attention and outcry. But in most cases, the perpetrators have enjoyed impunity by the expediency of inaction. They are tacitly and conveniently ignored. Consequently, one of the long-term effects of these cumulative practices has been the further consolidation of impunity for state violence in Thailand.
Therefore, the case of Kiettisak Thitboonkrong stands out among other cases of extrajudicial killing in Thailand over the last ten years, in which courts have been unwilling to hold state officials to account, including the cases of the mass deaths in custody following the Tak Bai incident of October 2004, and the April-May 2010 killings in Bangkok. Even in cases in which courts have ruled that a citizen has died in custody due to the actions of state officials, such as the March 2009 torture and death of Imam Yapa Kaseng, the actions of officials have been classed as matters of official "duty" and the perpetrators have thereby been exempted from prosecution.
The action by Pol. Lt. Gen. Sompong Khongpetchsak is an attempt to undo the courageous stand taken by the Criminal Court and thereby restore the "normal" order of things, in which police enjoy impunity for torture, killing, enforced disappearance and other gross abuses of human rights. Pol. Lt. Gen. Sompong’s financial gift to the five police officers, and the assertion that it is to aid them in facing a conviction that arose from actions they took while carrying out their duty speaks to a culture of non-accountability that pervades the Royal Thai Police. It is an act that defies the court's attempt to place the police under the very laws that they claim to enforce. Indeed, it is an act that erases the line between law and extrajudicial violence altogether, by implying that to torture and murder a young man are acts that are consonant with the normal course of a police officer's duty, and not acts for which he ought to be punished.
Further, the lack of clarity as to whether or not the financial gift was an official gift by the police force or a personal gift by Pol. Lt. Gen. Sompong raises an additional concern about the form of impunity present within the Thai police. The report about the gift on the Police Region 4 website included a text description of the gift as well as three photographs, including one which showed the presentation of the money from Pol. Lt. Gen. Sompong to the five police officers. Notably, the five police officers were still in uniform, since they are remaining in the police service while on bail pending appeal, despite the fact that they are convicted criminals. Pol. Lt. Gen. Sompong, on the other hand, was out of uniform. While this choice of clothing may have been meant to signal that the gift was an unofficial, personal one, by posting the photos and news on the Police Region 4 website, the message of official approval for the gift is clear. Whether impunity for extrajudicial violence is ensured through official police policy, or through unofficial-yet-acknowledged networks of patronage, the message from the police to citizens is "we will protect ourselves, not you". It is a message with which the people of Thailand are all too familiar.
The Asian Human Rights Commission calls on Pol. Lt. Gen. Sompong specifically, and the Thai police apparatus broadly, to take a clear stand against extrajudicial violence in the case of the murder of Kiettisak Thitboonkrong and in so doing, make the distinction between duty and murder. It calls on Pol. Lt. Gen. Sompong to take back his financial gift. It calls on the Royal Thai Police force to suspend without pay the five policemen found guilty of heinous criminal offences subject to the outcome of their appeal cases, and to cease rewarding and instead begin punishing those in its ranks who are known torturers and killers. Unfortunately, the number of such policemen in Thailand is not small, and the process of rooting them out of the ranks will be long and arduous, but it must begin somewhere. The Criminal Court has given the police force an opportunity in this case to do just that. The Royal Thai Police ought to seize this opportunity to at last start acting like a professional force, rather than like a criminal gang in uniform, and join with the court to oppose murderous policemen, instead of defying the court to protect the killers in its ranks who justify their every deed in the name of "duty".
10 August 2012
(RE: AHRC-UAU-029-2011: THAILAND: Call for observers in the case of torture and murder of Mr. Kiettisak Thitboonkrong; strengthening Witness Protection is needed)
THAILAND: Urgent need for witness protection following conviction of five police for murder
ISSUES: Human rights defenders, threats & intimidation, victims' assistance and protection
On 30 July 2012 a court in Bangkok convicted five police officers of murder for the extrajudicial killing of Kiettisak Thitboonkrong during the "war on drugs" in 2004. The success of the case was due in large part to the determination of the family and willingness of eyewitnesses to testify against the police. However, the court released all accused on bail pending appeal, despite the severity of the crimes for which they have been convicted. Now, Kiettisak's family and the witnesses who testified against the police require continued protection, to ensure that the police do not attempt to threaten, harm or kill those persons out of revenge or in order to pervert the course of justice in the appeal process.
