Miscarriages of Justice in Thailand

Abstract

This article reflects the situation of miscarriages in the Thai justice system, antecedents of scapegoat, impact on the scapegoat, human rights, reviving the scapegoat cases, compensation for scapegoats, and to provide policy recommendation for policy makers. The author found that the problem of “scapegoats” in the Thai justice system has been deeply rooted in Thai society for a long time. The antecedents of this problem are associated with the police, the prosecutors, and the courts. This problem has a severe impact on the mental, physical, economic, and social conditions of the “scapegoats”. Although the law provides basic principles for protecting the rights of the accused but in practice there are still problems causing the accused or “scapegoats” to not be treated and protected by the government with equality, fairly, accurately, and speed in accordance with the established principles. Even though the Resurrect Criminal Case for Reconsideration Act B.E. 2526 allows the “scapegoats” to request for a resurrect but the scapegoats must confront several practical problems. In addition, the compensation provided by the government in accordance with the law is quite small.
Therefore, government agencies should turn their attention to this problem urgently and the people who are involved in driving the policy, should pay more attention to this problem and put this as an urgent agenda for reform of the Thai justice system.

Full text

Miscarriages of Justice in Thailand
Waiphot Kulachai*
Faculty of Political Science and Law, Burapha University, Chon Buri, 20131 Thailand
Keywords:
Miscarriages, Criminal Justice,
Criminology
Article history:
Received: 21 January 2020
Revised: 17 April 2020
Accepted: 27 April 2020
* Corresponding Author
e-mail: waiphot@buu.ac.th
Miscarriages of Justice in Thailand
A r t i c l e i n f o
This article reects the situation of miscarriages in the Thai justice system,
antecedents of scapegoat, impact on the scapegoat, human rights, reviving
the scapegoat cases, compensation for scapegoats, and to provide policy
recommendation for policy makers. The author found that the problem of
“scapegoats” in the Thai justice system has been deeply rooted in Thai society for
a long time. The antecedents of this problem are associated with the police,
the prosecutors, and the courts. This problem has a severe impact on the mental,
physical, economic, and social conditions of the “scapegoats”. Although the law
provides basic principles for protecting the rights of the accused but in practice
there are still problems causing the accused or “scapegoats” to not be treated and
protected by the government with equality, fairly, accurately, and speed in accordance
with the established principles. Even though the Resurrect Criminal Case for
Reconsideration Act B.E. 2526 allows the “scapegoats” to request for a resurrect
but the scapegoats must confront several practical problems. In addition, the
compensation provided by the government in accordance with the law is quite small.
Therefore, government agencies should turn their attention to this problem urgently
and the people who are involved in driving the policy, should pay more attention to
this problem and put this as an urgent agenda for reform of the Thai justice system.
A b s t r a c t
Journal of Multidisciplinary in Social Sciences (January - April 2020), 16(1): 1-13
Journal of Multidisciplinary in Social Sciences
Journal homepage : http://jmss.dusit.ac.th
Introduction
Miscarriages of justice have always appeared in
Thai society. The innocent, who is not the real culprit as
alleged, is known as a “scapegoat” in the criminal justice.
The scapegoat or innocent person was punished because
of the shortcoming of the justice process regardless
of whether the defect in the work of a police ofcer,
prosecutor, or court. Thaweesak (2017) dened
miscarriage in justice as an arrest and conviction of
people who have not actually committed the crime. He
also stated that miscarriages of justice in Thailand have
dramatically increased. This results in a social problem
that people in society and related parties must come
together to deal with the said issue. According to Nobles
& Schiff (2017), the arrest of innocent people is basic
information in evaluating criminal investigations,
evidence search, the process of justice, conviction, and
appeal which are reections of morality and ethics in the
judicial process.
The above problems have a profound effect on
the Thai family because most people who are “scapegoat”
is a group of people who lack the bargaining power, lack

2
of ability and potential for access to justice. Moreover,
their social and economic status is an important factor
leading to being exploited by others who have more
bargaining power, including being exploited by ofcials
who aim to nd benets for themselves. The government
agencies also give little importance to solve the problem
for the disadvantaged social groups. Hence, the innocents
have lost their freedom. They experience mental trauma
and became the target of attack in the society, face
economic losses due to expenditures arising from the
ght in the judicial process, suffer from imprisonment
in correctional facilities, have limit opportunities to take
care of the family, and confronted with problems of
separation and relationships between family members.
Their families can not deal with the nancial problems
due to lack of family leaders causing some families to
live in poor conditions, experience quality of life that
is substandard. The child is not educated, and family
members who are sick cannot access good standardized
medical services. Miscarriages of justice is, therefore,
an issue that reects the failure of the Thai justice process
(Kecharoen & Phumpetch, 2017).
The said problems are caused by various factors.
The root cause of the miscarriages of justice is partly
a result of discrimination by ofcials in government
agencies. The power of “money” gives some groups more
privileges than others in the society as we can see from
the social issues that appear through the mainstream
media and social media. This reects discrimination
against people of different socioeconomic status. The
offense of the same charge, each suspect is treated
differently from government ofcials including receiving
different penalties. These incidents reect the inequality
treatment of people which is considered a violation of
the fundamental human rights, and clearly against the
principles of human rights. How should the government
or related sectors share responsibility, and how to com-
pensate those people are issues that must be considered
in detail. Although there is a Damages for the Injured
Person and Compensation and Expense for the Accused
in Criminal Case Act, B.E. 2544 but there are still many
practical problems that cause delayed compensation to
victims of “scapegoats”. Furthermore, these people were
compensated in term of monetary compensation only
(Cross Cultural Foundation, 2015).
