The process by which victims of crimes and victims of the miscarriage of justice are awarded compensation by the state is very much a work in progress, writes TUNYA SUKPANICH.
Thai society was shocked when a number of people stepped forward to claim they were wrongly arrested and subjected to extortion by the “Border Patrol Police gang”, and in some cases even convicted and imprisoned if they did not pay. Many people, including high-ranking officials in the justice system, are urging that the cases, which are mostly drug offences, be reopened.
Should the new investigations find that any of the alleged victims were indeed falsely convicted and imprisoned, they also have the right to seek compensation from the government, and to lodge civil suits against the Royal Thai Police for additional compensation.
Articles 245 and 246 of the 1997 constitution clearly state that crime victims, as well as victims of the miscarriage of justice, have the right to “effective remedies” from the state for what they have lost. This is supported by the 2001 Act on Compensation, which was prompted by the Sherry Anne Duncan case, in which judicial flaws resulted in the Criminal Court handing down death sentences on four innocent people.
The four were eventually declared not guilty by the Appeals and Supreme courts. However, one of them died in detention, another died shortly following his release after years in jail, and a third became permanently disabled.
The victims and their families were later awarded compensation from both the state and the Royal Thai Police.
The compensation under the 2001 Act is intended for, in addition to crime victims, victims of mistakes in the judicial process which result in both conviction and acquittal. However, as explained below, if a case is concluded in the defendant’s favour because of insufficient evidence, the defendant will not be entitled to compensation .
In the present 2007 Constitution (Article 40 (5)), the 2001 Compensation Act remains in effect. Yet, according to a study by the Research and Advisory Institute of Thammasat University, presented to the National Economic and Social Advisory Council (NESAC), there remain many weak points in the 2001 law, as well as in the procedures to claim compensation.
For one, there are limitations on the types of offences for which the victims of criminal acts can claim compensation. The four types of offences are: sexual offences (articles 276-287 of Criminal Procedure Act), physical injuries and death (articles 288-300), offences that cause child miscarriage (articles 301-305), and offences related to abandonment of children, sick or aged persons (articles 306-308).
The study indicated that these limitations unfairly ignore many crimes and their consequences, and recommended that the Compensation Act should cover offences related to consumer protection or environmental issues which involve physical injury or damage to property. The study also suggests the inclusion of offences which cause extensive danger to individuals or groups (articles 224 and 238) or property (articles 336, 339 and 340), and loss of freedom and reputation (articles 309, 310 and 317-320).
Meanwhile, victims of miscarriage of justice can request for compensation only when the prosecutor also acts as a plaintiff in the case. Since the prosecutor is a state official, the state has to take responsibility for his or her mistakes. If the alleged crime victims filed the suit against the defendant themselves, the defendant may not make a claim for any remedies or compensation even if they are declared not guilty. However, in many cases the prosecutor is a co-plaintiff. Under such circumstances, there is a question as to whether the victims of miscarriage of justice can request for any compensation.
Another condition under which victims of miscarriage of justice who are ultimately acquitted can sue for remedy is that they must have been detained during the court trial, since this constitutes a loss of individual freedom.
Human rights advocates feel that victims of miscarriage of justice should be entitled to compensation even if they are released on bail during trial. The reasons given are that accusations and court cases tarnish a person’s reputation and dignity. Even if an individual is not detained, it is doubtful that they can lead a normal life, and therefore they should be compensated.
As well, even if the defendant later makes bail, he or she is normally detained for a period of time during police interrogations. It is argued that extending compensation to cover those who can make bail will make the police become more careful about putting any suspect behind bars for any length of time.
Another requirement for compensation for victims of miscarriage of justice is that either 1) the prosecutor must have decided to withdraw the case during the trial, for example because of the availability of new evidence, or 2) the defendant is acquitted by a verdict of the Supreme Court, which will bar a retrial of the accused for the same offence.
However, the situation is apparently more complicated when the court rules that there is insufficient evidence for conviction.
The Appeals Court once ruled that the state will not pay any compensation to those acquitted while there remains doubt over whether they committed wrongdoing because of insufficient evidence for a conviction. The same is true in the case of the expiration of prescriptive periods for filing a criminal suit.
Consequently, in many cases, the victims of miscarriage of justice are denied compensation from the state.
Separate the victims As noted, at the present time both crime victims and victims of the miscarriage of justice are under the same Compensation Act ( 2001). Both groups must also adhere to the same process in seeking compensation.
First they have to file a petition at the Office of Compensation, under the Justice Ministry. The statute of limitations is one year from the date of the offence for the crime victim, and one year from the court’s acquittal ruling for the victims of miscarriage of justice.
The office will then go through all documents and seek more evidence if necessary, and propose a decision to a sub-committee, which will reconsider all evidence and opinions once again. The sub-committee can ask the office to find more evidence. The sub-committee will decide whether to further the request for compensation to a committee responsible for making the final decision. The compensation seeker can appeal within 30 days if he or she is not satisfied with the committee’s decision. In most cases the process takes about two years.
Some legal experts argue that there should be separate processes for the two categories of compensation seekers, each with its own law. This would result in higher efficiency in helping those who deserve compensation.
