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Case
Case name
Apichat: Protest Against the Coup
Disorderly assembly
Defying NCPO order 7/2014
Name of persons / Name of Media
Apichat
Case status
คำอธิบายสถานะคดี ภาษาอังกฤษ
Judgment / End of trial
Status of Accused
Others(Pay Fine)
Offense / order
Article 215 Criminal Code, Defying NCPO order 7/2014
Summary
Apichat was arrested and charged with violating the NCPO announcement no. 7/2557 after joining a protest against the coup on 23 May 2014 in front of the Bangkok Art and Cultural Center.
The examination of witnesses for this case proceeded on 11 and 30 September and on 5 November 2015. 6 witnesses gave testimonies before the court. 2 were witnesses for the prosecution 4 were witnesses for the defendant including the defendant himself. After The examination of witnesses were concluded, the court scheduled to render a verdict on February 2019.
On 11 February 2016, the Patumwan District Court dismissed the case on the grounds that the inquiry procedure was conducted inappropriately because the official from the Crime Suppression Division who interrogated the defendant did not possess jurisdiction over this case. The prosecutor then had no authority to file charge against the defendant. After the case was dismissed, the prosecutor filed an appeal to the Court of Appeal.
On 11 October 2016 the Court of Appeal ordered the Patumwan District Court to reconsider the case because the inquiry official from the Crime Suppression Division does possess jurisdiction over the case. Thus, the inquiry that happened was then valid and the prosecutor did have the authority to press charge against the defendant. The Patumwan District Court then scheduled to render a new verdict again on 19 December 2016.
On 19 December 2016, the Patumwan District Court found Apichat Guilty for defying the NCPO announcement which prohibits the political gathering of 5 persons or more and for assembly of more than ten person to cause disorder in society under Section 215 of the Criminal Code on the grounds that Apichat was of the NCPO order but was still participated in the protest.
Moreover, the witness for the prosecution also testified that the defendant did provoke other protesters to resist military officials on duty. The Patumwan District Court then sentenced Apichat to 2 months in prison and a fine in the sum of 6,000 Baht. The prison sentence was however suspended for a year.
Basic information
Background of accused
Apichat is currently an officer of Law Reform Commission and pursuing Master’s Degree at Thammasat University. He is a former consultant of the Senate’s Sub-Committee on Children and Youth and served as a Chairman of the Children and Youth Council of Thailand. He has delved into the field of Laws since high school and participated in various political activities including political gatherings and political seminars.
On behalf of the Children and Youth Council of Thailand, Apichat has contributed to a number of public service. He also played an important role in pushing forward the draft of regulations of the Children and Youth Council of Thailand as well as in amending many laws once he served as a committee.
In 2013, he founded Siam Youth Institute, in which Netiwit Chotiphatphaisal serves as a Deputy of Chairman and Sulak Sivarak as Chairman of consultants. He additionally regularly composes articles related to pro-democracy, socialism, and criticizing the monarchy with the aim that the institution will be more transparent and verifiable.
Legal Claims
Disorderly assembly
-
Form of restriction on freedom
Charge filed
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Type of media
Public Assembly
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Province
Bangkok
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Court
The Pathumwan Municipal Court
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Black case
คำอธิบายคดีดำ ภาษาอังกฤษ
Court: ศาลชั้นต้น No: 363/2558Court: ศาลอุทธรณ์ No: 559/2560 -
Red case
คำอธิบายดคีแดง ภาษาอังกฤษ
Court: ศาลชั้นต้น No: อ.134/2559 Date: 2016-02-11Court: ศาลอุทธรณ์ No: 2247/2561 Date: 2018-02-20
Details of offence according to charge
On 23 May 2014, around 5.00 p.m., Apichart and around 500 people protested against National Council for Peace and Order (NCPO). They raised the flyer stated “No to illegitimate authority” as well as clamoured against the officers around that area too.
Apichart’s action was alledged as the violation against NCPO Announcement no. 7/2557 which prohibits any political gathering. In addition, such action was also deemed to cause public disorder. Even the officers ordered to disperse, he still did not stop which considered as a violation of Thailand Criminal Code section 90, 215, 216 and 368 and Martial Law Section 8 and 11.
Circumstance of arrest
Apichart was arrested by the military officers on 23 May 2014 around 7.30 p.m. after participating a protest against the Coup \. While he was being seized, he had raised a flyer while shouting “We did not accept the NCPO’s power”.
[A clip at the time of arrest can be found here.]
Progress of case
23 May 2014
Apichart was arrested while participating the protest against the Coup at Bangkok Art and Culture Centre. He was detained at Crime Suppression Division for 7 days before being alleged.
