Uproar Over Thailand's Constitution Court Ruling On Evidence From Overseas

[webfact]

Uproar over ruling on evidence from overseas
Opas Boonlom,
The Nation

BANGKOK: -- The Constitution Court's decision to reject witness examinations in foreign countries has caused an uproar in the justice system and courts across the country that have adopted the practice for many decades.

The senior court recently ruled 5-4 that the provision in Foreign Cooperation in Criminology 1992, which stipulates that evidence derived from investigations in foreign countries was acceptable, clashed with the Constitution.

The court said the provision violated legal principles as it limited the rights of defendants in criminal cases since they had no chance to examine or contest the evidence.

They also lacked legal assistance from lawyers on evidence and testimonies derived from abroad. As a result, defendants were deprived of chances to fight the case in a fair manner. Besides, one of legal principles was that criminal investigation should be carried out in the presence of the defendants.

The provision therefore transgresses Articles 3 and 29, the court said. Criminal Court chief justice Thawee Prachuablap said Thai courts had allowed witness examination conducted abroad, even before the act went into effect by taking recourse in Article 34 of the Civil Procedures. "A number of cases and many courts across the country will be adversely affected by the Constitution Court ruling because these courts must follow the top court's decision. Most witness examinations abroad are investigations of prime witnesses. Since the court has arrived with this decision, all witness examinations done in foreign countries are no longer valid, affecting all trials involving foreign witness examination," he said.

Thawee said he would call a meeting of criminal court judges and court management officials to decide on guidelines and practices as a result of the top court's decision. However he did not rule out the possibility that the Constitution Court would review its decision if a complaint was filed seeking a revision. He said that because the ruling was a 5-4 decision, it was likely the judges may change to the decision, especially if there was a change in the court panel.

The court issued the ruling after Pol Lt-General Somkid Bunthanom, a defendant in the murder of Mohammad al-Ruwaili filed a complaint with the court that the witness examination out by prosecutors on Pol Lt General Suwichai Kaewpaluk in the UAE was unconstitutional and the prosecutors could not use his testimony as evidence in court. Al-Ruwaili was a Saudi businessman close to the Saudi royal family abducted and killed after travelling to Bangkok to investigate the Blue Diamond theft.


-- The Nation 2013-03-19

[bubblegum]

I don't think that this will go down nicely by the Saudies

[rametindallas]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

[reiltin]

The justice system here is an odd mix of English common law and French Torts with a unique Thai flavour... In cases where the judge cant be bought....Fearful of losing the case-disallow the evidence if that doesn't work get rid of the witness, should that fail blow up the lawyer if at that stage the case still active -retrospectively change the law.No stenography,no record save for what the judge deems pertinent.If murdered Saudi diplomats can be treated this way-what hope the rest of us.

[Locationthailand]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

I understand the FBI have warrants out for her arrest which cannot be served in Thailand and within Thailand she is extremely well connected - read 'protected'. The bribes paid were at her request but yes, there was collusion, by agreeing and doing so. She was dumped from running for Thai politics on release of the news reports over Mr Green. According to one of my contacts here in Ministry of Justice they have been trying to charge her and her daughter (the major recipient of the funds) for many years but behind the scenes road blocks just keep happening. T.i.T.

[samran]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

I understand the FBI have warrants out for her arrest which cannot be served in Thailand and within Thailand she is extremely well connected - read 'protected'. The bribes paid were at her request but yes, there was collusion, by agreeing and doing so. She was dumped from running for Thai politics on release of the news reports over Mr Green. According to one of my contacts here in Ministry of Justice they have been trying to charge her and her daughter (the major recipient of the funds) for many years but behind the scenes road blocks just keep happening. T.i.T.

ah yes, her lovely daughter Jeep. Used to work with her many moons ago and I last saw her walking around All Seasons Place circa 2006 enterage in tow when she came to check out her trinket shops she had established there.

Not sure if there were many customers for her trinkets, but I highly suspect those shops were mighty profitable

[Buchholz]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

That's precisely the case that came to mind when reading the OP.

The FBI forwarded stacks of documents and bank records on former TAT Governor Juthamas and her daughter to the Thai authorities..... three years ago.

Nothing has become of their case in Thailand.

.

