Supreme Court gives 2-year suspended sentence on charge of defaming Princess Maha Chakri Sirindhorn

On 27 Dec 2018, Thanyaburi Provincial Court read the verdict of the Supreme Court in the case of Anan (family name withheld), aged 70, charged with lèse majesté under Article 112 and defamation under Article 326 of the Criminal Code for comments about Princess Maha Chakri Sirindhorn and Princess Soamsawali. The Supreme Court found Anan guilty on 2 charges of personal defamation, and sentenced him to 1 year in prison for each offence, suspended for 3 years, and a fine of 20,000 baht for each offence.

It was reported that the defendant did not attend the hearing, and his lawyer paid the fine in his stead.

The case was reportedly investigated in 2012 but the investigating officer did not file a charge and the prosecutor did not take the case to court until after the May 2014 coup d’état when a number of 112 cases were reconsidered. A committee of the Royal Thai Police ordered that the case be prosecuted and the officer who did not file charges be subject to disciplinary punishment. A new set of investigating officers conducted an investigation and filed charges accordingly.

Thitiphong Sisaen, the defence lawyer, made some observations on the verdict.: 1) The Supreme Court has set a standard for defamation cases (Article 326). Even if the victim does not file a complaint, if there is an investigation into the offence, the prosecutor may file a lawsuit, even though by normal legal principles, if there is no complaint by the victim, investigating officers may not investigate and even if they do investigate, the prosecutor cannot file a charge. It is held to be an illegitimate investigation. 2) The Supreme Court referred to the 2017 Constitution as the criterion for the legitimacy of the investigation (the state has the duty to protect and preserve the monarchy and national security), but this case occurred in 2012 and the charges were filed in 2015. This means the Supreme Court has set down a new legal principle, stating that laws are effective retrospectively in order to punish the accused.

The defendant was given bail during the investigation and trial stages, until the Court of First Instance passed a sentence of imprisonment. The defendant was imprisoned for 21 days before being granted bail with 400,000 baht collateral. During the appeal, the defendant again requested for bail and the Court of Appeal increased the bail collateral to 800,000 baht.

The prosecution’s summary of the case is that on 26 Oct 2012 the defendant spoke to a company security guard and defamed Princess Maha Chakri Sirindhorn, who is an heir to the throne, and also made defamatory comments about Princess Soamsawali to the head security guard. This occurred in Pathum Thani Province. The defendant denied the accusations.

The Court of First Instance gave its verdict on 29 Sept 2016. In summary, it considered that the prosecution witnesses and circumstantial evidence confirmed the conversations and accorded with witness testimonies that were given to officials on the day of the incident. It would be difficult to add to or distort the truth. In addition, none of the witnesses were familiar with the defendant and had no reason to be angry with or offended by the defendant, and thus had no reason to falsely accuse the defendant. The testimonies have sufficient weight to be credible. False reports and false testimony would lead to legal penalties. It is believed that all witnesses spoke the truth. The defendant also attested to being at the scene of the crime, and according to reports of the defendant’s testimony during the investigation, the defendant did not deny the claims. Therefore, the later denial of these claims on lacked credibility. The evidence brought forth by the defendant is insufficient to counter the prosecution evidence. The truth is that the defendant defamed both princesses, resulting in several criminal offences.

The verdict of the Court of First Instance also stated that the expression “heir apparent” as an element of a crime under Article 112 refers only to the Crown Prince, according to documents from the Bureau of the Royal Household. The actions of the defendant thus did not fulfil all the elements of a crime under Article 112. There is still a problem that the prosecutor filed charges only under Article 112, not for defamation. Even though the facts do not show that the defendant defamed, insulted or showed malice towards the king, queen, heir apparent or regent, it is reasonable that the defendant defamed Princess Maha Chakri Sirindhorn and Princess Soamsawali. The court naturally has the power to punish the defendant for defamation according to the final paragraph of Article 192 of the Criminal Procedure Code, where the defendant argued that Princess Maha Chakri Sirindhorn and Princess Soamsawali did not file complaints nor did they authorize anyone to file complaints and bring charges against the defendant. This case was filed as a violation of Article 112 which is a non-compoundable offence, where even if there is no complaint, if there is an accusation officers have the power to investigate and the prosecutor has the power to bring a case according to Articles 2(8), 120, 122 and 127 of the Criminal Procedure Code. The defence is not credible. The court found the defendant guilty of violating of Article 326 of the Criminal Code and sentenced him to 1 year in prison for each offence, totalling 2 years.

Nevertheless, although the Court of First Instance passed sentence, Mayuree Cheeppanichpaisal, Chief Judge of Thanyaburi Provincial Court, attached a dissenting opinion that the crime of personal defamation may be investigated when there is a complaint under Article 121, Paragraph 2, of the Criminal Procedure Code. But there did not appear to be a complaint in this case. There were only persons who made reports and accusations to investigating officers, requesting judicial procedures be carried out for the crime of defamation, but it did not appear that those making the accusation had the authority or were authorized to file a complaint according to law. Thus, this investigation was illegitimate. The prosecution had no authority file charges against the defendant. 

The Court of Appeal gave its verdict on 20 May 2017. In summary, the defendant appealed that the Court of First Instance had no authority to penalise the defendant for defamation according to the final paragraph of Article 192 of the Criminal Procedure Code since there was no complaint. It was seen that the offence of defamation under Article 326 of the Criminal Code, for which the Court of First Instance sentenced the defendant, is a compoundable offence under the first paragraph of Article 333 of the Criminal Code. The investigating officer may commence an investigation only when there is a complaint according to Article 121 paragraph 2 of the Criminal Procedure Code. Even if it is seen that the head security guard testified during the investigation that he is the complainant or the one who made accusations to the inquiry official, there does not appear to be any facts in the case file that this person had the authority or was legally authorized to file a complaint. Thus this case does not have a complaint as defined by regulations. When there are no legal conditions for the investigating officer, prosecutor or court, as the case may be, to have the authority to investigate, file charges or judge the defendant, the case is dismissed.  

Source: 
https://prachatai.com/journal/2018/12/80263