24 April 2015
A public prosecutor filed a case against Apichart at The Court of Pathumwan District. He initially requested for bail without any collateral, but the Court rejected. Apichart, again, used his position as an Assistant of a specialist of Law Reform Commission of Thailand for bail. The court accepted then.
19 May 2015
The Court of Pathumwan District held the deposition examination due to an offence against NCPO’s announcement no. 7/2557 which prohibits political gathering and an offence of unlawful assembly with 10 persons upwards which cause public disorder as well as refusing to comply with the orders of officials according to Criminal Code Section 215, 216 and 368.
Apichart rejected all accusations as he want to defend that his expression is lawful. The Court made an appointment for a pre-trial on 10 June 2015 at 09.00 a.m.
10 June 2015
Schedule for witness examination
Pathumwan Municipal Court scheduled for witness examination for the case of Apichart for violating the NCPO's announcement on prohibiting any political gathering more than 5 persons. The hearing took place at courtroom number 4. Other than parties in the lawsuit there were journalists from Prachatai website and members of Human Rights Lawyers Association. The proceedings started at 9.50 hrs.
The plaintiff stated that they were 3 witnesses to be examined. They were officer who were at the rally, and the police officer-in-charge of the defendant’s case. They would also submit document evidence and physical evidence, such as NCPO's Announcement No. 7/2557(2014), list of those who were detained for joining the protest, photos taken during the incident, and VCDs of the incident. The defendant’s lawyer asked to copy the VCDs. The military prosecutor informed the lawyer to do so later at his office.
The defendant’s lawyer stated that there were 8 witnesses to be examined. They were journalists who witnessed the incident, the defendant’s academic supervisor and lecturers who will give their opinion on the legitimacy of NCPO’s authority. The Announcement No. 7/2557 (2014) was imposed before the royal command pronounced Gen. Prayut Chan-o-cha to be the Head of NCPO.
The judge asked the defendant’s lawyer to drop some witnesses especially the academics. The judge would favour those who witnessed the incident. After the discussion, the judge allowed the lawyer to examine 5 witnesses.
After the prosecutor submitted the evidence, the defendant’s lawyer also submitted. The judge said that there was no need now, because the plaintiff did not ask for it. The defendant could bring in evidence during the questioning. The judge also said that the plaintiff’s evidence was more likely to be checked, because a defendant of a criminal case had rights to examine the evidence brought against them. But the defendant did not have to present their evidence before the examination day.
For the witness examination, the judge scheduled for 2 days. One day was for the plaintiff’s witness, and another was for the defendant’s. The defendant’s lawyer objected that 1 day may not be enough. But the judge was certain that it was possible to examine 5 witnesses in 1 day. The judge would schedule another day if the time ran out.
After the proceedings finished, the prosecutor and the defendant’s lawyer made a schedule together at the Appointment Center. The plaintiff’s witness examination would take place on 11 September 2015, and the defendant’s on 30 September 2015. Then the defendant’s lawyer decided to submit the evidence in to the case folder. They were afraid that they would have no more chance to do so.
Apachart gave a brief interview to the press that he believed the court would be just. He would to his best to defend his case. Even though the judge would suspend the sentence for case like this, he believed that he did no wrong and wanted to fight instead of pled guilty.
The Announcement that brought about the case was imposed before the royal command pronounced Gen. Prayut Chan-o-cha’s appointment. Therefore there was no legitimacy. Furthermore a citizen had a duty to protect the Constitution. What he did was for objecting the unjust dissolution of Constitution.
11 September 2015
Examination of Witnesses for the Prosecution
At Pathumwan Municipal Court, 10.15 hrs., the judge took the bench. There were observers from Thai Lawyers for Human Rights, Human Rights Lawyers Association, Prachatai online newspaper and Apichart in the courtroom.
First Plaintiff’s Witness Examination: Lt. Peerapan Sansern, the arresting officer
Lt. Peerapan said that he was an Army Military Police. His duty was to investigate the army’s misconducts. The witness said that there was a martial law being imposed on 22 May. Gen. Prayut Chan-o-cha, the Head of NCPO, announced took power from Yingluck’s Administration. When staging the coup, the announcements were made.
Lt. Peerapan could not recall whether the martial law was announced before or after the coup. But he remembered there was the announcement No. 7/2557 (2014) Subject: Prohibition of Political Assembling. When this was announced the army was in positions to maintain peace and order.
Lt. Peerapan testified about the incidents occurred on 23 May 2014, around 18.00 hrs. He was informed by the personnel who stationed at Bangkok Art and Culture Centre (BACC) that a group of people gathered at the skywalk in front of BACC, closed to MBK Center. There was an order for him and other 4 – 5 subordinates to catch a train from Sanam Pao Station to National Stadium Station.