The “scapegoat” in the judicial process is
therefore a problem that reects the efciency and
accuracy of the justice process. This may be caused by
many factors such as transparency, dark inuence,
including lack of prudence in screening the case
(Thaweesak, 2017). These causes the court to make
judgments based on the evidence appearing in the case
le leading to the punishment of innocent people. This
article therefore would like to reect on the situation of
miscarriages in the Thai justice. In this article, the term
“scapegoat in the judicial process” is used to make it
easier to communicate meaning and understanding of
miscarriages. In addition, the author will analyze the root
causes of becoming scapegoats, the impacts on the
scapegoat, human rights issues and abuse of scapegoats,
remedies and solutions to problems as well as providing
policy suggestions to those involved, including those
who have a role in determining the country's justice
administration policy.
Scapegoats: A chronic problem in the criminal justice
The problem of miscarriages in the Thai justice
system that results in the innocent becoming a scapegoat
and being punished on behalf of the actual offender is a
problem that has created a crisis of faith in the Thai
criminal justice system for a long time. It can be said that
the most well-known and affecting cases of Thai justice
system is the murder of Cherry Anne Duncan in 1986.
Cherry Anne Duncan, a high school student, disappeared
after school and was found dead later. The police
arrested four suspects in just one month consisting of
Rungchalerm Kanokchawalachai, Phithakkha Khakai,
Krasae Ploiklum, and Thawatchai Kitprayoon. The
inquiry ofcial sent the le to the prosecutor and the
prosecutor ordered the prosecution according to the
evidence created by the investigating ofcer. The Civil
Court sentenced to death the accused. However, the
Appeal Court dismissed all the suspects but all four were
still in prison while awaiting the result of the Supreme
Court's decision. In the meantime, Rungchalerm died in
prison from a heart attack prior to the decision of the
Supreme Court ruling that all four were innocent in the
year 1993. All three “scapegoats” that are alive were
released. Even though they were given freedom, Phithak
and Pichai later died from a disease from being infected
in the prison as well as Krasae who became disabled due
to a fractured spine. Subsequently, the court ordered the
Royal Thai Police to compensate for over 38 million Baht
in damages. However, is such compensation worth the
loss of individual freedom? It is a matter that society has
criticized in many different perspectives.
The case of Cherry Anne Duncan lapsed for 8
years before the police arrested the real suspect in 1995
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3
after the Court of Appeals ruled that all four “scapegoats”
are innocent. The real suspects included Suwibun
Phatpanit, Somchai Bunyarit, Sompong Bunyarit,
Samak Thubbuchacharn and Peera Wongwaiwut. They
murdered Cherry Anne Duncan due to the jealousy of
Suwibun. On 6 August 1997, the Civil Court ordered the
death penalty for Suwibun, the principle, including
Sompong and Samak. The Court of Appeal has considered
the death penalty which was consistent with the Civil
Court. Surprisingly, the Supreme Court ordered the
release of Suwibun due to insufcient evidence and there
was no testimony of being the principle. Sompong and
Samak were sentenced to life imprisonment because they
pleaded guilty to the police in the investigation and arrest
process while Somjai died before the case was brought
to the Supreme Court's decision (Isranews Agency, 2012).
When considering statistics of nancial assistance
for the scapegoats provided by the Rights and Liberties
Protection Department, Ministry of Justice, there were
97 nancial assistance to the scapegoats, amounting to
17.94 million Baht in the scal year 2015. In the scal
year 2016, there were 91 aid payments, totaling 17.48
million Baht. The number of scapegoats applying
for help each year is large. In 2015, 679 cases of
scapegoats have been led and increased to 702 in 2016,
representing an increase of 6% (Liberties Protection
Department, Ministry of Justice, 2017a). The above
information can reect that the “scapegoat” problem in
the Thai judicial process is still a problem that affects the
rights and freedoms of many innocent people and is an
urgent matter that the government must hurry to solve.
Antecedents of “scapegoats”
The problem of “scapegoat” occurring in the
judicial process is mainly related to the judicial process
of the police, prosecutors, and courts. The author will
explain the root causes of problems occurring in each
level of the justice process as follows:
Police
Police is considered as the rst part of the judicial
process to nd out the truth in a criminal case since the
police ofcers are the persons responsible for arresting
the suspects, searching for evidence, and investigating
whether the suspect was actually guilty or not. Therefore,
the work process of the police ofcers must have careful
and fair operation. In practice, the investigation ofcers
have a lot of cases in hand coupled with being pressured
by the supervisor in the performance resulting in the need
to rush to close the case. Otherwise, they will be labeled
as “incompetent” and may face disciplinary action.
