The (exceptional) long struggle for justice in the (exceptional) military courts

Thailand’s military courts have handled more than 1,400 cases involving more than 1,600 civilian defendants. The most pressing problem has been the overuse of pre-trial detention against those accused of lèse majesté or criminal possession of war weapons, which simply turned them into “forgotten prisoners.”  If they decide to fight the charges, these civilians would face almost indefinite detention – both because of the seriousness of the charges against them and the Court’s own slow procedures. 
 
Just before 2015 came to an end, Thai Lawyers for Human Rights (TLHR) published a report on the number of civilian cases that had been handled by military courts since the May 2014 coup.  This report was based on data provided by the Office of the Judge Advocate General (JAG), which took almost two months to respond to the TLHR’s request for information.   
 

The JAG data show startling trends. During the 16-month period ending 30 September 2015, Thailand’s military courts handled a total of 1,408 cases involving 1,629 civilian defendants. With a total of 208 civilians on trial, the Bangkok Military Court had the highest number of civilian cases in the system.  The military courts in Khon Kaen and Lampang provinces came in second with each trying 158 civilians. Songkhla Military Court came in the third place with 115 civilians on trial.

 
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Background

 
Three days after the coup, the National Council for Peace and Order (NCPO) published two announcements (Nos. 37/2557 and 38/2557) and one guideline (Announcement No. 50/2557) to apply military justice to civilians. Without any explanation or justification, the NCPO announcements make the following crimes subject to military justice:
 
  • crimes against the monarchy, including lèse majesté (Article 112 of Thailand’s Criminal Code)
  • crimes against national security (Articles 113-118 of the Criminal Code)
  • violations or defiance of NCPO orders and announcements
  • violations of gun laws
 
Overall, not many civilians were charged with defying orders to report to the military after the coup. Most of the defendants in these cases, for example Jittra Cotchadet, Assoc. Prof. Dr. Worachet Pakeerut, and activist Sombat Boon-ngam-anong, were freed on bail [after the initial arrest and detention].  Recently, the case against Apichart Pongsawat, an employee of the Law Reform Commission of Thailand, was thrown out by a judge for technical reasons (although the case was handled by a civilian court).  Those who confessed also saw their sentences reduced by half, mostly to probation.  Of 1629 cases, almost 1,000 cases were related to gun laws, for which no pre-trial detention had been ordered. 
 
However, the most pressing problem has been the overuse of pre-trial detention against those accused of lèse majesté or criminal possession of war weapons, which simply turned them into “forgotten prisoners.”  If they elected to dispute the charges, these civilians would face almost indefinite detention – both because of the seriousness of the charges against them and the Court’s own slow procedures. 
 
“Not knowing how much time they will spend in prison has a negative effect on the psychology of the accused,” said Winyat Chatmontree, an attorney who represents many political defendants in both civilian and military courts.  “It coerces the detainees into confessions just to get themselves out of jail even if they are not guilty.  This is not because they don’t have any confidence in their defence or any trust in their attorneys.  But the severe punishment for crimes against national security, the slim chance that they will be proven innocent, and the very lengthy pre-trial detention have all motivated confessions out of them.”
 

Endless wait for justice amid excessive pre-trial detention

 
In most national security-related cases, defendants usually face endless detention before they have their day in court.  It is now expected that the 14 individuals accused of planning and carrying out a grenade and firearm attack at the Criminal Court in 2015 will face very long pre-trial detention. The accused have been detained since March 2015 but the trial and the taking of evidence only began on March 10 this year.  With as many as 86 prosecution witnesses to cross-examine and given the Military Court’s practice of scheduling only one hearing a month for each case, there is a strong possibility that the 14 defendants will face 86 more months in detention (approximately seven years) before a verdict may be reached.
 
In the case of the so-called anti-monarchy “Banpodj Network,” there is also a marked difference between the treatment of those who have pleaded guilty and those who have decided to fight the charges.  The 12 individuals accused of being part of this network were arrested between January and February last year and subjected to between six to seven months of pre-trial detention each. In July 2015, the eight defendants who pleaded guilty were sentenced to five years in jail, while the other two defendants were sentenced to only three years in jail because they were considered to have played only a minor role in this case. By now, those who received the lighter sentences are already halfway to their freedom. The case against 12 individuals was filed by the Crime Suppression Division.  
 