Upon their arrival, there was a group of protesters on the skywalk. There was also the Superintendent of Pathumwan Police Station informing the crowd that this was against the law, and that they were in the vicinity of Sa Pathum Palace. They were afraid that the noise could disturb. The crowd did not listen to, but kept booing louder and shouted “why was the army here”.
While Lt. Peerapan walked through the crowd, some foreigner tried to get his gun and tried to fight. The other army personnel jumped over to help. The man ran away to Siam Square.
Lt. Peerapan saw many held up signs protesting against NCPO and the coup. He said that there were many kinds of people. Some were very aggressive and were ready to fight with the army personnel. After the foreigner disappeared, Lt. Peerapan saw a protester held up a message saying “No to illegitimate authority” and shouted to incite the crowd.
Lt. Peerapan said that the defendant acted very outstanding among the crowd. He was like a leader who provoked other protesters. Lt. Peerapan grabbed the man’s arms and took him down from the skywalk. They brought the man to the army vehicle near Sa Pathum Palace. Some protesters followed and tried to ask the man’s name and telephone number. The defendant was taken to 2nd Cavalry Division, King's Guard for questioning.
Lt. Peerapan said that the defendant was detained for questioning under the martial law for 7 days. He found out that the defendant did not agree with the coup. The defendant was detained at the army lounge since the arrest until 24 May 2014. Then he was brought to Crime Suppression Division, and still detained under the martial law.
Lt. Peerapan said that on 29 May 2014, his superior ordered him to file a charge against the defendant for violating the NCPO’s announcement and the martial law. There were complaints from an annonymouse person that Apichart has a behaviour insulted the monarchy and that he was against article 112. Lt. Peerapan reported all this to his superior, who ordered to detain the defendant under the criminal procedure code.
The prosecutor asked the judge to play the video recorded during the incident in front of BACC on 23 May 2014. The video showed the defendant holding up a piece of A4 paper. After showing the video, the military prosecutor had no further questions.
After that the judge wanted to talk to the defendant. The prosecutor was asked to leave the courtroom. The judge tried to persuade the defendant to plead guilty. The judge mentioned that this case carried a short sentence. The judge also reminded that at the moment of the incident, NCPO was the legitimated authority. Therefore NCPO’s announcements were considered a law. But the defendant and his lawyer insisted to defend their case. The judge scheduled to conduct more witness examination in the afternoon.
The proceedings resumed in the afternoon. The lawyer started cross-examination. He began by asking that whether Gen.Prayut staged the coup, we had had the democratically-elected government. Lt. Peerapan said yes. The lawyer asked whether Lt. Peerapan believed in constitutional monarchy. Lt. Peerapan said yes.
The lawyer asked whether a coup destroyed constitutional monarchy. Lt. Peerapan said no. The lawyer asked whether prior to the coup Thailand had had the 2007 constitution. Lt. Peerapan said yes.
The lawyer said that according to the constitution a person had duties to protect country, religions, the king and constitutional monarchy with the King as the Head of State. The lawyer asked whether all this was the defendant’s duty and he had rights to protect all this.
Lt. Peerapan’s face turned red, and said a person should have both rights and duties. Lt. Peerapan also said that “Being anti-Article 112, was that a duty?”
The lawyer asked whether when NCPO announced the order to prohibit any political gathering, the order to appoint the head of NCPO’s had not been issued. It was because the appointment was announced on 24 May 2014. This was before it was published in the Royal Gazette on 26 May 2014.
The lawyer continued and asked when to determine that the coup was successful. In the past there were many coups. If the coup failed, the conspirators would be rebels. Before Lt. Peerapan could answer, the judge interrupted the lawyer, and told to ask only issues concerned the witness in the incident. The judge informed the lawyer not to ask about everything.
The judge also mentioned that the lawyer’s irrelevant questions would not be recorded. There were questions like “should the nationwide martial law be declared by the Royal Command?, as the defendant protested against the coup, was it considered to be the freedom of expression according to Section 4 of the Interim Constitution?, and did the international obligations and treaties still support the defendant’s act when the 2007 constitution was dissolved and 2014 Interim Constitution had not been enacted?”
The lawyer asked whether, according to the video clip, there were no picture or command of the personnel to dissolve the rally, and Lt. Peerapan did not order the protesters either. Lt. Peerapan said that he did not know, because he arrived later.
The lawyer asked whether the protesters carried weapons and used audio amplifiers. Lt. Peerapan said no.
Lt. Peerapan said that when the defendant held up a message that read “No to illegitimate authority”, it was not considered as to incite the public. But when arrested and cried out “Why arrested me for just a piece of paper?”, and he also mentioned legal issues, rights and freedom, Lt. Peerapan thought it was to incite the protesters.
