For immediate release on 24 September 2018
Cross Cultural Foundation Press Release
Hua Hin Provincial Court jailing three youth defendants in a robbery case against foreign tourists accepting evidence obtained during police custody, the evidence inadmissible as the confessions had been obtained through torture
On 19 September 2018, the Hua Hin Provincial Court ruled in the Black Case no. TO2/2560 between the Hua Hin provincial public prosecutors v. Mr. Natthawat, aka, ‘James’ or ‘James Raw’ Thanatthikanchana, defendant no.1 and other two defendants. The Court has convicted and sentenced the three defendants to 18 years and a fine of 900 baht each. As confession from defendant no. 1 to the police was found useful for the trial, his sentence has been reduced to 12 years and a fine of 600 baht.
On 26 September 2016, an Italian tourist and a Moroccan tourist have reported the case to the Sam Roi Yod Police Station alleging that on the same day, around three or four in the morning, they were physically assaulted by assailants on motorbike and robbed. The incidence allegedly took place by the roadside of Pranburi-Sam Roi Yod highway in Moo 1, Tambon Sam Roi Yod, Sam Roi Yod District, Prachuap Khiri Khan. Later the defendant no. 1 was arrested and confessed to the charge and implicated other defendants. The defendants no. 2 and 3 were thus arrested, though they denied the charge. Later the defendant no. 1 denied the allegation and retracted his confession as well as complained with the Cross Cultural Foundation (CrCf) that he had been subject to torture committed by some members of the arresting officials. CrCF has thus sent its staff and experts to investigate the case and has found probable evidence that the defendant no. 1 had actually been subject to torture and forced to make his confession. The fact-finding team has cast suspicion on the credibility of the incriminating evidence proposed by the police. In collaboration with the Innocence Project, the defendants have been offered legal representation.
During the hearings, the prosecution has admitted to not being able to recoup the stolen vehicle and money. They managed to only produce evidence based on confessions given to the police by the defendant no. 1 and evidence given by the second injured party which has been given to the police and during the pretrial interrogation. The interrogation took place before CrCF’s and innocence Project’s attorneys got involved with this case. The evidence given by the prosecution witnesses looked suspicious in many ways. For example, the evidence given by the second injured party to the police and to the Court contradicted each other while the prosecution witness who offered help to the injured parties that night told the Court that both of them were stumbling drunk.
The three defendants gave evidence based on oral evidence and cctv footage in the hotel where the defendants no. 1 and 3 stayed with two women who agreed to alibi them. They stayed together from before midnight until around ten o’clock of the following day. The footage attested to that the defendants no. 1 and 3 did not leave the hotel during the time. Likewise, the hotel staff gave evidence in the Court that during that night, the defendants no. 1 and 3 stayed at the hotel before midnight until late morning the following day. The defendant no. 2 was meanwhile alibied by his family members who could confirm his whereabouts then,
The conviction of the three defendants was based primarily on evidence given by the defendant no. 1 while being held in custody by the police which implicated defendant no. 2 who initially denied the charge. The Court has found evidence that supports the claim that the defendants no. 1 and 3 were staying at the hotel inconceivable.
CrCF and Innocent Project have been offering legal assistance to defendants no.1 and 2 given their unaffordability. We have ascertained that the defendant no.1’s testimony that implicates defendants no. 2 and 3 had been obtained under duress and he was allegedly subject to physical assault. Even though no medical records could be obtained to confirm such act of torture and the wounds on his body as he was only physically examined quite a while after the torture. In many stances, confessions made under duress have left few traces or none including any wounds which have to be examined by forensic experts, not by any GP or prison hospital staff as claimed in the verdict that the physical examination of defendant no. 1 has yielded no traces of torture and no wounds were found on his body.