Therefore, they quickly close the case by nding a
“scapegoat” to receive the sin for the true culprit. This
is consistent with the opinion of Kotruang (2001) who
said that the “scapegoat” problem in the police level is
caused by many factors. Factors include, pressure from
the supervisor, the need to create an image of how to
work effectively and can quickly arrest the suspect,
lack of prudence, carelessness, lack of consciousness
including pressure from society and various forms of
mass media. The most obvious example of an innocent
arrest by a police ofcer were the security cases in the 3
southern provinces of Thailand. During 2004-2014, there
were a total of 2,184 cases. The court had a judgment
of only 685 cases while 421 cases were dismissed
amounting for 70% of the cases. There were only 264
cases that the court found guilty (Cross Cultural
Foundation, 2015). These indicated that the police carried
out the arrest without carefulness and prudence. It is also
suspected that the cases that the court has found guilty
may include “scapegoats” mixed up or not.
From the author's point of view, “discretion” is a
major problem in the defect and wrongful law
enforcement. Police task in Thailand requires quite high
discretion because Thai police ofcers have the power
and duty to enforce the law widely. Each case is quite
different in details and it is the duty of the police to bring
the facts that occur in each case to adapt to the law. In
addition, there are many laws issued by the legislature
resulting in the police ofcers unable to study and
monitor the changes thoroughly. This leads to mistakes
in law enforcement. Finally, police ofcers need to use
discretion when enforcing the law whereas the working
environment is dangerous to the life and property of the
police themselves including the impact on the persons
involved, whether the suspects or victims (Sukhothai
Thammathirat Open University, 2013). The pressure from
their superiors or other “dark powers” leads to discretion
that does not follow the rule of law. According to the rule
of law, police ofcers must enforce the law equally and
fairly to all parties involved. The issue of discretion
inuenced by the said factors results in the police
discretion in enforcing the law that is inclined to the
party with high bargaining power, especially powerful
groups with a superior economic status. They use such
discretion in order to survive and be able to continue
their duties without being punished or transferred to
an unwanted police station. When looking at different
perspectives, police ofcers have to manipulate things
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4
in order to survive the pressure of commanders and
various forms of inuence due to lack of protection
mechanisms both in the matter of regulations and to
satisfy the supervisors. They also lack protection from
society. These factors, therefore, has led to the prevalence
of a “scapegoat” in the Thai justice system.
Another root cause of the problem is the
collection of evidence to prove the guilty of the suspects.
This is a breach of the justice process in the police level.
According to this system, other evidence indicating that
the suspects had not committed the offense will not
be brought into the investigation report. In addition,
witnesses who provide information conicting with
witnesses indicating that the suspect committed the crime
will not be included in the investigation. This shows that
investigation of a witness that provides abenet to the
accuse has been neglected. If there is an investigation, it
is often conducted in preparation to refute the testimony
of the said witness. This cause the accused to lack the
opportunity to present the facts leading to the prosecution
and wrong decision. When considering the authority of
the investigating ofcers as stated in Section 131 of the
Criminal Code, it clearly states that the inquirer must
gather all kinds of evidence that can be obtained in
order to nd the facts and circumstances relating to the
case as well as to nd the true culprit. The law does
not specify that evidence is to be collected specically
disadvantage parts for the accused (Sukhothai
Thammathirat Open University, 2013). This indicates
that the investigating ofcers do not use their own
authorities to perform their duties correctly and
completely. Therefore, there is a loophole that leads to
the occurrence of “scapegoats” in the judicial process.
Purikupt & Ketthes (2015) state that the inquirer must
also gather evidence in order to prove the innocence of
the accused because it will enable the true offender to be
punished according to the law. If the police are able to
proceed with the said steps with fairness, justice, and
comprehensive evidence, it would help reduce the
amounts of “scapegoats” in the Thai judicial process.
Finally, it is a problem that is not directly related
to the duties of the police, but of the situation that
occurres during the police investigation. It relates to the
attitudes and views of lawyers who advise the accused
not to testify during the investigation because he is afraid
that he will lose the case. Such behavior will give the
accused no opportunity to explain in order to protect
himself resulting in the investigation report leaning in a
direction that is harmful to the accused (Bunlue, 2017).
Hence, modication of the attitudes of lawyers in
these cases should be done urgently for the benet of the
accused directly.
Prosecutors
The prosecutors will scrutinize the investigation
report submitted by the investigating ofcers by
checking the completeness, quality, and accuracy of
the report before considering ling a lawsuit or not. The
problem is associated with the enormous amount of
investigation reports to be considered by the prosecutors.
This leads to careless and completely ignorance of the
investigation reports. Most prosecutors tend to consider
the reports sent by the investigating ofcer and do not
search for additional evidence by themselves (Kotruang,
2001). Therefore, there is a miscarriage which led to the
prosecution of the “scapegoat” accused in the case. The
prosecutor's system provides opportunities for all parties,
whether the victims or the accused can request justice to
the prosecutor's ofce if there are problems in the process
of justice or if there is an injustice occurring. This will
be a warning sign to prosecutors to realize that the case
is not a simple case but seems to be a complex case that
requires careful consideration.
