Chasing Lost Dignity

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Chasing Lost Dignity

Ungelesener Beitragvon newsclip » So Feb 17, 2008 7:29 pm

Chasing Lost Dignity

Nothing can truly compensate an innocent man for ten years behind bars, but the desire to regain his good name has given a wrongfully imprisoned native of Nakhon Ratchasima province the strength to take his fight to the limits of the criminal justice system, writes TUNYA SUKPANICH

Kowit (not his real name) served almost 10 years in prison for a crime he always insisted he did not commit. Released in 2006, he set out to clear his name.

"I want my dignity back. I want my family back and I want my life back," he said at the time.

Back in 1997, Kowit was arrested for the rape of two girls in his neighborhood in Nakhon Ratchasima province. He was charged in two separate cases with the rape of two minors from the same family. The first case involved a 13 year old girl, the other her younger sister.

Kowit alleges that he was forced to sign confessions for both rapes during the police investigation procedure. When the cases were sent to court, he renounced the confessions and insisted on his innocence.

Unable to make bail, he was forced to fight both cases from jail. This may have saved his life.

Sexual offence against a minor is a very serious crime, and suspects are often executed by members of society before any court trial.

The court provided a lawyer to represent him for each trial. But Kowit said that rather than helping him to prepare a case for his defence, they both simply advised him to confess, explaining that he would receive a lighter sentence that way. He continued to deny all guilt.

"Why should I confess? I did not commit any crimes.

"I was deeply hurt by one of the lawyers who told the judge that he did not want to represent a criminal charged with child rape," Kowit continued. "I decide to fight for justice on my own."

Most people wouldn't pause in their busy day to wonder whether or not some of these juveniles at Surat Thani detention centre might be innocent of any wrongdoing.
Inmates at Thonburi Remand Prison enjoy a boxing match in a rare carefree moment.

As it turned out, it actually began not as a "fight for justice", but as a "wait for justice".

"I really believed that justice would prevail, since I did not do anything wrong and evil, as I was charged," he explained simply.

Consequently, in his first trial for the rape of the 13-year-old girl, the Criminal Court sentenced him to 42 years in prison. One judge, who apparently had some mercy for him, told him he could still appeal.

"I started to realise that if I wanted justice I had to really fight for it. The defendant has a duty to find evidence to prove his innocence," he said. He went to work and was eventually declared innocent by the Court of Appeals.

However, he could not prevail in the other case on the rape of the younger girl. The Criminal, the Appeals and finally the Supreme courts all found him guilty. He was sentenced to 18 years in prison.

He still has trouble explaining what he felt when he was forced to accept that his attempts to prove his innocence had failed.

"I spent my life in prison while my wife and son [who was two months old at the time of his arrest] - had to live on their own. Without my help, our small business manufacturing clothes collapsed, and my family went into debt," he said.

While he was incarcerated, Kowit turned to religion, wearing white clothes, studying the teachings of Buddha and observing Buddhist precepts.

Prisoners are not allowed to enter the monkhood. However, there is a temple-like place in the prison where they can practice their beliefs.

Religion helped him to reduce his anger and frustration. At the same time, his new spirituality allowed him to help settle conflicts among inmates.

"There were inmates convicted of serious crimes such as murder and rape. Frustrated and depressed, they are easy to anger and get into fights. Anything can be a weapon - carving equipment, gardening tools, etc.," he said.

His time was reduced for good behaviour and he served only half of his jail term. In March 2006, he was released and he came out of the prison unbroken, with his mind alert and full of intention to continue his efforts to bring back his dignity.

"From prison, I went straight to the temple and ordained as a monk," he said. This was partly because he wanted to, and also because the people in his community and even in his own family no longer trusted or believed in him.

"When I, as a monk, went to visit my family, some people told me to stay in the monkhood and 'never, ever do such a thing again'," he recalled. His son was also affected because he was the son of a criminal. This made Kowit very sad, but at the same time, it provided a driving force for him to seek truth and justice.

Reopening the case


Established under the concept that wrongly convicted people should have an opportunity to clear their names, the Reopening of Criminal Case Act (1983), provision 5, states that the reopening of a criminal case can come about in any one of the following situations:

1.New evidence is uncovered or brought before the court which supports the accused's claims of innocence.

2. It can be shown that someone bore false witness against the accused in a previous trial.

3. It can be shown that false evidence or forged documents were used or presented at an earlier stage.

However, in order to reopen a case, the new evidence must be considered important enough to possibly lead to an acquittal.