ฺBecuase Lt. Peerapan claimed that he was the arresting officer, the lawyer then presented the pictures while arresting and asked the witness to clarify. But Lt. Peerapan was not in that video clip.
The lawyer asked why Lt. Peerapan arrested the defendant when there were many other people at the time. Lt. Peerapan said that because the defendant was a leader while the others were not so active.
The lawyer asked whether Lt. Peerapan had received order from his superior to inform the protesters to stop the rally. Lt. Peerapan said there was no official order, only verbal order.
The lawyer asked Lt. Peerapan to repeat that there was no official order in writing to inform the protesters to stop the rally.
Lt. Peerapan said he knew later on that the defendant worked for the Office of the Law Reform Commission of Thailand, and was a National Outstanding Youth Award recipient.
Lt. Peerapan answered the lawyer about the defendant’s circumstance while at the rally. The defendant did not yell nor condemn, but incited with that piece of A4 paper. While being arrested the defendant did not resist nor present himself as a leader or manage the rally. The lawyer stated no further questions.
The military prosecutor cross-examined Lt. Peerapan, and asked why he thought that the defendant incited the protestors. Lt. Peerapan said that while being arrested, the defendant talked about the rights of assemble, illegitimacy, and the military coup.
The prosecutor stated no further questions. The first plaintiff’s witness examination was concluded.
The second plaintiff’s witness examination was in the process right after.
Second Plaintiff’s Witness Examination: Pol. Lt. Chalit Maneeprow, the inquiry official
Pol. Lt. Chalit testified that on 24 May 2014, Crime Suppression Division took the defendant with the transfer order from the 2nd Cavalry Division, King's Guard. The request was for the Division to detain the defendant under the martial law.
After detained until 29 May 2014, Lt.Peerapan officially filed charges for violating the NCPO's announcement No. 7/2557(2014), and the accusations according to the Criminal Code, Section 112. Lt.Peerapan informed the rights, recorded the fingerprints, and questioned the defendant. The defendant denied all charges. Lt.Peerapan collected the video clip and other evidences, and submitted to the public prosecutor for processing.
The lawyer’s cross-examined whether the defendant accepted the facts, and denied all charges. The witness said that the defendant claimed his constitutional rights.
Pol. Lt. Chalit also said that Crime Suppression Division had the authority to prosecute this case, because it was a public interest trial. The lawyer asked whether this kind of trial was written in any laws. Pol. Lt. Chalit said no. But this case concerned national security. There also was an NCPO order to prosecute this kind of cases.
Around 15.45 hrs., the judge ordered to postpone this witness’s examination to 30 September 2015, which was the day set for the defendant’s witness examination.
29 September 2015
The lawyer filed a motion to Pathumwan Municipal Court to challenge the judge in this case. The lawyer reasoned that the judge did not examine NCPO announcement’s legitimacy. He seemed to defer to NCPO’s authority. When the defendant’s act deemed against NCPO’s authority, then his attitude was likely to effect to justice procedure.
While Lt.Peerapan was examined, the judge asked Lt. Peerapan whether he arrested other protesters in the video clip. This led the defendant to believe that the judge wanted to prosecute all of the protesters.
During the lawyer’s cross-examination, the judge did not record the lawyer’s questions, and did not allow the plaintiff’s witness to answer cross-examining questions, such as “Was staging a coup considered as destroying democracy?”. While this sort of questions was concerned to the defense.
After searching the proflie of the judge of this case, the defendant found that a Facebook account, with the name and a profile picture of the judge, has clicked Like on a page “The Army Reforms Thailand”. There were no any other Likes on politic-related pages. It seemed that the page “The Army Reforms Thailand” supported the army.
According to the facts, the defendant team thought the circumstances were critical and could affect the justice. So they challenged the judge under the Civil Procedure Code, Section 12 which that stated;
"Where a court is composed of only one judge, such judge may be challenged on any of the grounds specified in the foregoing Section or on any other ground which is of so serious a nature as mat prejudice the impartially of the trial of judgement of the case."
30 September 2015
A schedule for witness examination from both plaintiff and defendant side.
Before the trial started, the court read the order dismissing the motion filed by the defendant to challenge the judges in this case. The head of judges at Pathunwan Municipal Court stated the reason that the court has more than one judge and the defendant's motion, therefore, did not comply with the provision on the challenge of judges.
The continuous second plaintiff witness examination: Pol.Lt.Chalit Maneepround, an inquiry officer
Pol.Lt.Chalit testified once on 11 September 2015 but has not finished. The court therefore scheduled to hear Pol.Lt.Chalit again today.