The main problem in the prosecutor level is the
lack of legal authority to participate in the collection
of evidence. This authority belongs to the inquirer or
investigating ofcer while the prosecutor only serves to
receive the inquiry le from the inquiry ofcial after the
investigation has been completed as appears in Article
140 of the Criminal Code. Therefore, if there is a defect
of the inquiry ofcial, the person accused in that case
will immediately become a “scapegoat” in the judicial
process because the prosecutor considers the order of
prosecution or non-prosecution according to the evidence
collected by the inquiry ofcial (Purikupt & Ketthes,
2015).
Another important issue at the prosecutor's
level is a principle of prosecution. It can be said that the
principle of international criminal prosecution consists
of two principles which are (1) Lawsuit principle; when
the prosecutor has read and considered the evidence
obtained from the collection of the investigating ofcers
and then there are reasonable grounds to believe that the
accused has committed an offense, the prosecutor will
be responsible for ling lawsuit to the court in all cases.
Once the order has been led, it cannot be withdrawn (2)
The principle of discretion; when the prosecutor has read
and considered the evidence obtained from the collection
of the investigating ofcers and then there are reasonable
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5
grounds to believe that the accused has committed
an offense, the prosecutors has the power to exercise
discretion whether or not to sue the accused. In the case
where the order has been led and there are reasonable
grounds, the prosecutors may withdraw the case, but it
must be done before the judgment of the Civil Court
(Sukhothai Thammathirat Open University, 2013).
For Thailand, prosecutors will use the principle of
prosecution at their discretion which may lead to a
lawsuit against “scapegoat” in criminal justice process.
Because the prosecutor does not consider the case
carefully, it inevitably leads to the lack of important
information or evidence to prove that the “scapegoat”
is innocent.
Courts
The court is the last part of the judicial process
causing “scapegoats”. According to the law, the court
has the power to demand additional relevant evidence.
However, the amount of cases that come to court each
year is enormous causing the court to not favor the use
of its power but will mainly consider the evidence of the
plaintiff and the defendant. This may result in the lack
of determination to nd out the truth. In practice, they
perform the duty according to the law even though the
issue of the case may not be true. Kotruang (2001) states
that miscarriages occurring in the court are caused by
the judicial discretion to judge offenses based on evidence
collected by the police and have been scrutinized by the
prosecutor.
The court has an important role in judging
the case or to decide whether the defendant is guilty or
not guilty. If considered that the defendant is actually
guilty, the court will impose the penalty to the defendant.
Therefore, the judgment of the case consists of two main
points which are (1) Adjudication refers to judgment of
whether the defendant is guilty or not and (2) Imposition;
the court may use its discretion to determine six types
of punishments which are capital punishment,
imprisonment, connement, ne, forfeiture of property,
awaiting punishment or awaiting imprisonment
(Sukhothai Thammathirat Open University, 2013). In
practice, the court will consider evidence collected
from the police. In the case of “scapegoats”, most
of the scapegoats denied wrongdoing if they are not
intimidated and forced to confess to the police. Therefore,
hearing witness of both parties is necessary. Although
according to the law, the accused or defendant will
benet from the legal presumption “in a criminal case,
it must be presumed that the accused or defendant is not
guilty,” but in reality it could have a mistake in the
judgment because of creating evidence by the police
and the screening of the prosecutor might lack of purity
and justice from the beginning.
There are many criminal cases going to court
each year causing the trial to be conducted in a hurry
and lack of thorough consideration in the content of the
case. According to the annual case statistics report 2016
(The Ofce of the Courts of Justice, 2017), there were
647,664 cases (new and pending cases) in the civil court
in 2015. The number of cases slightly decreased in 2016
accounting for 634,796 cases. Although each year the
Civil Court is able to proceed with the verdict of more
than 93% but focusing too much on the target numbers
may lead to neglect of the quality of the trial. As for the
criminal cases in the Court of Appeal found that there
were up to 39,113 and 36,821 cases in 2015 and 2016
while the capacity to judge the cases excesses 88%.
According to the criminal cases in the Supreme Court,
the number of cases in 2015 was 6,784, while in 2016
it was reduced to 6,313 in which the Supreme Court is
able to complete the verdict by 75.75%. The situation
illustrates the work burden the court must take which
may affect the efciency of the judgment of the case
correctly and fairly. Hence, there is a chance that the
“scapegoat” will be convicted of a crime since there is a
lack of good monitoring due to time constraints and the
amount of work.
Impacts on the “scapegoats”
The fact that a person is a “scapegoat” even
though he has not committed a criminal offense but has
to be punished on behalf of the real culprit affects the
lifestyle of the “scapegoats” very much. The author
summarizes several aspects of the impact as follows:
First, loss of freedom. Being a “scapegoat”
causes a person to lose freedom in carrying out
their daily activities because he is imprisoned in the
correctional facilities. The opportunity to interact with
people in society especially the family is greatly reduced.
Pisit Suwanpim's words reect the pain of losing freedom.
He gave an interview to the media after having been
proven innocent in a case of stealing diamonds worth
over 15 million Baht and was held in prison for up to 7
months. He said it was ..“like death and being reborn,
throughout the period of 7 months and 10 days in prison,
I believed that I had not committed a crime and must
be judged with justice, I was in the prison with other
criminals so it took more than 2 months to accept it”
(Workpointnews, 2017).
