Updated on Justice Struggle on Takbai Inquest decision

Updated on Justice Struggle on Takbai Inquest decision by Songkla Provincial Court  Noted by Access to Justice and Legal Protection program.  Cross Cultural Foundation, 24 Aug 2009

1. On 29 May 2009:  Songkla Provincial Court delivered the court decision on the post mortem inquest of the Takbai case in which 78 people died in October 2004 while being transported in military vehicles.

2. On 29 June 2009 at Criminal Court in Bangkok, relatives of Takbai together with lawyers submitted the petition to overrule the Takbai inquest decision delivered on 29 May 2009 of Chor 8/2009.

3. On 29 June 2009:  The court office released information that the judge(s) who wrote the decision of 29 May 2009 had requested for transfer from Songkla court to elsewhere. The court announced a ‘high security alert’ for court personnel due to threat and intimidation in relation to Takbai Inquest Decision.

4. On 29 July 2009:  Lawyers of the relatives of Takbai submitted a petition before the Bankok Criminal Court for over-ruling the decision on the post mortem inquest. The petition stated that the decision of the Songkla Provincial Court was unjust and violated the constitution.

5. On 29 July 2009: representatives of human rights organizations started an Open Letter campaign to collect signatures to support the petition of Takbai incident relatives urging the Bangkok Criminal Court to overrule the 29 May Takbai Inquest Decision. The Open Letter will also be sent to PM as the head of Administrative power, to Chairperson of Parliament members and Chairperson of the Senate as the head of Legislative power and to Chairperson of Supreme Court of Thailand. The Open Letter calling for justice on Takbai Inquest decision was distributed to public since 28 June 2009.

6. Legal opinion: Under Section 150 Criminal Code, the decision of the court with respect to post mortem is final. So there could be no direct appeal against the decision of the Songhkla Provincial Court. The petition filed on 29^th July was a separate petition filed in the Bangkok Criminal court under section 40 and 197 of the Constitution. The Bangkok Criminal Court rejected the petition saying it had no jurisdiction to consider it.  Therefore, the appeal against the decision was made on 29 July 2009.

7. On 3 Aug 2009: Lawyers learnt that the file case of the petition on Takbai inquest decision No. Black Sor 43/2552 (2009) – No. Red Sor 42/ 2552 (2009). The Bangkok Criminal court ordered dated 30 July 2009 stated that “the petitioner submitted the file on time therefore the court shall submit the petition to Appeal Court accordingly”. The petition is now pending at the Appeal Court of Bangkok.

Summary of the petition

8. As the Songkla court decision did not provide sufficient description of circumstances which caused the deaths and the names of the perpetrators, therefore we are of the opinion that the decision of the court was not in accordance with the standards of post mortem inquest trial. The Takbai post mortem inquest decesion only states that the deaths were caused by suffocation.  Such a conclusion is not according to the facts established by evidence, both audio and visual, such as witnesses’ testimony, documents, pictures and VCD which showed that officers from various agencies were involved in the incident. The inquest file clearly stated the fact that the hands of the deceased were tied behind their backs when they were placed in the canvas covered trucks for transportation. During the journey of about 150 kilometers from 15.00 hours on 25th October 2004 till 02.00 hr. on 26th October 2004, the deceased were unable to move and had to lie flat on their face, piled up on each other in the closed truck. Lack of air circulation in the trucks during the transportation resulted in 78 persons dying from suffocation.

9. The decision of Songkhla Provincial Court on black case number Chor 16 / B.E. 2548 and red case number Chor 8 / B.E. 2552 of Takbai post mortem inquest does not prejudice the right of the victims to file criminal lawsuit against the perpetrators. However the Court did not indicate the identity of the perpetrator even though there was sufficient evidence to show that the deaths were caused by the actions of the Commander ordering dissolving of the demonstration and transportation of the protestors. While transporting the demonstrators in the manner described above, the official should have been able to predict the possibility of deaths caused by suffocations.  Actions of the officials should be deemed as killings by gross negligence or by intention to commit bodily harm, torture and cruel treatment to the demonstrator to such extent that cause death.

10. With the respect to the court decision, the petition stated that the court decision might not be according to the principle of inquest trial. The court decision did not provide sufficient description of circumstances which cause the deaths and perpetrators. The court decision stated only that the deaths were caused by suffocation; however it was not according to the fact established by evidence, both audio and visual such as witnesses’ testimony, documents, pictures and VCD. The said evidence showed that officers from various agencies were involved in the incident therefore it could be seen that the court verdict was not accordingly to Thai Constitution 2007 Section 40 “A person shall have the rights to judicial process (3) A person has the right to correct, prompt and fair trial.” and Section 197 first paragraph “The trial and adjudication of cases are the power of the Courts, which must be proceeded by justice in accordance with the Constitution and the law and in the name of the King.” And second paragraph “Judges are independent in the trial and adjudication of cases with accurate, rapid and impartial practice in accordance with the Constitution and the law.”