The Supreme Court confirming the judgment to dismiss the habeas corpus request to have Mr. Pholachi Rakchongcharoen, aka “Billy” released from an unlawful custody
3 September 2015
854
For immediate release on 2 September 2015
Today (2 September 2015) around 09.30, the Provincial Court of Petchaburi read a verdict of the Supreme Court to dismiss the request to have the Karen human rights defender of Ban Pong Luk-Bang Kloy, Mr. Pholachi Rakchongcharoen, aka “Billy”, released from an unlawful custody.
The Supreme Court ruled on issues concerning Article 90 of the Criminal Procedure Code as follows;
- Normally, when the Lower Court accepted to review the plea of Ms. Pinnapa Pruksapan, the complainant who requested for the release of Mr. Billy, the Lower Court had to conduct an ex parte investigation over the plea of the complainant and to take evidence from the complainant’s witnesses to decide if there was a prima farcie case in this case. Should the Court view it a prima farcie case, then a writ can be issued to summon the Head of the Kaengkrachan National Park, Mr. Chaiwat Limlikitaksorn and officials of the Kaengkrachan National Park coupled with concerned persons since according to the plaint and the finding of the investigation, the complainant alleged that they were involved with the custody of Mr. Billy. Mr. Chaiwat and others were then supposed to satisfy the Court that the custody had been conducted lawfully. But in this case, the Lower Court had issued a writ to summon Mr. Chaiwat and other officials under his charge and being present at the crime scene to give evidence without first ruling if there was a prima farcie case or not. The trial of the Lower Court was therefore deemed an unlawful trial and the evidence given by the witnesses would be inadmissible in this case.
- The Supreme Court deems it fit to review the plaint of the complainant and to decide if there was a prima farcie case without having to refer to the order of the Lower Court, in particular by paying attention to the evidence given by the complainants, Ms. Pinnapa Pruksapan and Mr. Krathong Chokwiboon, Headman of Ban Pong Luk. However, the Supreme Court deems it hearsay evidence since they were not eyewitnesses who exactly knew whether Mr. Chaiwat and his officials had hold Mr. Billy in custody or not. Also, the evidence given by another witness of the complainant, Dr. Nirand Pitakwatchara, was viewed only as circumstantial evidence regarding the dispute between the officials and the Karen community since he had no exact information about the disappearance of Mr. Billy. The Court was thus not convinced that Mr. Chaiwat and his officials had hold in unlawful custody Mr. Billy. As to the evidence of Mr. Chaiwat and other concerned officials, it was inadmissible since the trial conducted by the Lower Court was found unlawful.
After reviewing the case, the Supreme Court deems there was no prima farcie case in the complaint of the complainant and had it dismissed.
The case stems from an incidence on 17 April 2014 during which Mr. Pholachi Rakchongcharoen, aka “Billy”, the Karen human rights defender of Ban Pong Luk-Bang Kloy was allegedly held in custody by Mr. Chaiwat Limlikitaksorn, the Head of the Kaengkrachan National Park and was made disappeared during the custody. On 24 April 2014, Mr. Billy’s wife, had then decided to resort to take a legal approach by filing a complaint with the Provincial Court of Petchaburi invoking Article 90 of the Criminal Procedure Code as the Black Case no. special 1/2557 asking for an emergency hearing to establish where Mr. Billy was held in custody. The Provincial Court of Petchaburi and the Appeal Court Region 7 ruled similarly that based on evidence given by witnesses including Mr. Chaiwat Limlikitaksorn and four National Park officials coupled with two student interns, it could be concluded that Mr. Billy had been released from the custody. Thus, the evidence adduced by the complainant could not convince the Court that Mr. Billy had still been held in custody lawfully. Thus, the complaint was dismissed as there was not a prima farcie case.
On 27 April 2015, Ms. Pinnapa Pruksapan, the complainant, has appealed to the Supreme Court to rebut the rulings made by the Appeal Court Region 7 on the following issues;
- The officials of the Kaengkrachan National Park were obliged to hold an offender of the 1961 National Park Act accountable, but since these officials had had dispute with Mr. Billy as they had been involved with the destruction, burning and forced eviction against the houses and properties of the Karen villagers in Ban Bang Kloy, it could have prompted the officials to not take legal action against Mr. Billy and instead had him held in custody unlawfully, the act of which could have caused damage to his right to freedom in life and body.
- In order to establish if Mr. Billy had been released from custody or not, the Court has taken evidence as burden of proof only from the officials who were authorized to hold a person in custody, but not evidence adduced by the relatives of the person being held in custody. In fact, the judiciary is obliged to perform their duties to acquire the information and evidence impartially to eventually establish if Mr. Billy had been released from custody or not. Since no arrest report had been made and neither the inventory of seized evidence nor the release record had been made, it was not credible that Mr. Billy had been released. Therefore, it is believed that Mr. Billy is still being held in custody of the officials.
- All the witnesses heard by the Appeal Court Region 7 worked under the charge and were taken care of by Mr. Chaiwat Limlikitaksorn, and their testimonies to the police were found to have contained contradictory information on major issues regarding the release of Mr. Billy. The inquiry officials have later uncovered fresh evidence that confirms that Mr. Billy has not been released. Thus, the Supreme Court was asked to allow to take additional evidence on the issues since they were new information emerging after the trials by the Lower Court and the Appeal Court Region 7, and they were so pertinent that they could have changed the ruling of the Supreme Court.
The lawyer team views that by invoking the habeas corpus right as per Article 90 of the Criminal Procedure Code, it could be a venue through which facts can be established if a person is still held in custody or if a person is still held in lawful custody or not. It could become a measure to be used to prevent an act of enforced disappearance. The problems and gaps in the trials of such cases are since the person being held in custody was held in custody by the officials, and the witnesses were mainly drawn from the officials themselves or those working under their charge, and all documentary and material evidence was held in possession of the officials, it would make it difficult for the complainant, the relatives of the person being held in custody to prove if the person was being held in custody, and if the custody was lawful or not. In principle, the burden of proof should befall the officials alleged to hold the person in custody who are obliged to prove it to the Court.
The Human Rights Lawyers Association (HRLA) deems the case bears significance to policy concerning justice process. And the state is obliged to mete our measures to effectively investigate a case of enforced disappearance to prevent its recurrence. Human rights organizations within and outside the court have demanded the police to accelerate their effort to bring the perpetrators to justice and to work independently. Even though an act of enforced disappearance is not treated as a specific offence according to the Thai law, but since Thailand has signed the International Convention for the Protection of All Persons from Enforced Disappearance, and as a state party, it is obliged to use all necessary measures to prevent enforced disappearance and impunity concerning the act of enforced disappearance.
For more information
Human Rights Lawyers Association (HRLA) 02-6930682
Ms. Waraporn Utairangsee (attorney) 084-8091997
--