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6
Second, loss of reputation. Thai society is a
society that is quick to judge other people without
careful consideration. Although the various cases have
not yet been nalized, a person who is accused or is a
scapegoat has no opportunity to protect his dignity and
reputation. This results in loss of his reputation which
will ultimately lead to problems in daily life. For
example, Bunleng Huatcharoen, the scapegoat in the case
of the rape of a Danish tourist in Chonburi. He was
imprisoned for up to 19 days. The police or government
agencies did not disclose that he was not an offender.
Then, the society labeled him as a bad person causing
him to be unable to nd work or to make a living. He
said in an interview with the media that “on the day I
was released, no one corrected the truth for me but the
day they arrested me, they made a big statement. I am
the victim of the media. When walking to the market,
people always ask how I got out of jail? Have you
escaped? Today I have been faced with a very difcult
life without work, and no money to raise children. When
applying to a job, no one acceptsmy applications because
I was condemned as bad person. The most important
thing is I would like a press release telling the truth to
the society” (PPTV News, 2017).
Third, family relationship problems. The innocent
has been accused and imprisoned resulting in problems
of separation or relationships of family members that are
worse until leading to dissociation in the family. For
example, the case of Sombat Khunarsa, a 41 years
old taxi driver, who was accused of jointly robbing a
motorcycle in Pak Kret district Nonthaburi province.
According to the actual situation, he himself was
threatened and robbed by the real perpetrator on that
day. Later, the Civil Court sentenced him to 15 years in
prison and to indemnify for 42,000 baht. He was
imprisoned to 2 years 3 months and 20 days while
appealing the case. On 31 August 2010, the Court of
Appeals therefore considered and dismissed the case.
The prosecutor led an appeal with the supreme court.
Therefore, he had to ght the case again. Until February
21, 2012, the Supreme Court ruled in favor of the Court
of Appeal. The case of Sombat Khunarsa resulted in a
separation of his intimate relationship. He said to the
media that “I have been in jail for more than 2 years
without doing anything wrong. In the same period, I was
also robbed by the robbers. However, I have gone through
a bad time. Today, I have been working as a taxi driver
with the hope that one day I will receive justice, fairness,
and compensation from related government agencies.
Previously, I haven’t received any Baht to compensate
what happened to me. I was imprisoned, separated, and
my daughter had to move to a new school (Manager
Online, 2014).” According to a study in Canada,
miscarriages in justice process resulted in deteriorating
family relationships (Campbell & Denov, 2004). This
was also consistent with the study of Westervelt &
Cook (2008) who found poor relationship among family
members.
Fourth, economic problem. Becoming a
“scapegoat” results in disrespect and is labeled as a bad
person in the society. This causes many “scapegoats”
victims to have a great economic impact. For instances,
the cost of ghting to prove their innocence, travel
expenses related to the case, including the lack of work
opportunities to earn income to look after the family.
Bunleng Huatcharoen’ case has clearly reected that
the loss of freedom and being labelled bad by society
obstructs an opportunity to get a job because the innocent
victims of the judicial process have already been judged
by society. Research on “scapegoats" in the United States
also reects the problem because after the “scapegoat"
is released from prison, he will face problems in nding
accommodation and job (Westervelt & Cook, 2010).
Fifth, safety issues of family members. In the case
that a family leader has become a “scapegoat" in the
judicial process, the family members lack strong leaders
to protect themselves from social disorder, especially in
the urban society. The Cherry Anne Duncan case is also
a reection of this problem. Krasae Ployklum, a scapegoat
in this case, lost his wife while the daughter was raped
and murdered. In addition, his son disappeared. This
shows that the loss of freedom of Krasae caused him
to be unable to fully protect his wife. He had no
opportunity to protect his daughter from rape and was
unable to look after his son to live happily in the society.
The disappearance of Krasae's son may be related to the
safety of life and property which Krasae didn’t even have
the opportunity to look after and protect him since he
was imprisoned.
Sixth, physical health problems. The incarceration
in a correctional facility where there is over-crowding,
lack of basic utilities, unclean water, and poor air ow
have a direct impact on the health of the inmates. In
addition, the prisoners are unable to receive the basic
rights that humans should receive. At the same time, the
government budget shortage results in sick prisoners
or scapegoats receiving insufcient care (Archavanitkul
& Vajanasara, 2017). For example, the group of
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7
“scapegoats” in the murder of Cherry Anne Duncan
faced health problems. Chalerm died in prison due to a
heart attack. Pitak and Phichai died of a deadly disease
caught in prison while Krasae became disabled due to a
fractured spine. These physical health problems were
partly caused by the police investigation since the
defendant or “scapegoat” was abused by the police to
confess including being fettered for 24 hours (Isranews
Agency, 2012). The case of Viroj Suwanee is another
case of the “scapegoat” that was coerced by police ofcers
to confess to the murder of the Chief Executive of Bang
Rin Subdistrict Administrative Organization, Ranong
Province. He was tortured with electric shock batons
resulting in being unable to walk and having poor health
(AmarinTV, 2017).
Finally, mental health problems. According to the
case of Krasae, how he can live lonely in the society
since he lost his wife, daughter, and son. How he
can adapt himself to the changing social conditions.
These are problems related to the mental condition of
“scapegoats” that are severely affected and may cause
some “scapegoats” unable to live life in society happily.