On 30 July 2012, in Black Case No. 3252/2552, 3466/2552, the Criminal Court found five out of the six police officers accused of murdering Kiettisak Thitboonkrong, age 17, in 2004, guilty. This murder was the first to be prosecuted of the murders of 28 individuals by police of the same station during and following the so-called "war on drugs". The AHRC has already issued a statement on this case: AHRC-STM-157-2012.
At this time, all five police officers are out on bail pending appeal. This is despite the fact that three police officers were convicted of premeditated murder and hiding a corpse and were sentenced to death, one police officer was convicted of premeditated murder and sentenced to life in prison, and the fifth police officer was convicted of abusing his authority to aid in protecting his subordinates from criminal prosecution and sentenced to seven years’ imprisonment.
In large part, the verdict in this case was secured due to the courageous actions of Kiettisak’s relatives and witnesses to the crime. Kiettisak’s aunt, Pikul Phromchan is a human rights defender and one of the leaders of the Kalasin Relatives of Deceased and Disappeared Persons due to the Actions of State Officers in the War on Drugs. She has campaigned nationally and internationally for justice in her nephew’s case as well as in those of others. In September 2011, she made an oral statement at the 18th session of the United Nations Human Rights Council calling for accountability in Kiettisak’s case and those of others in Kalasin province (Pikul’s statement can be read here: ALRC-PRL-003-2011). Sa Thitboonkrong, Kiettisak’s grandmother, and another witness, Aranya (last name withheld) witnessed the actions of the police officers in this case and provided necessary evidence during the trial.
All three witnesses were under witness protection during the seven years of this trial. However, at the time of the reading of the conviction on 30 July 2012, all three women were informed that as the case had come to a close, their witness protection was being discontinued. This is despite the facts of both the significance of this case as a challenge to impunity and the gravity of the convictions and sentences handed to the five police officers found guilty. In this case, the conclusion of the trial makes the need for protection of the witnesses involved more, not less, urgent.
The AHRC and partner organisations have for some years highlighted the absence of systematic, effective witness protection in Thailand, including in the current case (AHRC-UAU-029-2011) as well as the case of the disappearance of Somchai Neelaphaijit. The DSI, which is tasked with witness protection, whether due to lack of capacity or lack of will, has been unable to consistently and professionally protect witnesses in cases. Although a law for the protection of witnesses exists, when protection is provided it is very often poorly designed and implemented, ad hoc and piecemeal. Cases of this sort highlight the need for a comprehensive witness protection programme, which Thailand has the means, both in terms of finances and personnel, to implement if the political will exists.
For an earlier report on the lack of effective witness protection in Thailand issued by the AHRC’s sister organization, the Asian Legal Resource Centre, see http://www.article2.org/mainfile.php/0503/.
Please write letters to the authorities listed below, urging them to provide adequate witness protection to the three persons at risk as a result of the guilty verdicts against the police in this case.
Please be informed that the AHRC is writing separate letters to the UN Special Rapporteur on human rights defenders, and to the regional human rights office for Southeast Asia concerning the case.
To support this appeal, please click here:
THAILAND: Continued need for witness protection in Kalasin murder case
I am writing to express my concern over the protection of key witnesses in the murder of Kiettisak Thitboonkrong in Kalasin province in 2004. I was pleased to learn of the landmark decision to hold his murderers to account in the Criminal Court decision of July 30, 2012. Yet I was dismayed to learn that since the trial had concluded, the DSI was discontinuing the protection of key witnesses in this trial, namely his aunt, Pikul Phromchan, his grandmother, Sa Thitboonkrong, and a third witness, Aranya (last name withheld), even as the convicted police were released on bail pending appeal.
Despite the conviction of five of the six police officers in this case, given that the police officers are out on bail, the need for protection of witnesses in this case is even more urgent. In addition, given the broader significance of this case for combatting impunity for state violence in Thailand, it is essential that the witnesses do not face retribution for their courageous action defending human rights.
The case of the murder of Mr. Kiettisak Thitboonkrong is the first one of the 28 killings in Kalasin in which the Department of Special Investigation has brought criminal charges against the six police officers allegedly responsible for his murder.
