An October 17 article in the Bangkok Post reported that the Ministry of Justice there has to pay hundreds of millions of Thai Baht in compensation to people who have been wrongfully prosecuted for crimes they did not commit.
The law providing for compensation, the Compensation for Victims of Crime Act BE 2544 (2001), arises from the 1997 Constitution of Thailand, which the military abrogated on September 19. Among relevant provisions, section 246 held that
“Any person who has become the accused in a criminal case and has been detained during the trial shall, if it appears from the final judgement of that case that the accused did not commit the offence or the act of the accused does not constitute an offence, be entitled to appropriate compensation, expenses and the recovery of any right lost on account of that incident, upon the conditions and in the manner provided by law.”
According to the Post, the head of the Department of Rights and Liberties Protection has urged criminal investigators to get proof before arresting suspects, because his department has to pay out 250 million Thai Baht (USD 6.7 million) for 2890 cases of false charges from last year alone. As its entire annual budget is only 420 million Thai Baht (USD 11 million), it will spread the payments over two years, leaving the question hanging as to where the money will come from to pay those persons who claim compensation this year. The director, Charnchao Chaiyanukij, was quoted as saying that,
“I would like to call on state officials involved in investigating the cases to collect clear evidence before making arrests, because wrongfully charged people, to whom the government has to pay compensation, account for more than 30 per cent of the cases deliberated.”
Where large numbers of serious criminal cases can be clearly identified as resting on false charges, something has gone awfully wrong. While the development of a law and office for payment of compensation to victims of state injustice in Thailand under the 1997 Constitution is laudable, the issue cannot stop there. It is not just a matter of compensation and the problems that it is causing for the limited budget of a small government department. Rather, the claims for compensation are symptomatic of deeper ailments in the entire criminal justice system. These demand many more serious questions. They include the following.
What is wrong with the supervisory system of the police?
Criminal investigation is central to policing. Where large numbers of persons are being arrested, charged and tried without evidence, it means that there are serious defects in the police. The organisational structure of the police should guarantee supervision of investigators by superiors, and scrutiny of their work before it is used to deprive someone of his or her liberty. If the problem of false charges in Thailand is to be addressed, it is necessary to deal with this failure of supervision. It is also necessary to address long-recognised structural problems in the police force that have arisen due to its being built on principles of self sufficiency rather than centralised state support and control.
What percentage of cases is deliberately fabricated?
Among the wrongful serious criminal charges, while a certain number may simply be due to careless police work, others will have been deliberately concocted against innocent people, in exchange for cash or other favours. The police in Thailand are almost universally recognised as thoroughly corrupt and frequent users of torture and other means to extract confessions and falsify material evidence. They also have strong links with the crime world. Under these circumstances, it is not sufficient to urge investigators to check the facts before submitting a case. This may simply lead to more sophisticated falsification of evidence, particularly where the charges are serious, as in the cases demanding compensation from the government. The real issues go to the nature of justice and society in Thailand. Is the level of criminal intimidation in the society so high that the guilty persons cannot be prosecuted and innocent ones used instead? Are the police so heavily influenced by criminals that they will sooner falsify cases than seek to locate and charge the culprits? How can these deep institutional and social problems be addressed?
What is wrong with the laws and procedures on evidence?
The 1997 Constitution brought with it many reforms aimed at improving the delivery and management of criminal justice in Thailand. It contained specific provisions on the getting of evidence before arrest and inadmissibility of confessions obtained through torture or other illegal means. Notwithstanding, the judicial system in Thailand has still tended to rely disproportionately on police and witness testimony. This makes it easy for police to lodge wrongful charges against innocent persons. One important way to address this imbalance is to place a greater emphasis on forensic evidence, particularly when obtained by independent professionals. In Thailand, the Central Institute of Forensic Science has been a pioneer in this field; however, as it has challenged the established authority of the police it has been subject to heavy attacks and its work unnecessarily hampered. Much more needs to be done to develop the institute and the laws and procedures to admit and utilise reliable forensic evidence from reputed experts in conjunction with testimony. As Thailand is a modern and advanced society with more resources compared to many other countries in Asia, there is no acceptable reason for its criminal justice system to be left behind. Much more attention must be paid to scientific methods of investigation and the bringing of specialist testimony into the courts in Thailand.
What is wrong with the public prosecution?
The responsibility of the public prosecutor is to review cases before taking them to trial. However, it is widely known that in Thailand the prosecutor acts with little independence and relies almost exclusively upon whatever is given by the police or other criminal investigators. The prosecutor is not involved in the investigation work, except in some special cases. One person working for the office has described it as a “meatball factory”: whatever it gets, it grinds up and serves to the courts without question. The unprofessional behaviour and lack of independence of the prosecutor’s office also is a serious barrier to addressing the high number of false cases going to the courts.
The announcement by the director of the Rights and Liberties Protection Department that his agency is struggling to pay off the large number of compensation claims lodged by wrongfully charged persons needs to receive widespread attention in Thailand. It is not simply a matter of budget; it is a matter of justice.
The Asian Human Rights Commission urges all concerned branches of government to pay serious consideration to his request for evidence-based investigations, rather than evidence-free investigations, and examine the wider implications for their work. Above all, deep institutional defects in the police must be tackled: these have been known and studied for decades but are as yet among the biggest obstacles to the rule of law in Thailand. The AHRC also calls for widespread discussion about the problems among concerned professionals, which could be spearheaded by the Lawyers Council of Thailand and the National Human Rights Commission. They know the problems well, and are in a position to respond to them directly and concertedly. Only this way can the needed institutional solutions be found, and the costs of compensating victims of systemic injustice thereby be reduced.