A research in England on the impact of miscarriages in
justice process toward “scapegoats” found that people
who are “scapegoats” are affected with mental disorders.
Staying in the prison for a long time causes the scapegoat
to become familiar with the environment in the prison.
When proven to be innocent and released back into
society, these people will experience posttraumatic stress
disorder (“PTSD”). They also had personality changes,
depression, worry, antisocial, and using liquor or alcohol
(Tan, 2011).
Human rights and the “scapegoats”
Under Article 3 of the Universal Declaration of
Human Rights 1948 (UN, 2020), “everyone has the right
to life, liberty and security of person.” Article 10 of this
declaration also states that “everyone is entitled in full
equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.”
The International Covenant on Civil and Political
Rights 1976 (UNHCR, 2020) also place importance on
individual rights as follows:
1. Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedure as are established by law.
2. Anyone who is arrested shall be informed, at
the time of arrest, of the reasons for his arrest and shall
be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge or
other ofcer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear for trial,
at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings before
a court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.
5. Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to
compensation.
Thailand is a country that adheres to the universal
declaration and the international covenant mentioned
above. Therefore, the laws relating to criminal cases in
Thailand are clearly dened basic rights of the accused.
Firstly, the right to be presumed not to be the offender
until there is a nal judgment showing that the said
person has committed an offense. Therefore, during the
process of being accused in a case, he or she cannot be
treated like an offender. Secondly, fundamental rights in
the consideration process which is based on an open,
accurate, speedy, and fair trial. Finally, fundamental rights
to obtain protection and assistance from the government
such as provision of attorneys to assist in the case.
Although the law provides basic principles for
protecting the rights of the accused but in practice there
are still problems causing the accused or “scapegoat” to
not be treated and protected by the government with
equality, fairly, accurately, and speedy in accordance
with the established principles (The Ofce of the
Constitutional Court, 2014). The mentioned problems
are as follows:
1. Discrimination: In the case that the accused or
suspects are poor, lacking educational opportunities, and
having little legal knowledge, they will be discriminated
by government ofcials and society in an unequal
manner. These people cannot fully access or rely on the
judicial process because the criminal justice process is
complex, formal, and high cost. People need to know the
legal process and procedures very well. Persons with
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8
limited social status and knowledge are discriminated
and their human rights are easily violated. For example,
detention, intimidation, torture to confess guilty.
2. The criminal case being used as a political tool
in the form of making an example of someone, such as
the case of Pai Dao Din, a young political activist who
was imprisoned for two years and six months for lese
majeste and computer crime. However, the others who
also share a biography of the King posted by BBC Thai
on their Facebook accounts were not convicted or brought
into the criminal justice. Therefore, it is considered the
use of “scapegoat” as a tool to create fear in society. This
indicates dehumanization which is against the human
rights principles that considers every human being is
self-worthy and has dignity. Hence, no one should be the
“scapegoat” used as a political tool (Thaweesak, 2017).
3. Lawyer assistance issues. Although the law
requires the government to provide lawyers to assist
the defendants or the accused but the lawyers that
government organizations provide for the accused are
often new lawyers who lack experience, knowledge, and
skills. As the government organizations lack sufcient
budget, the government cannot provide knowledgeable,
high caliber, and experienced lawyer to help the accused.
This is different from providing a lawyer for the accused
in the United States that the lawyer does not act on behalf
of the individual but is acting on behalf of a government
organization. Also, the lawyer in the USA has status and
profession which are not different from prosecutors.
Therefore, lawyers are highly skilled and experienced.
They work to retain true justice for the people (Thailand
Institute of Justice, 2015).
4. Media. Presentation of mainstream media and
online social media has a great inuence on the attitudes
and thoughts of the recipients resulting in an urgent
conclusion that the accused was actually the offender
and quickly condemning the accused through various
media. In addition, the accused then was unfairly
discriminated against. The accused or “scapegoat” in the
said case almost never has the opportunity to prove his
innocence. However, making crime headlines to get more
readers' attention will make people focused on the crime
news. In addition, journalists and police will have a
closer and more complex relationship because journalist
need to have a good relationship with the police in order
to benet from obtaining information for their job.
On the other hand, police have to rely on journalists to
publicize to the public that police have been working on
the case seriously (Lim, 2016). Sometimes, some police
ofcers may use the media to distort the information of
the case to benet someone who have nancial power.
The above problems reect the fact that the
accused or “scapegoats” in the judicial process were
clearly violated of the fundamental human rights in the
process of criminal justice. It is a problem that the
government and related agencies of the judicial process
must pay attention and take urgent action to solve the
problem.
Reviving the “scapegoat” cases
The promulgation of the Resurrect Criminal Case
for Reconsideration Act B.E. 2526 is considered a new
phenomenon in the Thai judicial process. According
to this law, the scapegoats will have the opportunity to
prove their innocence. However, there are details and
requirements to be followed (Liberties Protection
Department, Ministry of Justice, 2017b):
Firstly, the case to be revived and reconsidered
must be the case where the court has nally given
the verdict to the “scapegoat” to receive criminal
punishment. The punishment includes capital
punishment, imprisonment, connement, ne, or
forfeiture of property. Hence, any cases under
consideration of the judicial process cannot be brought
to resurrect and reconsideration.