Pol.Lt.Chalit answered the lawyer's question related to the seizure of power of Gen.Prayuth Chan-o-cha that before the most recent coup d'etat, Thailand was ruled under democracy where H.M. the King served as the head of state and had the 2007 constitution as the supreme regulation. The seizure of power by the National Council for Peace and Order (NCPO) was not a way to power that lawfully recognized by the constitution. Pol.Lt.Chalit agreed that it is the right of the people to resist such coup. And the Royal Command appointing Gen.Prayuth as the head of NCPO was issued after the defendant’s act in this case.
After examining video clips recorded on the day of the arrest, the witness found that Apichart, on the day of occurence, raised a sign with a message of “No to illegitimate authority”. When Apichart got arrested, he just shouted "I’m arrested because of only a piece of paper". Apichart didn’t act as a public speaker. Furthermore, he had no behavior of a leader or a person responsible for the assembly. According to the clips, there is no evidence that the authorities ordered the protesters to stop.
For the overall circumstance of the protest on that day, Pol.Lt.Chalit testified that there was no violence, no fighting between protesters and authorities and no incitement from the protesters.
On this case, Lt.Peerapan Sansern, the accuser, complained against Apichart only under the charge of defying NCPO announcement by gathering more than 5 people. The witness also testified that he had not inquired any witness on the issue that the defendant failed to comply with the order to stop protesting.
Pol.Lt.Chalit said that under the 2014 Interim Constitution, the right and liberty of the people were guaranteed not different from the 2007 constitution. He doesn't know the existence of the International Covenant on Civil and Political Rights (ICCPR) but he knows that if Thailand signs any agreement with other countries, we need to follow. And there was no Royal Command to declare Martial Law in this situation.
Prosecutor re-examined.
Pol.Lt.Chalit answered the questions of the plaintiff that there are 200-300 people in the video clip. The protesters had incited the authorities and Apichart also acted like their leader. He showed the sign and thus more people who agree with him would come to join the protest.
Pol.Lt.Chalit also testified that the accuser of this case told him during the investigation process that police officers ordered the protesters to stop but the protesters denied. Although, the record of Lt.Peerapan's testimony does not mention about the disorder but he found, after examining the video clips, that Apichart and other protesters committed an offense. He then pressed charge against Apichart because the act of this case occurred after NCPO announcement to ban public gathering was enforceable.
After the hearing of this witness finished, the court then ordered to hear the witnesses of the defendant.
Examination of the second witness for the defendant: Charan Kosananan, a legal expert
Charan testified that he’s 61 years old, works as an assistant professor at the faculty of law, Ramkhamhaeng University. He teaches philosophy of law, human rights and criminology.
Charan testified that there are two types of Martial Law declaration which are the general declaration and the declaration only for specific area. The army commander can declare Martial Law only for the specific area. Only with the Royal Command, the said general Martial Law can be declared and it needs to be published in the Royal Gazette as well.
Charan replied to questions of the lawyer that on the issue of the status of the coup maker as the legitimated authority of the state, there is a Supreme Court precedent no. 1153-1154/2495 which provided that the coup maker will become a legitimate authority only when people accept their power. Personally, he interpreted that it means there must be no opponent any more. The lawyer asked what would happen, in the past, if the coup maker failed. Charan answered that they would be prosecuted under rebellion charge.
The lawyer asked Charan on the history of the check and balance of power by judicial system. Charan answered that in 1993 the Supreme Court repealed an order of the coup maker. The latest example is the case of Sombat Boonngamanong which the Dusit Khwaeng Court ruled that NCPO orders are retroactive and negatively affect specific persons which is contradict to the basic principle of criminal law. The orders, therefore, are unenforceable.
The lawyer asked if people have the right to express opinion against the state authorities under the NCPO regime. Charan said yes because the Section 4 Interim Constitution 2014 provided such power. Moreover, the expression against NCPO power also can be considered as a lawful self-defense both on the right to life, security and the right to vote. The court did not record this part of the testimony given that it is just an opinion of this witness.
Charan also said that under the regime of NCPO there is still an International Covenant on Civil and Political Rights (ICCPR) which Thailand is a state member. Thailand thus has to follow the obligations under such international law. Charan also stated that after the coup, the court of justice has duty to examine the use of power by NCPO.
The hearing proceeded until 12.00. The court then ordered to have a break.
Around 14.00, the court proceeded the witness hearing.
Charan continued his testimony that some of NCPO announcements, such as the announcement no. 7/2557 on the prohibition of public assembly, are contradict to Section 4 of the Interim Constitution because it restricts the rights and liberty of the people which stated in that section. Such NCPO announcement is thereforen invalid.
The prosecutor cross-examined.
The prosecutor asked Charan that if his opinion on the opposition of the illegitimate laws can be seen differently by other legal academics and Charan said yes. The prosecutor asked if the coup has now already succeeded and Charan said yes but at the time of this case there was still a resistance.