I call on you to immediately restore the full witness protection of Pikul Phromchan, Sa Thitboonkrong, and Aranya. Particularly in cases where state officials are the perpetrators, it is essential that witnesses and involved parties are protected, so that the cycle of impunity is broken, rather than further consolidated.
I look forward to your prompt action.
PLEASE SEND YOUR LETTERS TO:
1. Ms. Yingluck Shinawatra
c/o Government House
Pitsanulok Road, Dusit District
Fax: +66 2 288 4000 ext. 4025
Tel: +66 2 288 4000
2. Mr.Tharit Pengdith
Department of Special Investigation
128 Chaeng Wattana Road
Fax: +66 2 831 9888
Tel.: +66 2 831 9888
3. Mr. Pracha Promnok
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor Software Park Building,
Chaeng Wattana Road
Pakkred, Nonthaburi 11120
Fax: +66 2 502 6734 / 6884
Tel: +66 2 502 6776/ 8223
Urgent Appeals Programme
Asian Human Rights Commission (firstname.lastname@example.org)
The Asian Human Rights Commission greets with cautious optimism the landmark ruling of the Criminal Court in Bangkok to convict five police officers for the murder of a teenager during the "war on drugs" in 2004, and hopes that it will serve as a precedent of sorts for other cases of police and state officials accused of similar crimes.
On 30 July 2012, in Black Case No. 3252/2552, 3466/2552, the Criminal Court found five out of the six police officers accused of murdering Kiettisak Thitboonkrong, age 17, in 2004. The six defendants were Pol. Snr. Sgt. Maj. Angkarn Kammoonna, Pol. Snr. Sgt. Maj. Sutthinant Noenthing, Pol. Snr. Sgt. Maj. Phansilp Uppanant, Pol. Lt. Col. Samphao Indee, Pol. Col. Montree Sriboonloue, and Pol. Lt. Col. Sumitr Nanthasathit, all officers stationed in Kalasin Province, northeast Thailand. The police had arrested Kiettisak on 16 July 2004 for allegedly stealing a motorcycle. When his family heard this news, they went to the police station and attempted to talk to him. After returning multiple times, his grandmother was allowed to witness his interrogation on 22 July 2004 and told to wait for him to be bailed out later that day. But Kiettisak never came home and several days later his mutilated body was found in a neighbouring province. Following his death, his family launched a campaign to campaign to investigate and hold the police in Kalasin accountable for his murder and the murders of 27 other individuals by police of the same station during and following the so-called "war on drugs". After an extraordinary effort on their part to bring the killers of Kiettisak to justice, the court finally reached its verdict just over a week ago. It sentenced three police officers to death for their actions, while one it sentenced to life imprisonment, and one to seven years in prison.
It took Kiettisak's relatives seven years to secure this outcome. At their urging, in 2005, the Department of Special Investigation (DSI) in the Ministry of Justice began investigating the case. It spent three years. On 18 May 2009, the public prosecutor charged six police officers with premeditated murder and with concealing Kiettisak's corpse to hide the cause of death. Because this case was investigated under the Special Investigation Act it was sent to the Criminal Court in Bangkok. The public prosecutor conducted the case and Mr. Kittisapt Thitboonkrong, father of Mr. Kiettisak, successfully sought and obtained permission from the court to act as a joint plaintiff, represented by lawyers from the Lawyers' Council of Thailand working pro bono. The hearings took another three years. Observers for the AHRC attended many of the hearings throughout the duration of the trial.
In its verdict, the Criminal Court found Pol. Snr. Sgt. Maj. Angkarn Kammoonna, Pol. Snr. Sgt. Maj. Sutthinant Noenthing guilty of premeditated murder and hiding a corpse. It sentenced them to death. Pol. Lt. Col. Sumitr Nanthasathit it found guilty of premeditated murder and sentenced him to life imprisonment. Pol. Col. Montree Sriboonloue it found guilty of abusing his authority to aid in protecting his subordinates from criminal prosecution and sentenced him to seven years’ imprisonment. The Criminal Court found Pol. Lt. Col. Samphao Indee innocent of involvement in the murder of Mr. Kiettisak.