Secondly, the case that will be revived for
reconsideration must meet one of the 3 conditions as
follows:
1. The witnesses in the case to be resurrected
were judged by a nal judgment that the testimony of
the witnesses was false or inaccurate. This means that
the witness must be prosecuted for false or inaccurate
testimony rst which requires considerable time in the
trial.
2. Evidence other than personal witnesses has
been sentenced that it is a fake or inaccurate evidence.
In this case, it is quite similar to the rst case as that there
must be a prosecution in the former case whether the
abduction of evidence is false and the court has ruled
that the evidence in the case is fake and not consistent
with the fact.
3. There are new witness, evidence, or any other
material evidence. However, the said evidence must not
be referred to or be a witness examination of the same
case. The new evidence must not be evidence that exists
before. For example, relatives, siblings, and neighbors
who have not come to the evidence examination of the
same case. Most importantly, the new evidence must be
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9
important enough to change the previous sentence.
Thirdly, the person who has the right to request a
resurrection of a criminal case consists of:
1. Persons subject to criminal penalties by nal
judgment.
2. Legal representative in the case that the person
who is subject to criminal penalties is a minor or an in-
competent person.
3. Manager or other representatives of the legal
entity.
4. Parents (parents, grandparents), descendants
(children, grandchildren, great-grandchildren,), husband
or wife that have a legal registration of marriage for
cases where a person died before the petition is
submitted.
5. The prosecutor who is not the plaintiff in the
original case.
Finally, the period for requesting to renew the
criminal case must be completed within 1 year from the
date of facts appearing or within 10 years from the date
of the nal judgment of the original case. In the case of
the lapse of 1 year and 10 years, it is up to the discretion
of the court to accept the request and the request can be
submitted only once. This is different from other foreign
justice systems that the request can be submitted more
than 1 time.
Thailand has the law that allows judges to le
petitions to revive criminal cases but the complaint or
request can be submitted only once as well as having
quite a number of practical problems. For example, the
rules for consideration of requests are strict, and the judge
must rely on himself to nd a lawyer and new evidence.
Although government agencies will provide lawyers, the
lawyers provided by the government are mostly lawyers
who lack experience in litigation. In addition, the
majority of the offenders or scapegoats are people with
low incomes and poor status. Therefore, they lack
understanding of the details of the law causing most
of the court to dismiss the petition (Dittharoen &
Amornsilsawat, 2017). After the said law came into
effective in 1983, a total of 29 cases had been requested
for resurrect and reconsideration. However, the court
dismissed all petitions (Wichitwejakarn, 1984).
Another practical problem is related to article 6
(2) of the Resurrect Criminal Case for Reconsideration
Act B.E. 2526. It clearly species protection for the
minor and the incompetent and gives power to the
representatives of the minor and the incompetent to le
a petition to revive the criminal case. However, in the
case of a quasi-incompetent person, that person will
have to le a complaint in person or may request the
prosecutor to le the case instead. The person is not able
to have his own representative to submit the request
resulting in inconvenience to such person. Article 6(4)
of the law also causes practical problems and is still
inconsistent with the changing social and economic
conditions of the country. The said section states that in
the case that a sentenced person has passed away, the
person who will be responsible for ling a petition to
renew the criminal case must be parents, descendants,
husbands or wives of the convicted person only.
However, in the case of a single person whose parents
have died, no person or representative can le a
complaint. Hence, reviving the case cannot be
proceeded to preserve the image or reputation of other
people who are affected by the judgement of the court
(Leungrattanacharoen, 2005). The Bangkok Business
Newspaper (2014) also stated that the Resurrect Criminal
Case for Reconsideration Act B.E. 2526, enforced for
more than 30 years, cannot actually be enforced.
In the author's perspective, the court dismissed
all the petition ling to revive a criminal case for
reconsideration results from conict of thought between
implementation of the justice process with purity,
fairness, and equality and the court image. If many
cases are resurrected and clearly proves that the verdict
is truly innocent, these will have a severe impact on the
credibility of the court and the justice system as a
whole. Reviving the case to prove the innocence of the
“scapegoat”, therefore, is quite difcult under the laws
and customs of the Thai justice process.
Compensation for the “scapegoats”
Compensation provided for the “scapegoats”
which have been proven innocent in Thailand is
considered as “less than it should be” as compared to
general international standards. According to the
Damages for the Injured Person and Compensation and
Expense for the Accused in Criminal Case Act, B.E. 2544,
it species the compensation as follows:
1. General cases: For general cases, the nancial
compensation includes the payment of 200 or 500 baht
per day that is calculated from the date of detention at
the rate stipulated by law, medical expenses resulting
from legal proceedings as actually paid but not more
than 40,000 Baht, the cost of physical and mental
rehabilitation as actually paid but not more than 50,000
Baht, the lack of benet from the date of inability to
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10
work will be paid by the minimum wage in the area where
the defendant lives, the attorney fees actually paid depend
on the type of case that the law requires, other expenses
in litigation that are actually paid but not more than
30,000 Baht, and room and food expenses during the
medical treatment which are not more than 1,000 Baht
per day.