The prosecutor said that Charan had mentioned the Dusit Khwaeng Court decision about the retroactive NCPO order in Sombat Boonngamanong case but the NCPO announcement of that case was issued before the act was committed. Charan accepted. The prosecutor asked that if the act of civil disobedience must accepted the punishment and Charan said yes. The prosecutor asked if the NCPO announcement no. 7/2557 was issued before the interim constitution and Charan replied yes.
The lawyer re-examined.
Since the witness replied to the prosecutor’s question that the NCPO announcement no.7/2557 was issued before the Interim Constitution, the lawyer asked him to clarify the result of contradiction between the announcement and the Interim Constitution. Charan said that NCPO announcement no.7/2557 shall be illegitimate because it relies on the power of Martial Law and the Martial Law was issued illegally. It also contradicts to the Interim Constitution and it is invalid.
The lawyer asked that even civil disobedience generally leads to punishment, is it still true when the law was illegitimate at first? Charan replied, when the NCPO announcement no. 7/2557 was issued illegitimately, the civil disobedience was not an offence.
After the hearing finished, the defendant lawyer asked the court about the travel expense for the expert witness. The court denied paying for the travel expense, even though this witness came to testify under a court warrant but only the prosecutor's witness will be paid.
The lawyer asked the defendant to testify immediately.
Examination of the second witness for the defendant: Aphichart Pongsawat, the defendant testified on his behalf
Aphichart testified to the court concerning his biography that he is an officer at the Law Reform Commission. Earlier, he studied at the the Puey Ungphakorn School of Development Studies, Thammasat University.
Aphichart told the lawyer that at the time of occurrence, he went to participate in an activity at the Bangkok Art and Cultural Center (BACC). He took a public van from the office around 04.30 pm to the Victory Monument where he later catched the skytrain to the BACC. Aphichart arrived at the BACC around 06.00 pm. The lawyer asked Aphichart regarding a reason of his participation; Aphichart replied that he went there to express his disagreement toward the coup. Aphichart believed that everyone has the right to protest against the coup.
Aphichart told the lawyer that he received information regarding activity at the BACC from facebook. On the date, Aphichart went to the BACC alone. After arrived at the BACC he met some friend by chance while he stood at the Sky Walk. Aphichart spoke with his friend for a while before they separated. After his friend left, Aphichart brought A4 paper that he prepared to hold in his hand.
The lawyer asked Aphichart regarding the number of participants who took part in the activity. Aphichart replied at that there were many people at the scene, some were participants but many were people who just walking past by so he could not tell the exact number of participants.
The lawyer asked Aphichart regarding the incident when he was arrested. Aphichart told the lawyer that prior to his arrest he had been stood and hold the A4 paper for 30 minutes. He then saw a group of military men about four to five persons walked toward him from the National Stadium BTS station. Aphichart further said that when some people kept their banners down after they noticed the military men approached, Aphichart however continued to hold his A4 paper. One of the military men grabbed his arm and said "Come with me."
The lawyer asked if Lt.Peerapan, the person who filed a complaint against Aphichart was among the group of military men or not. Aphichart told the lawyer that Lt.Peerapan wasn't among the military men but he recalled later that Col.Burin Thongprapai, legal staff of the NCPO was among the group. Aphichart further stated that when he was arrested he shout that "I was arrested just because of a piece of paper?" When he was arrested, the military who arrested him did not inform him regarding his right.
The lawyer asked if any authorities had ordered the people who taking part in the activity to stop or not, Aphichart denied and said that testimony that Lt. Peerapan gave to the police saying that the authorities had ordered the people to stop the gathering twice at 07.00 pm and 07.30 pm wasn't true and wasn't recorded in the video clips which were used as exhibits.
Aphichart told the lawyer that he took part in this protest because coup d etat staged by Gen. Prayuth was illegitimate and at the time of occurrence, the coup d etat wasn't success yet. Moreover, the action at the BACC was done in a peaceful manner.
The lawyer asked Aphichart if he knew when did Gen. Prayuth was appointed as head of the NCPO, Aphichart replied that it was on 26 May 2014. The lawyer then told the court that there was no further question.
Prosecutor's Cross Examination
The prosecutor asked Aphichart regarding the source that he used to follow the news, Aphichart replied that mostly from TV and radio. The prosecutor asked if he’s aware of NCPO Announcement to ban political gathering, Aphichart said he learnt about the announcement since before he taken part in the activity. The prosecutor asked if number of participants were more than ten, Aphichart said there were more than ten participants. The prosecutor asked Aphichart if his action considered an assembly for unlawful purposes, Aphichart said it wasn't because he only showed a piece of paper with the message “No to illegitimate authority” but he did not shout to invite people to take part in the activity.
