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Sunday, August 1, 2010

Criminal Law in Thailand Part XVI - Wrongful arrest: Crimes by the police

Last week we talked about suing the police for civil damages in the event of improper arrest. This week we'll discuss serious violations of the law by the police in the course of the arrest process, and how these can subject the police to criminal penalties.

ILLUSTRATION: NATTAYA SRISAWANG

Of course, this is the nightmare of lawyers and law enforcement officials - when the system one is trying to work in rears up and strikes back.

How can this happen? Let's look at a fictitious example, which we've created to show you how the police can step over the line.

Let's say a police officer is your neighbour. Lately, your dog has been going out at night and howling until morning. The police officer's wife has complained bitterly to your wife on a number of occasions, but you haven't done anything to solve the problem. It doesn't bother you, and you feel the police officer's family is over-sensitive about a little noise.

One night, though, you and your wife are with friends in a local restaurant to talk about the affairs of the world. The officer is on duty, walking his beat, and happens to see you through the window of the restaurant. He hasn't slept for a week because of your dog's howling, and decides to teach you a lesson.

The officer walks into the restaurant and arrests you on the spot. He cuffs you and shouts menacingly at you in Thai. Everyone at the table is frightened and, of course, has no idea what you have done. The officer grabs your arm, escorts you outside the restaurant and takes you to the police station. He tells his commander you're a suspected drug dealer and you are put in a cell.

You wait until the next morning. By this time your wife has hired a lawyer, who comes to the police station and talks to the commanding officer. The officer, your neighbour, isn't around and you are released.

In this case your lawyer can go to the public prosecutor and make a complaint. The public prosecutor can then have the police officer who is your neighbour arrested and prosecute him for having wrongfully exercised his official function in order to injure someone under Section 157 of Thailand's Criminal Code. This crime subjects the perpetrator to from one to 10 years in jail and a fine of between 2,000 and 20,000 baht, or both. You can, through your lawyer but without the public prosecutor, also go to court and institute the prosecution directly.

The officer in the above example may be guilty of an additional crime. If it can be shown that the officer intended to keep you in custody to maliciously subject you to punishment, Section 310 of the Criminal Code, backed up with substantial case law, would subject the officer to up to three years' imprisonment and a fine not exceeding 6,000 baht, or both.

Let's change the fictitious example a little, to illustrate another point. Instead of a simple arrest, the following happened. When the officer shouted in the restaurant, you were scared and stood up to leave. The officer grabbed your arm to arrest you and you, knowing you had done nothing wrong, pushed him away. He then punched you and gave you a black eye.

The rest of the example is the same. In this case, pursuant to Section 391 of the Criminal Code, the officer could be convicted of committing an unjustified non-serious act of violence in the line of duty and convicted to up to a month in jail and a fine of up to a 1,000 baht, or both.

If your injuries from the officer's misdeeds were greater, the punishment would be greater, too. Under Section 295 of the Criminal Code, for more serious injuries than the above, he would be exposed to imprisonment of up to two years plus a fine.

If, under Section 297, he caused you "grievous bodily harm", such as loss of a limb or long-term pain or disability, the officer would be exposed to imprisonment of six months to 10 years. Likewise, if you died as a result, the punishment would, under Section 290, be three to 10 years imprisonment.

Next time we'll talk about how to make a complaint of improper treatment within the police department and the remedies available in connection with this.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

Criminal law in Thailand Part XIV - Wrongful arrest and how to get released

By James Finch and Nilobon Tangprasit

What happens if you are wrongfully detained and the police won't release you? For example, suppose you were arrested on suspicion of a serious crime, drug trafficking, for instance? And let's say the reason for this was that you were mistaken for a foreigner looking, to a Thai police officer, something like you.

