A 15-year trial is not a fair trial

This week the criminal court in Southern Bangkok sentenced four men to lengthy jail terms for their alleged roles in a plot to kill the former president of Thailand’s Supreme Court. The judges convicted the two organizers of the purported crime to 25 years each; the gunmen, from whom the police obtained confessions, to more than 16.

The court’s verdict is wrong. It is wrong not because the facts of the case favor the defendants, but because it took over 90 judges more than 15 years to reach this point.

The trial was opened on July 16, 1993. The prosecutor accused businessman Apichit Angsutharangkul of hiring Somphon Dechanuphap and Nen Mahavilai to kill the judge. Another man, Banjerd Jannapalin, was the go-between. The police originally arrested him too but later brought him as a defense witness. The prosecutor also charged prominent architect and property developer Rangsan Torsuwan with masterminding the crime.

Apichit and Rangsan were bailed out shortly after the case began. Somphon and Nen were held in custody for seven years before also being freed on bail.

It took the court until 2005 to finish hearing the prosecutor’s witnesses. Five testified in the first year and 17 in the second. For the next decade, only two police generals appeared, from time to time and as they pleased, excluding the period from 1997 to 1999 when the case was pending a response on matters referred to the constitution court.

That two senior police could eat up years of court time is a consequence of the extraordinary leeway given to government officials appearing, or not, before the courts in Thailand.

Judges routinely postpone cases where police, bureaucrats and military personnel fail to come and speak, often after the witnesses have cited vague or trivial reasons for their absences, such as that they have been called away for other duties, or that they are on leave. Notice of non-appearance, if given at all, is frequently not made until the day of the hearing, sometimes in writing, sometimes verbally.

The lackadaisical manner with which government officials in Thailand act towards the judiciary contrasts with other more advanced Asian jurisdictions, such as Hong Kong. There, police orders specify that attendance at court must “take precedence over any other commitments, including leave,” a responsibility that officers can ill-afford to take lightly.

Because a Hong Kong police officer cannot fail to testify when he wants to go on holiday or has something better to do, the courts have a high degree of integrity and public respect. Because in Thailand one can, just about any story gets spun in order to delay trial, cause inconvenience to other parties, and undermine the justice system.

In the Southern Bangkok court the repeated adjournments in Somphon’s case were compounded by the incredible number of judges that sat in panels on the bench hearing it. By the start of 2007 they had numbered 93, almost half of them since the trial was resumed in the lower court in 1999.

None of these judges took the step of ordering the prosecutor to wrap up, or of closing the case due to its inordinate delay, even though the country’s criminal procedure code, which is explicit that an accused is entitled to a speedy, continuous and fair trial, grants them this authority.

Like the domestic law, the International Covenant on Civil and Political Rights, to which Thailand is a party, states that everyone is entitled to be tried without undue delay.

No single period of time constitutes undue delay. Rather, it usually hinges on whether or not a case has stalled at a certain point and whether the concerned government agencies have failed to do their duties so that it might be completed efficiently.

The United Nations Human Rights Committee, which deliberates on cases under the covenant, found that the trial of Lalith Rajapakse in a Sri Lankan high court had been unreasonably prolonged where it had continued for around three years because there appeared to be no effort to bring it to a close.

And in Rogerson vs. Australia, even a two-year delay was considered too long where there was no good reason for the judgment to have not been handed down earlier.

Thailand has not signed the optional protocol to the covenant, so the case of Somphon and the three others cannot be brought to the committee for its views. But there can be little doubt that given its remarks on other cases of this sort the committee would find the taking of a decade to complete the recording of the two policemen’s statements totally unacceptable.

Excessive delays in criminal trials cause hardship and suffering to the accused persons and place a needless burden on taxpayers. Worse still, they defeat justice. Implicit in the terms that a trial should be speedy, continuous and fair is an understanding that in the absence of any one of these elements the other two are jeopardized. In the absence of two, the chances for the remaining one are all but nonexistent.

As the trial of Somphon Dechanuphap and his codefendants was not speedy or continuous, nor could it be fair. The judges who ultimately decided upon it had no capacity to do so. The opportunity for a fair trial had been spoiled long ago. The case should simply have been closed. Now that a sentence has wrongly been passed, it will fall to the appeals court to correct it. Hopefully the next verdict won’t take so long.

Source: A 15-year trial is not a fair trial

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