2. In case the defendant has died, the
compensation includes nancial compensation of
100,000 Baht, funeral expenses 20,000 Baht,
maintenance expenses not more than 40,000 Baht
including other damages, such as compensation for
mental rehabilitation of descendants not more than 40,000
Baht.
According to the compensation statistics during
2014-2016, there were over 200 payments for
“scapegoat” remedies totaling over 40 million Baht. In
2014, 110 cases were paid (23.5 million Baht), 45 cases
(7.7 million Baht) of 2015, and 60 cases of 2016 (10.3
million Baht). Even though the government has paid a
certain level of compensation but what the defendant
received in cash was considered very small and no one
wanted to face this kind of situation since he was
imprisoned, lacked independence to be with children and
wife, lost income, lost reputation and image which
nally may lead to the failure of that person's life
(Sudsao, 2017).
Policy recommendations
The situation of the “scapegoat” problem in the
justice process has resulted in a “crisis of faith” to the
Thai justice system. Therefore, it is very important that
the government, including relevant government agencies,
to nd ways to solve problems in order to maintain
fairness for people in society equally and equitably. In
this article, the author suggests several ways to solve the
“scapegoat” problem in the Thai judicial process as
follows:
First, the concept of alternative justice should
be applied in the judicial process. This concept places
importance on the role of communities to participate in
the criminal justice system. Nowadays, the mainstream
justice process has encountered many problems causing
the people to lack condence in the judicial process,
and nally becomes a “faith crisis” against the criminal
justice system. Asawanon (2012) said that applying these
principles will help “scapegoats” in the judicial process
to receive fairness. In addition, this will help in reducing
the amounts of offenders in correctional facilities. It also
helps to reduce the “over-crowded prison” problem that
Thailand is experiencing.
Second, the introduction of modern technology
in the justice process. For example, using modern
technology to record testimony that shows both images
and sounds. Adopting audio-visual technology can help
in solving problems of human errors which will directly
benet the accused. Normally, the police record the
testimony by themselves so there may be a discrepancy
in the message. Although the audio-visual technology
has been employed in the Bankruptcy Court for over 10
years, but the technology has not been widely used
in the Criminal Court. Using video in recording the
testimony helps to reduce staff mistakes very well.
Most importantly, the prosecutors and judges can see
emotional images and listen to the voice of the accused
which are more realistic compared to just reading the
report.
Third, the structural reform of the Royal Thai
Police which allows investigative ofcers to have an
independent role from the interventions of political
parties and high ranking supervisors who have a close
relationship with the real offender. In addition, career
development plans should be established for these
investigative staff to have more opportunities for career
advancement than they currently do. This will create job
motivation among investigators and recover the dignity
of those who really want to work for social justice.
However, if unable to do so, establishing the Investigation
Bureau as an independent department should be
considered in order to have roles and duties which show
professionalism. Furthermore, there should be capacity
development of those investigative ofcers to be experts
without transferring to other areas of work.
Fourth, modication of the lagging law to be more
modern by providing the authority for prosecutors to
participate in investigations in order to obtain accurate
evidence. It will encourage the collaboration between
the two agencies which will help prevent the creation
of false evidence to condone “scapegoats.” It is like
working together, but there is check and balance of each
party's actions to not proceed in an unlawful manner.
Fifth, the use of forensic evidence to help prove
the facts. The problem in the murder of Cherry Anne
Duncan is a major turning point in the performance of
the police since it results in prudence in the mapping of
the incident, more systematic evidence collection at the
scene, and the use of forensic evidence used to prove the
wrongdoing of a person.
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Miscarriages of Justice in Thailand Kulachai

11
Sixth, changing the policy regarding “scapegoat”
remedies without focusing on money but should focus
on the mental rehabilitation of the "scapegoats" that are
released into society. These people who have been in
prisons for a long time may be socialized by the
environmental conditions in the prison. This will shape
their personality, thinking, as well as attitude towards
society, government ofcials, including people in the
community. In addition, professional skills should be
promoted so that these people can have work to earn their
own living to support their family members. At the same
time, monetary compensation or remedy should be
adjusted in line with current economic and social
conditions.
Finally, there should be intense punishment for
ofcials performing their duties with a lack of prudence,
morals, and work ethics. This is to prevent these ofcials
from performing their duties regardless of the impact on
the lives of innocent people and to eliminate bad ofcials
from Thai society. Hence, the image of the Thai judicial
process can be restored.
Conclusion
The problem of “scapegoats” in the Thai justice
system has been deeply rooted in Thai society for a long
time. The Cherry Anne Duncan murder is a turning
point in Thailand. The police, prosecutors, and the court
nowadays have to focus on making investigation report,
screening the report, and judging the case with prudence.
However, there are still “dark inuences” or other factors
that cause the “scapegoat” problem to be seen in Thai
society. This problem has a severe impact on the
mental, physical, economic, and social conditions of the
“scapegoats”. Therefore, government agencies should
turn their attention to these problems urgently because
it is a problem that affects the fundamental human rights
of the people which Thailand is one of the countries that
have to comply with the Universal Declaration and the
relevant international agreements. People who are
involved in driving the policy, should pay more attention
to this problem and put this as an urgent agenda to reform
the Thai justice system. Then, the credibility and image
of the Thai justice system could be restored by treating
all people equally, equitably and fairly.
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