ILLUSTRATION: NATTAYA SRISAWANG

Here's how this could happen. Let's assume for the purpose of this fictitious example that the police are told by a reliable informant that a known drug distributor will be at a meeting at one of Bangkok's best hotels. The description of the distributor given to the police is that of a foreign man of about your height and build. You happen to be an architect and were at a meeting in one of the hotel's conference rooms discussing a project in the South with the developer. You also happen to be walking through the lobby to the door when the police enter the hotel.

Here's how the arrest goes wrong. One of the officers is sure you are the suspect. He cuffs you and hustles you into a police car and has you driven to the police station. The real suspect, seeing something is wrong at the hotel, escapes.

When you get to the station you are uncuffed and put in a room. You pull out a copy of your passport and demand to know why you are being held. When no one says much, you call someone in your office who then calls the police captain on duty.

But the police are uncertain. You do match the description of the suspect, and, though you are claiming you have nothing to do with any crime, there's nobody else who fits the general description of the suspect around. And the police don't want to let an important suspect slip through their fingers.

Things drag on and a couple of days go by. Somebody from your office has been to visit you and talked to the police, but they simply say you can't be released until you're cleared as a suspect. You've called your spouse, who has called your embassy. The embassy has advised your spouse to get a lawyer and given your spouse a list of them to call. She calls and meets with one of them.

What will the lawyer do?

Well, first the lawyer will go to the police station where you are being held and try to get you released. But what if this doesn't work, for the same reasons the police wouldn't release you mentioned above?

Section 90 of the Thai Criminal Procedure Code provides that any of the following people may file a petition with a local court to release a someone being detained:

- The person detained;

- the Public Prosecutor;

- an inquiry official, such as a police officer in charge of the case;

- a jailer or person in charge of a detention facility, or;

- the spouse, relative or other person acting for the benefit of the person detained.

The lawyer, "acting for the benefit of the person detained", could therefore file this petition directly with the court.

In Bangkok, the court with which the petition would be filed would depend on which of the criminal courts had jurisdiction over the area where the detention was made. For example, if the arrest was made in the Sathon area, the competent court would probably be the Bangkok South Criminal Court. If the detention were in the Bang Khun Thian, the competent court would likely be the Thonburi Criminal Court. If the detention were outside of Bangkok, the competent court would be the provincial court having jurisdiction over the area in which the detention took place.

The judge must immediately review the petition. The review can be ex parte - without the police present. If the judge decides the petition is proper, the judge will immediately order the police to bring you before the judge to justify the detainment. If the judge isn't satisfied that you were properly detained, you will be released.

In this case, for example, the judge might look at the petition and see that you - a foreigner working in Thailand as an architect - was suspected of being a drug king-pin with a different name. Because of the discrepancy in names between you and the suspect, the judge would then ask the police to bring you before him or her. Through an interpreter the judge might verify your name by looking at your passport and work permit. The judge could order your release then and there.

James Finch of Chavalit Finch and Partners
(
finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(
nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

Thai Navy Seals: One hell of a week

Some people are willing to push themselves to breaking point to fulfil their dreams

'Hooyah!" shout the exhausted, trembling Navy Seal trainees in unison to their demanding instructors as they prepare for the most dreaded part of the infamous "Hell Week". They are so tired that they can barely stand in a straight line. Their muscles ache beyond any pain they have ever experienced, and their bodies are chilled to the bone.

They have been submerged in a pool of ice-cold water as part of the Basic Underwater Demolition component of Hell Week. The tough task is not only intended to help their bodies cope with hypothermia, but also to test their mental resolve.

There hearts pounding, the mission is far from over - what lies ahead of them is a 3.2km run and then another obstacle course that would challenge the strongest men.

The trainees knew beforehand it would be the toughest task they have ever faced. But the challenges don't dull their determination to become Royal Thai Navy Seals, the country's elite maritime warriors.

Hell Week consists of 120 hours of continuous training in April, the hottest month of the year, at the Naval Special Warfare Centre in Sattahip, Chon Buri. Trainees get by on only a few hours sleep. Hell Week is the second phase of the training, designed as the ultimate test of physical and mental prowess.