Regarding the two defendants who decided to fight the case, after the deposition hearing was held December 2015, the defendants petitioned to the court for the case to be tried in a civilian court, not a military court. After 13 months in detention, their cases are still proceeding rather slowly and with no end in sight
 
There is another separate case against two defendants, Anchan and Thara, related to the Banpodj Network, which is under the care of Department of Special Investigation. The female defendant Anchan faces 29 lèse majesté counts. The trial only began in January 2016 – approximately one year after she was arrested. The second hearing has now been scheduled in May -- 4 months after the first hearing.  With more than a dozen prosecution witnesses on the list, it is unclear how long Anchan will have to stay in jail before her trial is concluded. Meanwhile, Thara faces seven lèse majesté counts. 
 
In the case of a male defendant named Sirapop, a poet better known by his penname Rung Sila, the road to freedom is equally long. Sirapop has maintained his innocence from the day of his arrest (in June 2014) and every time he appeared in court for the pre-trial detention hearings.  Sirapop’s lawyer has also invoked Article 10 of the 1999 Court Jurisdiction Act to challenge the military court’s authority to hear this case, given that the alleged offence occurred before the announcements on the application of military justice to civilians took effect. By the time the Court Jurisdiction Committee ruled in favour of the military court (in January 2016), Sirapop had already spent more than 18 months in jail. With the first hearing on Sirapop’s case scheduled in May, almost 2 years after his arrest, it remains unclear how much longer the poet will stay behind bars. 
 
In our interviews with two lawyers, Prachatai learned of numerous factors eroding the rights of civilians tried in military tribunals. 
 

No clear dates set for trial after charges are accepted by military courts  

 
“In normal criminal procedure, the date for the trial and the taking of evidence will be set as soon as the charge is accepted by the Criminal Court. Usually it takes about a month or not much more,” said human rights lawyer Anon Numpa.  “But the Military Court has a very different and, I would say, very unclear procedure. You never know when the trial will begin at the military court.”
 

Arranging for defendants to appear in court without lawyers present

 
“There has been an arrangement for at least one detainee to appear in court without their lawyers,” Anon said.  “In one lèse majesté case, the accused was taken to court where he was asked if he would confess to the crime or fight the charges, without giving him a chance to consult his lawyer. And then the judge delivered the verdict – again without any defence attorney present, which is unacceptable by any standard.”
 

Delayed notification of the charges

 
Failure to notify the accused of the charges against them was very well documented in a report on the fate of criminal defendants in Thailand’s military court by human rights volunteer Noraset Nanongtume. In a lèse majesté case against a male defendant named Thara (surname withheld), for example, the defence attorney filed a request on May 1, 2015 to photo-copy the prosecution order that was submitted to the court one week earlier (April 23). But when the defence attorney went to the court to follow up on May 7, he was told that court officials had been too busy. When the defence attorney tried to follow up again about a month later (June 4), officials informed him that the paperwork has already been sent to the defendant. But during a prison visit on June 5, the attorney learned that the defendant had not seen the file either. In the end, it took nearly 4 months for the defence attorney to finally obtain the formal, written accusation against his client.   
 

One half-day hearing per month 

 
“Hearings in the military court are always scheduled in the morning – they say the judges and prosecutors have to tend to administrative duties in the afternoon,” said Anon. “In some cases, one witness was scheduled to be cross-examined in three hearings [over the course of three months]. If he or she didn’t show up at one of these hearings, the trial would then be delayed by another month.  When the witness couldn’t come to court for whatever reason, the prosecutor doesn’t inform the defence attorney in advance either. They will just tell you on the day of the hearing. At the Military Court in Chiang Mai, an examination of one witness dragged on for half a year. The judges are so busy they can only schedule one hearing every two months.   This is a huge contrast with the procedure in civilian courts. Usually the Criminal Court will block the whole day for the hearing and schedule the hearing over the course of several consecutive days. This helps to speed up the trial because it allows many witnesses to be examined in a single day.” 
 