[Buchholz]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

I understand the FBI have warrants out for her arrest which cannot be served in Thailand and within Thailand she is extremely well connected - read 'protected'. The bribes paid were at her request but yes, there was collusion, by agreeing and doing so. She was dumped from running for Thai politics on release of the news reports over Mr Green. According to one of my contacts here in Ministry of Justice they have been trying to charge her and her daughter (the major recipient of the funds) for many years but behind the scenes road blocks just keep happening. T.i.T.

ah yes, her lovely daughter Jeep. Used to work with her many moons ago and I last saw her walking around All Seasons Place circa 2006 entourage in tow when she came to check out her trinket shops she had established there.

Not sure if there were many customers for her trinkets, but I highly suspect those shops were mighty profitable

.

The family has done a lot with the 50+ million baht siphoned off from TAT.

A match made in heaven...

.

Thaksin's Deputy Prime Minister Korn Dabbaransiat (2nd left, back row) and Thaksin's TAT Governor Juthamas Siriwan (1st right, back row) at the wedding of their children, Kritapone Dabbaransiat and Jittisopa Siriwan, at the Oriental Hotel in Bangkok.

Edited March 19, 2013 by Buchholz

[NeverSure]

If I understand the ruling correctly, I agree with it. Under British common law which is followed in some other countries including the US, the accused has a right to confront his accuser. This is during any pretrial hearings in addition to trial.

So when a witness is deposed before trial, the accused has a right to be there and to also question the accuser for the record. Usually he is accompanied by his attorney who does the actual questioning, but the accused can ask too, or ask his attorney to ask. This keeps the procedure honest in that the accused can try to impeach the testimony on the spot.

I would consider it corrupt for police investigators to meet alone with an accuser, get the story they want, and/or for the accused to not know what testimony will be used against him at trial, or how it compares to the witnesses' original story.

Many defenses are won because a witness tells a story that the accused can prove is inconsistent with other statements made by the witness, or that there is evidence that the witness is untruthful.

Also, having been at any deposition, and the deposition having been recorded, if the witness changes his story between the deposition and the trial, he is impeached by the accused.

[virtualtraveller]

This is a special case because the police are on trial, always have been, in one of the most shameful failures of justice this country has ever seen, with a very costly fall out for Thailand as a result.

[A_Traveller]

Not sure why people here keep referring to British common law. Thailand does not have nor does it subscribe to the principals of the common law, as understood and practised in Britain [and for some historical reason the US.

The principal here is that any case may be argued and adjudged upon its merits irrespective of precedent. That is to say the judgement made by one court is not binding upon another court of the same level. This function is a fundamental basis of common law, it is in fact how the corpus of law is created. The Constitutional Court as its name explicitly states has a duty to rule upon the constitutionality of an action or aspect of the law as it is practised. If an action is found to be in conflict with the Constitution [as interpreted by the Justices] then the act or action is struck down.

Now the real issue here is that under due process evidence obtained outside a jurisdiction should be weighed and valued but it should always be considered a secondary source and not in and of itself a single route to a conviction.This would be true in many jurisdictions both on the quality of evidential procedure rules and under the right of a defendant to challenge the evidence [accuser] presented.

In the ex-TAT case the evidence within the jurisdiction of the Thai court would be the core for prosecution and any evidence from outside would be viewed as adding a framework to the actions of the defendants. Therefore this ruling in and of itself would not preclude the legal action, presently mired in treacle, to proceed. Except of course it never will.

For clarity I'm not saying this is the right judgement [it should have been more nuanced] but can see to be fair how the court came to the ruling, accepting naturally that it had nothing whatsoever to do with the actuality of the case itself, but rather the legal principal to protect the innocent from unverifiable prosecution.

Edited March 19, 2013 by Maestro
Deleted reference to monarchy.

[indyuk]

This ruling will be the death knell for many corruption cases involving foreigners. An example would be the case of former Governor of the Tourism Authority of Thailand, Juthamas Siriwan. According to US authorities, Hollywood producers Gerald and Patricia Green paid US$1.8 million (54 million baht) in bribes to Ms Juthamas in exchange for contracts to run the film festival and other TAT projects between 2002 and 2006. Gerald and Patricia Green are serving prison sentences and are unlikely to come to Thailand to bear witness against Ms Juthumas. Case closed.

I understand the FBI have warrants out for her arrest which cannot be served in Thailand and within Thailand she is extremely well connected - read 'protected'. The bribes paid were at her request but yes, there was collusion, by agreeing and doing so. She was dumped from running for Thai politics on release of the news reports over Mr Green. According to one of my contacts here in Ministry of Justice they have been trying to charge her and her daughter (the major recipient of the funds) for many years but behind the scenes road blocks just keep happening. T.i.T.