With some reservations, the AHRC considers this ruling an important step towards ending impunity for state violence in Thailand. It is the first case of which the AHRC is aware in which police responsible for killings during the "war on drugs" under the government of ousted Prime Minister Thaksin Shinawatra have been held to account for their crimes. It is also the first case arising from the so-called "war" that the DSI investigated. In February 2003, Thaksin announced the beginning of the "war" with an unequivocal message to police and other state officials--that any and all necessary actions should be taken to free the country of the drug menace, including killing. Over the next three months, it became clear that the message served as a carte blanche for the use of murderous violence against citizens, rather than using the provisions of the Criminal Code to investigate and prosecute. By May 2003, an estimated number of over 2500 people had been killed. Kalasin Province was the first province in the country that the government declared had "won" the war. This ephemeral victory was achieved at the cost of many lives taken illegally, at the hands or bidding of state agents. Kiettisak was but one victim.
Rather than holding state officials who used extrajudicial violence against these citizens to account, in the worst cases, perpetrators of crimes have been rewarded. In most cases they have been tacitly and conveniently ignored. One of the long-term effects of this approach has been the further consolidation of impunity for state violence in Thailand. Therefore, this case stands out among other cases of extrajudicial killing in Thailand over the last ten years, in which courts have been unwilling to hold state officials to account, notably in the cases of the mass deaths in custody following the Tak Bai incident, and the April-May 2010 killings. Even in cases in which courts have ruled that a citizen has died while in state custody due to the actions of state officials, such as the March 2009 torture and death of Imam Yapa Kaseng, the actions of state officials have been classed as matters of official "duty" and they have been exempted from allegations of murder. This is the larger context in which Kiettisak was murdered, in which his relatives and other Kalasin residents struggled to secure justice and accountability, and against which the Criminal Court gave its ruling.
Given that this is also the first case in which a court decision has been reached, the AHRC welcomes the guilty verdict as a clear sign that the judiciary is willing to hold police to account for their use of extrajudicial violence against citizens. At the same time, the AHRC as a matter of principle opposes the death penalty under all circumstances, and calls for the sentences in this case to be reviewed, such that the convicted police officers instead receive appropriate prison terms.
Additionally, the AHRC is gravely concerned that the convicted officers have obtained bail pending appeal. The convictions for these sentences are of such gravity that good reason exists to expect that the convicted police will attempt to evade punishment by absconding or other means. They may also seek to obtain revenge against one or more persons who testified against them. In the well-known case of disappeared human rights lawyer Somchai Neelaphaijit, the one officer convicted of an offence in connection with his disappearance himself subsequently disappeared, and is suspected to have faked his own death; he was subsequently acquitted on appeal. In the meantime, Somchai's family received frequent threats against their own lives. The AHRC fears that in this case too the convicted police if allowed to walk free pending appeal may yet find ways and means to pervert the course of justice and undermine this hard-fought result. Consequently, it urges that the granting of bail be revoked and the five convicted officers be imprisoned while awaiting appeal outcomes.
Finally, the text of the court decision was not read in its entirety on the day the decision was announced in the Criminal Court, and the Asian Human Rights Commission is awaiting the release of the full judgment by the Criminal Court. We call on the Criminal Court to make this important decision available to the public as soon as possible. In the coming weeks, the AHRC will undertake a detailed analysis of the court decision in the case of the murder of Kiettisak Thitboonkrong with respect to the political and legal context and history of impunity for state violence in Thailand as well as the relevant international human rights standards.
The Asian Human Rights Commission is pleased to learn that the criminal charges brought against Chotisak Onsoong and his friend for allegedly defaming the monarchy have been dropped by the prosecutor. The charges stemmed from the couple's decision not to stand during the royal anthem and video montage lauding the life of the king played prior to the screening of a movie in a central Bangkok theatre on the evening of 20 September 2007. When they did not stand up, Navamintr Witthayakul, a man standing in front of them, turned around and yelled at them. When they did not comply, an argument ensued and Navamintr physically assaulted Chotisak. Later that evening, Navamintr filed a complaint against Chotisak and his friend of violating section 112 of the Criminal Code, which mandates that, "Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years." Simultaneously, Chotisak filed a complaint against Navamintr for physical assault. While the prosecutor dropped the assault charges against Navamintr in September 2008, it took four-and-a-half years, until April 2012, for the charges against Chotisak and his friend also to be dropped.