According to Winyat, this issue presents a major setback for the 14 individuals charged over the grenade attack at the Criminal Court in 2015.  At the end of 2016, not even half of the 86 prosecution witness will have taken the stand. Having 10 defence attorneys representing 14 defendants doesn’t make the matter easier either, Winyat said.  “Each attorney will need as much time as possible to examine and challenge the testimonies of prosecution witnesses in order to defend their client. This could easily cause a further delay in the trial.”

Trials delayed by judges’ note-taking

 
“In the criminal court, the judges will audio-record testimonies during the trials and have the clerks type them up later.  In the military court, the judges take their own notes in their own hand-writing,” Anon said.  “This can really slow things down.”

 

Copying of court documents forbidden

 
Unfortunately, this has become a common practice in military courts. In the case of defendant named Wichai (surname withheld), the Court rejected the defence attorney’s request to photo-copy the written record of court proceedings during the hearing on the third request for his pre-trial detention.  According to the Court, the record of the proceedings had already been relayed to the defence attorney verbally so it would be unnecessary for any photo-copy to be made. If the defence attorney had any question, he could request the Court’s permission to review the document at any time.  
 
In the case of a female defendant named Chayapa (surname withheld), her defence attorney had requested the Court’s permission to photo-copy various documents, namely (1) the formal charge, (2) the actual warrant of detention, (3) the preliminary request for her pre-trial detention, (4) the written record of the arrest and transfer of the defendant as well as the evidence supporting the charges, (5) the arrest warrant and the description of the accused’s distinguishing features, (6) the written record of the testimony of her accuser, (7) the written record of the accused’s own testimony, and (8) the written record of the Court’s finding on the pre-trial detention request.  However, the Court gave permission only for the requested document No. 5 to be duplicated – and nothing else.  
 

Secret trials

 
To be fair, Anon noted that the Court of Justice has occasionally ordered trials to be held behind closed doors as well. And not every case handled by military courts is off-limits to the public either. “The decision to open the trial to the public or hold it in secret is solely within the discretion of the court. Yes secret trials have an impact on the rights of the accused, but they certainly aren’t limited to military courts,” Anon said.
 

Equally hard to fight political cases in criminal courts

 
The overuse of pre-trial detention has also spilled over to the criminal courts, making it increasingly difficult for individuals accused of lèse majesté and illegal possession of weapons to defend themselves. In most instances, the criminal court cited the threat to national security and the flight risk based on the severity of the penalty as the reasons to deny bail. This has prompted Winyat to question the role of criminal court judges in guaranteeing the defendant’s right to a fair trial and due process. 
 
“The judges often cite national security and the severity of the penalty without considering if the evidence presented by the prosecutor is trustworthy,” Winyat said.  “In the international justice system, if the evidence is not sufficient to establish that the accused has indeed committed the alleged crime, the court will order the accused to be released temporarily. The case against the accused may still proceed but the defendant will remain free until he or she is proven guilty. This is how the court ensures due process of law and access to justice. But Thai judges rarely fulfil this duty, if ever.” 
 
In addition, the judges themselves may have violated the defendants’ right to the assistance of counsel.  In some cases, judges have tried to convince the defendants – either before or after the trial had already begun – that his or her confession would result in a lighter sentence.  
 
“This really makes the defence attorney’s job even more difficult,” Winyat said. “Sometimes when we need to challenge [the witness’s testimony or the evidence], the judge would say that our action would only slow things down and keep our clients in jail even longer.  They literally pitch us against our clients and blame us for the unnecessary detention of the defendant, even though all we’re trying to do is prove our clients’ innocence.”
 
Forbidding the photo-copying of court documents or making duplicates of evidence is not limited to military courts either.  In one case (criminal possession of war weapons), the criminal court forbade the duplication of a CD recording of a witness interrogation at a military camp, which the prosecutor used as the basis for the charges. 
 
“This is a violation of the accused’s right to fair trial,” said Winyat.  “If you are confident in your evidence, why would you worry about us making a copy of the evidence that you’re using to accuse our client of a serious crime? This has been a problem in many political cases since 2010.  National security has been used every time the court wanted to block the defence’s attempt to ensure justice for the accused.”