The prosecutor asked about the traffic condition during the activity, Aphichart said it was normal. Regarding motion in the video clip where some people walked on the street, Aphichart said that it wasn't at the time when he presented in the scene. The prosecutor asked that, in the video clip, there was someone shouting Aphichart's name, Aphichart said it was the sound of his junior whom he met at the scene. The prosecutor asked Aphichart if he remembers the face of military official who arrested him, Aphichart said he remembers. The prosecutor asked if the order of the head of NCPO no. 3/2558 that had a penalty lower than that of NCPO Announcement no.7/2557 was issued after the incident or not, Aphichart said yes. The prosecutor told the court that there is no further question.
Lawyer's re-examination
The lawyer asked Aphichart the reason he taking part in the activity even though he’s aware of the NCPO Announcement, Aphichart replied that he believed it is the right of people to do so. Moreover, the announcement was also illegitimate. The lawyer asked Aphichart to clarify, since he testified that he came to the BACC alone why there was in the exhibit video clip there was someone calling his name. Aphichart clarified that he went there alone but he met his junior by chance. He only knew that the person who called his name was his junior after he watched the video clip. Aphichart also clarified that when he mentioned that there were more than ten persons gathered at the scene he didn’t know them. The lawyer stated to the court that there is no further question.
After the examination was concluded, the court granted a permission to extend the examination for one more day and ordered the parties to schedule the examination by themselves.
5 November 2015
Examination of witnesses for the defendant
The Patumwan District Court scheduled the last witness hearing on the day. Two witnesses included Aphichart's mentor and colleague at the Law Reform Committee
The judge arrived in the court room at 09.30 am. The proceeding however began one hour later due to malfunction of the audio recorder in the court room.
Prior to the proceeding, the judge who sat on the bench stated that the judge who responsible for this case was absent the court then appointed another judge to conduct a proceeding on the day.
Examination of third witness for the defendant: Samchai Srisan, mentor of the defendant
Samchai testified to the court regarding his personal history that he is an assistant professor at the Puey Ungphakorn School of Development Studies, Thammasat University
Samchai testified to the defendant’s lawyer that the Puey Ungphakorn School of Development Studies was established with a mandate to send student out to learn about social inequality among urbanized cities and the rural areas. As for the program requirement, the student will study course work for three months then they will go to work with Human Rights organizations.
Samchai testified regarding Aphichart that he enrolled as a student in 2013. After completed his course work Aphichart chose to work with a Human Rights organization in Chong Mek District, Ubon Ratchathani. Currently, Aphichart has already completed his study.
Samchai testified regarding Aphichart's archeivement that while working with the organization in Ubon Ratchathani Aphichart he helped people whose citizenship was in doubt as they were left behind while the government conducted a survey for household registration to prove their citizenship. Due to his works, Aphichart was received national volunteer worker award from the Ministry of Human Security and Social Development.
Concerning this case, Samchai admitted that he wasn't present at the scene but he was aware that Aphichart was arrested as the result of the news found in social network. Samchai tried to contact Aphichart several times but Aphichart could not be reached. When Aphichart was remanded in prison, the school issued a recommendation letter for Aphichart to be used as supporting document for his bail.
Concerning Aphichart's behavior, Samchai testified that Aphichart was a working hard student and had a good behavior. In the class room, Aphichart always took part in class discussion.
The defendant’s lawyer questioned Samchai regarding the alleged offense, Samchai testified that Thai citizen should have the right to peacefully protest against the coup. Moreover, the resistant was also considered as a duty. Samchai also mentioned that student of Thammasat University need to swear an odd that they will protect the constitution.
Prosecutor’s cross examination
The prosecutor asked Samchai if NCPO Announcement no.7/2557, prohibition of all political gathering with more than five participants was entered in to force before Aphichart committed the offense or not. Samchai replied that he’s aware of that announcement.
The lawyer disclaimed to conduct a re-examination
After Samchai concluded his testimony, the court immediately proceed with the examination of the last witness.
Examination of the fourth witness for the defendant: Worrarak Sriyai, the defendant’s colleague at the Law Reform Commission
Worrarak testified regarding her biography to the court that she is working at the Law Reform Committee. As for her relation with the defendant, Worrarak testified that she knew Aphichart because they work at the same place. On the date of occurrence Worrarak also came to taking part in the same activity with Aphichart.
Worrarak testified to the lawyer that on the occurrence date, she went to the Bangkok Art and Cultural Center (BACC). When she was about to depart from the office she met Aphichart in front of the elevator. After she knew that Aphichart also plan to go to the BACC they then decided to take a public van together.