To break these dams you have to know how the pickings of the corruption are being distributed. It is those high so untouchables that suppress investigation of the corrupt in order to maintain the personal share of the gravy train.

[Maestro]

I have deleted an off-topic post.

[khunken]

I'm inclined to agree with the CC on this.

In the actual case they are ruling on it's the (usual) stupidity of the DSI that's the cause of it.

They took a convicted criminal (murderer?) under their wing as needing 'witness protection' & shipped him off to the UAE hoping he could give evidence in the Saudi case.

Why didn't they just have him serve his sentence in a secure prison enclosure & have him give any statements from there?

[Scott]

Off-topic post and reply deleted.

Stay on the topic.

[NeverSure]

Not sure why people here keep referring to British common law. Thailand does not have nor does it subscribe to the principals of the common law, as understood and practised in Britain [and for some historical reason the US.

The principal here is that any case may be argued and adjudged upon its merits irrespective of precedent. That is to say the judgement made by one court is not binding upon another court of the same level. This function is a fundamental basis of common law, it is in fact how the corpus of law is created. The Constitutional Court as its name explicitly states has a duty to rule upon the constitutionality of an action or aspect of the law as it is practised. If an action is found to be in conflict with the Constitution [as interpreted by the Justices] then the act or action is struck down.

Now the real issue here is that under due process evidence obtained outside a jurisdiction should be weighed and valued but it should always be considered a secondary source and not in and of itself a single route to a conviction.This would be true in many jurisdictions both on the quality of evidential procedure rules and under the right of a defendant to challenge the evidence [accuser] presented.

In the ex-TAT case the evidence within the jurisdiction of the Thai court would be the core for prosecution and any evidence from outside would be viewed as adding a framework to the actions of the defendants. Therefore this ruling in and of itself would not preclude the legal action, presently mired in treacle, to proceed. Except of course it never will.

For clarity I'm not saying this is the right judgement [it should have been more nuanced] but can see to be fair how the court came to the ruling, accepting naturally that it had nothing whatsoever to do with the actuality of the case itself, but rather the legal principal to protect the innocent from unverifiable prosecution.

Sorry if mentioning British common law offended you. I said "I" would consider it corrupt. Not illegal under Thai law, but corrupt is corrupt.

Now, If you read the OP, and the report on the court's ruling, the court agreed with me. Below is a quote, emphasis mine. I got my ideas from this quote.

"The senior court recently ruled 5-4 that the provision in Foreign Cooperation in Criminology 1992, which stipulates that evidence derived from investigations in foreign countries was acceptable, clashed with the Constitution.

The court said the provision violated legal principles as it limited the rights of defendants in criminal cases since they had no chance to examine or contest the evidence.

They also lacked legal assistance from lawyers on evidence and testimonies derived from abroad. As a result, defendants were deprived of chances to fight the case in a fair manner. Besides, one of legal principles was that criminal investigation should be carried out in the presence of the defendants."

Now, isn't that exactly what I said, and then I said I agreed with the ruling?

[TallGuyJohninBKK]

Funny that the typically shallow The Nation article makes absolutely no mention of that the court's new ruling is likely to mean for the pending case.

The court issued the ruling after Pol Lt-General Somkid Bunthanom, a
defendant in the murder of Mohammad al-Ruwaili filed a complaint with
the court that the witness examination out by prosecutors on Pol Lt
General Suwichai Kaewpaluk in the UAE was unconstitutional and the
prosecutors could not use his testimony as evidence in court. Al-Ruwaili
was a Saudi businessman close to the Saudi royal family abducted and
killed after travelling to Bangkok to investigate the Blue Diamond
theft.

[TallGuyJohninBKK]

The back story here...

5 policemen indicted over murder of Saudi

By Kesinee Taengkhio

The Nation

Published on January 13, 2010

Suspects plead not guilty; ex-Army general says ties with S Arabia influenced decision

Public prosecutors finally announced their decision yesterday to indict Pol Lt Gen Somkid Boonthanom and four other

policemen for allegedly murdering Saudi businessman Mohammad al-Ruwaili 20 years ago.