Associate Professor Dr Surasak Likasitwattanakul of Thammasat University, who was interviewed by the study team, said there are different concepts behind the reparations to those damaged in criminal incidents and the victims of miscarriage of justice. In the case of the damaged, the reparation is a form of social welfare offered by the state. But as for the victims of miscarriage of justice, it is the direct responsibility of the state to redress the unlawful performance of state officials.
Another legal expert from Thammasat University, Assoc Prof Prathan Wattanwanich, agreed, and added that in other countries, Japan for instance, there are separate laws for each category.
However, Assoc Prof Narong Jaiharn, while agreeing that the underlying concepts are different, felt that both circumstances can be put under the same act as it is today, but they should be clearly classified in separate chapters or sections to avoid confusion.
The Thammasat research team, after thoroughly examining the matter and taking into account all opinions, proposed that there should be two separate acts covering compensation, each with its own procedures.
In summary, the Thammasat team’s report said that compensation for the damaged is based on the concept that the state failed to perform its duty to protect the victim from a crime. Consequently, the state has the obligation to compensate the damaged party, whether or not the criminals are ever arrested or receive any penalties. The damaged party is entitled to receive monetary compensation, and physical and psychological rehabilitation, as well as other services from responsible agencies. Moreover, the damaged party should be informed of all court proceedings and have them explained if necessary. The report added that there is a need to set clear conditions and rates of compensation.
Meanwhile, the report says the victims of miscarriage of justice are entitled to compensation for the loss of income, reputation, and a good life during the court procedure. The report suggests that the compensation measure will in one way or another force officials in the justice system to be extremely careful in carrying out their duties. Again, the Thammasat team recommended other necessary remedies for victims of the justice system, such as physical or psychological rehabilitation, or even occupational training. The present law focuses only on providing monetary compensation.
Speeding up justice
The Thammasat team further suggests that the government should set up a compensation fund similar to the social security fund or the civil servant’s pension fund to cushion the effects of the expected increase in the number of compensation petitions.
Even at present levels there is a problem with budget allocation for compensation cases. From 2002 to 2007, about 16,205 persons from the two afore-mentioned categories have applied for compensation. The Office of Compensation committee ordered payment in about 7,890 of these cases, at an estimated cost of 491 million baht. However, thus far the government has only allocated around 380 million baht in compensation. If increases in budget are not made soon, the unpaid compensation will rapidly accumulate, and a large number of those determined to be deserving of compensation will be denied and their hardships increased.
The Thammasat team has not described how such a fund should be structured, or what sources the money it should draw on. If the government agrees with the establishment of the fund, detailed studies will be conducted on these matters, as well as the rate of compensation for various categories of cases.
The Thammasat study proposed that the court might extend the one-year time limit in certain cases to allow the victims to obtain redress and fair and adequate compensation. For instance, if a young child is sexually abused by an adult, the parents might not know of the abuse for a long time.
Under the present complicated process, compensation is awarded very slowly. The study suggests that the police should be responsible for overseeing compensation cases for crime victims since they have the duty to investigate the original crime. On the other hand, cases involving miscarriage of justice should be handled by the court system since a final verdict from the court is an essential part of this process.
The establishment of an alternative dispute resolution system in criminal cases was also recommended for certain cases, for instance for crimes affecting minors. Under this system, crime victims would obtain compensation and other assistance more quickly.
The Thammasat research team concluded its recommendations by saying that to show its sincerity in helping victims of crime receive fair remedies, the Justice Ministry must extensively publicise the fact that citizens have the right to seek compensation.
At the same time, the Department of Rights and Freedom Protection, with the collaboration of the Criminal Court, has a duty to inform victims of miscarriage of justice of their right to seek compensation once the court rules that they are not guilty.
This is the final part in a series on compensation for victims of wrongful incarceration, and compensation for victims of both miscarriage of justice and criminal acts.
Compensation rates for the victims of miscarriage of justice:
1. Legal fines: compensation on a case-by-case basis
2. Medical fee: as actual amount paid but not exceeding 30,000 baht
3: Physical and psychological rehabilitation: actual amount paid but not exceeding 50,000 baht.
4. Loss of Income: a maximum of 200 baht a day from the first day that the victim is detained in jail.
5. Legal fee: Lawyer fee as following:
5.1 The first degree offence with death penalty. Lawyer fee varies from 4,000 baht to 100,000 baht.
5.2. The offences with over 10-year imprisonment penalty. The lawyer fee costs between 3,000 baht to 75,000 baht.
5.3 Other offences with fewer penalty than the 1 and 2. Lawyer fee is between 2,000 baht to 50,000 baht.
5.4 Other legal expenses which have been actually paid but not exceeding 30,000 baht.
6. In case of Death
6.1. 100,000 baht as reparation to the family.
6.2 funeral expense: 20,000 baht.
6.3 family loss of support : Not exceeding 30,000 baht
6.4. Other damages: Not exceeding 30,000 baht.
Compensation rate for the crime victims or the damaged:
1. Medical fee: actual amount paid but not exceeding 30,000 baht.
2. Physical rehabilitation: actual amount paid but not exceeding 20,000 baht.
3. Loss of income: 200 baht per day for one-year period.
4. Other damages: not exceeding 30,000 baht.
5. In case of death:
5.1: minimum 30,000 baht to maximum 100,000 baht to the family.
5.2: funeral expense: 20,000 baht
5.3: family loss of support: not exceeding 30,000 baht, and
5.4: other damages: not exceeding 30,000 baht.