Worrarak further testified that when she reached the BACC’s plaza, she saw a number of people gathering in the National Stadium BTS station. Some among them held banner, some shouted but she could not caught their exact words. As for Aphichart, when they arrived at the scene they stood and chatted for five minutes before separated from each other. Worrarak told the lawyer that she could see Aphichart from the distance. When the lawyer questioned about Aphichart behavior at the scene, Worrarak testified that Aphichart showed neither sign of neither violence nor attempt to provoke the mass.
Worrarak testified that she left the BACC around 06.30 pm which was prior to the arrest of Aphichart. When the lawyer questioned if the authorities had ordered to stop the activity or not? Worrarak replied that she didn’t heard such order. The lawyer asked if Worrara’s aware of the NCPO Announcement no.7/2557 or not Worrarak replied that she’s aware of it but she held that the right to protest against the coup is a fundamental right, the activity was also conducted in a peaceful manner.
Prosecutor's Cross examination
The prosecutor asked Worrarak whether content of banners held by protesters and a slogan that had been shout were deemed to be an oppose against the coup or not? Worrarak replied that she wasn't sure about that because the scene was noisy and she wasn't able to read the banners. The prosecutor asked Worrarak if she went to the scene to protest against the NCPO or not? Worrarak replied that she only went there to express her disagreement on the coup.
The prosecutor asked Worrarak regarding number of people who taking part in the activity. Worrarak replied that she could not give the exact number because at the scene there were both protesters and the people who walking past by. For her observation, only 50 peoples were actually holding signs or taking part in the protest. When the prosecutor ask if Worarak could confirm whether the activity is still going on in a peaceful manner or not and whether the authorities had ordered protester to stop their activity after Worrarak leave the area. Worarak said she cannot.
The prosecutor asked Worarak how did she learn about the arrest of Aphichart, Worarak replied that she later learned that someone had been arrested but she had no idea why the person was arrested.
The lawyer didn’t conduct a re-examination
After the witness’s examination was concluded, the defendant’s lawyer informed the court that Aphichart wished to submit closing statement, the court allowed the defendant to submit within 30 days.
After the witnesses’ examination was concluded, Aphichart gave a short interview regarding to his case that to when he chose to stand trial he know that his life would be more difficult and he had to come to the court. However, he was willing to fight till the end as he believed he did nothing wrong. If he chose to plead guilty, the court might be likely to suspend his prison sentence and he would not spend time to stand trial. The reason he chose to fight was that if he didn’t do so he might feel guilty for the rest of his life.
The Verdict
Summary of the Court of the First Instance
On 22 May 2014, Gen. Prayuth Chanocha seized the power from the administration of Yingluck Shinnawatra, established the National Council for Peace and Order (NCPO) to take control of the nation. After seized the power, the NCPO issued Announcement no.7/2557 - prohibited a political gathering of 5 people. On the date of occurrence, (23 May 2014) the defendant who was informed about of an anti-coup activity from social network came to take action with others who gathered at the BACC. At the scene, a group of military men walk toward the defendant then arrested him. The defendant was held at a military camp for one night, in the next morning he was moved to held at the Crime Suppression Division until the 7 days detention period under Martial Law was expired. Lt.Peerapan Sansern filed a complaint under NCPO Order no.7/2557 against Aphichart with Pol.Lt. Chalit Maneepraw, inquiry official at the Crime Suppression Division.
The first problem that need to settle is whether the prosecution had the authority to file the case against the defendant or not? Lt.Peerapan testified as witness for the prosecution that he was a person who filed a complaint against the defendant with Pol.Lt. Chalit at the Crime Suppression Division. Pol.Lt. Chalit later interrogated the defendant, compile a case file then issued a prosecution order against the defendant. According to the Criminal Procedure Code, inquiry official must be police officer with the rank of Pol.Sub-Lt. or above. Pol.Lt. Chalit then qualified as inquiry officer according to the law. As for the jurisdiction over the case, the inquiry official will have jurisdiction over the case if 1) The place of occurrence was under its jurisdiction 2) the defendant resided under its jurisdiction 3) The defendant was arrested under its jurisdiction.
In this case the defendant committed the alleged offence and was arrested at the BACC which was under the jurisdiction of the Patumwan Metropolitan Police Station. Pol.Lt. Chalit testified that he served at the Crime Suppression Division. The prosecution, however, failed to provide evidence and document concerning the structure of the Royal Thai Police to satisfy the court that Pol.Lt. Chalit has an authority to conduct an interrogation against the defendant. The interrogation of this case then wasn't conduct under the legal procedure. The prosecution then has no authority to file the case. Other matter then not need to be deliberated. The charge, therefore, dismissed.
Additional Information
See the detail of Apichat's Lese Majeste case here >> http://freedom.ilaw.or.th/en/case/576