The indictment said that between February 12 and 15, 1990, Somkid and the four defendants shot dead the victim, after

beating him up to make him confess to being involved in the earlier killings of three Saudi embassy officials.

The five allegedly kidnapped al-Ruwaili and detained him at a Bangkok love motel, before disposing of his body in Chon Buri's Sri Racha district.

The suspects were charged with premeditated murder, with additional intent to hide other crimes and to escape criminal punishment - jointly under Articles 288 and 289 - and abduction later resulting in the death of the abductee - jointly under Articles 309 and 310. The suspects pleaded not guilty, and were released on a bail of Bt500,000 each.

The indictment also cited a reason it believed led to the deaths of the Saudi embassy officials: revenge killings resulting from the 1987 violence in Mecca in which a large number of Sunni Muslim pilgrims were killed. "The violence later led to attacks and killings of Saudi diplomats in many countries, including the shooting of a Saudi diplomat

in Thailand on January 4, 1989," it said.

"The five defendants kidnapped al-Ruwaili because of their understanding he was behind the killings of Saudi officials in Thailand, following their conflict over employment contracts of Thai labourers working in Saudi Arabia," the indictment said.

The court set January 29 for the preliminary hearing to inspect new evidence: a ring belonging to the victim seen worn by one of the defendants, fresh evidence that resulted in an earlier postponement by the prosecutors on whether to indict the five policemen.

A date for the decision on the indictment was scheduled before the New Year break, but was postponed to Monday,

when there was another last-minute postponement. The indictment was finally announced yesterday.

Somkid is now commander of Provincial Police Region 5. The four other policemen, two of whom are

still active, are Pol Colonel Sorrarak Joosanit, chief of Sob Moei district police in Mae Hong Son province; Pol Colonel Praphas Piyamongkhol, chief of Nam Khun district police in Ubon Ratchathani; retired Pol Lt-Colonel Suradej Udomdee and retired Pol Sgt-Major Prasong Thorrang.

Al-Ruwaili was a shareholder in a job-placement firm in 1990. The victim was believed to hold vital information on the

spree of killings of four Saudi diplomats in Bangkok. He has been presumed dead since he went missing in February 1990, but a court order endorsing his legal disappearance has not been made at the request of his relatives.

Speaking after the indictment, Somkid said he had witnessed "outside factors intimidating and pressuring" the

public prosecutors. "All these factors have led to me being punished socially. I have been judged already by society through being a murder suspect," he said.

Retired Army General Somjate Boonthanom, a brother of Somkid, said it was not fair that bilateral relations

between Thailand and Saudi were used "as a bargain" to "speed up" the process to indict his brother. "Saudi Arabia has used the Thai labour issue to bargain over the indictment, although it denied that it had interfered with the Thai justice system, but its charg d'affaires [Nabil H Ashri] was having frequent meetings with Thai officials before the indictment was announced.

"His statement was that the progress of the case would positively result in better bilateral relations. Isn't this kind of statement a use of influence? To me, it is. But it is good, because the entire matter will

now go through the justice system," he said.

Prime Minister Abhisit Vejjajiva said the Royal Thai Police and Somkid's superiors would decide whether he

would be temporarily suspended. He refused to comment on whether the indictment would result in a positive response for Thai-Saudi relations.

http://www.nationmultimedia.com/2010/01/13/national/national_30120207.php

Edited March 20, 2013 by TallGuyJohninBKK

[GentlemanJim]

No lucrative work contracts for Thailand in Saudi anytime soon!

[TallGuyJohninBKK]

Buchholz had a prior post in a different thread explaining some background about the foreign witness...

Posted 2012-11-02 10:30:44

The witness for this case and who is living in Cambodia is Police Lieutenant-Colonel Suwitchai Kaewphaluek.

A defendant in this case, Police Lieutenant-General Somkid Boonthanom, is saying that the Pheu Thai Party government wants to get Suwitchai to falsely
testify against him so that the case can be wrapped up and the PTP government can then pursue the financial rewards of re-establishing ties with Saudi Arabia.

The false testimony would also be in exchange for asylum outside Thailand for Suwitchai's involvement in a separate case in which he was found guilty of murder.

He had previously been convicted for several murders and given a life sentence before fleeing to Cambodia.

http://www.thaivisa.com/forum/topic/520895-key-witness-in-saudi-murder-case-located-in-cambodia-thailand/page-2#entry5806045

All of this makes for quite a compelling recruiting campaign for the RTP...