MAXIMUM EFFORT: Trainee Seals struggle through a pool of mud, part of the obstacle course

''To become a Seal is my dream,'' says 26-year-old Petty Officer 1st Class Praiwan Taengmanee, who graduated from the gruelling Underwater Demolition Team Reconnaissance class, the first phase, last year.

''It's the toughest thing I've ever done. Hell Week is the most challenging phase of the training,'' added the driven sailor, who is among the 43 remaining trainees. At the beginning there were 89, but over two months their numbers have been more than halved.

For those who make it, Hell Week is proof that the human body and spirit can endure far more than the average person believes possible. In this phase, trainees are expected to learn, apart from physical fitness, the value of keeping a cool head, perseverance and teamwork.

''Ultimately, we seek candidates with whom we can entrust the lives of fellow frogmen,andwhocan operationally complete underwater tasks upon entering a real-world combat scene,'' says instructor Captain Suwicha Koirum. ''In Hell Week, they are often cold, miserable and xhausted. That's the physical, emotional and mental tests these young men must endure, and it's not going to get easier.''

After Hell Week, they will carry on with training in land warfare, marine combat, hostage situations and guerrilla techniques. Thailand's Navy Seal training course is based on a similar elite programme devised by the US military, and the two countries participate in joint naval special warfare training every year.

So how tough the is Hell Week?

The aspiring young Seals must dip themselves into an ice-filled pool where their physical conditioning and mental tenacity are put to the test. They must also wade through a pool of mud before completing a 6.4km run up and down hills, plus obstacle courses such as carrying a 90kg canoe or 100kg tree log. Other tests include pulling an oar with their teeth, and crawling naked on hot concrete to toughen them up.

READY TO ROLL: The Seal trainees are poised for their obstacle courses

They are also thrown into the ocean with their hands and feet bound and need to untie themselves before swimming 3.2km in the open sea. Learning small boatmanship is also required.

After the first few days, the men are already tired and famished. Their lips are parched. Their eyes are red and sore from the lack of sleep as stress mounts. Their sunburned skin is ripped and bruised. They often gasp for breath. Some, inevitably, yield to their physical limitations. Others push themselves to stay for another day. The unlucky succumb to injury. Though allowed to receive medical care, they must report back to the base within an hour, otherwise they will be disqualified.

Petty Officer 3rd Class Wirat Yuen-un, 22, who fainted during the training and was in an intensive care unit for two days, said he cried once he regained consciousness. ''I knew I was out of the team. My heart was there but my body failed me,'' he said.

Hecameback, though, to congratulate his peerswhocompleted Hell Week training. The disappointed sailor shook his head, but then beamed: ''I'll enroll again. I'll be back next year. I'll become a Seal.''

SHOULDERING RESPONSIBILITY: Men carry a log on one shoulder while holding an oar as they climb a hill

HERE’S MUD IN YOUR EYE: A trainee wipes sludge from his eyes.

CRASH LANDING: Trainees somersault into a muddy lake.

TAKING THE LEAD: An obstacle course where trainees have to pull a canoe to the shore with their teeth.

BATTERED: Their skin is ripped, torn and bruised all over.

MAN DOWN: A trainee receives medical care as he collapses during the training.

A HELPING HAND: Getting across a muddy lake

CLEANING UP: An instructor sprays water onto his trainee to wipe away mud and refresh him.

BREATHTAKING: A soldier grimaces as he is pushed into icy water.

PLAYING IT COOL: Trainees take a plunge in a pool of ice-cold water.

About the author

columnist
Writer: Wassana Nanuam
Position: Reporter

1932 coup-makers' descendants want to set the record straight

The sons and daughters of Khana Rasadorn gathered at a Bangkok temple last week to commemorate the event that transformed Thailand to a constitutional monarchy and lament its unfinished mission

Thailand, called Siam at the time, saw the first of many successful coups in its history at dawn on June 24, 1932, when a group of 115 military officers and intellectuals known as the Khana Rasadorn (People's Group) brought an end to 150 years of absolute monarchy under the Chakri dynasty.