Kowit sought for help from many lawyers and organisations to help him reopen the case, but everyone he asked disagreed and told him to let it go.

Still in the monkhood, he persisted in consulting legal experts. However, he recalled, "the lawyers, after having read the court rulings, simply said that it was impossible to request for a reopening of the case."

Meanwhile, he successfully located the girl who he was convicted of raping. Probably because he was a monk, he received help and cooperation from other monks and even community leaders in the village where she lived. Kowit would not say exactly what transpired during the meeting, but did say this: "She is grown up and has a family. Convinced by monks and community leaders, she told what really happened in those days. We really pity her."

He was convinced his petition to reopen the case was made much stronger.

He decided to go to the Justice Ministry, where he met a volunteer attorney who was interested in helping him. He suggested that Kowit seek financial support from the Justice Fund of the Justice Ministry.

Visit Visitsoraat, director general of the Ministry's Judicial Affairs, explained how this works. He said the ministry is interested in helping deserving people reopen criminal cases.

"The fund's administrating committee will consider new information and evidence for the reopening of a case. The financial help will be awarded if the newly proposed evidence is considered substantial. If the request is denied, it can go to an appeals process."

Visit said the committee will approve cases with a high possibility of winning a court trial, and provide lawyer fees and other court fees. The Justice Fund will then get the money back once the case is won, and use it to help others whose cases the committee feels should be reopened.

After some delay, last October the Justice Fund committee approved Kowit's request.

"Now it is under process. The Justice Fund will pay for the lawyer fee, which will be around 80,000 baht," Kowit said.

The Justice Fund was established in 2006, mainly to enable the poor more access to the justice system. There are a variety of ways the fund can help. For example, it can provide financial support for scientific procedures such as DNA tests, or in some cases money for bail. Last year, there were more than 200 requests for financial help from the fund, most still under consideration.

The decision to actually reopen Kowit's case depends on a ruling of the Criminal Court. He feels confident his new evidence, since it is acceptable to the Justice Fund committee, is substantial enough to support his petition to reopen the case. Also because of the new evidence, his family now understands him better.

Kowit recently left the monkhood and is ready to once again involve himself in judicial proceedings. The Justice Fund will provide him financial support for lawyers' fee and other necessary court fees.

Should he win in a new round of court procedures, he will then seek compensation from the government.

"This is not the first priority. But the law allows victims of the miscarriage of justice to be compensated for our damages in life and in our carreers," he said.

Compensation

Recently a large number of complaints against Pol Captain Nat Chonitiwanich of the Border Patrol Police for coercing confessions and extorting money from innocent citizens since 2006 made front page headlines. Since then three government agencies - the Royal Thai Police , the Corrections Department and the Justice Ministry - have tried to help those arrested and imprisoned by this gang to reopen their cases.

It has also been suggested that suspects can seek compensation from the Compensation Fund if they are proven to be innocent in a court of law.

The Compensation Act went into effect in 2001 to provide financial compensation for victims of mistakes or miscarriages of justice. The fund was set up for those who are acquitted after a lengthy trial process as well as those who are convicted and later found to be innocent.

Victims are entitled to be paid for the loss of regular income and for suffering, for example from the break-up of their families.

The act 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. They were later declared not guilty by the Appeals and Supreme courts.

In recent years the number of victims seeking compensation has steadily been on the rise.

In 2002, only 83 victims sought compensation. This rose to 584 in 2004.

From 2002 to 2007, a total of 3,096 victims have sought compensation. Of these, 1,152 cases were approved and 1,122 cases denied, with the remaining 822 still under process. The government paid 278 million baht for 1,048 of the approved cases, while another 19 million baht remains unpaid for 104 cases.

Legal experts agree that compensation is a short-term remedy for the miscarriage of justice, and that victims need some way of regaining what they have lost during their arrest, trial proceedings and possibly false imprisonment.

The mechanism for compensation is no doubt a good thing. However, without a complete revamp of the legal system to prevent power abuse, the number of victims seeking redress for the violation of their rights will increase.

Moreover, budget problems for the Compensation Fund are likely, especially since it is not meant to cover only victims of the criminal justice system but also victims of crime.

This is the first of a series on wrongful incarceration and compensation in the criminal justice system.

Bangkok Post Feb. 17, 2008

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