In a letter dated 11 April 2012 and available (in Thai) on the Prachatai website (http://www.prachatai.com/journal/2012/07/41608) Visit Sukyukol, Special Prosecutor for Southern Bangkok 4 explains that the charges were dropped because there was insufficient evidence to send the case to court. Visit notes that on 20 September 2007, at approximately 7:45pm, while the royal anthem and video montage were played prior to the beginning of a film at the Central World cinema, Chotisak and his friend (name withheld) remained seated while all other moviegoers in the theater "stood up to pay respect". This caused another moviegoer, Nawamintr Witthayakul, to turn around and say, in English, "Stand up." According to Visit, Chotisak turned around and said, "Why do I have to stand up? There is no law mandating it." This comment led to disagreement about the two, and caused Navamintr to file a complaint with the police alleging that Chotisak and his friend had violated section 112.
Despite establishing this series of events, Visit in his order to close the prosecution commented that their words and actions did not have the characteristic of insulting or causing shame, loss, or humiliation to the king. Further, he noted that there was no clear evidence suggesting that Chotisak and his friend intended to defame the king. Finally, Visit also noted the argument that took place between Navamintr and Chotisak following the playing of the royal anthem and video montage was "conduct that was inappropriate and was not part of the social norms that citizens should follow".
Although the AHRC finds Visit’s assessment of the “inappropriate” nature of the argument between Navamintr and Chotisak intriguing, it welcomes Visit’s measured and clear accounting of why the charges against Chotisak and his friend have been dismissed. His is a clear statement that section 112 cannot be applied to any and all speech or actions that question the relationship between the monarchy and the people, the monarchy and democracy, or the monarchy and human rights. Discussions about these topics--or at the very least, the legality of them--are urgently necessary if there is to be the possibility of the rule of law and the consolidation of human rights in Thailand.
Despite the outcome of this case, the AHRC would like to express concern about the slow pace at which the prosecutor's inquiries proceeded. Chotisak and his friend waited over four years for this outcome: the complaint against them was filed in September 2007, and police lodged charges in April 2008, with the case file going to the prosecutor that October. Since then until April 2012, the two accused have daily lived in fear that they would have to face charges in court at any time. By contrast, the prosecutor decided to drop the charges of physical assault brought against Navamintr for his assault of Chotisak in September 2008.
The Asian Legal Resource Centre, sister organization of the AHRC, in a recent statement to the UN Human Rights Council concerning the May 2012 death in custody of Amphon Tangnoppakul (ALRC-CWS-20-09-2012), who had been convicted of alleged violations of section 112 and the 2007 Computer Crimes Act, noted that long delays have become the norm in lese-majesty cases in Thailand. The ALRC noted that under article 9(3) of the International Covenant on Civil and Political Rights, to which Thailand is a state party, "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release." What the case of Chotisak Onsoong and friend indicates is that delays may occur in the period of inquiry into a police case that even if the accused is not being held in detention may cause him or her considerable hardship and grief. Such delays function as a de facto form of punishment, constricting the lives and rights of those facing possible prosecution and contributing to insecurity and uncertainty.
In the years since the 19 September 2006 coup, the number of complaints filed under section112 has increased exponentially. While it is a matter of concern that the government of Thailand has not released statistics on the number of such cases and circumstances of the accused, evidence available to the Asian Human Rights Commission indicates that many of these complaints do become fully realized criminal prosecutions. Yet far from protecting the individuals and institutions that they claim to protect, these laws have in the hands of over-zealous citizens and state officials become nothing other than tools for the violation of fundamental rights. That Chotisak Onsoong and his friend spent years waiting to find out if their decision not to stand up before a movie screen would earn them a prison sentence of up to 15 years is an indication of the gravity of the social and political crisis caused by the expansion of the use of this law. Therefore, the AHRC would like to take this opportunity to urge the judiciary and relevant government agencies in Thailand to follow the clear decision of the prosecutor in this case and stop the abuse of section 112 of the Criminal Code and related provisions, particularly the 2007 Computer Crimes Act. The AHRC also reiterates its call to revoke both section 112 and the Computer Crimes Act, to halt all current prosecutions under these laws, and release all those currently imprisoned under them.