COMMEMORATIVE SERVICE: A portrait of Field Marshal Plaek Phibulsonggram looks over guests at the June 24 ceremony at Wat Phra Si Maha That. PHOTO: SURAPOL PROMSAKA NA SAKOLNAKORN

Each year on June 24 the descendants of Khana Rasadorn members, along with various pro-democracy activists, commemorate the event. But it is significant that since 1957 the governments made possible by the 1932 revolution have not officially recognised June 24 as a landmark in the development of Thai democracy. It was recognised as a national day until the 1957 coup by Field Marshal Sarit Thanarat, which wished to erase the collective memory of the contributions of Khana Rasadorn, along with the legacy of Field Marshal Plaek Phibulsonggram, or Phibun, who was the last member of Khana Rasadorn active in Thai politics.

Those at the ceremony at Wat Phra Si Maha That believe the objectives of Khana Rasadorn to establish supreme civil rule in 1932 have not been fully realised in the intervening 78 years.

Puangkeo Satraprung, 68, is one of the four surviving children of Phraya Phahon Pholpayuhasena, the leader of Khana Rasadorn. Mrs Puangkeo said it was sad that the Thai people, and politicians in particular, have not expressed gratitude to those who brought them what they have today.

"The forefathers of Thai democracy greatly sacrificed not only their own lives, but also the future of their clans. If they had not succeeded, their descendants would also have been executed jed chua kote [down to the seventh tier]," said Mrs Puangkeo on the sidelines of the religious rites at Wat Phra Si Maha That.

A recent poll conducted by Rangsit University and the Pridi Institute revealed that 90% of 1,181 respondents would like June 24 reinstated as a national day.

GIANTS OF 1932: Above, Phibun’s photo inside the chedi at Wat Phra Si Maha That built to store relics of Khana Rasadorn.

"I don't care so much if June 24 is reinstated as a national day, but people must get the facts straight. Thailand needs to overhaul the way history is taught and preserved. Facts, not fiction, will enlighten the whole society," said Mrs Puangkeo.

She said that one of the disturbing illusions regarding Khana Rasadorn was the notion that the June 24 coup was a pre-emptive move to seize power. She was referring to attempts in recent decades to show that King Prachadhipok was already leaning toward a democratic mindset and Khana Rasadorn made their move before he could benevolently hand democracy over to the people.

''I do not agree with the ching-suk-gon-ham [premature seizure] discourse. The histories of other countries tell us that unless you fight for democracy, you will not get it. This political discourse that has been taught and repeated for decades is the first distortion of the 1932 event that needs to be rectified,'' said Mrs Puangkeo.

At 89, Chirawat Pibulsonggram Panyarachun is the oldest surviving child of Khana Rasadorn leader Phibun. She shares the opinion of her brother Nitya Pibulsonggram _ the foreign minister in the administration of Surayud Chulanont _ that the 1932 Revolution did not overrule or overthrow the works of the Chakri monarchs, which have been revered and recognised by the people for more than two centuries.

DEVOTED DAUGHTER: Chirawat Pibulsonggram attends the temple ceremony.

She added that other historical distortions she would like to correct are the perception that her father had created and presided over a prevailing militarism in the country, and that he and Pridi Banomyong were competing for power.

''I believe they both tried to do good things for the country. I feel irritated that there are still attempts to belittle or undermine Khana Rasadorn by saying that if there had been no June 24 coup there would be something better in place in Thailand today,'' said Mrs Chirawat.

Suthachai Yimprasert, an assistant professor of history at Chulalongkorn University, agreed that Phibun should not be labelled as a forefather of dictatorship.