It is claimed in the verdict that the act of implication and confessions under duress could not have been made. Such claim cannot be substantiated by any psychiatry forensic evidence and no experts have been brought to give supporting evidence in the Court. The Court has exclusively reduced the sentence of defendant no. 1 from 19 to 12 years invoking his confession that implicates defendant no. 2 and 3 and how it has been found useful to the trial. But the defendant no. 1 has in the Court pleaded not guilty and even claimed he had to make such implication under duress as he could not bear with the pains inflicted on him by the arresting officials. He even produced a witness who was present during the interrogation and heard him cried in pain as a result of such physical abuse.
The three defendants have found they have not been treated fairly and shall appeal the case.
After the conviction and sentencing of the three defendants, the Lower Court has passed on bail applications of the three defendants to the Appeals Court. The Court has agreed to have them released temporarily by posting bond worth 800,000 baht each, higher than 300,000.baht each when they were required to post during the trial of the Lower Court. No reasons have been provided to explain why the bail bond has been substantially increased. The Rule of the President of the Supreme Court on the criteria, methods and conditions on bail bond or assurance for temporary release of alleged offenders or defendants in criminal cases BE 2548’s Article 6, second paragraph, however, provides that “If a defendant is sentenced to three years of imprisonment or higher, and the Court deems fit to have the individual released on bail pending the appeal with the courts of higher instance. The Court may impose bail bond at the amount higher than what has been fixed by the Court of Lower Instance, but should not be half of the amount higher.” Based on this guidelines, the bail bond in this case should therefore not be set higher than 450,000 baht and it could be lower or higher than this amount. It should, however, comply with the Rule of the President of the Supreme Court’s Article 4, third paragraph which provides that “When a bail bond is required, it has to be set out based on its worthiness. In so doing, the credibility of the bail applicant, their assurance and the financial status of the alleged offenders or the defendants have to also be taken into account.” By imposing a much higher bail bond, and given the unaffordability of the defendant no. 2, he has to accept such temporary release and agree to wearing electronic monitoring device, imposed by the Lower Court. By attaching such device on his feet, the defendant no. 2 who earns his living as a fishing worker may be prone to work-related accidents.
CrCF in cooperation with a number of lawyers has offered help to individuals who claim to have been subject to torture. They note an increase of verdicts that tend to give weight to evidence obtained during the police custody to convict defendants, particularly cases involving offences against foreign tourists, cases that attract public attention and cases related to national security. In such cases, the Court has decided to admit even an interview report of individuals have been held in custody invoking Martial Law and the Emergency Decree on Government Administration in States of Emergency, even though they were yet to be charged for any crime. Such confessions have been obtained through the use of torture, threat, or instigation by the officials. They could be put under duress, could have language problem or failed to understand the criminal justice process or they could just give such confessions without the presence of their legal counsels or even they managed to have one, such legal counsels have been provided by the authorities and were irresponsible or inexperienced. Such legal counsels could be intimidated by the authorities. Such circumstances have made the poor, people with low education, and suspects in policy or security cases or migrant workers vulnerable to incarceration even though they have committed no crime or have not committed the gravest crime as alleged. That the public prosecutors and the Court accept to hear confessions obtained by the inquiry officials, even though it looks suspicious that such evidence had been obtained under duress, involuntarily or unlawfully, is therefore a breach to the fair trial principle which prohibits such inadmissible evidence.
It has been widely known that suspects have been regularly subject the use of torture aided and abetted by the officials in order to obtain their confessions or information. This happens when they are in police custody and happens with suspects in security related cases in the Southern Border Provinces and in other politically motivated cases. However, in such cases, the officials who have committed such offences have not been brought to justice and enjoyed impunity evading both their criminal liability and disciplinary action. This happens even though Thailand has become a party to the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) since 2007. But until now, there is no law in Thailand to comply with UNCAT making the investigation and punishment of officials who have committed such crime ineffective.
For more information about the case, please see https://voicefromthais.wordpress.com/?s=สามร้อยยอด Or call 096-7569169