''It would be a lousy analogy if you put the blame on Karl Marx for what North Korea is today. Neither Khana Rasadorn, nor Phibun should be held responsible for the troubles in contemporary politics,'' said Mr Suthachai, who was detained for eight days by the Center for Resolution of the Emergency Situation (CRES) last month because of his association with the red shirt protesters in Bangkok.

He said June 24, 1932, was the start of an incomplete mission to establish the civil and political rights of the people through representative democracy.

Pridi Banomyong’s nameplate on the chedi wall. PHOTOS: SURAPOL PROMSAKA NA SAKOLNAKORN

''We need to understand that Khana Ra sadorn's efforts to establish democracy were interrupted and finally deformed by pro-royalists military leaders after Phibun,'' said Mr Suthachai, in reference to Field Marshal Sarit, Field Marshal Phin Choonhavan, Field Marshal Thanom Kittikachorn and Field Marshal Prapas Charusatien.

Worachet Pakeerut, a law professor at Thammasat University, said that despite the change of political and administrative systems following the 1932 revolution, the country's core ideology was never truly transformed accordingly.

Khana Rasadorn's democratic ideology has not been expressed by the ensuing leadership, especially in the realm of the judiciary and the military, said Mr Worachet at a political science seminar at Thammasat on Thursday.

Khana Rasadorn's revolution never touched the judicial branch and therefore the concept of constitutionality was never fully established in the minds of judges and other legal personnel, said the public law expert.

Khana Rasadorn sponsored the June 27, 1932, constitution, which tried to bring the judiciary into a new power-sharing arrangement, but the constitution was rejected by King Prachadhipok. The first ''permanent'' constitution, which came six months later, gives a free hand to the judiciary, said Mr Worachet.

PAYING RESPECTS: Descendants of Khana Rasadorn members at Wat Phra Si Maha That.

He added that Khana Rasadorn's vision of a limited role and status of the monarchy, which would have mostly ritual and traditional duties, was changed after the 1957 coup by Sarit, who reinstalled the royal power in the legal and political structure.

This has led to the present problems, said Mr Worachet.

He said there is still a conflict between the notion that supreme power lies with the people and the notion of totsapitrachatham [ethical royal power], and that from time to time the expectations are propped up in some quarters of the society that the King should use this power to intervene in certain political crises.

The professor said that therefore those who point out the intention of Khana Rasadorn to draw a clear constitutional line for the role of the monarchy are accused of lese majeste.

''This is an incomplete mission. The struggle between those wanting a vibrant constitutionalism and representative democracy and those looking for ethical leadership will persist in the months and years to come,'' he said.

Mr Suthachai sees the red shirt movement's aims (to reinstall their political party as head of the government) as kindred to the Khana Rasadorn spirit of the supremacy of the people.

Mrs Chirawat, while saying that the red shirts have little in common with the 1932 group, also sees justification in their struggle.

''The reds fight for justice and against double standards, which is understandable,'' said Mrs Chirawat, adding that the present and previous administrations have not followed through with Khana Rasadorn's democratic objectives. She pleaded for all groups in the country to reconcile and move forward.

Kraisi Tularak, the son of Sa-nguan Tularak _another Khana Rasadorn member _ acknowledged that in the old days there might have been ideological conflicts within Khana Rasadorn, especially during the World War II, when Pridi was allied with the US and Phibun with Japan.

''But they were not vengeful, or trying to annihilate one another _ unlike the politicians today,'' said Mr Krasi, who is in his late 70s.

He agreed that the political struggle began by his father and his colleagues is not yet finished.

''Having free education is not enough. Schools must teach principles and ethics and national unity or we will always have the reds and the yellows,'' he said.

Mrs Puangkeo agreed that until the people are properly educated, democracy will not be fully established in Thailand, but she remains optimistic. ''There's a tiny flickering light at the end of the tunnel. There's hope that the country will gradually evolve if we learn from the past.''

About the author

columnist
Writer: Achara Ashayagachat
Position: Reporter